What Constitutes Telephone Harassment?

We often get told that someone is being harassed by telephone, but what does that really mean?

There is a great case, Perone v. Texas, which talks all about it in a criminal case context.  An ex-husband was convicted of harassment via telephone and then challenged the conviction based on, among other things, most of the communications were text messages and face time, not the traditional telephone calls.

Main points to see:

  1. The person commits the misdemeanor offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, (1) he causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or (2) he sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. (Texas Penal Code 42.07(a).
  2. Text messages fit this definition;
  3. FaceTime fits this definition;
  4. While some messages did relate to parenting logistics, others referred to the ex-husband’s dating and sexual activity and/or criticize his ex-wife;
  5. Intent can be determined by a jury (or Judge in the family law context as the trier of fact);
  6. Intent can be inferred by looking at the acts, words, or conduct of the accused, including the circumstances surrounding the acts;
  7. At least four phone calls in a little over a month were sufficient in a case that the calls were ‘repeated.’ (Blount v. State, 961 S.W.2d 282, 284 (Tex.App.-Houston[1st Dist.] 1997, pet. ref’d).

How does this relate to you?

Be ready to show that the intent fits the required intent (to harass, annoy, alarm, abuse, torment, or embarrass another), and how that actually occurred.  Be ready to show that the calls were repeated.  And be ready to show how it affected you!

 

Who Claims the Children as Dependents for Tax Purposes?

About this time of year, separated parents sometimes ask us who can claim the children on their taxes.  Many parents simply agree that the parent that would get the most benefit can claim the children.  Other parents have provisions in their orders directing the parties to claim or not to claim the children on their taxes.  But what about when there is no agreement?

The position the IRS takes is that the person having the children more than half the year can claim the children.  IRS Publication 504.

This means that the custodial parent, or the parent the children live with primarily, can claim the exemption.

So what happens if your orders say that one parent gets to claim the children and the other parent files first, claiming the children?  Realistically, the parent that should have been able to claim the children is going to have a hard time.  They will need to work with the IRS, the other party, and possibly an attorney well-versed in tax law to correct the issue.  The parent could also file an enforcement action or sue for the lost benefit.  The easiest way to avoid the issue?  Speak with the other parent, or make sure you file first.

What is a social study?

When parents can’t agree on who the kids will live with the Court will normally order a social study be conducted. This allows for a non-party, a trained professional, to look at the situation, the concerns of each party, and make a recommendation to the Court.  That recommendation is the social study.

This expert will interview each party as well as watch the interactions between the parties and the kids. They will normally also interview other children or adults that are living in the residences of the parties (should there be any) and do a home visit of each parties home to make sure it is appropriate / safe for the children.

Once the expert is done, they draft the social study. In some jurisdictions, only the attorneys and the judge will see the result.  This is because there have been times when parties have not liked the results of the social study and either share them with the children or even take out their frustrations on the children.

If you are going through a social study, be honest, participate fully, and make sure you comply fully with any requests. Talk with your attorney if you have questions.

A quick overview of the process in Dallas County can be found here.

Alimony Now Enforceable by Contempt

The only thing constant … is change.  Prior this change in the Texas Family Code, which takes effect September 1, 2013, you could not hold a person in contempt for failing to pay contractual alimony.  You could have them held in contempt for failure to pay court-ordered spousal support, but not contractual alimony.  For an in-depth discussion on the differences, click here.

Now you can.  The Texas Legislature has amended the Texas Family Code to allow a person to be held in contempt for failure to pay contractual alimony up to the amount, and for the amount of time, that the Court could have awarded spousal maintenance.  The Court can even issue a wage-withholding order, at least to that limited amount, which it could not do before.

What I do not know is how the Texas Supreme Court will react.  Under their recent opinion, on which I wrote an article, wage-withholding order for alimony was denied based on that alimony being a debt, and wage garnishment for a debt other than child support or court-ordered spousal maintenance is barred by the Texas Constitution.  That means that on September 1, 2013, we may very well have another law that contradicts the Texas Constitution.  Who said family law doesn’t have constitutional implications?  We will have to see what happens.

Contract Provisions in an Agreed Decree – Now Enforceable

When I started this blog, the first posts I wrote were on what provisions in a decree were enforceable by a court v. contractual in nature, and how each could be addressed if a party failed to abide by the terms.

Now the Legislature has made it easy.  The property division, as well as any contractual provisions, are expressly within the power of the court to enforce under the new Tex. Fam. Code Section 9, which goes into effect September 1, 2013, according to H.B. No. 389.  You no longer have to decide whether to bring an enforcement action or a breach of contract case.

