Property IV: Classification of Particular Assets

December 3, 2006


Now that we have gone through some general classification principals, we can look at some specific applications.

Most questions of “is it yours or is it mine” are simple to figure out. Texas marial property can be classified in most cases simply by applying the meaning of Texas Family Code 3.001. The section states that a spouse’s property consists of : (1) the property owened or claimed by the spouse before the marriage; and (2) the property acquired by the spouse during the marriage by gift, devise, or decent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.

However sometimes classification is a little more complex. What follows are some general principals and likely outcomes of classifing certain property as separate or community. However caution must be used in applying these principals. Certain facts may change how the property is characterized. Remember, as I keep saying in this blog, any person should consult with an attorney prior to making any decisions based on any information obtained in this blog. This blog is for educational (and maybe entertainment) purposes and is NOT LEGAL ADVICE! Ok, enough said. Let’s look at some specific assets begining with the next post..

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Case Update: Grandparent Access

April 23, 2006

A recent Texas Supreme Court case has come down in applying the new Constitutional standard of the seminal case of Troxel v. Grandville530 U.S. 57, 120 S.Ct.2054. We haven’t got to grandparent access yet, so if you are interested, check out the full post at my “blanco” blog by clicking here: Texas Divorce and Family Law Blog.


Don’t Slip On the Temporary Order A”peel”

March 23, 2006

Chiquita is mad because at her temporary order hearing, her husband received temporary possession of the bowl of bananas she likes to wear on her head. Can she “appeel” the banana decision because she doesn’t like how they were split? Well, if she had the temporary order hearing in front of an associate judge, (the “second banana” judge, if you will..)then she would be able to appeal the associate judge’s ruling if she files the proper motion withing three days of the judge’s rendering. However, if she have the temporary order hearing in front of the sitting, elected judge, then she cannot appeal because the judgement is “interlocutory” (not a final judgement). There is one exception- if the judge appointed a receiver to manage, protect, or dispose of the bowl of bananas, then she could appeal that to a higher court. (TRC 6.507).

Appealing temporary orders however, should not to be confused with a temporary order on appeal.

Hun?!

Temporary orders generally end when the final order is entered (unless the final order specifically says otherwise). However, if you are appealing a final order, the lower court retains jurisdictional power to render temporary orders while the appeal is pending to protect the parties and the property. These interim orders can even contain things that were not in the final order being appealed. These interim temporary orders are fully enforceable, even by contempt. (TFC 6.709(b) and 109/001(b)). That means even though a party is appealing the order, spousal support and child support must still be paid if they are in the interim temporary order.

One trick though. The interim temporary order must be rendered within 30 days after the appeal is perfected, or the court loses it’s jurisdictional power over the case. (In re: Boyd, 34 S.W.3d 708 (Tex.App. –Fort Worth 2000).


Temporary Orders: The Pistol Packin Problem

March 21, 2006

If you are a card carrying member of the NRA, beware of Temporary Orders! Even if violence was never raised as an issue, if you carry a firearms under a domestic court order by any jurisdication (which a Texas temporary order is), you may be up against federal criminal sanctions. U.S. v. Emerson (270 F.3d 203 (5th Cir.2001).

Most judges are unaware of this, but I have seen some judges ask the parties if either of them own firearms before they grant temporary orders.

The constitutionality of domestic orders is really at issue. How the need for the stability of temporary orders in family law case measures against the fundamental right to bear arms of the second amendement to the constitution has yet to be decided. It seems that nobody really wants to knoch these two heads together by challenging it.

But this being Texas, we do love our shooting irons. So it is probably just a matter of time before this issue comes up before the Supreme Court.

See also: Child Abuse, Family Violence and Protective Orders


A Quick Fix: Temporary Orders

March 5, 2006


Temporary orders are often necessary to keep the peace and sanity of parties going through a divorce. Ben Franklin, or some other wizzen old guy once said “good neighbors are made with strong fences” (or something like that) and that sentiment goes double in a divorce. A hearing must be had in front of a judge to rule on temporary orders. In Texas, the courts are supposed to set a hearing within 14 days of the request for one, but with the overcrowded courts being what they are nowadays, it is becoming rare that you can get a TO hearing that quickly. Temporary orders are the marching orders for the parties and they are put in place so that everybody knows what will be what until the divorce if final. The parties will be granted posession and access to certain property at the exclusion of the other party. The house, cars, personal effects, etc. will be awarded and the use of community funds may be restricted. Another useful temporary order that is often include is the requirement that both parties must file an inventory and appraisement of the property and other records that will help the parties value and divide the property when it comes time to finalize the divorce.


Divorce Part II: How May I Serve You?

February 14, 2006

Of all stages of the divorce process, giving and receiving service of process is probably one of the most emotional and misunderstood.

