Friday, December 8, 2017

Interesting Case re: mediation out of Amarillo Texas

Highsmith v. Highsmith, 2017 Tex. App. LEXIS 9213 (Texas. App. - Amarillo on September 28, 2017) (Cause No. 07-15-000407-CV)

Husband and Wife were contemplating divorce. They entered into a pre-suit Mediated Settlement Agreement. Husband eventually filed for divorce. Wife signed a Waiver of Service but did NOT waiver notice of hearings). BUT then Wife filed an Answer with the Court. Husband appeared without any notice to Wife and obtained approval of the settlement agreement and finalized divorce.

After divorce was granted, Wife hired an attorney. Trial court denied her motion to set aside the rendition and revoke the settlement agreement.

Court of Appeals thought the agreement did not comply with Family Code governing mediated settlement agreements since it was done PRIOR to the lawsuit being filed. BUT the Court felt the MSA was enforceable as a contract but then Wife could object using contract defenses and try to revoke it.

Court of Appeals held that Wife did not waive notice of hearings and filed an original Answer.
Wife had a fundamental right to receive notice of all hearings.

So Court of Appeals reversed and remanded for a new trial.

Motto of this finding -

Though not in Houston (it was Amarillo) it addresses an issue that I have been concerned about for quite some time.

If a couple comes to mediate BEFORE filing a lawsuit then either party can try to later revoke it for a variety of reasons.

So...file lawsuit then mediate. That would make it much harder to try to wiggle out of a mediated settlement agreement.

Sunday, December 3, 2017

Free advice is sometimes not appreciated

I had a lady post on a question about adopting children after having her parental rights terminated approx. 3 years ago for meth drug abuse.

And, she said that she just got out of jail for violating the terms of her probation and claims to currently be in rehab.

Perhaps I'm just old and crusty - but the above facts don't sound like any Harris County judge would allow her to adopt new children.

She did not like the advice I offered for FREE on a Sunday evening.

Oh was worth what she paid -- nothing!

If an attorney takes the time to answer your numerous questions at least you could say thanks and look elsewhere for what you want to hear.

Being rude and nasty is just inappropriate.

My e-card from a couple of years ago.

Click on link to open up my e-card holiday card.

Saturday, November 18, 2017

If you don't have a will & other documents in Texas - PLEASE do it now!

Please consider doing the following estate planning documents in 2018. A will is not enough.
You need these docs especially if you are single.
And, probate in Texas is fairly quick and easy if you have a good will. You need an indpendent executor to serve without a bond.
So PLEASE do them now!
1.      Revocation of Previous Powers of Attorneys
2.      HIPAA Authorization to medical providers
3.      Medical Power of Attorney
4.      Directive to Physicians & Family
5.      Declaration of Guardian In the Event of later Incapacity
6.      Statutory Durable Power of Attorney (financial affairs)
7.      Gift by a Living Donor
8.      Appointment for Disposition of Remains
9.      Will

Happy Thanksgiving!

Another year is rapidly coming to an end.

My Dad used to say that the older you get the quicker the years fly by.

So I want to wish everyone a wonderful and joyous Thanksgiving.
Be safe and savor the time you spend with friends, family and even strangers.

If you are reading my blog post, I want to wish you a very happy and healthy 2018 with a year filled with joy, laughter, abundance, fulfillment, peace and ease.

