BEGINNING THE FAMILY: INFANCY ISSUES IN MATRIMONIAL LAW
HONORABLE MARTHA TANNER
SAYLA “COURTHOUSE TOUR” SEMINAR
October 10, 2002
San Antonio, Texas
TABLE OF CONTENTS
Overview And Judicial Practice Tips..................................................................................3
II Major Issues In Temporary
Jurisdiction and Initial
Status Jurisdiction/Subject Matter Jurisdiction
Personal Jurisdiction/Property Division
Personal Jurisdiction/Child Support/Custody and
Joint Managing Conservator (JMC) v. Sole Managing Conservator (SMC)
Variable Rights and
Choice Of Conservator
Possession and Access/Visitation
Standard Possession Order (SPO)..............................................................15
Enforceability of the Temporary Order/Rule 11 Agreement/ Attorney’s
Appendix: Client Divorce Info Form/Monthly Expense Sheet/State of Texas
2002 Employed and Self-Employed Persons Tax Chart
Overview And Judicial Practice
paper is to guide the lawyer who occasionally finds him or herself involved in a
divorce case for friends or relatives and who has been promised that, under,
ABSOLUTELY NO CIRCUMSTANCES, will the case be contested.
EVERYTHING HAS BEEN AGREED UPON and the spouse will simply sign ANY
papers put before him or her. BEWARE!!!!!
first caveat should be FIND your client’s WARTS.
Every prospective client has something you need to know before you get in
the courtroom or before beginning negotiations.
Ask your client for the very worst things his or her spouse is going to
say about your client. Contrary to
popular belief, competent attorneys do woodshed their clients.
Ask him or her questions you expect the other counsel to come in with and
suggest HOW to answer and still tell the truth.
certain you have your client prepared and all potential witnesses on standby for
a custody dispute. Never believe for a second that custody cannot become an
issue. Custody is often the most
important issue, and you can generally expect that whatever happens to your
client in Temporary Orders will be the result in a hearing on the merits.
the client’s income and living expenses.
Be certain your client completes a sheet, preferably typed, regarding all
living expenses and debts, with the minimum monthly payments.
Have copies for opposing counsel and the Court.
Know the spouse’s income. Be
certain to ask about bonuses, commissions, auto allowances, cost of health
insurance, etc. Type an exhibit
showing the gross income, allowable deductions, net income and what you believe
the guideline for child support should be.
A proposed draft of both is attached.
If you get the Judge working from your figures, you are in the
winning seat. Remember, most
attorneys think the Judge has time to compute the net income and the percentage
of child support that should be paid. Most
of the time, the Judge’s calculator is on the blink-- if they can even find
let your client determine what items of property they want to retain the use of
for Temporary Orders. You will, of course, be guided by your client’s wishes, but
they are probably unrealistic. Try
to calculate the amount of income your clients will reasonably have after
considering child support, alimony or spousal support and THEN see what
they can realistically afford.
NOT agree to ANYTHING on Temporary Orders that you do not want to live with on
Final Orders. The sole exception to
this might be a house that your client cannot afford, but for custody reasons,
it is best to keep the child in the home with your client on a temporary basis.
sure your Original petition requests attorney’s fees, reimbursement and
separate property claims. Most of
us forget to look at our live pleadings more than seven days prior to trial then
get them amended. Don’t get to
trial only to find out your client had $100,000.00 in a bank account when first
married it’s still there and you have no separate property pleadings.
“MALPRACTICE MANOR” looms on the horizon.
assure your client that you will get interim fees and costs from their spouse
unless you are certain that there is a fund from which the Judge can assess
these costs. Be sure you can show
the Judge from whence these funds will come--
i.e. Stock account (see
tax ramifications), checking, savings or money market account.
No Judge is going to pull it out of income unless there is an abundance
of money. Of course, there never is
in the throes of separation. They are much more inclined to take care of the
children than pay your fees or costs.
your client will not show up with the documents that you are going to need for
the final agreement or trial. Make
certain your client brings you the parties’ tax returns for the past several
years, W-2's, deeds, car titles, etc... to the initial conference.
If you cannot obtain these through your client and you need them for the
Temporary Hearing, be certain to issue a Subpoena Duces Tecum to the other
spouse and announce “Ready” subject to your subpoena.
You should NEVER keep the originals.
Make certain your staff makes copies and return the originals.
