Deadline to Appeal Associate Judges Shortened!

This post does not affect all counties – just those with associate judges, such as Tarrant, Dallas and Harris County, to name a few.  The Legislature passed H.B. No. 1366, which amends multiple sections of the Texas Family Code by shortening the deadline to file de novo appeals of associate judge rulings from seven days to three days.

While the changes do not take effect until September 1, 2013, we might as well get in the habit of making sure the client knows there is a very limited amount of time to appeal that temporary orders ruling.

For those choosing to represent themselves, this means a very short turnaround if you get an adverse ruling in an Associate Judge’s courtroom and then want to appeal the decision or go hire a lawyer to appeal it.

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…

Expanded Visitation Clarified

Sometimes parents (and even attorneys) have had confusion when talking about an “expanded” standard possession order.  This option is found in Texas Family Code Section 153.317(a).

Before the change, a parent could choose to EITHER pick up the child from school on their 1/3/5 weekends OR drop the child off at school at the end of the 1/3/5 weekends.   This was also true for that mid-week Thursday night possession.

This was commonly interpreted (with no real decent basis) to include an AND.  So the misinterpretation would mean a parent could pick up from school and then, after the weekend, drop their child back off at school.

Now it’s been cleared up.  The pick up AND drop off option is specifically stated as a choice for both the weekends and for that Thursday night possession.  Now parents can decide to 1) pick up the child from school, 2) drop off the child at school, or 3) both.

Attorney’s Fees and Bankruptcy

What happens if one spouse, Husband, is ordered to pay the attorney’s fees of the other spouse, Wife, the Wife pays the attorney’s fees, requests reimbursement, then Husband files for bankruptcy?  Is the Wife out of luck?

This situation came up in In re: Jeffrey Todd Van Dermark, a 2008 case from the Bankruptcy Court in the Northern District of Texas.  Quick answer – the Husband had to pay the fees in full.  But read on, there’s more to it.

Quick Facts:

  • Husband and Wife divorced in Georgia, in 2006.
  • Wife had a contract with her attorneys and was required to pay them upon receipt of the invoice.
  • In the Final Judgment and Decree of Divorce, Husband was ordered to pay $25,000.00 in attorney’s fees to Wife’s attorney.
  • Wife ended up paying the firm the $25,000.00, and turned to Husband to be repaid.
  • Husband filed for bankruptcy the next day, and tried to discharge the $25,000.00 debt.

Question for the Court

The question the Court was asked to answer was this – “Was the $25,000.00 a domestic support obligation under the bankruptcy code since Wife paid it and now demanded it from Husband, so protected as a priority claim?  Or was it not a domestic support obligation because the Husband was supposed to make the payment to Wife’s attorneys?”

The reason it matters is that if it was found to be a domestic support obligation, Husband would have to pay that $25,000.00 first (that claim has priority) and in full.  If not, the $25,000.00 claim would be reduced or fully discharged and Wife would be left out in the cold, having shelled out $25,000.00.

The argument provided by counsel was whether or not this claim was owed to Wife’s attorneys or to Wife under the domestic support obligation statute in the Bankruptcy code, and focused on Section 101(14A)(A) of the Bankruptcy Code, which states for a claim to be a domestic support obligation, it must be:

“a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt, as provided under applicable non bankruptcy law notwithstanding any other provision of this title  that is –

(A) owed to or recoverable by –

(i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian or responsible relative; or…”

The Court looked first to the bankruptcy code’s definition of ‘claim,’ and found that it is a ‘right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent  matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured,” and that the definition was intentionally broad.  11 U.S.C. 101(5)(A); See In re Egleston, 448 F.3d 803, 812 (5th Cir. 2006).

The Court also turned to Georgia’s statutory definitions, since the Final Judgment and Decree of Divorce was out of Georgia, and found that it supported this claim as being owed to Wife, not just her attorney, per the language of the Decree of Divorce and under Georgia law.

Since that was the only argument asserted, and the Court found that the claim was, in fact, owed to and recoverable by Wife, the claim was a domestic support obligation.