Huffington Post article written by jackie Pilossoph on Divorce

The One Thing That Will Give You Peace After Divorce

11/12/2017 09:26 am ET
Ask someone why he or she got divorced, and typically you’ll get one of these kinds of answers:
  1. My husband left me.
  2. My wife cheated.
  3. My husband’s an asshole.
  4. My wife’s a bitch.
  5. We grew apart.
  6. We were really unhappy.
  7. We never loved each other.
  8. How long do you have?
While I’m not judging anyone for what he or she wants to say or remember in their mind about why they ended up divorced, I think there are some divorced people who have an edge– they have something that helps them find peace and the strength to live a beautiful and authentic life moving forward. That edge is self-awareness.
These people have a gift of being able to look within, realize that divorce is never black and white, and take some accountability for their contribution to the demise of their marriage. And I believe that having the ability to admit some fault is the difference between not only moving on, but having better romantic relationships in the future.
Divorce is a journey. A long one. It’s brutally painful at times, a struggle that often feels hopeless, and includes a roller coaster of emotions, along with lots of mistakes. But, there are some surprisingly amazing parts of the journey. There are moments of sheer joy, inner strength and courage you never knew you had. It’s empowering and you are almost grateful–not that you got divorced, but that you had the privilege of this journey, no matter how painful it is at times.
Part of the journey is self-reflection, looking back and remembering the truth of what the marriage was really like. Some people, to self-protect, only remember this blissful marriage that they thought was perfect. They fail to recall little, subtle things that should have been red flags or signs that the marriage was troubled. Perhaps they turned a blind eye to things because they didn’t want to be divorced.
Others decide their ex is the devil and he or she was 100% to blame. This is easy to do if their spouse was the one who wanted the divorce and /or left for someone else. I’m not saying that someone who had an affair and ended a marriage over it should be vindicated. Having an affair is a horribly selfish, hurtful and cowardly thing to do, in my opinion. But the cheatee isn’t perfect either. And so if that person is willing to face up to that, I think they are better off.
Of the tens of thousands of comments and questions I have received to Divorced Girl Smiling over the years, this reader’s might be one of the most inspiring:
Divorce sucks. I did a lot of the wrong things in my marriage and don’t blame her for leaving. I own it. I do wish however she stayed to see my transformation and give us another chance. I hate that we can’t be together as a family with the kids. I hate some other male figure will be in my kids lives. But I did it and own it. At least I am becoming a better person as a result  #getcleanandsober
Whoever this guy is, I want to give him a huge hug and tell him how extremely amazing I think he is.
“I don’t blame her for leaving.”
“I own it.”
“I did it.”
“I am becoming a better person as a result.”
These are statements that only winners–with self-awareness would make. This guy is remorseful, but takes true accountability for his actions. Because of this, he has a better chance of finding inner peace and leading a happier, more fulfilling life, which includes better future romantic relationships.
His hash tag at the end: #getcleanandsober speaks volumes. I’m not sure if this guy realizes how special he is. Countless men and women with addiction issues don’t have the self-awareness needed to overcome the addiction, in my opinion, even after a divorce. This is a real man who has guts and I respect him unbelievably.
Self-awareness is defined as “knowing self well,” but put in the context of divorce, I think it means having the courage to look in the mirror and say, “Hey, a lot of this (or all or some or a little bit of this) was my fault.”
Another time I heard someone take accountability for his divorce was a few years ago when I was sitting at a Bears game and I met this guy sitting behind me. I’ll never forget. He said,
“I really didn’t treat my ex-wife like I should have. I loved her so much and I did some really stupid things that I truly regret now. I tried very hard to get her back but couldn’t and I have to live with that now.”
Isn’t that more refreshing and honest than someone who plays the victim and takes NO RESPONSIBILITY for anything that went wrong?? It’s maddening how some people just can’t see anything. It’s like they are blind.
The bottom line is, I think to find peace, acceptance and happiness in life after divorce—and to really move on, a person must have self-awareness. Without it, the future will never be as bright.
Self-awareness is the first step to making changes in your life to be the person you really want to be. No one is perfect, but I think we would all agree that each of us strives to continue to grow and evolve into a person we like more and more with each day.
No one can teach a person how to obtain self-awareness. It has to come from within. Faith, therapy, and leaning on friends and family help, but when it comes down to it, self-awareness is about opening your mind. It’s about remember things as they really happened–not what is convenient, or what you wish would have happened.
The journey of divorce never really ends, but rather it is melted into the journey of life. Those equipped with self-awareness will not only have a better journey, but will be able to live each day moving forward with grace, courage, strength, possibly with regret (which is OK), but absolutely with authenticity.
Jackie Pilossoph is the creator of her website, Divorced Girl Smiling. The author of her novels, Divorced Girl Smiling and Free Gift With Purchase, Pilossoph also writes the weekly dating and relationship column, Love Essentially, published in the Chicago Tribune Pioneer Press. Pilossoph lives with her family in Chicago. Oh, and she’s divorced.

This post is hosted on the Huffington Post's Contributor platform. Contributors control their own work and post freely to our site. If you need to flag this entry as 

Thursday, September 14, 2017

Some of the new Texas laws for 2017

The Texas Legislature met this year and, as usual, many new laws are going into effect.

Here are just a few that involve family law or stalking.

1. There is a new revenge porn law now in effect.

2. The Penal Code for harassment now includes phone calls and electronic communications.

Look at Penal Code Section 42.07(a) and 47.072

3. Code of Criminal Procedure now includes stalking provisions that include that no prior relationship is needed and it can last a lifetime for the parties

4. Penal Code 37.09 has been revised to include evidence tampering that includes social media and creating fake evidence or destroying digitized evidence

5. The issues brought up in the Stephanie Lee case are being addressed in the Texas Family Code 153.0071 - family violence as well as impaired party's ability to reason and not in the child's best interest

If in doubt, talk to a Texas attorney that specializes in the area of the law that you have concerns or questions about regarding the new laws.

If you want a law changed, NOW is the time to begin working on it.
You need to contact your local Texas legislature representatives and begin working on the wording that you want for your change to a law or implementation of a new law.

The Texas Legislature meets again in 2019 and if you wait until 2019 it's probably too late.

To pass a law in Texas, you need to talk to your Texas representative, explain why the law is needed, get signatures supporting the law that you want added and/or changed, have people email their TX representatives voicing their desire to a change in Texas law and you need to be in Austin when the legislature meets in 2019 to talk to the reps. in person. It's a lot of work.

Can I have sex with my 16 year old girl friend?

In Texas, the short answer is no.

A girl cannot consent to sex until she is 17.

Even if her parents agree and she's under 17 - they can change their minds and go to the police. You could be charged by the District Attorney's office for a sex crime and end up a registered sex offender for the rest of your life.

There is a "romeo and juliet" law in Texas but basically that is limited to when 2 teen-agers are within 1-1/2 years apart in age.