Do this while the client waits. Your
client will always swear that you kept the originals when they get lost in their
move, so be certain you can show them the copies and show them a copy of your
office policy in this regard. If
you represent the Respondent in a Temporary Hearing, remember time is of the
essence. As a matter of office practice, instruct your secretary to
ask the client to bring all of these documents.
Give your clients the “Expense And Debit” sheet to complete and
return to your secretary within 24 hours.
you allege fault in the breakup of the marriage (i.e. adultery, cruelty, etc.),
be sure that you can prove these allegations at trial.
Nothing frustrates a Judge quite as much as anticipating a reason why
he/she should make a disproportionate division or sock one of the parties for
extra sums of money to get the other spouse through some counseling, only to
find out your client was called a dirty name by the next-door neighbor and your
client’s spouse didn’t go next door and demand satisfaction with dueling
pistols at dawn.
the estate of the parties is complicated, such as one involving a family
business, immediately involve experts to assist with evaluations.
Often income from a closely held business is difficult to determine, so
run, don’t walk, to a CPA who can explain to the Court the ‘true’ income
of the other spouse. Remember
“never on Sunday” is the best rule you can operate under.
Never, never give tax advice. Many
divorces involve tax problems, and unless you have special expertise in this
area, demand your client consult with a CPA or tax attorney.
do not ask the Judge to limit or deny visitation for a child over the age of
three without bringing an expert to show why and how visitation should be
limited. If your client’s
lifestyle and needs do not mesh with the Standard Possession Order, be ready to
give the Judge an alternative. DO
IT IN WRITING so that a Judge can follow it and make a ruling that does fit.
If the child is under three years of age, expect the Judge to give
frequent but short periods visitation, absent abuse or danger.
there is any possibility of physical violence, you should suggest supervised
visitation at either S.A. Kid’s Exchange (334 W. Mistletoe; Central San
Antonio; 733-3349) or KidShare (4245 Center Gate;
N.E. San Antonio; 946-8524), or some other appropriate exchange.
Both work on a sliding fee scale, according to income of the parties.
This will also provide you with an independent witness so you don’t
have to leave the Judge to a swearing match trying to determine the true facts
of how an altercation occurred.
certain to check the Spousal Support statute, as spousal maintenance is now
eligible for withholding/garnishment. In
addition don’t forget to tell your client that he or she must apply for a job,
otherwise, your client is OUT OF THE WATER under the statute.
The most important advice you can give your client is to KEEP THEIR MOUTH
SHUT!!! DO NOT VOLUNTEER
ANYTHING!!! LISTEN TO THE QUESTION
AND ANSWER ONLY WHAT IS ASKED, UNLESS YOU ARE DOING THE ASKING.
you and your client are conferring with the other counsel, tell your client his
or her kneecaps are in mortal danger if they say ANYTHING to their spouse or to
the other attorney without running it by you FIRST.
Do NOT talk to the spouse about settlement terms.
your client that first impressions are important and to dress appropriately for
Court. The “itsy bitsy teenie weenie yellow polka dot bikini”
will not impress the Judge. Remind
them too that their reactions to the testimony of others is being observed by
the Court, and that sarcasm, facial expressions, body language and outbursts
usually work against them.
Major Issues At Temporary Orders
Jurisdiction and Initial
is crucial at the initial filing of the divorce or suit affecting the
parent-child relationship. As such,
a respondent must raise any challenge to the issue in his or her initial
pleading. The intricacies of the
various acts dealing with property and child custody and support issues are
enormous and convoluted and a comprehensive approach is well beyond the scope of
this paper. However, there is at
the base level a dichotomy between the issues-- that of dissolution of marriage
(property issues) and that dealing with the child(ren) of the marriage (custody,
visitation and child support). The
threshold issue upon the filing of a petition for divorce with children is
whether or not there is jurisdiction over the respondent sufficient to allow the
proceeding to go forward. This
question is more complicated than it seems and deals with multiple sections of
the Texas Family Code and related federal legislation.
These issues only come up if the non-filing party does not reside in the
State of Texas.
1) General Rule-- Residency
The general rule is quasi-jurisdictional in
that a suit for divorce may not be maintained in the state unless at the time
the suit is filed either the petitioner or respondent has been domiciled in
Texas for at least six (6) months and a resident of the county in which he or
she filed for at least ninety (90) days. TFC
§ 6.301 The proper method to challenge this residency
requirement would be a plea in abatement.
