Texas starts 2022 with three new district courts.

The 478th Judicial District Court of Bell County will be in session on the first Mondays in January, April, July, and October. This court will have concurrent jurisdiction with the 27th, 146th, 169th, 364th, and 426th Judicial District Courts currently serving Bell County. No judge as been appointed for this court yet.

The 481st Judicial District Court of Denton County is a general jurisdiction court. Judge Crystal Edmonson Levonius was appointed by Governor Greg Abbott to serve as judge of this court. Judge Levonius will be up for election in November 2022.

The 485th Judicial District Court of Tarrant County is a general jurisdiction court with preference for criminal cases. No judge has been appointed for this court yet.

The next wave of new courts will go online in September and October 2022.

The 476th Judicial District Court of Hidalgo County and the 483rd Judicial District Court of Hays County will begin September 1, 2022.

The 474th Judicial District Court of McLennan County and the 480th Judicial District Court of Williamson County will begin October 1, 2022.

The 87th Texas Legislature added more courts for 2023.

The 475th Judicial District Court of Smith County will begin January 1, 2023. Several County Courts at Law will also begin.

As Texas continues to grow, it is expected that the Texas Legislature will take up creation of new courts during its 88th Session beginning January 2023. For now, our judiciary will continue working diligently in 2022 with the help of a few more courts.

Enforcements actions can be a source of confusion for many. While enforcement actions actually allow for many different remedies, many view them in the family law context as being simply synonymous with contempt of court.

Enforcement is the act of compelling observance or compliance with a law, rule or obligation. An enforcement case in family law compels compliance with a court order.

So if enforcement of a judgment is the right – what are the remedies for that right? Remember that at law a right goes with a remedy (or more than one remedy). A legal remedy is the MEANS by which a court of law enforces a right. “For every right there is a remedy. Where there is no remedy, there is no right.” (William Blackstone)

Generally, remedies are in two broad categories – judicial remedies or those that a judge can award — versus extrajudicial remedies or self-help that keeps people out of the court system.

Judicial remedies generally fall in 3 categories – monetary damages, declaratory relief, and equitable remedies like injunctions or specific performance or even contempt of court.

In this continuing legal education presentation, I discuss the different remedies for enforcement beyond contempt. I also deep dive into contempt actions — how to prosecute them, how to defend them and how to appeal them.

This presentation is approved for 1.0 hour of CLE credit by the State Bar of Texas.

Watch here: https://fb.watch/9rW1HFWQLW/

Here’s my written notes from the presentation: Enforcement versus Contempt

When are you entitled to a jury trial in family law cases?

Only 11 states allow jury trials for divorces. Texas is the only state that allows a jury trial for custody matters. The Texas Constitution guarantees your right to jury trial in civil cases.

The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

TEX. CONST. ART 1, § 15.

The Texas Constitution further states:

In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.”

TEX. CONST. ART 5, § 10.

What can a jury decide in a divorce?

A jury can give binding verdicts on limited issues a divorce. A jury can determine the grounds for divorce. Texas has seven grounds for divorce which are found in chapter 6 of the Texas Family Code. The grounds are divided between no-fault grounds and fault grounds. The three no-fault grounds are: 1) Insupportability; 2) Living apart for three years or longer; and 3) Confinement to a mental hospital where one spouse has been confined for at least three years and it is unlikely that, if adjustment occurs, a relapse is probable. The four fault grounds are: 1) Cruelty; 2) Adultery; 3) Abandonment; and 4) Conviction of a felony.

A jury can also determine the character of property. Is the property separate property? Is the property community property? Is the property mixed character such that it is part separate property and part community property? The jury can determine the value of the property with the jury question being similar to: “State in dollars the value of Property X.” A reimbursement claim by one marital estate to another marital estate, as well as whether an offset against such reimbursement claim exists are also a jury questions.

A jury is prohibited from giving a binding verdict on the following matters: how the property will be divided between the parties; whether a premarital agreement is unconscionable; attorney’s fees to be awarded; and costs of court to be awarded.

What can a jury decide in a suit affecting the parent-child relationship?

Child issues come before the court when married parents get divorced and the Suit Affecting the Parent-Child Relationship (SAPCR) is combined with the divorce. Child issues also come before the court when unmarried parents file an original SAPCR or when unmarried or formerly married parents file a petition to modify the parent-child relationship.