So if in doubt, walk way.

How can I make a woman in Texas have an abortion?

The short quick answer is that you cannot force a woman to have an abortion in Texas.

In fact, courts have held that a minor female cannot be forced to have an abortion by her parents.

So if you "hook up" with a woman and she gets pregnant be prepared to pay child support until the child graduates from high school and/or turns 18 whichever is LATER.

It will be approximately 20% of all your net resources (not just your income but any other money you make through a second job, investments, rental income, etc.)

Plus, you have to carry the child on health insurance.

And if the child is permanently disabled past the age of 18 then child support continues for the entire child's life.

In summary, if you choose to have sex with a woman then be prepared to pay for it for years to come.

You don't have to be involved in the child's life but you have to pay if you are found to be the bio. dad.

If a woman or TX A G comes after you for child support and you ignore the notice you lose your opportunity to ask for DNA testing.

As a recent Texas court has shown on the internet and on t.v., ignoring a court summons can be costly. In this case, a man (not bio dad) was ordered to pay child support by a court. He ignored the court summons and now he owes thousands for a child that IS NOT HIS! Texas law does not adequately address this issue so until the TX Legislature makes a law on this matter, this guy is probably stuck owing thousands of dollars.

Thursday, August 31, 2017

Interim Attorney Fees in Divorce with NO Children by Michelle O'Neil

I keep re-posting Michelle O'Neil's blog pots because they are just so good...

Interim attorneys fees in divorce with no children

I get questions pretty frequently from other lawyers that I mentor about how to request and get interim attorneys fees while a divorce is pending when there’s no kids. 
(The standard for awarding interim attorneys fees in a divorce with kids is different and not the subject of this post.)
Obviously, the first, best way for a lawyer to get paid for representing a client in this circumstance is to get paid upfront, by retainer. Sometimes a client does not have access to the accounts from which to pay the lawyer, so the lawyer must see fees to be paid from the community estate ordered by the Court. Any request for interim fees can only be considered under Texas Family Code section 6.502(4).
An court-ordered award of interim attorney’s fees must:
  • Be based on the needs of the applicant weighed against the ability of the community estate or the other party to pay. Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex. App. – Corpus Christi 1999, pet. denied).
  • May not be enforced by contempt – but only as a debt. In re Bielefeld, 143 S.W.3d 924, 930 (Tex. App. – Fort Worth 2004, orig. proceeding).
  • May not make the opposing party destitute in order to pay fees. Herschberg at 279.
  • Cannot be used to make an interim division of the property or to equalize one party to the other pending final division. Herschberg at 278.
  • Cannot be used “to level the playing field” — that is an abuse of discretion. Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App. – Houston [1st] 1994, orig. proceeding).
  • Past due attorney’s fees incurred during the litigation are in the nature of a debt and cannot be addressed via interim orders. Saxton at 736.
  • Must be based on evidence showing the reasonableness and necessity of the fees to be incurred. In re Sartain, 2008 WL 920664 (Tex. App. – Houston [1st Dist] 2008, no pet).
Of course, if the parties agree to pay attorneys fees in some manner, that agreement is enforceable. That is not what I am talking about in this post. Here, I’m addressing when and how a court may imposed an attorney fee award by contested order.
Many lawyers and judges I see are surprised that “equalization” is not a proper standard for awarding attorneys fees. This point cannot be emphasized too much! Equalization is never the right standard! If you think about it, this makes sense. One party may have more knowledge of the marital estate or better access to documents. So, that party’s fees may be naturally less, where the other side has to spend more time to gather information that is not at that spouse’s disposal.
The remedy for an improper interim attorneys fee award in mandamus.

New Texas law bans child marriages as of September 1, 2017

New Texas law bans child marriages (yes, you read that right!) effective September 1, 2017

Texas Governor Greg Abbott signed into law a bill eliminating a loophole allowing child marriage. 
The new law prohibits people under the age of 18 years from getting married unless they are emancipated minors. 
Minors are allowed to emancipate from their parents at the age of 16, so the youngest age a person may marry in Texas under any circumstance is now 16. 
The prior law permitted one parent to overrule another parent to allow a 16 year old to marry, and a parent could consent to the marriage of a child of any age with the approval of a judge without regard to whether the child was being subject of abuse or coercion.
According to a Pew Research Center report, Texas has the second-highest rate of child marriage, with 7 out of every 1000 minors aged 15-17 were married in 2014. The national average is 5/1000. Between 2000 and 2014 almost 40,000 minors got married in Texas.

Saturday, July 22, 2017

Amicus Attorneys in Harris county custody cases

There are many, many fine attorneys that do amicus work in Harris county.

Here is a partial list of attorneys that will represent children in custody cases.

If someone's name does not appear - it does not mean that they are not good at what they do.

Prices vary according to their experience and years of practice.