A plea in abatement and dismissal is mandatory when divorce petitioner
has not met durational county residency requirements.
Cook v. Mayfield, 886 S.W.2d 840 (Tex.App.-- Waco 1994, no writ).
But, while residency requirements are not jurisdictional, they must be
met before rendition of the divorce.
McCaskill v. McCaskill, 761 S.W.2d 470 (Tex.App.-- Corpus Christi
1988. writ denied).
As a matter of practicality, it can be argued that a divorce with
children should proceed in the county in which the children reside, assuming the
residency requirements can be fulfilled by the time of rendition.
However, keep in mind that usually the “first-filed” divorce
establishes dominant jurisdiction (McAlister v. McAlister, 75
S.W.3d 481, 484 (Tex.App. – San Antonio 2002); but
“second-filed” Court may find an estoppel on facts, if you can demonstrate
unreasonable delay in service of citation.
Clawson v. Millard, 934 S.W.2d 899 (Tex.App. -- Houston [1st
Dist.] 1996, no writ).
2) Status Jurisdiction/Subject Matter
Jurisdiction -- The Texas Family Code further provides that the Court may
make a “status adjudication,” divorcing the parties per §6.301 of the Texas
Family Code, even if the spouse is a non-resident of the State.
The Court may exercise personal jurisdiction over a non-resident
respondent, per §6.305 of the code if Texas is the last marital residence or
there is an y basis consistent with the constitutions of this state and of the
United States, regarding such personal jurisdiction.
A Court may exercise subject matter jurisdiction only for those portions
of the suit for which it has authority, as limited by the required personal
jurisdiction over a nonresident respondent, the required jurisdiction under the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) or the required
jurisdiction under the Uniform Interstate Family Support Act (UIFSA).
In all cases, the Court must have personal jurisdiction to render an
Order for child support or divide out-of-state property.
3) Personal Jurisdiction-- Property
status or subject matter jurisdiction in dealing with a nonresident respondent,
however, may not provide complete relief to the spouse seeking a divorce from
the non-resident defendant who has no minimum contacts with the State of Texas.
While the Court may have the ability to adjudicate the parties’ status
and grant the divorce, it may not have jurisdiction to adjudicate the parties’
rights and divide property if it is found that there is no personal jurisdiction
or long-arm jurisdiction over the non-resident respondent.
In order to challenge personal jurisdiction over a non-resident
respondent, as in any case, the respondent must file a special appearance prior
to any general appearance. While a
general appearance will of course waive any challenge to personal jurisdiction,
if the Court sustains the Respondent-spouse’s special appearance (ruling that
the Court does not have personal jurisdiction over the non-resident Respondent),
the Court should not have jurisdiction to divide the marital estate. Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998);
Hoffman v. Hoffman, 821 S.W.2d 3 (Tex. App.—Fort Worth 1992, no
writ). The Court explains the rule
in Texas as follows:
the trial court in a divorce proceeding has no personal jurisdiction over the
respondent, the trial court has the jurisdiction to grant the divorce, but not
to determine the managing conservatorship of children or divide property outside
the State of Texas.” Citing
Comisky v. Comisky, 597 S.W.2d 6, 8 (Tex.Civ.App. -- Beaumont 1980, no
writ). It may also lack
jurisdiction to divide property within the state.
See Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584
to Texas Family Code, §102.011, the Court can establish personal jurisdiction
over the non-resident respondent or over that person’s personal
representative, although the person is not a resident or domiciliary of this
That person is personally served with citation in this state;
The person submits to the jurisdiction of this state by consent, by
entering a general appearance, or by filing a responsive document having the
effect of waiving any contest to personal jurisdiction;
The child resides in this state as a result of the acts or directives of
The person resided with the child in this state;
The person resided in this state and provided prenatal expenses or
support for the child;
The person engaged in sexual intercourse in this state and the child may
have been conceived by that act of intercourse;
The person registered with the paternity registry maintained by the
bureau of vital statistics as provided by Chapter 160 [Uniform Parentage Act]; or
There is any basis consistent with the constitutions of this state and
the United States for exercise of personal jurisdiction.
-- Child Support/Custody and Visitation
requirements to establish long-arm jurisdiction (over a non-resident Respondent)
for the purposes of establishing child support or determining parentage are
addressed in the Uniform Interstate Family Support Act (UIFSA) and tracks
the possibilities listed in 1 through 8, above.
