Want your Spouse’s Gamer Profile? Why not?

Are you going through a divorce and your soon-to-be ex spent way to much time playing video games? Do they have their own avatar, gamer profile, character and items that they spent hours and hours building up or acquiring? Do you want it?

Well, why not ask? If the profile was created during marriage, seems that would be community property. Better yet, these profiles, or sometimes items the profile has earned/collected, have VALUE! Don’t believe me? Just search online. Or check out the link here and here, since I did it already.

Wouldn’t it be nice to say, “Yes, dear, you can have Lord Morgan, your World of Warcraft Level 110 Blood Elf Death Knight, but you’ll have to give me $200 for it, since that is what it’s selling for here…”

What happens if you can’t take ALL that holiday time?

Sometimes people cannot take all of their holiday possession time, and with Christmas coming up, I was curious what options they might have.
So, I pulled out the Texas Family Code, section 153.314. It says that:
“The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart…”
It then goes on to list Christmas Break.
While you would have to look at the specific possession schedule in your particular order, most state:
“Notwithstanding the weekend and Thursday period of possession of [possessory conservator]…”
Then it lists Christmas Break.
My interpretation is that if a Thursday or weekend falls on the possessory conservator’s time both under the regular terms and the holiday time, the possessory conservator can take it under either. If the possessory conservator’s normal Thursday or weekend time falls on the managing conservator’s holiday time, it’s the managing conservator’s possession time.
So, this year most Christmas Breaks start December 15, this Friday. While the possessory conservator would normally get the third weekend, this weekend, because it conflicts with under a standard possession order out of the Texas Family Code, the managing conservator has possession  the first half of Christmas break and it gets wiped out for the other conservator. However, the possessory conservator would certainly get the fifth weekend in December, since it falls on what would be his/her time under the holiday possession, so doesn’t get wiped out, as well as Thursday December 28, and the first weekend in January.
Have a Merry Christmas, everyone!

You Can Only Make the OAG do so Much…

Recently , the Fourteenth Court of Appeals confirmed limits on what you can force the Office of the Attorney General (OAG) to do. In in-re-h-g-j  No. 14-15-00551-CV, 2016 WL 6561468 (Tex. App.–Houston [14th Dist.] 2016, no pet. h.) (11-03-16), the Court used Texas Government Code 22.002(c) to bar the lower court from ordering the OAG to disburse funds to a party other than the custodial parent.

Texas Government Code 22.002(c) states:

Only the supreme court has the authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of the government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform.

An injunction includes an order mandating particular conduct, such as making a disbursement to the amicus in this case.

Since the Attorney General himself is an officer of the executive department, his agency falls under this statute, and only the Supreme Court of Texas could compel the disbursement of funds.

While the holding is correct, this limits the ability of a non-custodial parent to recover funds that should not have been paid or were taken. For example, sometimes there is a delay between a new final order terminating child support and an employer implementing that order, and wages are improperly withheld. Or a tax check for over payment of taxes is withheld by the OAG because the order terminating child support has not been processed. Both situations result in monies going to the custodial parent and now, without the option to force the OAG to put a hold on those funds for disbursement back to the noncustodial parent, the noncustodial parent must sue the custodial parent. Many times they can end up with a judgment but the money is long gone.

NOTE: This court chose to sidestep an analysis of executive director as outlined in Texas Gov’t Code 22.002(c), such as the Attorney General, and an executive agency, like the Office of the Attorney General, but I would believe that the general thought of separation of powers should hold true to both.


Common Law Marriage -Very Hard to Prove in Texas

What is a ‘common law’ marriage? Most people believe it is when two people live together as a couple for some amount of time. Two years is a common time-frame stated. But Texas has a specific three-pronged test.

Under Texas law, to prove a common law marriage, the three prongs are:

  1. There is an agreement to be married; and
  2. After the agreement, the two live together in Texas as husband and wife (now probably as a married couple, not just male and female, after Obergefell v. Hodges); and
  3. The couple represented to others in Texas that they were married.

— Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.–Houston [1st Dist.] 1991, writ denied.

The agreement to be married, cohabitation, and representing to others can be established by direct or circumstantial evidence.

The most difficult part under this test is proving that there was an actual agreement between the two persons to be married. Most evidence that might be relied on would be things such as statements to the public made by the parties, tax returns showing the parties filed a joint-married, holding property together, or even listing both names on bank accounts or other assets. Courts have parsed this evidence out as not evidence of an agreement to be married, but rather fitting under the ‘representing to others’ prong. For example, attending social events and having the parties refer to each other as spouses only fits under the second prong, and is not evidence of an agreement to be married. The Estate of Francis W. Sinatra, Jr. v. Sinatra, 13-14-00565-CV (Tex.App. Dist.) 2016. Moreover, when there is direct evidence which definitely shows that there was no agreement, an agreement cannot be implied.

Why does it matter if there is a common law marriage? Well, when couples that never formally married decide to separate, there are very different outcomes depending on if a common law marriage exists. This is especially true if one person dropped out of the workforce to raise children, and those children are now grown. If a common law marriage is found to exist, that person will have access to the assets accumulated during the course of the common law marriage. Those assets could be substantial. If there is no common law marriage, that person is likely forced to walk away and take only what their partner chooses to give them.

