San Antonio Divorce Lawyer Blog

Texas Annulments - things you should know

As a San Antonio Texas divorce lawyer, lots of folks ask me about annulments, as opposed to divorce.  Typically, the couple, hasn't been together very long, and they realized that the marriage was a mistake very quickly.  Many people have some very strange ideas about how and why you can have a marriage annulled, so I wrote this blog to get rid of a lot of misconceptions about the annulment process.

An annulment can be granted in Texas under some very specific statutory grounds.  For instance, if you find out after the marriage that your spouse has recently escaped from mental institution, you can have your marriage annulled.  If you got married under duress, or if you were under the influence of alcohol or drugs at the time, you can get your marriage annulled.  There are a number of other statutory grounds, including "impotence" (although I've never had anyone seek an annulment on that ground).

The most common ground for annulment is "fraud in the inducement."  Simply put, this means that if your spouse used fraud to induce you into the marriage, you can have the marriage annulled if you stop living with him or her as soon as you discover the fraud. 

Now what the term "fraud" includes is anyone's guess.  A typical situation:  spouse "A" who lives in another country induces spouse "B," who lives in Texas, to marry her/him, promising love, affection, undying devotion, etc.  As it turns out, all Spouse "A" wanted was to get into the country, and she/he quickly makes it clear that there will be no real marital relationship, and that the only thing spouse "A" really wants is a green card. That seems to me to be a clear case of fraud, and in fact I have had a number of clients come to me seeking annulments under that circumstance.

On the other hand, if the "fraud" in that instance was Spouse "A"'s false promise that he or she wanted to marry for legitimate reasons (love and affection, etc.), then that leaves open a number of interpretations.  For instance, can someone have the marriage annulled when he or she realizes that the other spouse only married him or her for his or her money? 

Texas Child Support - things you should know

As a San Antonio, Texas family law attorney, I see child support issues come up nearly all the time, whether in divorce cases, child custody cases, child support enforcement cases, child support modification cases, paternity cases, and even in adoption/termination cases.

Most folks know that Texas applies percentage guidelines to calculate child support.  In a nutshell, Texas figures out your NET income (after taxes, costs for health insurance, and a few other things), then multiplies that figure by a percentage which has been statutorily "presumed" to be in the best interest of the child.

What many people don't understand are the factors which a judge can consider in reducing or increasing the presumptive amount of child support.  The Texas Family Code lists a whole bunch of those factors.  Chief among those is the costs the non-custodial parent may be paying in order to exercise visitation.  For example, it isn't uncommon for a custodial parent to move out of state shortly after a divorce (unless there is a geographical restriction--but that's a different subject).  In doing so, the custodial parent is engaging in conduct which will increase the non-custodial parent's cost of exercising visitation, even if the parties split the costs. 

Since the Texas Family Code also provides that continuing and frequent contact between the non-custodial parent and the child is in the best interest of the child, the Court will often reduce child support to account for those increased costs.  The Court can also simply require the custodial parent to pay 100% of the travel costs, which I think is a much better idea.  That way, the  actual costs of visitation are born by the custodial parent, rather than the hypothetical costs.  For instance, reducing child support isn't really fair to the custodial parent if the non-custodial parent doesn't in fact exercise any of his or her visitation.

The previous examples assumed the custodial parent moved first, thereby being the cause of the increased cost of visitation.  What about if the parents are already living in different states at the time of the suit?  Or if the non-custodial parent moves to get a better job?  The Court can still reduce child support to account for the increased cost of visitation if the Court is convinced that it will help the non-custodial parent be able to visit his child. 

What about getting more child support than what's called for by the percentage guidelines?  That's also a possibility under the Texas Family Code.  Occasionally, a child is considered a "special needs" child, requiring an extraordinary amount of financial support (uninsured medical expenses, special education, etc.).  In such cases, the Court will look at the parents' respective ability to pay those costs, may increase the statutory amount of child support to account for the child's needs. 

Texas Child Support Guidelines

As a Texas family-law attorney, I find that child support and how it is calculated in Texas is often misunderstood by my clients.  Child-support issues are commonly and routinely dealt with by Texas divorce lawyers, and I thought I would try to take some of the mystery and guesswork out of the subject.