TFC §159.201. Child
support is without a doubt a “rights” adjudication, which has ramifications
regarding a party’s ability to pay, as well as the potential judgment for
retroactive child support being assessed against that party.
As such, an Order necessarily hinges on the Respondent’s rights and
therefore is contingent upon the Court’s ability to exercise personal
jurisdiction over that Respondent. Where
there is no basis for In Personam jurisdiction, or personal jurisdiction
of a parent, a trial court lacks the authority to render any judgment or
child support payments against the parent.
Cotton v. Cotton, 57 S.W.3d 506 (Tex.App.—Waco 2001, no pet.).
This is in contrast to a “status” adjudication, such as the
dissolution of the marriage. See
Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998); See also In The
Interest of S.A.V., 837 S.W.2d 80, 84 (Tex. 1992).
While visitation would also seem to be a “rights” adjudication, the
Family Code defines “Custody Determination” to
include visitation rights. TFC
§152.102. Thus, an argument
can be made that the ability to determine custody includes the ability to
Texas Family Code provides that the court may exercise subject matter
jurisdiction (ostensibly to make a custody determination) as provided by the
UCCJEA. Thus the requirements to
establish long-arm jurisdiction for this purpose of establishing custody
(and visitation per the definition of “custody determination” in
Texas Family Code §152.102) are addressed in the UCCJEA and, except for
Temporary Emergency Jurisdiction situations, provides jurisdiction as follows:
“Except for Temporary Emergency
Jurisdiction situations, a court of this state has jurisdiction to make an
initial child custody determination only if:
this state is the home state of the child at the time suit is filed, or
was the home state within the prior six (6) months and the child is absent from
this state, but a parent or person acting as parent continues to live in this
a court of another jurisdiction under (1) above or a court of the home
state of the child has declined to exercise jurisdiction on the ground that this
state is the more appropriate forum;
the child and the child’s parents, or the child and at least one parent
or a person acting as a parent, have a significant connection with this state
other than mere physical presence; and
substantial evidence is available in this state concerning the child’s
care, protection, training, and personal relationships;
all courts having jurisdiction have declined to exercise jurisdiction on
the ground that this state is the more appropriate forum to determine custody;
no court of any other state would have jurisdiction under the criteria in
1,2 or 3 above.
TFC § 152.201; UCCJEA.
act further prioritizes the home state over all other bases of jurisdiction for
child custody matters, so that if a party can establish this state as the home
state, it then will have exclusive priority over all other possible
jurisdictions, at least for the purposes of a custody determination.
A Court can still establish emergency jurisdiction, in order to protect
the child from mistreatment or abuse or the threat of mistreatment or abuse,
though this is a temporary measure.
Who’s baby is it anyway?
basic concepts and concerns have not changed much over the years with respect to
conservatorship. In fact, the majority of issues that have been addressed by
the legislature have focused on the trees rather than the forest, with
conservatorship, most commonly associated with determining the residence of the
child, being addressed with such recent micro-moves such as lowering the age of
preference of the child (at least in a competing sole managing conservator
scenario) and the codification of such concerns regarding domestic violence,
jurisdictional normalization, and the nomenclative change of the presumption of
one sole managing conservator to joint managing conservators.
The basic premise of the best interest of the child controls, regardless
of that child’s preference and unless there is a significant health or safety
issue with evidence to back it up, the child(ren) more often than not will end
up residing with their mother.
JMC v. SMC
There is very little difference between the rights and duties assigned
between a Joint Managing Conservator (“JMC”) and a Sole Managing Conservator
(“SMC”) since the legislature shifted the presumption to Joint Managing
Conservatorship in 1995. However,
there appears to be a psychological aspect to a client’s perception of
“custody” in this realm. As
such, the legislature has addressed this issue and absent any health and safety
concerns, the presumption is usually followed.
The lingering concern would be if modification of a Sole Managing
Conservatorship was needed within one (1) year of the rendition of the prior
Order. In this case, if the party
seeking modification is the Sole Possessory conservator (SPC) or non-custodial
parent (NCP), he or she would have to show that
the child’s present environment may endanger the child’s physical
health or significantly impair the child’s emotional development or that the
Sole Managing Conservator (SMC)/Custodial Parent (CP) has given up actual care,
control and possession of the child for at least six (6) months.
If it’s a close call on custody and the client can afford to proceed at
the time of divorce, it’s probably better to seek custody at that time, rather
than agree to a Sole Managing Conservatorship arrangement, hoping to come back
in the near future.