A partial list of Amicus Attorneys in the Houston area:

Jetty Abraham

Damiane Banieh

Phyanka Bhandari

Rogers Boudreaux

Julie Brock

Allyson Brupbacher

Patricia Bushmna

Claudia Canalas

Rose Cardenas

Robert Clark

George Clevenger

Jennifer Davis

Laura Arteaga Francis

Karleana Farias

Leo Farias

Kelly Fritsch

Kathy Gardner

Angelina Gooden

Daniel Gray

Alex Hunt

Janet Heppard

Ashley Indelicato

Farrah Kamal

Michele Fulton Kilgore

Megan Kitutis Keimig

Delona Tucker Laxton

Angela Landa

Maria Lowry

Eric McFerren

Alice O'Neil

Georgann Oslesby

Elizabeth Pagel

Dara Percely

Stephanie Proffitt

Holli Palmer

Rocky Lee Pilgrim

Marsha Reed

Dawn Rankin

Alemia Rodriguez

Barbara Rice Stalder

Itze Navarro Soliz

Dennis Slate

Geric Tipsworth

Terisa Taylor

Hillary Unger

Tuesday, July 18, 2017

Sites to locate missing people

Here are just a few of the websites I use to try to find people that are missing:

Hint: Avoid sites that charge $30-$35 for one search. Most are out-of-date. - around $40/year

District Clerk of the county you want - search criminal and civil cases

Real property records of the county you want

County Clerk for the county you want - Marriage records

The county jail for the county you want - lists inmates

The State of Texas inmate search website

The federal inmate search website

I. C. E.

The Bureau of Vital Statistics in Austin (keeps track of all divorces and other civil legal matters)

If you have Social Security Number see if it's still active or "deactivated" due to death.

Search "obituaries"

Monday, July 3, 2017

Harris County CPS attorneys

Here is a partial list of attorneys that say they do CPS cases.  I know most of them. I would call any of them for a consultation if I had a CPS case.

Remember - if CPS contacts you, IMMEDIATELY hire a CPS attorney to help and guide you on this difficult and tricky process.

Bobbie Young

Rocky LeAnn Pilgrim

Dennis Slate

George Clevenger

Julie Brock

Jetty Abraham

Eric McFerrin

Les Shireman

Beth Arnold Trostad

Barbara Rice Stadler

Hillary Unger

Allette Williams

Thao Tran

Gigi Oglesby

Susan Solis

Or check out - best FREE website to locate attorneys in your area.

Tuesday, June 27, 2017

Consult with an attorney BEFORE you do anything!

BEFORE you do anything, please call a lawyer. Pay for an hour of the professional's time. It's so much easier to nip issues in the bud instead of letting an issue grow until it's overwhelming and very expensive to fix.

Many people call me or post on questions about what they should do.

Over 95% of the time my answer is "consult with an attorney about the facts of your particular case".

I especially encourage people not from Texas or unmarried people to consult with an attorney BEFORE moving in or getting pregnant. Many people are under totally false impressions about the law.

You can actually save a lot of heart-ache and money by learning the law BEFORE making life altering decisions.

Texas bans foreign laws

Here is another excellent Texas law update from Attorney Michelle O'Neil. 

New law goes into effect September 1, 2017.

New Texas law bans application of foreign laws

Texas Governor Abbott signed into law House Bill 45 which states that Texas and U.S. law supersede all other laws.

The law prohibits Texas judges from enforcing or upholding any law or order from another country that infringes upon U.S. and Texas constitutional rights.

The bill shields litigants in family law cases “against violations of constitutional rights and public policy in the application of foreign law” under the U.S. and Texas Constitutions, federal and judicial precedent, the Texas Family Code, and the Uniform Child Custody Jurisdiction and Enforcement Act, among other protections.

The law requires the Texas Supreme Court to adopt rules by January 1, 2018 to enforce the law, but it goes into effect on September 1, 2017.

I’m confident that the purpose the legislature intended was to prevent Islamic marriage contracts from being enforced as prenups in Texas.

It was also designed to derail enforcements of agreements made in a settlement dispute resolution center in Dallas set up by the Islamic church to resolve family law matters.

However, the law is much more broadly worded and may actually have the unintended effect of setting aside a foreign country’s judgment for child support or alimony or parenting time with a child if the foreign law considers a standard that differs from Texas law.

Here’s a link to an article about the new law:

Here’s a link to the Texas Legislature enrolled bill:

Tuesday, June 20, 2017

Legislature made many changes in Texas laws in 2017

The Texas legislature met in spring of 2017 and have made any changes in all aspects of Texas laws.

So you probably need to talk to an attorney about the law now in effect in Texas.

Many laws go into effect as of September 1, 2017, but the legislature is allowed to modify this start date.

No one under 18 can marry in Texas after 9/1/2017

I just heard that a new law goes into effect in Texas on September 1, 2017.

From now on, no one under 18 can marry. That includes even if a parent is giving permission.

The only way to marry is to first emancipate which costs a lot of money. Then once emancipated the former child will be considered an adult and can marry.

Basically, anyone under 18 will no longer be able to get married in Texas.

So if you are under 18 and want to marry do so immediate since ending on August 31, 2017 that option goes away under TX law.

New Texas law on application of foreign laws

Here is another great article written by Michelle O'Neil - she has given me permission to published her outstanding articles on my blog.

Effective in 9/1/2017, New Texas law bans application of foreign laws

Texas Governor Abbott signed into law House Bill 45 which states that Texas and U.S. law supersede all other laws.