A jury can decide the following child related issues:

  1. Whether a party will be appointed a sole managing conservator and the identification of which parent will be appointed the sole managing conservator;
  2. Whether the parties will be appointed joint managing conservators;
  3. Whether a possessory conservator will be appointed and the identification of that possessory conservator;
  4. Which joint managing conservator will have the exclusive right to designate the primary residence of the child;
  5. Whether there will be a geographic restriction on the primary residence of the child; and
  6. If there is a geographic restriction, determination of what that geographic restriction will be (i.e., State of Texas; Dallas County; Collin County and counties contiguous to Collin County).

A jury cannot give any opinion on issues regarding parentage, child support, the terms or conditions of possession or access, or what rights and duties the conservators will have (not including who has the exclusive right to determine the child’s primary residence).

Many factors go into deciding whether to ask for a jury trial. While Texas gives litigants the opportunity to have the case decided by a jury, knowing what a jury can actually decide is a helpful starting point when analyzing your case strategy.

 

Our October monthly free lawyer’s continuing education presentation focused on new cases and legislation affecting Texas family law.

Here’s a link to watch the video on Facebook: https://fb.watch/8SJMhZFiJF/

Here’s the presentation with all the details: What’s New in Texas Family Law This Fall?

Here’s a link to Elisa Reiter’s excellent articles about the new legislation (read them together because the second article updates the first one):

TexasLawyerRevisionstotheTexasFamilyCodethatEveryAttorneyShouldKnow

art-texas-lawyer-governor-abbott-vetoes-bill-requiring-standardization-of-protective-order-applications-7-20-21

 

 

When an exchange is not used, a tracer would not be able to determine the market rate the cryptocurrency was sold for (dollars per Bitcoin), as market rates very based on whether a cryptocurrency is sold on an exchange, a cash-escrow website, or in person.  Exchanges have the lowest market rates, and are generally the most cost-effective, but offer the least privacy. If a tracer can obtain the transaction statements from an exchange, the tracer is in the best possible position to trace assets. Cash-escrow websites or services offer cryptocurrency in exchange for cash deposits at banks, wire transfers, and even cashier’s checks, money orders, and cash by mail. However, the market rate for cash-escrow services can be 20-30% higher than exchange market rates, and determining whether such a cash-escrow website was used as opposed to a personal sale is extremely difficult. Personal sales literally involve handing of cryptocurrencey  over for other items of value (including cash and other cryptocurrencies), and would have no record as to the dollar per Bitcoin rate applied to the transaction. These disparities make distinguishing the transfer and holder of the remainder address very difficult. Below is are three examples demonstrating how the method of transfer clouds the value Seller retains. First is a classic exchange sale, second is the cash-escrow sale, and third is the personal sale.

  1. Exchange: The market rate on the exchange for 1.0 BTC is $5,000.00.  Seller transferred 0.75 BTC, to an unknown address (3Uk), and 0.25 BTC to another address (1Ru). On that date, Seller received $3,750.00, which was wired into Seller’s bank account from the exchange.  There is an online index of the market rate for BTC over time. It is highly likely that the remainder address is Seller’s, and not a second buyer, because 75% of $5,000.00 is $3,750.00. If the exchange transaction records are available, they would establish whether seller sold 0.75 BTC or 1.0 BTC, and the remaining account balance, removing uncertainty.  However, exchanges can also transfer funds out to a sellers backup or secondary public accounts that are not in an exchange (such as 3fR in the next example), and all transfers made from that account would not be available through exchange records, leading to problems similar to those set forth below.
  2. Cash-Escrow: The market rate on the cash-escrow website for 1.0 BTC is between $6,000.00 – $8,000.00 (this is determined on a buyer by buyer basis and varies greatly from sale to sale).  On the date of sale, Seller transferred 0.75 BTC, to an unknown address (3Uk), and the 0.25 BTC in 1Ru to an unknown third public address (3fR). 3fR could truly be a second buyer, or it could be a secondary or backup public address belonging to Seller.

            1uS

        (1.0 BTC)

     ↓             ↓

  3Uk               1Ru

(0.75 BTC)   (0.25 BTC)

Buyer 1              ↓

3fR

(0.25 BTC)

Buyer 2 (or perhaps Seller?)

Seven money orders made out to cash were received by Seller, each for $999.99 each (dodging ID requirements by $0.01), for a total of $6,999.93, but Seller cashed all of them at random check cashing locations, and only deposited $5,000.00 into his bank account (pocketing $1,999.93). There is no record of the cash amounts or movement.  Seller claims to have sold 1.0 BTC in two sales, one for 0.75 BTC to 3Uk and one for 0.25 BTC to 3fR, at the previously used “exchange” market rate for $5,000.00 per Bitcoin. In this scenario, Seller claims 1Ru’s balance belongs to another, 3fR, when in reality 3fR belongs to Seller.