Variable Rights And Duties
rights and duties of the (Primary) JMC, which are exclusive and which should be
included in the Temporary Order (and Final Order), are the right to determine
the residence of the child; the
right to receive child support; and potentially any of the remaining rights and
duties of a parent as provided by TFC §151.003.
These may include (possibly subject to consultation with the other
parent) the right to consent to (non-emergency) medical, dental, and surgical
treatment involving invasive procedures, and to consent to psychiatric and
psychological treatment; the right to represent the child in legal action and to
make other decisions of substantial legal significance concerning the child; the right to consent to marriage and to enlistment in the
armed forces of the United States; the right to make decisions concerning the
child’s education; the right to the services and earnings of the child; and
the right to act as an agent of the child regarding the child’s estate if
required by the government. The
rights of both parents at all times include the following:
receive information and to confer to the extent possible on health, educational
welfare issues; of access to medical, dental, psychological and educational
records; to consult with school
officials or medical providers; to
attend school activities and to be designated as a person to contact in case of
emergency; to consent to emergency
medical treatment; and to manage
the child’s estate, as created by that parent.
Effective September 1, 1999, and regardless of the date the suit was
filed, the Court, when rendering an Order providing for Joint Managing
Conservatorship, shall designate which conservator has the exclusive right to
determine the residence of the child and either establish a geographic
area (county and contiguous counties) within which the residence shall be
maintained or specify that the primary JMC may determine the child’s primary
residence without regard to geographic location.
This follows much debate over the Dallas County local rule (haphazardly
followed) that allegedly provided for visitation restricted to Dallas and
adjacent counties. In addition and
generally speaking, the primary JMC will be given the exclusive rights and
duties of an SMC, and should the opposing party’s attorney require that both
parties share these rights, provision should be made in the primary’s favor in
the event of future disagreements. This
has the effect of mandating consultation but avoiding paralysis should there be
a disagreement on one of the decisions.
Case: The Supreme Court ruled in
June of 2002 in a San Antonio case that the Juries’ verdict regarding
“residency restriction” is now binding on the Court, in addition to the
designation of primary conservator with the right to determine the residence of
the child. Lenz v. Lenz,
79 S.W.3d 10 (Tex. 2002).
Choice of Managing Conservator
September 1, 2001, the age at which a child can choose which parent he or she
wants to live with has been changed back to twelve (12) from ten (10), as it was
with the 1999 Legislation. While
most practitioners and Judges would agree this is still an extremely tender age
to put a child in the middle of a custody dispute, the underlying intent of the
legislature appears to have evened out at this age for a child’s voice to be
heard. TFC §153.008. While
this provides a preference by a child, the best interest test still applies and
a Judge can overrule such a choice by finding that it is not in that child’s
best interest. In addition, on
Motion of a party, the Court SHALL, in chambers, interview a child twelve or
older, and MAY interview a child under 12 years of age. TFC §153.009. This
was also changed in the most recent legislative session, thus normalizing the
‘age of voice.’
Possession and Access/Visitation
and access or visitation is governed by Texas Family Code, §153.251 et seq.
The statutory guidelines and specifically the Standard Possession Order
are rebuttably presumed to apply to any child over three years of age.
There are no guidelines for a child under three years of age, however the
Court shall render an Order appropriate under the circumstances for possession
of a child under three years of age and shall render a prospective Order to take
effect on the child’s third birthday, presumably be the Standard Possession
Order (SPO). TFC §153.254.
Standard Possession Order (SPO)
SPO provides, among other things for visitation, depending on whether the
parents/conservators live within 100 miles of each other or farther than 100
miles of each other. The most
typical example, of a non-possessory conservator (NPC) who lives within 100
miles, would allow visitation on the first, third and fifth weekends of each
month, beginning on Fridays at either 6:00 p.m. or when school is dismissed, and
ending on the following Sunday at 6:00 p.m. or when school resumes.