What should a person do if they are not formally married and living with someone? Make sure the two of you are on the same page. Make sure that each has thought through what happens if you separate. And then make sure any agreements are in writing while you both are on the same page. This could be a cohabitation agreement, a written statement of agreement of common law marriage, or a number of other things.

The Importance of a Correct Citation

What is a citation?  It is the additional document the clerks make to send with the original petition for service.

What does it do? Among other things, a citation lays out the rights a defendant to a lawsuit has, the answer day, the parties, and that if the defendant fails to respond, a default judgment could be entered against him.

Why is it important?  Well, mainly because it is required under Texas law.  And if it is wrong, the defendant can have a default judgment overturned.  That’s time and money wasted.

An example?  Well, in Heike Curley v. Michael Curley, 2014 WL 3867798, a defendant was served in a divorce case that involved children.  Unfortunately, the citation used did not have the children listed.  The defendant failed to answer, and a default was entered.  The defendant then was able to overturn the default on appeal because of the defective citation.

The take away? Make sure your citations are correct.  It is on you, not the court, because if a default is entered on a defective citation, and then the defendant files the appeal, there is going to be a new trial.

How to Change Court-Ordered Spousal Maintenance

In Texas, courts CAN order one party to pay another spousal maintenance, even if courts do not often choose this option.  If a party IS ordered to pay spousal maintenance, can they get it changed in the future?

Yes, but there has to be a ‘material and substantial change in circumstances’ in the factors that the Court relied on in determining that a spouse required spousal maintenance.  Tex. Fam. Code 8.057(c).

Keep in mind that while a party can get spousal maintenance changed (increased, decreased or eliminated), the process does take time.  The maintenance order cannot be changed without a hearing, and that hearing requires notice governed under TRCP 245 (final trial notices), so expect at least a 45 day wait from a pretrial hearing.

In other words, a party wanting to change spousal maintenance needs to jump on this quickly, and stay on top of it.  File the motion to modify as soon as the conditions have ‘materially and substantially changed,’ get the other party served, and then set up the pretrial hearing to get a final trial date.  If discovery needs to be done, then there are going to be additional delays.  But until that hearing takes place, there will not be any change in the court-ordered spousal maintenance.

I Just Moved to Texas, Where Do I File My Child Custody SUit?

You probably must file in the state you just moved from.  Suits involving a child custody determination, or possession, visitation and access, fall under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  Almost all states have made it law, and in Texas, the UCCJEA is embodied in Chapter 152 of the Texas Family Code.

For initial child custody determinations, there are four options:

  1. The state is the home state of the child, meaning the child lived in the state for six months preceding the case, or the state WAS the home state of the child within six months before the case is filed and a parent or person acting as a parent still lives in the state.  Tex. Fam. Code 152.201(a)(1).
  2. No other state is the home state of the child or a court in the home state has declined to exercise jurisdiction (power) because another state is a more appropriate place because it is a) more convenient or b) a parent acted in bad faith or unjustifiably to make a certain state the home state of the child.  The child and at least one parent or person acting as a parent must have a substantial connection to the state in which the case will be filed or substantial evidence is available in that state.  Tex. Fam. Code 152.201(a)(2).
  3. All states that could exercise jurisdiction on the two grounds above have declined to do so because another state is the better forum because it is more convenient or because of bad conduct of a parent.  Tex. Fam. Code 152.201(a)(3).
  4. No court in another state would have jurisdiction under any of the three above grounds. Tex. Fam. Code 152.201(a)(4).

There is a basis for a court in Texas to make emergency orders, governed by Tex. Fam. Code 152.204, but speak with an attorney if it is going to come to that.  These interstate cases are not easy, and a lot of time and money can be wasted if you accidentally file in the wrong state.

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

Fraudulent Marriage – Annulled!

Ever hear of a marriage based on lies and deceit?  I think everyone has, but never have I seen it laid out as clearly as is done in the opinion below:

Montenegro v. Avila

In this case, a man and woman met on an internet dating site.  The man initially claimed to be an engineer in Florida while the woman honestly stated she lived in El Paso.  The man finally, after they began to talk about meeting, told her that he could not visit her in Texas because he was in Bogota, Colombia, and could not get a visa.  The couple met in Mexico, where the man proposed.  He was turned down, but did get $200 to make his way back home. Later that same year, the woman traveled to Colombia, was proposed to, and accepted.

Man, now Husband, gets woman, now Wife, to apply for a visa for him.  He gets to the United States, get Wife to open bank accounts in both of their names, and begins withdrawing funds.  He doesn’t work until almost a year later, but instead begins the residency process.  On and on it goes…

Then Husband finds out about the Violence Against Women Act and how it can be twisted to circumvent the typical visa/residence restrictions.  The same day he learns about this he turns himself into a domestic violence center and reported he was being abused physically, verbally, mentally, and sexually.  He eventually leaves with the money he’s taken and other ill-gotten goods and moves to another city.

Wife filed for annulment, he filed for divorced.  Guess who won?  Wife – the marriage was annulled on the grounds of fraud.  Very interesting.  I’m not an immigration attorney, but I’ll bet that if that marriage visa was based on fraud, as could be concluded by the annulment being granted, he would probably have to leave the country, hence his need to appeal and our ability to read a very interesting appellate decision describing this case!