Fraudulent Marriage – Annulled!

Posted on by CJ.Harding

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!

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.

What Effect Does Use of Pornography have in Child Custody Cases?

Posted on by CJ.Harding

Very little to none.  This answer might surprise you, but at least one Texas case is directly on point.  That reasoning is that if the child does not see it and is not exposed to it, the child is not affected by it, and that argument supports even to what may amount to distasteful or deviant sexual practices by a parent.  For an interesting read and case on point, click on Wolfe v. Wolfe, below.

Wolfe v. Wolfe

If you think the actions of a spouse ARE affecting your children, please consult with your attorney and see if they can better bring this side of the case to light for the Judge.

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.

What are the two types of spousal payments in Texas?

Posted on by CJ.Harding

(NOTE: This article was written in 2011.  Please visit the more recent articles as there have been changes in the amount allowed for spousal maintenance and the enforcement options for contractual alimony have been expanded through changes in Texas law.)

Texas has recognized that at times, a spouse may need extra help getting to a point where they are independent or for some reason (typically domestic violence) the spouse should be given extra support that the ‘just and right’ division of community property cannot address.  Therefore, the Texas legislature have outlined the process for a court to award spousal maintenance.  While very limited compared to other states, it is a tool parties and attorneys should be aware of.  Court-ordered spousal maintenance is governed by Chapter 8 of the Texas Family Code.

Court-Ordered Spousal Maintenance:

Instead of re-writing a whole topic, I have included two links.  The first is a link to a short blog I wrote a while back which outlines court-ordered spousal maintenance, and the second is a link to a good overview of Chapter 8 of the Texas Family Code with internal links to the specific provisions.

Contractual Alimony

When the parties can agree that one spouse should make payments after the divorce to the other, normally this is contractual alimony.  The topic on How to Tell the Difference will cover this in more depth but for now the important thing is that the parties can agree to any amount, over any length of time, for any reason or even leave out the reasons and just have the language stating the amount, how and when payments will be made.  Parties can also set triggers in place that can increase or decrease alimony amounts.   This allows for the parties to do long-term financial planning, allows for a party to obtain additional education or tools to re-enter the workforce without the risk of spousal maintenance being changed, and otherwise allows for certainty that may not be available when a court can modify court-ordered spousal maintenance at the request of either party.

Dallas County Online Records

Posted on by CJ.Harding

Ever wonder how we can know so much about your existing case or prior order when you call us the first time?  The trick is knowing where to look.  Most counties keep online court dockets now, and Dallas County also keeps many of the pleadings and orders online.  So when you give your name and your case is out of Dallas County, I go to the website, find your case and the cause number, and then plug that cause number into the online records database.  I can also search marriage licenses, property records, and criminal records off of this same site.  The link is below:

Dallas County Online Records

Is your case out of Collin, Denton or Tarrant?  These counties also have online records, but require a fee to access them.  While we pay to have access, that does not make much financial sense for the typical client with one case.  We use the records to catch up when we are brought into a case after it has already started or to look back at an order that the client wants modified or enforced.

Law firms also have the resources to pay for access to other databases as well as knowing about other websites and ways to get information.  That is one reason to consider getting professional help in a case – we do this for a living, so whether it is getting information on a spouse’s or potential party’s business, knowing about their vehicles or bank accounts, or many other aspects of someone’s life, we tend to know how to get that information and use it to your benefit.

Enforcement of International Custody Orders

Posted on by CJ.Harding

We are starting to get more and more questions regarding enforcement of custody orders from other states or even other nations.  Sometimes the person finds out after the fact that there was a court case and a corresponding final order without them ever being able to take part in the decision.

Fortunately for parents, Texas is one of many states that has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  A long name for something that simplifies this area of the law over all of the United States except Massachusetts – the only state to not have enacted it.  A great example of how the UCCJEA can serve to protect the absent parent is found in Razo v. Vargasi, a recent decision out of the Court of Appeals, First Circuit, Houston.  I attached a link to the case below.