In addition, major holidays are shared depending on whether it is an odd
or even year. Furthermore, the SPO
provides for Wednesday visitation either from 6:00 p.m. to 8:00 p.m. or
overnight, if the NPC has taken this overnight election period at or before the
rendition of the governing Order. Extended
summer visitation is provided the NPC if notice is given no later than April 1
of the applicable year, and the managing conservator (MC) can elect to retain
one weekend (if they reside within 100 miles) or 21 days (if they reside more
than 100 miles apart), during which he or she can retain possession and access
during that summer, so long as the CP gives notice no later than April 15 of the
applicable year. However, the SPO
also provides for weekend visitation by the managing conservator if this
deadline is missed and the code should be consulted if an arrangement cannot be
worked out. Of course, while the
parties can agree to other visitation arrangements, and while it is always
advisable to suggest that they work with each other in this regard, the standard
visitation order usually means every other weekend to most clients and
explaining the minutiae of the various detailed provisions is difficult and time
consuming in most instances.
Modified SPO -- Suggestions
modifying the SPO, remember that the more complicated you get, the more
difficult it is to draft and make enforceable.
In addition, when you depart from the norm, you will then need to worry
about workability as well as public policy concerns if it should ever be
challenged, either on appeal, in future modification or enforcement.
However, given this caveat, sometimes the easiest way to hang someone is
to give them enough rope to accomplish this task for themselves.
Often times the parent seeking more (or even standard) visitation
believes him or herself more capable of performing than is really the case.
This is when the attorney must realize that their client may not be able
to handle such a restricted or modified arrangement and their only chance at
standard is to fight for it then and there.
Criminal defense attorneys are analogously confronted with this situation
when they must advise their client to choose between deferred
adjudication, which is great if the client can satisfy the terms of their
probation, but which carries the potential maximum punishment range available if
they screw it up; and straight probation, which allows the conviction on the
record, but limits the potential jail term if they can’t successfully complete
the probationary term. One such
modified scenario would be a stair-step arrangement, whereas the NPC is provided
with restricted and/or supervised visitation and if he or she is successful over
a specified period of time, usually three to six months, then visitation could
revert to standard. You can make
this as simple or as complicated as possible, but where there is a borderline
concern for a child’s safety or welfare, or you have a situation where a
parent all of a sudden (when an action is filed) wants to exercise standard
visitation, this could be a good way to either hold him or her to it, or show
that he or she really isn’t interested in standard visitation.
Another minor way to protect
against insincere visitation goals of a NCP, as well as making it easier for
your client’s [managing conservator] planning
ability with regards to visitation would be a notice provision. You can either provide for notice of inability to exercise
possession (more common) or notice of ability to exercise possession (less
common but possibly used to provide for future modifications by adding a
statement that “failure to abide by these requirements may be considered in
future modification of this Order”).
the Texas Family Code provides for the best interest of the child to include not
only the health and safety of the child, but also for the emotional and
psychological well being of the child, very often the latter is overlooked when
crafting orders for visitation. Notwithstanding
this unfortunate but almost inevitable recurrence, the most extreme cases, and
usually the ones that draw a supervised visitation order, will typically involve
some sort of physical threat to the child(ren).
In this case, not only must the family lawyer look to the temporary
orders to craft protection but, in the case of abuse, the lawyer is required to
report such abuse within 48 hours after first suspecting it. TFC §261.101. This
information is not protected, although the attorney who reports abuse may not be
required to testify about the underlying communications with his or her client.
See Tex. Att'y Gen. DM-458.
such cases where there exists a threat to the health or safety of the child(ren),
supervised visitation is well warranted. More
and more, this can be attributed to the presence of third parties during
visitation. Instances can occur
when a party remarries or lives with another partner and the abusing third party
can either be that other partner (very often a stepfather) or offspring from
that other partner (very often older step-siblings).
In addition, and due to the growing number of young parents, the NPC will
often end up living with friends and/or multiple roommates. This provides a problem for the Judge who is then faced with
the prospect of being unable to order or control a non-party to the litigation.
In such situations, and when the threat can be documented, supervised
and/or restricted visitation may well be in the child’s best interest.
Very often it is the parent of the parent, or the grandparent, who is
willing to take on this role and is more acceptable to all parties.
Absent such agreement, supervised visitation is available at either S.A.
Kid’s Exchange (334 W. Mistletoe; S.Central San Antonio; 733-3349) or KidShare
(4245 Center Gate; N.E. San Antonio; 946-8524), or some other appropriate
exchange. In this case the cost of
supervised visitation, while most often calculated on a sliding scale, may be a
contested issue and very well may prevent the visitation from occurring, though
this should never be the goal. Also
note that in ordering the terms of possession of a child under an order other
than a SPO, the court shall be guided not only by the guidelines established by
the SPO, but may also consider the age, developmental status, circumstances,
needs, best interest of the child, circumstances
of the managing conservator and of the parent named as a possessory
conservatory, and any other relevant factor.