In Texas, the Texas Family Code contains "percentage guidelines" which are legally presumed to be in the best interest of the child.  Those guideline percentages are as follows:

1 child 2 children 3 children 4 children 5 children 6 or more children

20% of Obligor's Net Resources 25% of Obligor's Net Resources 30% of Obligor's Net Resources 35% of Obligor's Net Resources 40% of Obligor's Net Resources Not less than 40%

The big question, of course, is how to define "net monthly resources".  Well, here's how it usually goes:
We start with the child support obligor's gross income (by the way, "obligor" means the person who has to pay child support, while "obligee" means the person who receives child support).  From the gross income figure, we take out the taxes (FIT, FICA, and Medicare) that would be deducted if the obligor were a single person without any dependents.  Then we deduct whatever the obligor pays for health insurance for his or her child, union dues, and one or two other things that don't usually come into the picture.  That leaves us with the "net monthly resources" of the obligor, to which the percentage guidelines are then applied.

Pretty simple, right?  Wrong.  There are a number of other considerations, such as the following:

(1)  If the child support obligor has other children with someone else, that will effect the percentage guideline amount.  For instance, if the child support obligor has one child with one person, and another child with someone else, the obligor would ideally pay 17.5% of his or her net monthly resources for each child.  There's a whole separate chart in the family code for multiple-family situations.

(2)  The Texas Family Code has a long list of other factors the judge can consider in setting child support below or above guideline amount.  I'd say the most common reason judges set child support below guideline is when the parties live in different states, and the obligor spends a substantial amount of money exercising his or her visitation.  In such cases, Bexar County judges often rule that it is in the best interest of the child to visit the non-custodial parent as frequently as possible, and that setting child support below guidelines is the only way to ensure that happens. 

This is only one factor the Court may consider in setting child support below guideline support.  There are a number of other factors the Court can consider in setting child support above OR below guideline support.  A "special needs" child--one who has unusual medical problems or other special needs which require greater than usual financial contributions from both parents is the most common situation where child support is set above guideline support.

Bexar County District Clerk website

If you contact a divorce attorney in Bexar County, chances are he'll be able to tell you if your spouse has already filed for divorce, or if she's ever been divorced in Bexar County in the past.  Did you know you can check divorce cases, custody cases, and most other civil lawsuits online in Bexar County.  If you know the name of one of the parties, you can find out if they are currently a party to a divorce or other civil lawsuit, or if they have ever been a party to divorce or other lawsuit, by checking this site:  http://www.co.bexar.tx.us/dclerk/

As a divorce lawyer in Bexar County, Texas, I routinely check the District Clerk's website to determine whether or not my client's spouse has already filed for divorce.  Aside from the obvious strategic considerations of being a Respondent rather than a Petitioner in a divorce case, it can also save my client a lot of money in filing fees, costs for service of process, the cost of preparing and filing a detailed original petition, etc.

If you meet with a divorce lawyer in Bexar County, Texas, you should ask him or her to do such a check if you think there is any chance that your spouse may already have filed.  Of course, this will only determine whether a filing has occurred in Bexar County, Texas, and not any other counties or states.

Texas Family Code Legislative Changes

There are lots of changes coming in the Texas Family Code.  As family law lawyer in San Antonio, Texas, I'm very interested in these changes, and I think my clients should be interested too, especially to the extent the changes effect their divorce, child custody, child support, child custody modification, child support modification, adoption, or other family-law cases. 

Some of the important changes are set out below.  I'll be posting more articles about these changes in the future as more information becomes available.