The law prohibits Texas judges from enforcing or upholding any law or order from another country that infringes upon U.S. and Texas constitutional rights. The bill shields litigants in family law cases “against violations of constitutional rights and public policy in the application of foreign law” under the U.S. and Texas Constitutions, federal and judicial precedent, the Texas Family Code, and the Uniform Child Custody Jurisdiction and Enforcement Act, among other protections.

The law requires the Texas Supreme Court to adopt rules by January 1, 2018 to enforce the law, but it goes into effect on September 1, 2017.

I’m confident that the purpose the legislature intended was to prevent Islamic marriage contracts from being enforced as prenups in Texas.

It was also designed to derail enforcements of agreements made in a settlement dispute resolution center in Dallas set up by the Islamic church to resolve family law matters.

However, the law is much more broadly worded and may actually have the unintended effect of setting aside a foreign country’s judgment for child support or alimony or parenting time with a child if the foreign law considers a standard that differs from Texas law.

Here’s a link to an article about the new law:

Here’s a link to the Texas Legislature enrolled bill:

Friday, May 26, 2017

A big thank you to Laura - who answers my phones!

The lovely and talented (and a disabled vet) that answers my business phone (713-847-6000) is Laura.

I hired her because my son-in-law is former military. I wanted to support a former military member that currently has some challenging health issues. So working from home works for her and me.

She's been answering my phones over a year!  We have learned a lot about scheduling. Everything time I think that I've taught her all she needs to know about scheduling a mediation, a new "glitch" shows up! It certainly keeps us on our toes! She is flexible and we both try creative ways to make schedule mediations easier and more efficient.

I purposely hired her because she does not know the law and won't give anyone any legal advice! (Several people have yelled at her but I since I'm on the Unauthorized Practice of Law committee in Houston with the State Bar of Texas I don't want any problems.)

She is a great lady that also an amazing seamstress. She does lots of costumes for events like Ren. Fair. If you need a costume, call her!

She is a mom of 2 girls and is going to be a grand-mother soon.

She tries hard to keep me "organized" and she controls my calendar. She calls my calendar "the bible of Fran" and she keeps with her at all times.

So if you talk to Laura be sure to thank her for her service to our country!

Mediations with no attorneys

I am one of the few Houston mediators that will do family law (divorce, custody, child support, visitation, etc.) mediations without attorneys.

Why? Because I've been mediating full-time and I've learned how to carefully screen people that want a mediation.

Quite frankly, most people don't understand why mediation can and cannot do in Texas.

I often suggest that the people research Texas family law or consult with an attorney so that they understand the litigation process. After doing so, most decide that the mediation process is the path they would like to persue first before hiring attorneys.

Unfortunately, I learned a lot over the years. For example, I won't even book a mediation until both parties assure me that they understand the limits of mediation (I don't give legal advice or draft final legal paperwork). And both parties must pay their 50% deposit in order to be placed on my calendar.

I've had too many pro se parties just not show up or one party says they will show up but then "disappears" on their appointment time. I only work with people that are truly committed to looking to an alternative to litigation.

I cannot force anyone to attend mediation.  However, a judge can "force" you to attend mediation by a court order.

What most people don't understand is that in Harris County, Texas family courts basically over 85% of the cases will be sent to mediation before a person can have a trial. Judges have learned that mediation works and it more efficient for people. Judges see that people that settle their issues at mediation are happier and are able to co-parent much easier.

I even do mediations with protective orders in place. Yes, they are trickier than the usual case, but it can be accomplished and the protective order not violated.

I can honestly say that I save the people I work with thousands of dollars in legal fees.

In one case, I had a long term marriage (over 35 years) with millions in assets and I can truthfully state that I saved that couple easily over $100,000 in legal fees. If attorneys had gotten involved, the discovery process alone would have been thousands of dollars.  In this case it took approx. 6 mediation sessions and the couple agreed to hire a financial consultant to review all their assets (no debts) so that both clearly understood the value of their estate.

I find this work very personally rewarding. A lot less stressful than litigation and people are so much happier at the end of our mediation session. I got lots of hugs (often followed up with thank you notes and/or gifts) because young executives understand the value of my services.

As a mediator, I've chosen to charge approx. 50% less than what I charge as an attorney. Why? Because my stress factor is so much less and I find it fun to do. It's creative. It's challenges me.

Yes, I could easily charge a lot more, but I have built a loyal following of attorneys that appreciate my respectful and professional approach to mediation. I do several free mediations per month for Houston Volunteer Lawyers and Harris County Dispute Resolution Center because I believe that everyone should be able to attend mediation.

I don't believe that "bullying" or forcing someone to settle. I offer options and make suggestions but the parties are the "boss" of their Mediated Settlement Agreement. I generally just offer "motherly advice" (or for younger folks - "grandmotherly advice") based on the fact that I've been a family law attorney over 25 years and I'm on marriage #3! I've been a parent and step-parent and I've learned a lot just through life experience.

So if you want to save money, handle your matter privately and have control over the process, you should consider mediation.

