How to Change Contractual Alimony

Posted on by CJ.Harding

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!

Discovery Pleadings – An Overview

Posted on by CJ.Harding

Too often, the first time someone learns about a discovery tool is when they have to respond.  I thought I would list some of the more common tools and a brief explanation.  This is by no means exhaustive, but I hope it helps!

Requests for Disclosures
This is the one discovery request that cannot be objected to and provides basic information like potential witnesses, any experts, general legal theories and factual basis for them.  Texas Rule of Civil Procedure (TRCP) 194.

Requests for Admissions
These are a lists of questions that can only be answered as admitted, denied, or in limited circumstances, explaining the reason that the responding party cannot admit or deny the question. Some attorneys use these to set the evidentiary foundations of documents or see what facts are really at issue. TRCP 198.

Requests for Production and Inspection
This pleading is used to get documents, videos, recordings or other pieces of tangible evidence.  TRCP 196.

Written Interrogatories
These are a very limited number of questions a party must respond to. Be careful with these. One you reach the limit (25 normally) the other party does not have to answer any more.  TRCP 197.

Depositions
Formal question and answer sessions where your attorney asks questions of the other party or the other party’s attorney asks questions of you. Very useful, but expensive, and you get a limited number of hours.  Most attorneys like other discovery to be done first so they can ask questions to fill in the gaps and solidify their side of the case.  TRCP 199.

Standard Possession Order for 2013

Posted on by CJ.Harding

Since we started a new year, I thought the most useful thing to do was post a link to a standard visitation calendar for 2013.

Click OAG’s 2013 SPO Calendar

Of course, the above calendar won’t take into account all of the summer visitation or school holidays – you will have to spend some time doing that.  Here is a good website to help.

Last, click here for a more in-depth discussion of the Texas Standard Possession Order.

What does “invasive procedure” mean?

Posted on by CJ.Harding

One of the rights parents can have in Texas is the right to consent to ‘invasive medical procedures.’  But what is an invasive medical procedure?  When a parent has to consult with another parent before consenting, or doesn’t have the right to consent to an invasive medical procedure, they will want to know the definition of ‘invasive.’

Some things are clearly invasive, such as an appendectomy, where the appendix is removed.  The doctors are cutting into the abdomen to remove a part of the body.  But what about braces?  In the case here, the Court of Appeals out of Fort Worth determined that since ‘invasive procedure’ is not defined in the Texas Family Code, it was appropriate to use the Texas Health and Safety Code, Section 85.202(3).

That provision defines “invasive procedure” as a “surgical entry into tissues, cavities, or organs; or repair of major traumatic injuries associated with . . . the manipulation, cutting, or removal of any oral or perioral tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists.”

Wage Withholding for Contractual Alimony – No longer!

Posted on by CJ.Harding

A Texas Court of Appeals held that a wage withholding order cannot be used to collect contractual alimony.  This adds yet another difference between court-ordered spousal maintenance and contractual alimony for both clients and lawyers to know about and discuss.

The full opinion can be found here.

The most interesting part is that this invalidates Texas Family Code §8.101(b) to the extent it authorized wage-withholding for contractual alimony.  The basis?  Unconstitutional under Texas Constitution Article XVI, §28, which states that current wages for personal service are not subject to garnishment, except for the enforcement of court-ordered child support or spousal maintenance!

What is the Standard Possession Order in Texas?

Posted on by CJ.Harding

A Standard Possession Order, or SPO, is the visitation schedule of a non-custodial parent described in Texas Family Code Title 5, Subchapter F (153.3101 – 153.317).  The actual statute can be found here.  There is a rebuttable presumption that this schedule is in the best interest of the child (Tex. Fam. Code 153.252).  However, there is arguably a different standard (or no standard) for a child under three, if you look at Texas Family Code 153.254.  That will have to be addressed in a different post.