Protective Order/Restraining Order
there is a history of family violence or the threat of family violence then it
is important for the attorney to concurrently obtain a protective order in
conjunction with the petition for divorce.
In such an instance, an application for a protective order should be
filed along with a request for a temporary orders hearing.
If the Court finds, by the affidavit testimony of the applicant, that
family violence has occurred and is likely to occur in the future, then it shall
issue a Temporary Ex Parte Protective Order.
Such an order is valid for the period specified in the Order, not to
extend beyond 20 days, but may be extended for additional 20-day periods upon
request of the applicant or upon the Court’s own motion.
This Order can prohibit the respondent from the laundry list of items
listed in Texas Family Code sections 85.021 and 85.022.
If, however, there is a suit pending, a represented party should always
be noticed when a protective order is sought, absent true emergency
circumstances. In addition and
effective September 1, 1999, the Court may suspend a license to carry a
concealed handgun that is held by a person found to have committed family
violence. Furthermore and after
hearing, a protective order can now be issued for a maximum of two years instead
of one year. In order to exclude
the respondent from a joint residence, the applicant must appear and give
testimony to the Court, in addition to the affidavit requirement.
A respondent in violation of the protective order will be immediately
there is no danger of family violence, however, a Petitioner in a divorce
action, can still obtain an order restraining the same abusive and violent
activities, as well as maintaining the status quo of the community estate, by
prohibiting the respondent from committing any of the same acts listed above.
In this case, as in the protective order scenario, the respondent is
authorized only to spend money on reasonable and necessary living expenses,
reasonable and necessary business expenses and attorneys fees.
Such an order is most often designed to preserve the community estate so
that a just and right division may be accomplished.
A respondent found in violation of this type of order, after motion and
notice, may be held in contempt of court.
Always notify opposing counsel regarding an (ex parte) protective order
application if there is an ongoing suit. This
is an advisory extension of the local rule implying a notice requirement for
TRO’s and the content requirement of the name and address of the opposing
attorney in an application for a protective order.
See Bexar County, Tex., Civ. Dist.Ct. R., 3.10(e); See TFC §82.041(a)(10).
In addition, note that a finding of family violence, or an Order
prohibiting such, may expose your client to Federal criminal prosecution if he
or she possesses a firearm. If this
is the case, please consult an experience family and/or criminal lawyer to
prevent what may be considered malpractice.
the net resources of the party to pay child support (NPC) are above $6,000.00
per month, or the NPC is self-employed, calculation of the amount of child
support to be paid should not be very difficult.
Texas Family Code §154.001 et seq.
Whenever feasible, gross income should be calculated on an annual basis
and then recalculated to determine average monthly gross income.
TFC §154.061. Keep
in mind that child support is calculated on one’s earning capacity and if the
NPC has recently changed/quit a job, the provision for intentional unemployment
or underemployment may apply. TFC
§154.066. Once the gross
monthly earning capacity has been computed, the “net” monthly amount must be
determined by using the Office of the Attorney General’s Employed Persons 2002
Tax Chart, found in the Family Code. TFC
§154.132; See Appendix; See
(for tables and footnotes to calculations). After arriving at the net amount, the attorney must calculate
the appropriate percentage in order to know how much the NPC will have to pay.
This is done depending on how many (if any) children the NCP has a duty
to support. The NCP will pay 20%
for one child, assuming he has no other children to support outside of the cause
of action pending before the Court. He
will pay 5% for each additional child, assuming he has no other children to
support outside of the cause of action pending before the Court.
If he does have additional children to support, then he is entitled to a
2.5% reduction in the percentage applied for the calculation, at least for the
first “other” child. For
additional children, the reduction becomes less as the number of children
table for the calculation is found at Texas Family Code, §154.129 and is
Multiple Family Adjusted Guidelines
-- % Of Net Resources
Of Children Before The Court
If you represent the NPC, and his income is based on overtime, bonuses or
sales commissions, you may want to go back for the previous two years to
calculate an average, or obtain testimony from his boss as to what he is and
what he is not guaranteed to be paid. Do
not forget to deduct for the actual cost of providing health insurance or health
insurance reimbursement to the CP, as this deduction is obviously not provided
for in the chart.