On my website - - I have lots of info on mediation and my mediation packet.

Mediate - don't litigate.

Friday, May 12, 2017

What is "community debt" in Texas?

Here is another excellent blog post done by Michelle O'Neil (Dallas, Texas) a few years ago on how Texas handles debts in the divorce process.

Debt in Divorce

   An excerpt from my book, Basics of Texas Divorce Law on debt division in divorce:
     To determine liability for a debt as between spouses, there are two inquiries – which person may be liable and which assets may be liable.
     A debt incurred by a spouse during the marriage is presumed to be a community property debt.  A debt incurred before the marriage is presumed to be separate property debt.  If a debt is incurred during the marriage, but the creditor agreed to look solely to the separate property of the spouse for satisfaction of the debt, then the debt may be a separate property debt.  Characterization of the debt as in the nature of community property does not determine the question of liability.  The designation of a debt as community property has no effect on which spouse may actually be liable for the repayment of the debt.  The fact that spouses are married, does not, by itself, create liability by one spouse for the debts of the other spouse.  The mere fact of marriage does not create joint liability on all debts.  If one spouse incurs a debt as the agent for the other spouse, or if the debt is for basic living necessities, then both spouses may be help jointly liable, together with the jointly help community assets.
     To determine which spouse’s properties may be liable, the marital property needs to be classified as to which spouse has the right to manage it – each spouse may have separate and community sole management property and there may be joint management property of both spouses.  A spouse’s separate property is not generally subject to the other spouse’s debt liability.  Further, each spouse has sole management and control over his or her community property that each would have owned except for being married, such as personal earnings.  This sole management community property may only be used to satisfy the debts of the spouse that manages the property or the joint debts.  Jointly managed property, such as a jointly titled asset, may be used to satisfy either spouses’ community or separate liabilities.
     When looking at borrowed funds, the examination goes further into the intent of the spouses in incurring the debt.  If the money is borrowed to benefit a spouse’s separate property, and the intent is to repay the funds using separate property, then the borrowed funds will likely be separate in nature.
     Most credit cards are opened with an account agreement.  From a contract law perspective, only the parties to the contract are bound to the terms of the agreement.  Therefore, it is simple to determine who is contractually liable if one has a copy of the account agreement – which hardly ever happens in practice.  If that is the case, the practitioner can utilize the credit report to determine if the spouse is contractually responsible, or just an authorized user.  Arguably, if a spouse is designated as an authorized user then that may create agency as defined above.  Alternately, if the purchases were for necessities, liability could be present regardless of whether one was an authorized user or not.
     Nevertheless, an authorized user should probably not seek to assume this unsecured liability in the decree.  If this is done, the authorized user will have a difficult time in restricting the future access of the other spouse to that account.  While an in junction may assist in protecting the authorized user, it would still be advisable to not seek responsibility for the payment of this debt.  Alternatively, the spouse who is the primary card holder should (as soon as legally possible) revoke the authorized user status of the ex-spouse to avoid problems.
     In determining the division of the overall estate, and debt in particular, it is important to determine which spouse and/ or assets may be liable for the debt and divide the debt according to liability.  Otherwise, if a debt is allocated in a divorce to a spouse who is not legally liable, then the spouse has little motivation to pay and there are few legal remedies available in the court system to force payment against a non-willing spouse.  Further, the credit of the spouse incurring the debt can be damaged by relying on the nonliable spouse to make payment.
     The division of debts between the spouses has no effect on the creditor’s ability to collect the debt.  Even if one spouse is allocated the debt in the divorce, if the debt is one for which the other spouse is liable, the creditor can seek payment from the other spouse regardless of the wording of the divorce decree.  The only recourse that a spouse has in such a situation is to sue the spouse that was supposed to pay and seek reimbursement.
     One way to conclusively address debt and liability in a divorce is to allocate other assets to pay the community debts of each spouse, leaving fewer assets but no debts to divide.  When possible, the system allows both spouses to leave the marriage with a "clean slate."

Sunday, May 7, 2017

I married in another country so can I divorce in Texas?

If you have lived in Texas at least 6 months and lived in the same county for at least 90 days then Texas has jurisdiction over you to grant you a divorce.

It does not matter where you married. In some parts of the world, they don't do "marriage licenses". That does not matter. If you want a divorce then you just need to file a Divorce Petition and begin the lawsuit process.  And, yes a divorce is a lawsuit.

The filing fee is around $300 - varies county to county.

Houston is an international city. We are more diverse than New York City! So just because you are from another country does not mean that your case is unusual or unique.

So hire a family law attorney to assist you.

The free divorce forms are on You should print them out and read about divorce in Texas.  A couple of days ago I posted several websites that are excellent for Texas residents. So look at that post and visit those websites for more info about Texas family law.

The Texas Family Code is available on-line for free. It's a long document so don't print it out. The TX Family Code controls marriage, divorce and children issues.

In summary, no matter where you married if you live in Texas then the courts of your county have the authority to grant you a divorce.

However, the laws of another country might not agree with the State of Texas laws.  So if you are moving back to your other country you might want to hire an attorney in that country to make sure that your divorce is valid in your country too.