One easy way to explain the SPO is that the non-custodial parent will have the first, third and fifth weekends of every month, plus some additional holiday time and possession in the summer and Thursdays from 6:00 PM to 8:00 PM.  Non-custodial parents should make sure to understand that when there is a fifth weekend of the month, they will have the following weekend as well, since the following weekend will be the first weekend of the next month.  This commonly causes confusion as many parents seem to believe they get “every other weekend.”  If you have an SPO, that is not true, and you may miss out on time with your child.  For ease of use, I found a calendar for 2012 as an example on the website of the Attorney General (AG Calendar) and another on an Austin Mediation website (AM website).

Keep in mind that the SPO addresses visitation for under 100 miles and over 100 miles.  Over 100 miles gives the non-custodial parents the option to pick a weekend per month instead of the 1/3/5 schedule as well as additional time in the summer and all spring breaks.

Also, sometimes you hear reference to an Expanded SPO.  Normally when that term is used, it refers to an SPO where the non-custodial parent has chosen to exercise the option under 153.317 to change pick-up or drop-off times to get more time with their child.  When pick-up times are changed, it is normally changed from 6:00 PM to the time school is released and drop-off is normally changed from 8:00 PM to the time school resumes the next day.  This allows the non-custodial parent take an additional over night (Thursday or Sunday) or have additional time between when school would be dismissed and 6:00 PM, the standard pick-up time.

If you have questions, feel free to ask.  This is a brief overview and does not address every situation, school holidays, or general terms and conditions, for example.  Hopefully this DOES make the SPO a little more clear!

Answers

Posted on by CJ.Harding

Pro Se litigants, which simply means people representing themselves, need to take care and make sure to file an answer.  Without an answer on file after a party is served, the opposing party can enter a Default Judgment, getting everything that they want without notice to the pro se litigant.  Almost every family law case involves children or assets that make it worth to at least be a part of the process.  Filing that answer makes sure a litigant is noticed of hearing and gets to participate.

What constitutes an answer is given a lot of leeway.  “A defendant, who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant’s current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case.” Smith v. Lippmann, 826 S,W, 2d 137, 138 (Tex. 1992).

An example of just how much leeway this gives is evidenced by the appellate decision in Beard v. Uriostegui.  Here, the Father filed to modify custody of one of the children, giving himself the right to designate the residence of the oldest child.  Mother was served and sent in a letter to the Court, stating she was not going to contest the change, but wanted the Court to take into consideration certain financial matters, including the fact the Father had failed to support the children under the prior order.

The District Court granted a default judgment against Mother.  She appealed and the Appellate Court reversed the decision, stating that the letter, based upon Smith v. Lippmann, constituted an answer and that Mother wanted to present evidence on the child support issue.  This allowed her to challenge the child support findings and hopefully she will hire an attorney to address the past due child support.

Overall, use the free consultations many attorneys offer.  At least you will have a better idea of what is at stake, the process, and if filing an answer is worth it.

How to Pursue Contractual Alimony and the Remedies Available

Posted on by CJ.Harding

Before reading this post, make sure you know if the payments are contractual alimony or spousal maintenance.  My prior post on the topic should help.

If a spouse (now ex-spouse) fails to pay contractual alimony, your remedies are the same as if they had breached any other contract.  You look for the damages you suffer, which include both the payments outlined in the decree that the ex-spouse has not paid, any foreseeable damages, and attorney’s fees.

The missed payments should be easy to figure out.  Tally up the amounts the ex-spouse has not paid.

Attorney’s fees are available through the Texas Civil Practice and Remedies Code section 38.001.

Foreseeable damages would be any additional penalties, fines, and other monetary amounts that the spouse could have foreseen you would suffer by their non-payment.  For example, if the payments were known to be used to pay a mortgage, the paying spouse failed to make multiple payments, and the mortgage was foreclosed and the house lost, you could argue any additional penalties/fees, moving expenses, and perhaps other expenses were foreseeable and should be compensated.

Some issues for the suing party to consider are whether the ex breach the entire agreement or whether the breach was only of the specific payments not made.  Things get more complicated here, since sometimes parties argue the contract was modified by different events or a pattern of past behavior, as well as the more limited breach of an installment contract versus the total breach.  If arguments like this begin to surface, consult a lawyer familiar with this topic.  It will serve you well, and in this setting, contingency fee contracts or retainer agreements are both typically available, depending on the firm.