In most cases getting served with notice of a divorce is never a complete suprise. People in a happy marriage don’t generally just wake up next to their loving spouse and say “I’m gonna get a divorce today”. However, despite the many signposts that may pop up in the months and years preceeding a divorce suit, there is often a sense of suprise and betrayal by the one being served- even if it is simply the thought that “that SOB did it before I had a chance to!”

So why is all this sneeking around with a stack of papers necessary?

It is a basic tenent of the law that the person being sued in court has the right to know the action is happening and to appear in court to defend against the actions. There are strict requirements for service of process and the family law practictioner who ingnores them risks the prospect of a default ruling being retried in a motion for new trial.

Only certain people may serve process. Under the Texas Rules of Civil Procedure, this is (1) any sheriff or constable or other person authorized by law; and (2) any person authorized by law who is at least 18 years old and has not interest in the outcome of the case. (TRCP 103).

Process may also be served by mail. The problems with that is that if the party does not personally sign the return green card, there is no proof of the service if the party then complains and seeks a new trial.

A party may sign a waiver of service that they have received notice of the suit. This is usually the easiest method, but many times parties refuse to sign anything thinking that they are giving up some sort of rights. Usually the only thing they are doing is forcing delaying the inevitable.

Alterntive forms or service are available if personal service or mail by service is not possible. Permission must be obtained by the court to use the methods covered by TRCP 106. These substitute services include delivering the citation to anyone over 16 years of age at the last known address of the person to be served. These require an affidavit as well as a court order.

Another method of service is by publication. Service may be obtained by publishing under Rule 116. There are special provisions in the Family Code under TFC 102.010 and 6.409 which allow the publication to be only once. Also, if there is the case does not involve children, service may be obtained by posting notice of citation at the courthouse door. (The only exception to that is if the name of the respondent is not known in a termination case.)


Whoa There Cowboy!: Temporary Restraining Orders

November 10, 2005

The big thing about dealing with the Courts is timing. They do their best, but there are times when it seems like the Courts took their scheduling notes from the same book as the DMV.

A suit for divorce in Texas can take a MINIMUM of 60 days from start to finish. (TFC 6.702). More likely it can take upwards of nine months depending on the facts. During that time, most cases need the Court to intervene and set up some temporary orders so that everyone can “play nice” while the case is going on. I’ll discuss temporary orders in more detail later.

Sometimes, the parties to a suit are in need of some IMMEDIATE intervention by the court to either keep the peace between the parties, make sure a parent does not disappear with a child, or ensure that one party does not destroy or use up the community property just to be a jerk. Unfortunately, once a suit has been filed it may take two, three, or at some times of the year, even four weeks before the case can be brought before the Judge. A lot of bad things can happen in that time.

The law’s solution to this problem is called a Temporary Restraining Order (not to be confused with Temporary Orders-which will be discussed in a later post). A “TRO” is what we call an “ex parte” order- that is, it is signed by the judge without the need for a formal hearing of both parties. Often the TRO is presented to the judge on the same day that you file your original petition with the Court. The reason the courts can get away with signing an order without offering a hearing for both parties is that the nature of the TRO is very temporary relief. Your TRO will have a hearing date set on it by the clerk in which you will have to appear before the judge. (That is why the form is formally called a “Temporary Restraining Order and Notice of Temporary Order Hearing”). The law limits a TRO order to being effective for only 14 days. The idea is that the clerk of the court will give you a hearing in front of the judge within this time. Ha! Fat chance. In most of the larger counties, you will have to wait much longer. That is why the law allows the TRO to be renewed for an additional 14 days. (TRCP 680). Beyond that you are going to have to seek out a judge and explain why you need additional time under a TRO. Generally accepted reasons are that you have tried, but have not yet served the other party, or if the other party was served, they had too little time to find an attorney and prepare for the hearing.

Texas Family Code 6.501 sets out ten standard items that may be included in the TRO. If there are children, you can also include injunctions (what I call “thou shall nots”)against disturbing the peace of the kids or removing them from a certain geographical area. There are limitations to what a court can order in a TRO because it is done without a fair hearing and a party has a right to have a hearing if an order would otherwise be unfair or impinge on constitutional rights. You can’t exclued a spouse from living in their residence without a hearing (unless a protective order is also sought due to domestic violence). You can’t prevent a party from making reasonable expense for basic living needs. You can’t require a party to do something like pay bills or pay child support. If there is a pre-existing order on the children, a TRO cannot change the party appointed as the primary conservator.

Many lawyers file the TRO restricting only the other party. Some courts have a policy to only grant TROs if they are made mutual to both parties- and they will stamp the TRO with a big “MUTUAL” stamp so that the injunctions are binding on both the husband and the wife. This makes sense because neither party should be making harrasing phone calls, or making threats to the other party, and all the other “play nice” injunctions of 6.501. In fact more attorneys are simply making it mutual from the drafting stage.