It can get confusing when dealing with laws from other countries. If possible, hire someone that is from your country so they might understand the laws in your original country.

In the US, divorce is handled by each state. So if the children are not in Texas, then probably it will be the state where the kids reside. Child support, custody and visitation varies state-to-state. Quite frankly, it can be very confusing.

How can an illegal alien get a divorce in Texas?

I get asked this question a lot - how can an illegal alien get a divorce in Texas?

1. They must have lived in Texas at least 6 months and in the same county for at least 90 days.  Once this happens you are considered a resident of Texas. It does not matter if you are illegal or not. If you are living in Texas then you are a Texas resident - legal or illegal. By merely being here you are agreeing to follow the laws of the US and the State of Texas.

If you don't want to follow the laws of the US and the State of Texas, then leave this country (and state).  

By merely driving a vehicle on our roads, you are agreeing to follow the laws of Texas and the US. For example, Texas has laws about car seats for small children and if you are driving a vehicle in Texas you must follow this law or risk fine or arrest.

2. I live in Houston and we handle illegal alien legal issues on a daily basis.  Your case is not unusual or unique.

3. Immigration issues - you need an attorney that handles immigration and family (divorce) law or you need 2 attorneys one for immigrations and one for family law.

4. No Social Security number - no problem.

5. Can you be deported? I cannot say 100% that the constable in the courtroom won't arrest you. If the constable runs your name and it turns out that there is an arrest warrant out for your arrest, you will probably be taken into custody and turned over to the policing agency that filed the arrest warrant.

So if you know you have outstanding warrants and you go into the courtroom and make a "fuss" or piss off the constable then he/she might run your name to see if there are any outstanding warrants.

If the other party, comes to court and tells the constable there is an outstanding warrant for your arrest, and the constable then runs a search you might be arrested.

In summary, around the Gulf Coast and border close to Mexico, dealing with illegal aliens happens in the civil courts on a daily basis.

Houston is an international city and we handle divorces for people from all over the world. It does not matter where you married in order to get a divorce.  What matters is that you are living here now and the State of Texas regulates divorce for its residents.

If in doubt, hire an attorney to help you.

Friday, May 5, 2017

5 websites to learn about Texas laws

Texas Young Lawyers

State Bar of Texas

Houston Bar Association

Texas Law Help

Texas Probate

I'm a teenage and I want to leave home - what can I do

I get this question all the time.

The moment you turn 18 on your birthday you are free to leave. You leave with the clothes on your back. You can only take things that belong to you - gifts, things you paid for (have the receipt) and things that your parents let you take. If they say no, then the item stays.

You are free to call your local policing agency (police, constable or sheriff) and talk to them about their policies. Normally they will escort you off the property but they don't have the time or manpower to watch you load up your vehicle with "stuff".

So if your parents bought you a bed, a computer, phone, etc., it belongs to them unless they allow you to take it.

You can attempt to emancipate at 16 or 17. (If you are under 16 then you are just plain out of luck). Judges don't like to do this. It is very expensive. I would estimate the cost to be at least $5,000 or more. And it does not mean the judge will sign the paperwork. For example, I require a $10,000 deposit to begin this process - that stops most teenagers because they would rather buy a car then spend money on an attorney that might not be successful.

I don't understand what teen-agers hope to do by emancipating.  Most apartments won't lease to you since you won't have a credit rating. You probably don't have a bank account. If you have a job, odds are it low paying and landlords expect you to show that you can afford to pay the rent.

The only teen-agers to emancipate in the Houston area are usually sports figures and/or musicians. They need to be able to sign legal contracts (which you cannot do until you are 18 or emancipated) for endorsement deals. Even then, the judge makes everyone jump through lots of hoops.

To merely file a new lawsuit (emancipation is a lawsuit) is around $300 to the county clerk where you live.

If you have a friend or family member that is going to let you live with them that is NOT enough to emancipate.  You must be 100% self-supporting without anyone else's help.

Emancipation is called "removal of disabilities" in Texas. The Texas Family Code is available on-line for free. Read about removing disabilities if you are interested in researching this matter.

If your parents are willing to let you move in with another family or person, that person should be an authorization by a notarized document to register you in school and take you to the doctor. It also avoids having the police show up and threaten to arrest the person for having you in their home.

If I was the person letting you move in, I would not let you move in until I had met with an attorney in person and made sure that I had your parent's permission to allow you into my home. Quite frankly, it's just not worth the risk or possible hassle with policing agencies.

Yes in Texas after the age of 12 you can meet with a judge and tell the judge who you want to live with but the judge is NOT bound by your wishes. The judge determines what is in the child's "best interests". The term "best interests" is not defined in the Texas Family Code.

If you are unhappy, talk to your school counselor, religious leader, or a medical provider. If you are in danger they are required by Texas law to report it to the authorities.

Beware of making unfounded allegations since it opens the door to CPS. And, since most families don't want teen-agers in Texas there are "facilities" for teen-agers to live until they turn 18. Most are in small towns (so if you are in Dallas or Houston the odds are that you won't be housed in your town) and it's not a prison -- but it has no "frills". The kids I've known that got sent to one of these places tend to later claim that no abuse occurred in order to try to escape from these places. Plus, the other kids there are usually in crisis mode too and many come from horribly disfunctional and even violent homes. Some of these kids don't talk - they just like to fight. And many of these kids have been in CPS custody their entire lives and don't like newcomers showing up.