Of course, when bringing an enforcement action, the deadline to file suit is two years, while a breach of contract allows you to wait up to four years.  Just something to keep in mind…

Pro Se Divorce Forms – Approved, but with Caution

The Texas Supreme Court recently approved a set of pro se divorce forms, with some pretty extensive disclaimers.  Specifically among those disclaimers is that these are only to be used for limited property, no children, no contest divorces.  Note that you should always sit down with someone that knows the process (a lawyer) and discuss your options.  Even the form’s disclaimer says that you should hire a lawyer.   In my experience, NOT hiring a lawyer tends to end up much more expensive when you have to get the order modified or corrected in the future.

What Would My Texas Child Support Be?

Ever wonder how much you would pay in child support in Texas?  The Texas Office of the Attorney General has on online child support calculator that gets pretty close to figuring out what your child support obligation would be in Texas.  The actual number may vary, but this will give you a good idea -

LINK TO TEXAS CHILD SUPPORT CALCULATOR

Annulments in Texas

I’ve had a couple of people request annulments… Texas is very strict on when an annulment can take place and the requirements typically hit on the fact one of the persons of the marriage could not give consent due to incapacity or incomplete knowledge of the situation.  Once that defect is cured, consent is possible and if the person continues to reside with the person and act as married, the marriage will hold.

Reasons Texas will allow an annulment if at the time of the marriage:

(1) The person was under the influence of alcohol or narcotics;

(2) A person is impotent at the time of the marriage and the other did not know;

(3) One person used fraud, duress or force to induce the other to marry them;

(4) One person was mentally incapacitated at the time of marriage;

(5) One person concealed a divorce from the other; and

(6) if the marriage took place during the mandatory 72 hour waiting period between the issuance of the license and the ceremony.

In each of the above cases, the person without capacity or knowledge of the condition must stop living with the other as soon as the condition becomes known, otherwise annulment is not an option.

Another interesting fact about annulments… the parties do not have to follow the mandatory sixty day waiting period that a divorce places on them, the annulment can be over in a matter of days if agreed, and in 45 days after issuance if a trial is properly requested after the answer date.

Additional Resources

Tex. Fam. Code sections 6.104-6.111 
Tex. Fam. Code section 6.702

Contracts with Lawyers (2 of 3)

Post two of three deals with flat fee contracts.  These are the simplest contracts.  You pay the lawyer a set amount for a legal matter and that is it – no variance for how successful or not the case turns out.

Flat fee contracts are typically used for situations where the legal work/time/fees needed is easily determined.  Common cases would be a no-contest divorce or a criminal matter.

The problem with flat fee contracts is that most are nonrefundable, and the contract spells out the terms of the representation.  If your case evolves outside of the contract, you lose that money and the representation.  For example, you pay a flat fee for a no-contest divorce, then it becomes contested.  At that point, your lawyer is free to step out because the contract states his representation is only for a no-contest divorce, which no longer applies.  Should a situation like that arise, most lawyers are happy to renegotiate the contract, but do not expect another flat fee!

As always, read the contract closely.  Each contract can vary so pay close attention to the terms.  If you have a question, ask!  Your lawyer would rather have you understand the contract and the process up front so that both of you know what to expect.

Retainer Contracts: Contracts with Lawyers (1 of 3)

Contingency Fee Contracts: Contracts with Lawyers (3 of 3)

How to Change Contractual Alimony

First, make sure the clause you are looking to change is contractual alimony and not spousal support. You can get an idea by looking at my post here.

If it is contractual, read on!

Changing contractual alimony in Texas is not easy. It follows contract law, so typically you need the written agreement of both parties.  You need to look carefully at the terms and conditions of the payments first, and see if there is a built in way to modify or terminate the payments.  If not or the terms do not apply, you are going to need to talk to the ex-spouse.

Why would an ex-spouse agree to change the spousal payments?  Sometimes out of the goodness of their hearts… or perhaps you offer them something of value – some ideas:

  1. More money over a longer period of time so that the payments are smaller;
  2. Less money but in a lump sum payment;
  3. Other property can be used as well; or
  4. An offer to pay off debts incurred jointly or by the other party during the marriage.

We have also seen other consideration given, like the addition/modification of a geographic residency requirement or exchange points.  In the end, the deal is up to the parties, with very few exceptions.

Another method would be to attack it as you would a contract.  This is much more involved, and more difficult.

If you have a question or want advise about a particular situation, email or call – we can help!

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