Further Thoughts

One thing not argued, and which would have been interesting, is whether the Court believed it to fit the second requirement of a domestic support obligation, that the debt is

“(B) in the nature of alimony, maintenance, or support… of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated;…”

– 11 U.S.C. 101(14A)(B)

I think the claim would have been denied that special status at that point.  The claim just does not fit the second part of the definition for a domestic support obligation.  Unfortunately, we will not know until a similar fact set occurs, the argument made, and an opinion issued.

Related Article:

Child Support and Bankruptcy

List of School Districts in Texas

Sometimes you need to know a school districts holidays, either for possession reasons or you are just curious.  If you ever wanted a full list of school districts, which you can then interact with and get to the school websites, click HERE.

We do this sometimes in planning possession schedules or trying to help a client see options when it comes to visitation, especially if they choose to exercise possession once a weekend under the +100 miles provisions of the Texas Family Code.

Hope this helps.

Registration of an Out of State Child Support Order FOR ENFORCEMENT

In Texas, this process is outlined in section 159.601-608 of the Texas Family Code. The registration is needed to modify that prior child support order. Warning: this is a complex process and technical, so if you are trying to do this, seek the advice of an attorney.
Registration requires sending the Texas Court:

  1. a letter requesting the foreign order be registered and enforced;
  2. two copies, including one certified copy, of the order to be registered;
    1. (If the original order has been modified, send the original plus all orders modifying to be on the safe side)
  3. a sworn statement by the person requesting registration or a certified statement by the custodian of records showing the amount of any arrears;
  4. the name of the obligor;
  5. the obligor’s address and social security number, and any other source of income (if known);
  6. a description and location of the property of the obligor not exempt from execution; and
  7. the name of the obligee.

TEX. FAM. CODE 159.602(a)

The Texas Court should take and register the order at that point as a foreign order. Then, the registering party typically must send the notice outlined in 159.605, even though the court supposedly should send the notice. The reason is that without the notice, it can be easy to stall the process until proper notice is sent and the opportunity to contest passes.

TEX. FAM. CODE 159.602(b)

Notice means:

  1. Informing the nonregistering party that the order has been registered, the date of registration, and that it may be enforced as any other order issued by Texas;
  2. that a hearing to contest the validity or enforcement of the registered order must be requested within 20 days of the notice;
  3. that failure to timely contest the validity or enforcement results in confirmation of the order and enforcement as well as precludes later contesting it; and
  4. the amount of the arrears.

TEX. FAM. CODE 159.605

Note:

This is a brief overview. If you are planning on doing this, first, always consult with an attorney. Second, read the sections very carefully as this is just a brief overview.

Texas Standard Possession Order – March 2013

For those wondering about weekends the Non-Custodial Parent gets visitation this month (March 2013):

  • 1st Weekend – March 1 – 3
  • 3rd Weekend – March 15 – 17
  • 5th Weekend – March 29 – 31

And don’t forget Spring Break this month!  Look to your order to see who has Spring Break this year.

Click HERE for a blog post and year-long schedule.

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.

Contracts with Lawyers (3 of 3)

The first post in this series dealt with retainer contracts.  The second dealt with flat fee contracts.  This is the third and final post in the series, and deals with contingency fee contracts.  Remember that these just are broad overviews, and a particular contract can be a blend of two or all three.  Read any contract very carefully and make sure you understand it before signing.

Contingency fee contracts are normally used in situations where there is a chance of a large payout, but it will either take a lot of investment and/or the client cannot front the money to pay the lawyer without a successful outcome.  Good examples are personal injury cases.

Contingency fee contracts can require clients to pay expenses associated with the case, but typically do not require payment for attorney/staff time.  Instead, the client will pay a portion of any recovery to the attorney as the fee.  Expect at least 33% of any recovery to be taken by the attorney, up to 50%.  It just depends on the individual case.  Some even break out the percentage further, with (for example) 30% of any recovery before a demand letter is sent, 35% of any recovery after suit is filed, and 40% of any recovery of a judgment, should the case go to trial.

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)

Flat Fee Contracts: Contracts with Lawyers (2 of 3)

 

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