There were several significant changes passed by the Legislature that affect family law that have either already been signed or are on the Governor’s desk. The legislation's highlights are: *  increase in guideline child support *  Provides specifically for lump-summing a child support obigation upon an obligor's death and also ordering the obligor to carry life insurance. *  significantly eased the parenting plan requirements in all cases involving children *  deals with some characterization and reimbursement issues *  specifically provides for electronic communication between a parent and child, including those on military deployment *  provides guidance for assisted reproduction / artificial insemination *  clarifies the rights of Associate Judges in family law cases *  gives more enforcement powers to the Attorney General and clarifies how child support arrearages are collected *  clarifies the rights of non parents who have been taking care of a child for more than six months and transfers of cases More specific details follows: Signed by Governor Already SB 430 This act clarifies the burden of proof for certain claims for reimbursement. It provides that "[t]he party seeking an offset to a claim for reimbursement has the burden of proof with respect to the offset." This Act was signed by the Governor on May 10, 2007 and goes into effect on September 1, 2007. SB 430 can be viewed at 80(R) SB 430 - Enrolled version - Bill Text http://www.capitol.state.tx.us:80/BillLookup/Text.aspx?LegSess=80R&Bill=SB430 SB 432 This act addresses consent to and annulment of marriages. The act modifies the language of Texas Family Code §§ 2.102 and 2.103 by regarding who, other than a parent, can consent to the marriage of a minor. The act broadens the language from a "judicially designated managing conservator of the applicant’s person" to a "person who has the court-ordered right to consent to marriage for the applicant". The act repeals Texas Family Code § 6.101 and states adds language clarifying that a marriage is void if either party to the marriage is younger than 16 years of age, unless a court order has been obtained under Section 2.103. The act was signed by the Governor on May 10, 2007 and goes into effect on September 1, 2007. SB 432 can be viewed at 80(R) SB 430 - Enrolled version - Bill Text http://www.capitol.state.tx.us:80/BillLookup/Text.aspx?LegSess=80R&Bill=SB432 Passed and Sent to Governor SB 228 This act relates to suits affecting the parent-child relationship, including proceedings for the establishment, modification, and enforcement of child support, parentage, and possession of and access to a child. The act also provides a civil penalty. The act amended the Texas Family Code to include provisions regarding electronic communication with the child by a conservator, adding the child enlisting in the military as a event upon which child support terminates, and setting forth standards regarding compliance concerning partial termination of support obligations.  (new Section 153.015) The act also adds provision to the Texas Family Code that states that the court retains jurisdiction to render an order for retroactive child support in a suit if the petition requesting retroactive child support is filed not later than the fourth anniversary of the child’s eighteenth birthday. The act also amends the Texas Family Code to increase the time period during which the court retains jurisdiction to render a contempt order for failure to comply with a child support order from not later than six months after the child becomes and adult or child support otherwise terminates to the second anniversary of the date the child becomes and adult or on which the child support obligation terminates under the order or by operation of law, to include an arrest warrant ordered under the chapter, instead of just a capias, and to include Title IV-D service fees that the obligor is responsible for on the priority list of how child support is applied. The act makes Title IV-D service fees part of the child support obligation, and the fees may be enforced against the obligor by any means available for enforcement of child support, including contempt. The length of time before a person taken into custody on capias and not released on bond must be brought before the court that issued capias has also been increased, as has the length of time before a hearing on the alleged contempt must be held. The act also provides the Title IV-D agency with new remedies, such as withholding from severence pay and withholding from lump sum payments, such as bonuses, commissions, or amounts paid in lieu of vacation. The act also makes amendments to the Texas Family Code with regards to assisted reproduction. The amendments define "donor" with regard to assisted reproduction and includes section that establish an unmarried man’s paternity of the child of assisted reproduction, require the signed consent forms for certain assisted reproduction actions must be kept by a licensed physician, and that deal with the effects of dissolution of marriage or death of a spouse prior to the placement of sperm, eggs, or embryos. This act was sent to the Governor on May 28, 2007. SB 228 can be viewed at:80(R) SB 228 - Enrolled version - Bill Text http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=80R&Bill=SB228 HB 448 This act relates to the computation of child support obligations. The act raises the cap on net resources subject to the child support formula from $6,000 of monthly net resources to $7,500 of monthly net resources. This means that the maximum guideline child support for 2 children rises from $1500 to $1875 per month. The act also provides that this dollar amount is to be adjusted for inflation every six years. The Title IV-D agency shall compute the adjusted amount based on the percentage change during the preceding six-year period in the consumer price index, as rounded to the nearest $50 increment, and publish the adjusted amount in the Texas Register before September 1 of the year in which the adjustment takes effect. The act also includes language with regard to taking expenses for health insurance coverage for the obligor's child into account in determining child support. If the obligor has more than one child covered under the same health insurance coverage, the court is directed to divide the total cost to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan. This act was sent to the Governor