texas_law_books_bannerThis case law update focuses on Alvarez v. Alvarez, an April 2015 case out of the San Antonio Court of Appeals. Husband filed for divorce on the no-fault grounds of insupportability. Wife answered but failed to appear at the final trial setting. At the default prove-up, Husband failed to state grounds for divorce. Generally, he would say “The marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship. And, there is no reasonable expectation of reconciliation.” (Or, his lawyer would ask him a question along those lines.) But, in this case, that question was not asked and the Husband never stated grounds for divorce and never said the word “insupportabiliy”. The Wife appealed the default judgment – the reason, insufficient evidence to support the granting of divorce.

The San Antonio Court of Appeals agreed with Wife and reversed the default judgment. They held that there must be some evidence of grounds for divorce. If divorce on the no-fault grounds of insupportability is requested, the party must provide evidence that 1) the marriage has become insupportable due to discord or conflict, 2) that discord or conflict destroys the legitimate ends of the marriage ; and, 3) that there is no reasonable expectation of reconciliation. Without this evidence, testimony that the parties are separate and living apart is insufficient to support the divorce.

The lesson to be learned here is to always ask all of the questions at the divorce prove-up, especially in a default trial. If you don’t know all of the questions to ask, find a script. Or, do what I did 20+ years ago when I was learning the ropes as a Dallas divorce lawyer, go sit and watch prove-ups at the courthouse and listen to as many as you need to until you have it memorized. Take notes, if you must. But, always do the prove-up right. It could cost you and the client time, effort, and money if you mess it up.

Alvarez v. Alvarez, 2015 WL 876863 (Tex App. – San Antonio 2015, no pet. h.) (mem. op.).

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.