If your situation is dangerous, then make outcry to a medical care provider or school employee. Again, they are required by law to report it. You can also call 911 or CPS yourself.

In closing, the good news is that you will soon be 18 and you can make decisions for yourself. We've all been teen-agers and it's a period of my life that I would never want to re-live. It sucked - but I did survive it. And if you are smart, you will survive these teen-age years.

My spouse left and I have no money - what can I do?

If you and your spouse are not on good terms, then you have no choice but to file for divorce in Texas.

Texas does not have legal separation so a divorce needs to be filed.

If children or money (or lack of money) is an issue, you need to file for a divorce and ask for the judge to enter temporary orders while the divorce is pending.

A spouse cannot leave and abandon the other spouse and children.

But if you don't do anything then the judge cannot help you.

If you have no money, I suggest you borrow money from a family member or friend to hire an attorney.  If one spouse controls all the money then the judge might order that spouse to pay the other spouse's attorney fees (or a portion of their other person's legal fees). However, it is up to the judge.

I'd use for an attorney in your area.  It's the best free site that I know of on the internet.

If you want to do it yourself without an attorney (good luck!) then use the free Texas forms at - these forms are very basic and don't include retirement, real estate, brokerage accounts.

Please do NOT use a paid site - especially one out-of-state - I have seen their forms and they are laughable. Their guarantees are worthless.

If you have money, please hire an attorney and do it right.   For example, in order to divide a retirement account, a specific legal document must be prepared to order the company handling the retirement money to do things to divide the account. A final decree of divorce is NOT enough. There is a legal document that ORDERS the company to act. Otherwise, without this legal paperwork you might be ordered to receive the money but if the other spouse spends it (hides it, gambles it away, etc.) then you are out of luck.

It is heart-breaking when a person calls years after the divorce has been finalized and they did not do the paperwork and now the money is gone.
There is often nothing that can be done at that point to recover the money. (If the person has other assets, then a lawsuit might be appropriate to recover the money but it won't be fast or inexpensive. Attorneys charge thousands to "fix" bad divorce paperwork.)

If you are totally alone and have no money then you can look on the State Bar of Texas website for a pro bono (free) organization in your county.  Expect to wait for months for a free attorney. These pro bono groups are understaffed and underfunded. These pro bono groups do NOT accept everyone that calls them. They make you just through tons of hoops and then still don't get you an attorney.

Are we common law married in Texass?

If you go to a courthouse in Texas and fill out the form to establish a common law marriage then you are as married as anyone else in Texas.

To end the marriage, you need a divorce. A judge must sign a legal document ending the marriage.

There are many common misunderstandings about common law marriage in Texas.

Some that are wrong are --

1. We have lived together 7 or more years. If that is it, then you are NOT married in Texas.  In Texas you can be together for 24 hours and be common law married IF you do things to show you intend to be married.

2. My fiance is married already to someone else. Can we also be common law married in Texas? No! In Texas you can only be married to one person at a time. Therefore, if a person is married no matter what they do they are not married to another person. Being married to two people is bigamy which is a crime in Texas.

Plus, bigamy is only prosecuted by the District Attorney. And, quite frankly, it is rarely prosecuted since DA's are busy with serious, violent criminals.

Note: There are a few exceptions where a common law marriage should be presumed to be valid but you will need a brilliant and aggressive attorney to make this argument and a judge that is extremely flexible in the interpretation of Texas laws.

3. We have kids together. Sorry - not enough to be common law married.  If you break up the children issues to be handled through the court system such as child support and a child visitation arrangement -- but no community property to divide.

4. I am 14 - can I common law marry my boyfriend? No. Marriage under the age of 16 is not allowed in Texas so you don't qualify to establish a common law marriage.

You must be over the age of 18 (age of adulthood in Texas) in order to establish a common law marriage.

5. A friend called me "his wife" and he did not correct the person. So are we common law married?  Again, not enough.

6. We file our taxes are single, but I think we are common law married.  Filing your taxes as single shows that you do not intend to be in a common law marriage. It will be used against you in the courtroom. This argument against a common law marriage can be rebutted but if you want to be married then you need to act like you are married for everything - you cannot pick and choose.

7. I was common law married but we have not lived together for more than 2 years - is that a common law divorce? In Texas, it can be presumed that after splitting up more than 2 years that there was never any intent to be common law married. However, this presumption can be overcome.

As you can see, it complicated.

If you want a common law marriage do things like (not an all inclusive list):
Both of you must be an adult and mentally competent
Both of you must agree to be married to the other person
You have to tell others that you are married
You have to do paperwork to be married - file taxes together, have joint bank accounts as spouses, put the other person on your insurance as your spouse, add the person to your health insurance as your spouse, etc. In other words, leave a paper trail. And you both have to participate - one person cannot do something behind the other party's back - you must both participate in showing you intend to be married.