on May 28, 2007. HB 448 can be viewed at  80(R) HB 448 - Enrolled version - Bill Text HB 555 This act makes revisions to the "parenting plan" provisions of the Texas Family Code. The act amends Texas Family Code § 153.007(d) to limit the power of the court in situations were the court does not find that the agreed parenting plan is in the best interest of the child. The amendment provides that if the court finds the agreed parenting plan is not in the child's best interest, the court may request the parties to submit a revised parenting plan. If the parties do not submit a revised parenting plan satisfactory to the court, the court may, after notice and hearing, order a parenting plan that the court finds to be in the best interest of the child. Prior to this amendment, if the court found that the agreed parenting plan was not in the best interest of the child the court could either request that the parties submit a revised parenting plan or the court could render an order for conservatorship and possession of the child. The act amends Texas Family Code § 153.0071, adding that the provisions for confidentiality of alternative dispute resolution procedures apply to the work of a parenting coordinator and to the parties or any other person who participates in parenting coordination. The subsection does not however, affect the duty of a person to report abuse or neglect under Texas Family Code § 261.101. The act also amends Texas Family Code § 153.133(b) to make alternative dispute resolution procedures permissive in agreed parenting plans, rather than mandatory. The act amends the definitions of "dispute resolution process", "high-conflict case", "parenting coordinator", and "parenting plan" in the definitions set forth in Texas Family Code § 153.601. The definition of "dispute resolution process" is broadened to include "any other method of voluntary dispute resolution." The definition of "high-conflict case" is narrowed by requiring that the court finds that the parties have met the factors required for a "high-conflict case". The act removes the requirement for a temporary parenting plan, as set forth in Texas Family Code § 153.602, and states instead that in a suit affecting the parent-child relationship temporary orders are not required to include a temporary parenting plan. The amendment also precludes local rules or practice from requiring the submission of a temporary parenting plan. Texas Family Code § 153.603 is amended to provide that a parenting plan must be included in any final order in a suit to affecting a parent-child relationship except as provided in § 153.603(b). The act also amends the language of Texas Family Code § 153.606, changing the "authority of the parenting coordinator" to "duties of the parenting coordinator". Texas Family Code § 153.607(b) is amended to require, rather than permit, the court to remove a parenting coordinator on the request and agreement of both parties or on the motion of one party if good cause is shown. This act was sent to the Governor on May 28, 2007. HB 555 can be viewed at:80(R) HB 555 - Enrolled version - Bill Text HB 930 This act relates to certain orders rendered by, and preservation of the record in matters heard by, an associate judge under the Family Code. With regard to the powers of the associate judge, this act grants the associate judge the power to render and sign a final order in a case in which a party files an unrevoked waiver made in accordance with Rule 119, Texas Rules of Civil Procedure, that waives notice to the party of the final hearing or waives the party's appearance at the final hearing, and to sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015. The act also provides that an answer filed by a party who previously waived notice to the party of the final hearing or waived the party's appearance at the final hearing revokes that waiver. With regard to preservation of records in matters heard by an associate judge, the act adds language to § 201.009(a) that a court reporter is required to be provided when the associate judge presides over a contested final termination hearing. The addition of the word "contested" seems to mean that it is no longer required to provide a court reporter in uncontested final termination hearings. The act also adds language to § 201.009(c) which states that except as provided in § 201.009(a), in absence of a court reporter or on agreement of the parties, the record may be preserved by any means approved by the associate judge. The seems to mean that except in situations where a court reporter is required by § 201.009(a) (where the associate judge presides over a jury trial or a contested final termination hearing) the parties can agree to preserve the record by any other means approved by the associate judge. This act was sent to the Governor on May 28, 2007. HB 930 can be viewed at 80(R) HB 930 - Enrolled version - Bill Text http://www.capitol.state.tx.us:80/BillLookup/Text.aspx?LegSess=80R&Bill=HB930 HB 1995    Amending Section 201.015, the bill provides that a party now has until not later than the "seventh working day" after the date a party receives notice of the Associate Judge's ruling to appeal--applicable to suits involving the parent child relationship filed after September 1, 2007.  Comment:  This one confuses the powers of an AJ. The former statute dealt with ALL cases that an AJ can hear;  this change applies specifically to parent-child cases.  So now what is the appeal time limit--if any-- non parent-child cases (divorces without children) heard by the AJ?  Or is there even an appeal in such cases?  It would appear that the clear legislative intent was merely to change the three day appeal period to a seven day period in all AJ cases.  Which Court of Appeals will step up first to insert what was omitted in the statute?  HB1995 can be viewed here. SB617 Allows the Court to determine the amount of unpaid child support (including medical coverage) that would have accrued after the obligor's death, and lump sum it as a charge again the obligor's estate.  Also allows the Court to require an obligor to get life insurance to cover the future expected child support obligation--with benefits payable to the obligee. Section 154.015, 154.016. SB617 can be viewed here. We will update after the deadline for the Governor to sign or veto--June 17th--passes.  We will also update when more arcane provisions in other bills are discovered. 06/18/2007