The assignment of property or debts in
Temporary Orders, more than any other issue, telegraphs any potential agreement
in the Final Orders. It is
important to note that, while a party may be ordered to maintain certain levels
of coverage or pay certain debts in a temporary restraining order, subject to
contempt, the order to pay such a debt in final orders would no longer be
subject to contempt. The division
of the assets necessarily follows what people are willing to concede is either
separate property or with which they are willing to part. Very often this is based on the needs associated with
maintaining a household and taking care of children.
If children are involved, a majority of the time, the marital residence
will be allocated to the Possessory Conservator. In addition, most of the necessary furniture and fixtures
will be awarded to the party to remain in the marital residence.
payment of debts is more often than not going to depend on several factors--
in whose name is the debt, for what purpose was it incurred, whether it
was in existence at the initial time of the marriage, and the parties ability to
pay the debt or maintain the status quo. This
includes any debt associated with the marital residence.
in the case where there is a large disparity of earning power among the spouses,
there will always be an issue of redistributing the wealth, one way or another.
The Code provides that temporary spousal support may be awarded while a
suit for divorce is pending, as deemed necessary and equitable.
TFC §6.502. While this is only temporary, the Court may make
provision for future, post-decree spousal support only if:
the spouse from whom maintenance is requested was convicted of or
received deferred adjudication for a criminal offense that also constitutes an
act of family violence under Title 4 and the offense occurred within two years
of the filing of the suit or while the suit was pending; or
the duration of the marriage was 10 years or longer, the spouse seeking
maintenance lacks sufficient property, including property distributed to the
spouse under this code, to provide for the spouse’s minimum reasonable needs,
as limited by Section 8.005, and the spouse seeking maintenance:
is unable to support himself or herself through appropriate employment
because of an incapacitating physical or mental disability;
is the custodian of a child who requires substantial care and personal
supervision because a physical or mental disability makes it necessary, taking
into consideration the needs of the child, that the spouse not be employed
outside the home; or
clearly lacks earning ability in the labor market adequate to provide
support for the spouse’s minimum reasonable needs, as limited by Section
In addition and since September 1, 1999, a court may enforce a garnishment order for spousal maintenance, as well as for the previously authorized child support. In addition, the factors that a Court may consider in determining maintenance can be found in Texas Family Code, §8.003. Such maintenance shall be limited to $2,500.00 or 20% of the paying spouse’s average gross monthly income, whichever is less; and continue for the shortest reasonable period necessary or three years after the Order is rendered, whichever is least.
spousal support is not available by statute, many creative (and aggressive)
attorneys will seek other ways to either transfer more money to their client or
to compensate for what one party may consider an unjust and unfair division,
given what’s left over after so many years.
Some examples of these independent torts include assault, intentional
infliction of emotional distress and negligence.
The Supreme Court has ruled that there is no independent cause of action
for fraud on the community or breach of fiduciary duty, reasoning that a wronged
spouse has an adequate remedy through the “just and right” property
division. See Schlueter v.
Schlueter, 975 S.W.2d 584 (Tex. 1998).
In addition, reimbursement claims are equitable measures that many
attorneys will utilize to get a bigger piece of the pie.
Enforceability of the Temporary
Order/Rule 11 Agreement/Attorney’s Fees
is important to remember that for temporary orders to be enforceable, they must
be ordered by the Judge. Many parties will enter into a rule 11 agreement for
temporary or even final orders, without making sure they are enforceable.
While the intricacies of obtaining this assurance are beyond the scope of
this paper, it should be noted that the agreement should include the term “Order”
at the top; it should include sufficient specificity of material terms to be
enforced in law as well as in contract (if it’s an “Agreed Order”); and it
should be “Ordered” or “Rendered” by the Judge on the record after all
signatures have been obtained by the parties and their respective attorneys.
Such material terms include amount of child support/attorneys fees due,
date payment(s) due, place payment(s) due, and any other terms necessary to
avoid ambiguity in the order. Do not
file a motion for contempt if a party violates a rule 11 agreement, as they are
not contemptible. The proper remedy
is a motion for sanctions. It
should be noted that while the award for attorney’s fees on final orders will
be a judgment, the award for interim attorney’s fees are contemptible and
should be explained on the record as such, regardless of which side you
represent. If the agreement is
ordered by the judge, the remedy to correct non-entry of the typed Order is a
Motion To Sign or Motion To Enter. If
you only obtained a rule 11 agreement (for final orders), you will need to start
preparing your Motion For Summary Judgment.
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