In Razo, a couple were divorced and obtained a child custody order in Mexico.  The mother moved to the United States, which was allowed in the order.  The father was to have possession of the child during the summer and winter breaks while the mother had the child during the school year.  The order also had a penalty clause stating that if one of the parents breached the agreement, the non-breaching parent would get sole custody.  The father claims he went to pick the child up for his possession in December, but the mother and the child were not at the location they were suppose to be at, even though other family members were there.  The father went back to the Court in Mexico, served her by publication down in Mexico, and – surprise – she never heard about the case so he obtained a default judgment awarding him sole custody.  Meanwhile, the mother claims the father never came by and that family was at that address and would have let her know if he had.  The father then came back to Texas, properly registered the order, and had the trial court issued an order (writ of attachment) for the child to be returned to the father.  All of this information came from a bill of exception (special presentation of evidence to preserve it for appeal).

At this point, it sounds like the mother did not get any protection… but the UCCJEA allows for a hearing to contest the validity of an order from another state, whether it be Georgia or another nation like Mexico.  One requirement for that order to be valid requires that proper notice be given.  Tex. Fam. Code 152.305(d).  More specifically, that “notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this sate for service of process… in a manner reasonably calculated to give actual notice but may be made by publication if other means are not effective.”  Tex. Fam. Code 152.108(a).  The Court of Appeals essentially stated the father knew where the mother was suppose to be, there were family members there that could pass information to the mother, and that the father should have noticed the mother by serving her there or serving the paperwork on the family there.  With that reasonable option available, publication in Mexico, where the father knew the mother would not get notice, was not appropriate and the case was remanded for a hearing on the validity of the order.

I thought this case laid out the requirement of notice for an order to be valid under the UCCJEA, as well as how to attack notice, very well.  Another key take away here is that the Court of Appeals only remanded the case due to the attorney properly preserving the evidence through a bill of exceptions.  Overall, when faced with a situation like the mother, you need to be very well-prepared and make sure that you preserve the record and the evidence in case an appeal is needed.

http://www.1stcoa.courts.state.tx.us/opinions/Opinion.asp?OpinionID=89751

Child Support and Bankruptcy…

Posted on by CJ.Harding

Unfortunately, many people ordered to pay child support have had to file for bankruptcy.  We see this occasionally, and while sometimes that person is attempting to avoid their child support obligation, many times the person truly is experiencing hard times.  Even more unfortunately, that person may believe bankruptcy will stay, halt or eliminate their child support obligation – that is simply not the case.  In fact, bankruptcy can make it easier for a person receiving child support to get paid.

To lay the argument out simply:

1) Child Support is seen as a domestic support obligation under the bankruptcy code – 11 U.S.C. 101(14A).

2) Domestic Support Obligations are not dischargeable through bankruptcy – 11 U.S.C. 523(a)(5).

3) In fact, the automatic stay associated with bankruptcy filings will not apply to collection of a domestic support obligation from property that is not part of the bankruptcy estate or with regard to a wage withholding order for future income- 11 U.S.C. 362(b)(2).

4) Finally, exempt property can be taken to satisfy domestic support obligations notwithstanding any State or Federal law to the contrary – 11 U.S.C. 522(c)(1).

What does this mean?

When a person (“debtor”) files for bankruptcy, they fill out certain schedules.  Those schedules include all of their property, their income and where that income comes from.  Because of (3) and (4), the person owed child support could look at those schedules, determine what the debtor is claiming is exempt, then file their Motion to Enforce Child Support.  Texas is allows for a debtor to claim quite a bit of property as exempt, but the debtor must list it in the schedule, which the person owed child support can then show the Judge and simply request that property or that income to satisfy the child support obligation.  While not a sure-fire way of getting that child support paid, looking through a debtor’s bankruptcy filing is a good start.

Trying to find those text messages?

Posted on by CJ.Harding

I recently had someone call to ask about getting text messages from a phone company.  This comes up often with regard to allegations of adultery, and I found the below article.

http://www.divorce360.com/divorce-articles/cheating/catching/checking-text-messages.aspx?artid=1071

The gist is that some companies keep the actual data (text) sent, but most only keep the information regarding who sent and who received those text messages.

Don’t let this stress you!  Most of the time, parties are only looking for this information to prove adultery, which can be done with other tools and methods.  Once adultery is established by evidence, the party has done all they need to do to have the Judge take that action into consideration.  Those added texts probably will not have that much more effect than the evidence already presented.