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Military divorce rates in Texas

According to the Army News Service, divorce rates among military service members in Texas and the rest of the country are on the rise.  In a recent article, the ANS reported that divorces among officers tripled from fiscal year 2002 to 2004, according to statistics compiled by the Defense Manpower Data Center. After Operation Iraqi Freedom began, there was an increase of 3,024 divorces Army-wide.

There are programs available to service members designed to deal with the rising divorce rate among service members and to help Soldiers cope with life and parenting after divorce. Divorce Care Support groups and Divorce Parenting classes are mandatory for Soldiers at Fort Hood, Texas.

The article quotes Lt. Co. David Scheider, director of Family Life Chaplain Training Center at Fort Hood, Texas, as saying “We recognize [Soldiers] come because they are required, but it is difficult to get time off on a duty day, so the requirement makes leaders willing to let them go.”

Also available is Army One Source which is a toll-free nationwide number as well as a Web site that allows Soldiers to contact a consultant regarding life’s issues. Through this service, Soldiers and their families have access of up to six in-person counseling sessions at no cost to them.

Although deployment is an indicator of the stress on the force, both Bloomstrom and Scheider agreed that the problem is that many couples do not have the skills needed to make their marriage work. “Anytime there is a lot of stress, there is a higher opportunity for people to stray,” said Scheider.

Texas Divorce Statistics

As a Texas divorce lawyer, I find divorce statistics very interesting.  The Texas Bureau of Vital Statistics has a website at http://www.dshs.state.tx.us/vs/marriagedivorce/default.shtm that has more information than you can shake a stick at about Texas divorces.  It isn't the easiest thing to navigate, and involves downloading a bunch of data files, but if you have the time, you can find out just about anything on divorces.  Texas divorce attorneys (actually their clients) are required to submit a form to the Bureau of Vital Statistics whenever someone gets divorced.  The form has a lot of private information on it which becomes a public record once submitted to the BVS.

If you want to write to the BVS about divorce records or birth records, they have their own website at http://www.cdc.gov/nchs/howto/w2w/texas.htm.  You can get a lot of information from this site on how to get birth certificates, death certificates, and divorce records.

Texas child custody cases--when is a child old enough to choose?

I decided to write this blog due to a number of Texas child custody cases I've handled recently that involved a child making a choice.  In Texas, a child 12 years of age or older can sign a written statement indicating the person with whom the child prefers to live.  The kicker, of course, is that the choice has to be approved by the Court (meaning a judge).  Child custody lawyers in Texas (as well as parents) are often faced with difficult cases and choices when these issues come up.

In most cases, both parents usually end up agreeing to let the child live where the child wants to live.  In a significant number of cases, however, the parent with original custody of the child opposes the child's choice.  For instance, sometimes the original custodial parent believes the child is making the choice to live with the other parent for the wrong reasons--the other parent is much less of a disciplinarian, or "bribes" the child with promises of gifts, etc.  In many cases, the child, whose visits with the non-custodial parent are usually brief but full of fun, has a false impression of what life will be like with that other parent.  Unfortunately, in other cases, the reason the custodial parent opposes the change is financial--he or she doesn't want to lose that child support he or she has been receiving, and especially doesn't want to have to start paying child support. 

In most cases, however, the child simply wants to try living with the other parent.  Depending on the age of the child, I often advise people in these situations to agree on a temporary change of custody to see how it works out.  In some instances, the child will change his or her mind after a few months of reality with the other parent.  In other cases, the time with the other parent solidifies the child's choice.