Relocation in Texas (also known as Geographic Restrictions or lack thereof)

Posted on by CJ.Harding

How does a Court determine if a geographic restriction for the child’s primary residence should be put in place, and if so, the area of that geographic restriction? 

OVERVIEW

In Texas, the Court’s power to determine geographic restrictions comes from Texas Family Code sections 153.134(b)(1)(A) and (B).  The first section allows the Court to establish a geographic area for the child’s primary residence while the second, (B), allows the Court to specify that the conservator with the right to determine the primary residence of the child has no geographic restrictions in making that decision.

The Court, in making this decision, then looks to the public policy of the State of Texas and the best interest of the child as laid out in Texas Family Code sections 153.001(a) and 153.002.

153.001: Public Policy

(a) The public policy of this state is to:

     (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

     (2) provide a safe, stable and nonviolent environment for the child; and

     (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

153.002: Best Interest of Child

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

SPECIFIC FACTORS

As you can see, there is not a lot of guidance.  Fortunately, two cases lay out the factors to consider.

For the best interest of the child, we look to Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).  While an older case, it is still continuously cited and is still considered good case law.  In fact, when searched on LexisNexis on January 6, 2012, Holley was cited 963 times.

Those factors are:

  1. the desires of the child;
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parental abilities of the individuals seeking custody;
  5. the programs available to assist these individuals to promote the best interest of the child;
  6. the plans for the child by these individuals or by the agency seeking custody;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a roper one; and
  9. any excuse for the acts or omissions of the parent.

This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

For factors to consider in the relocation context, we look to Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  In Lenz, the Texas Supreme Court dealt with two German citizens and their children.  One parent wanted to move back to Germany.  The Texas Supreme Court stressed that old standards of relocation which place a burden on the parent choosing to move may not be feasible or appropriate in our society today, since there is “[i]ncreasing geographic mobility and the availability of easier, faster and cheaper communication.”  The Court then looked at other states to discuss factors now deemed more relevant in today’s society.   Those factors are:

  1. reasons for or against the move;
  2. comparison of health, education and liesure opportunities;
  3. whether special needs and talents of the children can be accommodated;
  4. the effect on extended family relationships;
  5. the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and
  6. whether the non-custodial parent has resources to relocate.

OTHER CONSIDERATIONS

Echols v. Olivarez:

Another case sometimes referenced is Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.– Austin, 2002).  Echols takes some of the language of Lenz and expands on it so that the “context of the custodial parent’s happiness” should be a factor as well.  The idea is the custodial parent’s happiness can influence the child’s happiness.  Since the Texas Supreme Court in Lenz left the list of factors open, this seems a legitimate factor to consider in the relocation context, though the weight that should be assigned this factor is certainly not determinative of the relocation issue.  Later cases cite this factor and the current attitudes on this in the scientific community as evidenced by expert testimony at the trial court level.  However, that will need to be another post.

Court-Ordered Spousal Maintenance v. Contractual Alimony: Overview

Posted on by CJ.Harding

The issue of whether spousal payments are court-ordered spousal maintenance or contractual alimony has come up again and again. Because this issue has a lot to it, I will outline some topics I hope to address and why the parties should care.  This post will just serve as an outline.

The Topics:

  1. What is court-ordered spousal maintenance and what is contractual alimony;
  2. How to proceed when a spouse fails to pay court-ordered spousal maintenance and what relief is available;
  3. How to proceed when a spouse fails to pay contractual alimony and what relief is available; and
  4. How to tell the difference and which should you choose if you have the option.

Why Should a Party Care?

The parties should care about what these payments are classified as because the terms of enforcement/relief are different for each, the process for obtaining relief (how you plead the case) is different for each, one type of payment can be changed or eliminated while the other cannot, and finally, there are limits to each in terms of duration, amounts paid, and if it is even available.