  1. Private Sale: There is no market rate.  On the date of sale, Seller transfers 0.75 BTC, to an unknown address (3Uk), and the 0.25 BTC  balance in 1Ru to another unknown address, 3fR. In reality Seller traded 0.75 BTC for 18 ETH into an secret Ethereum public address (wallet), and kept 0.25 BTC in Seller’s 3fR account. Ethereum is another cryptocurrency, and for this example has a value similar to 0.75 BTC, or $3,750.00, with BTC’s exchange market rate at $5,000.00.  The next day Ethereum jumps 34% in price, and Seller sells all 18 ETH in person for cash for $5,000.00 to a stranger, depositing this amount in the bank immediately. Seller still retains the 0.25 BTC in 3fR, but claims to have sold 1.0 BTC for $5,000.00, defrauding the estate. Nobody can prove 3fR belongs to Seller, all they can show is Seller deposited the market rate for Bitcoin, $5,000.00, into the bank account one day after the transfer.

Given the difficulties in distinguishing the nature of the remainder address and subsequent transfers, for all Seller knows, the owner of the 1Ru and 3fR public addresses could be their next door neighbor, or someone on the other side of the globe. The remainder address problem is not the only issue cryptocurrencies raise in family law cases. The third article in this series will address additional methods of hiding cryptocurrencies, hiding gains, and additional dangers they pose in divorce cases.  

*Remainder addresses are also commonly referred to as “change addresses.”

**Paper wallets and other hardware wallets compound this problem, as no screenshots or records would be available.

 

What are the top 10 cases involving Texas LGBT rights in family law cases? Let’s discuss the relevant US Supreme Court cases involving LGBT rights and then move to the relevant Texas cases.

Here’s a link to my video: https://fb.watch/7vHXl76g1g/

Here’s a link to my pdf that I used during the presentation: Top 10 LGBT Texas family law cases

I heard from several judges that there are many lawyers across the state that aren’t clued into the new discovery rules and are messing things up. They asked me to redo my presentation so there would be one link and one place to go to learn about them. So, I did!

Here’s the link to the video on FB Live: The New Discovery Rules Six Months Later.

Here’s the pdf download of the slides from the video: A Practical Guide to the New Mandatory Discovery

Here’s the Motion for Protection that we filed when someone sent us an RFD on a new rules case. [will upload soon — check back]

Here’s the Notice of Exemption that we filed on an “other action involving domestic violence” exempting from the Initial Disclosure rule. Notice of Exemption

Here’s link to the new 2021 discovery rules since they aren’t in the books yet.

In an opinion today that will no doubt cause a Pandora’s Box to open in the family courts, the Texas Supreme Court held that “as agreed” possession orders are authorized, valid, and constitutional. Based on the broad and undefined standards of “good cause” and “best interest”, a possession order that gives one party unlimited and complete discretion over the other party’s access to the child is perfectly acceptable. Here’s some quotes from this sweeping opinion:

Read the case here: IN THE INTEREST OF J.J.R.S. AND L.J.R.S., CHILDREN

“While we understand the gravity of imposing a severe restriction or limitation on access to one’s children, we nevertheless conclude that the trial court did not abuse its discretion in vesting the managing conservators with complete discretion over Mother’s access to the children.”  (Opinion at 7.)

“In other words, once a trial court determines that good cause exists for a nonspecific order, the only question left is whether the extent of the restriction or limitation under section 153.193 is in the best interest of the child.” (Opinion at 10.)

“Mother next argues that if a total denial of access serves the children’s best interest, the trial court must terminate the parent-child relationship instead of creating a possessory conservatorship that amounts to an effective denial of access. Again, the trial court’s order was not a denial of access [because she could seek to modify in the future].” (Opinion at 15.)

“Whether a set of broad, enforceable guidelines is preferable to an order granting discretion to the managing conservators requires a case-by-case determination of the child’s best interest.” (Opinion at 15.)

“Thus, while an order must be ‘clear, specific, and unambiguous’ to be enforceable by contempt, it does not follow that every order less than that is invalid.” (Opinion at 18.)

“…[T]he Code does not require – nor have we ever held – that trial courts must issue orders that are always enforceable by contempt.” (Opinion at 18.)

So the questions to the family lawyers out there: Does this effectively reverse Slavin’s requirement of specificity? Or at least put Slavin on the bench warming the seat? And, will this give trial court’s even more discretion to do whatever they want with out any boundaries whatsoever?