Child Abuse, Family Violence and Protective Orders

June 17, 2006

A protective order may be put in place to protect past and present family members including children. An action can be brought either as part of a divorce (Texas Family Code 6.504) or in any suit affecting children (82.005).

Any adult may bring a protective order to protect the welfare of children. For protection of an adult, the protective order may be filed by an adult member of the family or household, or a prosecuting attorney, or a Texas Department of Family and Protective Services employee for the protection of anyone alleged to be a victim of family violence. (Texas Family Code 82.002).

A protective order shall be rendered if the court finds that family violence has occurred and is likely to occur in the future. (Texas Family Code 71.004). Family violence is defined as an act by a member of the family or household that is intended to result in physical harm or is a threat that reasonably places the member in fear of imminent physical harm.(Texas Family Code 261.001(1)). This definition of family violence includes dating violence. (Texas Family Code 71.0021 and 82.002(b).

In a divorce, any party may motion the court to render a protective order. The motion can come before the petition for divorce (Texas Family Code 85.061) or after the petition for divorce is filed. If the circumstances allow, the protective order should be filed in the court that is handling the divorce. However, the protective order can be filed and rendered in any county where the applicant resides. However, it may be later transfered into the court where the divorce is pending. (Texas Family Code 85.064(b)). The respondent is entitled to notice of the protective order and should be served. If the protective order is part of a divorce, some attorneys serve the protective order and notice of the hearing date at the same time as they serve notice of the divorce.

EMERGENCY TEMPORARY ORDERS: A sworn affidavit by the applicant is needed for a temporary protective order which is being sought without a formal hearing with both parties in front of a judge. (Texas Family Code 82.009). This is called an ex parte protective order and is valid only for 20 days unless extended. (Texas Family Code 83.002). The purpose is to maintain peace until a formal hearing can be scheduled in front of a judge.

The emergency ex parte temporary order can include excluding a party from a home (Texas Family Code 83.006). However, this is a very serious remedy and judges are very cautious about granting such an order. There are some careful restrictions on this relief so that parties cannot abuse this process.

The scope of a protective order can be broad and cover almost every aspect of family life. Under the Uniform Interstate Enforcement of Domestic Violence Protectio Orders Act, the State of Texas will fully enforce out of state protective orders. It is also illegal to possess a firearm or ammunition if you are under a protective order and have been found to have committed family violence. See also: Pistol Packing Problem


Latest Texas Statistics: Less Divorces, Less Marriages

June 10, 2006

The latest statisics reveal that divorces in Texas have been decreasing over the last two years. There were 63,717 Texas divorces so far in 2005*. There were 7.3% less Texas divorces this year than over the same time period last year and a nearly 12% decrease from the same time period in 2003.

The number of marriages has also decreased. There were 141,156 marriages made so far in 2005*. However, this is 11,192 less marriages made than the pervious year and 11,296 less than the same time period in 2003.

*From January to October

Source: National Vital Statistics Reports, Vol. 54, No. 17, May 10, 2006

Temporary Orders: Property Issues

June 10, 2006

After children issues, one of the most important issues decided on in temporary orders is which party will have use and possession of property while the divorce is going on and who will pay the debts.

The facts of each case make it hard to make any generalizations about the temporary disposition of property, but the following are some rules of thumb.

First, on the use of the house, the Judge will generally give the party who has the children the use of the family home. The reason, obviously is that the Judge wants the children’s lives to be as stable as possible and he doesn’t want the kids moving around unless absolutely necessary. Howver, if the home is the separate property (usually because it was owned in full prior to the marriage by one of the parties), then the Judge generally cannot order the party without the kids out of the house.

Another generally rule of thumb is that each party will be temporarily awarded the use of the car in their respective possession. This is usually not a contested issue, but sometimes one party may demand temporary use of a specific vehicle (such as the party with primary custody needing the minivan instead of the sports car).

The ongoing payment of debts (such as monthly bills) will also be decided during temporary orders. Often the sticker shock of trying to support two households is too much for the community budget to bear. Even though a party may be ordered to pay certain debts (such as credit cards)while the divorce is pending, they may not be able to afford to. The party may only be able to pay the secured debts (such as the car and the mortgage) to keep them from being forclosed on. Generally, if a party does not pay (with a few exceptions) general debts, this is not actionalble by contempt, because the Texas Constitution does not allow imprisionment for debts.