In any case, if a child makes the choice to sign a statement saying that he or she wants to live with the other parent, a petition to modify the original custody order will have to be filed.  Then, an order can either be entered by agreement, or the parties can go through a full-blown custody trial.

Texas Military Divorces--Jurisdictional Issues

Military service members who seek a Texas divorce attorney often find themselves faced with several jurisdictional issues.  The term "jurisdiction" means the Court's authority to excercise power over a case and/or over the parties to the case.

There are two types of jurisdiction--subject matter jurisdiction and personal jurisdiction.  Subject matter jurisdiction means that the Court has to have the authority to make a determination in that type of case.  For instance, the Uniform Child Custody Jurisdiction and Enforcement Act, a version of which has been adopted by virtually all the states in the U.S., states that a state court does not have jurisdiction to make a child-custody determination if the child has been residing in some other state or country for more than six months at the time the case is filed.  That means that a Texas Court would not have "subject-matter jurisdiction" over such a case, and has no authority to hear the case, even if both parties agree for the Court to hear it.  This is an over-simplification, since there are several exceptions to the six-month rule, but the purpose of mentioning it was solely to explain the meaning of the term "subject matter jurisdiction".

In contrast, the term "personal jurisdiction" refers to the Court's authority to order an individual to do something--i.e., to exercise power over that individual.  Texas divorces often involve parties who are in other parts of the country, or the world for that matter, especially when military service members are involved.  The U.S. Supreme Court has ruled that the U.S. Constitution requires that certain conditions be met before a court in one state may exercise jurisdiction over a person residing in another state.  The Texas Family Code lists certain conditions which have "passed constitutional muster" which automatically confer Texas jurisdiction over an out-of-state litigant.  The general rule considers whether or not the out-of-state litigant has availed himself/herself of the privileges of that state, or otherwise committed any acts such that he or she should not be surprised to be sued in Texas.

In the divorce context, a Texas divorce attorney is often approached by military service members who have been stationed in Texas for a while, but whose spouse resides in another state.  If the attorney determines that Texas does not have personal jurisdiction over the absent spouse, he or she must advise the client of that fact.  All that being said, lack of personal jurisdiction over the out-of-state spouse will not prevent the resident spouse from getting divorce.  Texas courts have held that the divorce is a "status determination" and does not require personal jurisdiction over the absent spouse.  However, personal jurisdiction IS necessary for the Court to divide property.  Therefore, when the Court lacks personal jurisdiction over an out-of-state spouse, the Court may be limited solely to granting the divorce.  Division of property (and anything else which requires personal jurisdiction) may then have to be decided at a later time, possibly in a different state.

Obviously, lack of personal jurisdiction can cause major complications to a Texas divorce.  If your spouse resides outside of Texas, be sure your attorney is familiar with personal jurisdiction issues.

Community Property Issues in Texas Divorces - Economic Contribution

This is the 3rd installment of a series of posts discussing certain special situations which often occur in Texas divorces.  Previously, I talked about the issue of reimbursement, which is a claim by one of the marital estates (either the community estate or the separate estate of one of the spouses) against another marital estate.  That issue usually involves a claim by the community against one spouse's separate estate brought about when community income was used to pay off unsecured debt that one spouse had before the marriage.  Your Texas divorce lawyer should be able to explain these and other issues to you in detail.

The next special situation involving separate property/debt is an issue called "economic contribution."  Economic contribution is similar to reimbursement, but has some very important differences.  "Economic contribution" claims most commonly involve the situation where community income is sued to pay the mortgage note on a residence or other real estate which then appreciates in value after the date of the marriage.  The formula is very complicated, and in fact was set out in the Texas Family Code with an error in the formula, which was only corrected in the most recent legislative session.  The general principal is that any appreciation in value of a spouse's separate property should be considered partially community property, at least to the extent that the debt on the property was paid down during the marriage, and taking into consideration community property money used to make improvements on the property.

Any Texas divorce attorney should be thoroughly familiar with reimbursement and economic contribution issues, but you'd be surprised at how many Texas divorce attorneys misunderstand these principals.  If you are involved in a divorce and either you or your spouse owned property before you got married, or had debt before you got married, be sure your Texas divorce lawyer is thoroughly versed in the nuances of these special issues.