Alamo Towers West, 901 NE Loop 410,
Suite 800,
San Antonio, TX 78209
Veteran Mother Comes Home

San Antonio, TX Family Law and Military Divorce Blog

Sunday, April 20, 2014

Indemnity - What It Takes to Collect

Indemnity clauses are common in divorce decrees to protect one spouse against the other spouse's court-assigned responsibility for paying a joint debt.  "Indemnify" means to hold harmless for loss.  A short scenario will help explain the concept:

Husband and Wife have a credit card in both names with a $5K balance.  In their divorce decree, the credit card debt is assigned to Husband and Wife is indemnified against any loss from Husband's failure to pay the credit card debt.  Pretty simple so far.

Now here's where it gets interesting.  Husband quits paying the bill when the balance is $3K.  The credit card company seeks payment from Wife.  She refuses to pay because the "it's not her debt" (which is a wrong belief since a decree only allocates responsibility "as between the spouses" but does not affect the creditor's rights).  Still, Wife is outraged and sues Husband for $3K since, after all, she was indemnified against Husband's failure to pay.  The court denies Wife's request for indemnity.  What went wrong?

Indemnity is not a right to personal enrichment.  It is a right to be made whole from loss.  Wife was not entitled to indemnity until she proved she actually paid the bill assigned to Husband in the divorce (i.e. suffered harm or loss).  Wife cannot merely collect money from Husband based solely on his failure (and hers) to pay.

For attorneys, a good case to review is Shumate v. Shumate, 310 S.W.3d 149 (Tex. App.—Amarillo 2010, no pet.)

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.

Thursday, April 10, 2014

Thumbtack - New Way to Locate Professionals

I'm a proud member of Thumbtack, an internet based marketplace that helps consumers with specific needs find qualified and affordable professionals.  To sign up as a consumer, simply visit Thumbtack's website.  To view my profile on Thumbtack, click here.  My profile, of course, includes a link to my website where prospective clients can find an abundance of information about me and my legal service areas.

I find Thumbtack to be a convenient way for both parties to communicate.  I get to convey a tailored message that speaks directly to the prospective client's need.  Prospective clients have the option of comparing perspectives and costs among a handful of attorneys.  Check it out.

Sunday, March 30, 2014

Power of Attorney: the Demand for an Accounting

A durable power of attorney is a routine part of many people's estate plan.  Unfortunately, sometimes the person designated under the power of attorney--the agent--no longer deserves the principal's special trust.  My previous blog discussed steps involved in revoking a durable power of attorney.  At that blog's conclusion, I mentioned that a demand for an accounting of all actions the agent took under the power of attorney should be made.  This blog takes a closer look at what goes into an accounting.

A principal is free to specify the exact elements of an accounting.  If the principal doesn't specify the elements, then the minimum elements are established in the Texas Estates Code Section 751.104, as follows:

  1. The property belonging to the principal that has come to the agent's knowledge or into the agent's possession;
  2. Each action taken or decision made by the agent;
  3. A complete account of receipts, disbursements, and other actions of the agent that includes the source and nature of each receipt, disbursement, or action, with receipts of principal and income shown separately;
  4. A list of all property over which the agent has exercised control that includes: (a) an adequate description of each asset; and (b) the asset's current value, if the value is known to the agent;
  5. The cash balance on hand and the name and location of the depository at which the cash balance is kept;
  6. Each known liability; and,
  7. Any other information and facts known to the agent as necessary for a full and definite understanding of the exact condition of the property belonging to the principal.

The list above is a good start on a full and proper accounting.  The principal can set the length of time the agent has to reply.  Texas Estates Code Section 751.105 sets the deadline at 60 days unless the principal sets a shorter time, after which the principal can bring suit through the courts to compel the accounting, if necessary.  The principal should carefully evaluate the complexities involved before shortening the agent's time for response too much.  A quality effort by the agent will take some time.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Thursday, March 20, 2014

Revoking a Power of Attorney

A durable power of attorney is a normal part of an estate plan.  Yet, when a need to revoke a durable power of attorney arises, the "principal" (i.e. the person who gave the power of attorney to his agent) should do more than simply demand a return of the document.  More is required because third parties who rely on the agent's authority under the power of attorney aren't liable to the principal unless they have "actual knowledge" that the agent's authority has been revoked.  The requirement for "actual knowledge" is established in the Texas Estates Code Section 751.058.  Thus, there is a set of minimum actions that a prudent person should take when revoking a power of attorney, as follows:

  1. Send, by certified mail/return receipt requested, a letter that notifies the agent that the principal has terminated his authority under the power of attorney.  The principal should demand the agent return the original power of attorney document and all copies.
  2. File an Affidavit that verifies the principal revoked the named-agent's authority under the power of attorney in the official records of each county where the principal owns real property.  While the act of filing itself merely constitutes "constructive notice," the filing increases the chances that entities such as banks and title companies will receive actual notice during routine record searches.
  3. Send, by certified mail/return receipt requested, a copy of the affidavit with a cover letter requesting written confirmation of receipt to each financial institution with which the principal does business (e.g. banks, stock brokers, retirement fund managers, etc.).  Written confirmation documents that actual notice occurred.
  4. Demand the agent provide the principal with an accounting of all actions the agent took on behalf of the principal under the power of attorney.  This demand can be added to the revocation letter sent in step one.

My next blog post will take a closer look at what constitutes a proper accounting.  Stay tuned.

Special Notice:  This information is provided for educational purposes only and does not constitute legal advice.  Principals wishing to revoke a power of attorney should discuss the unique factors of their situation with a qualified attorney before taking action.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 

 


Monday, March 10, 2014

Civil Protective Orders: Impact on Military Careers

Here's the scenario.  An active duty servicemember commits family violence against the spouse.  The spouse obtains a Protective Order through the civil court system that restrains the servicemember from commiting further acts of family violence.  What's the impact to the servicemember's career?  Well, there are four possible answers.

  1. The Uniform Code of Military Justice (UCMJ) permits the servicemember's commander to take appropriate action based on the underlying conduct (i.e. spousal abuse) whether or not the civil court system takes any action.  Military commanders have wide discretion in how they use their authority under the UCMJ.  Never forget that fact. 
  2. Federal law prohibits the servicemember from possessing or transporting a firearm or ammunition in his or her "civilian capacity."  This prohibition is established in Federal criminal statutues at 18 U.S.C. § 922(g)(8).  Should the servicemember have a second job as a State "peace officer," as defined in Texas Penal Code § 107, then an exemption exists in Federal law that permits possession and use of a weapon and ammunition when performing duty as a State peace officer.  The Federal exemption is found in 18 U.S.C. § 925(a)(1).
  3. The same Federal exemption found in 18 U.S.C. § 925(a)(1) permits the servicemember to possess a weapon and ammunition for official Federal Department or Agency duties, such as military training and deployment.  In short, a military member will not become "instantly non-deployable" because he or she is restrained by a civil Protective Order.
  4. Should the servicemember violate the Protective Order and be convicted after notice and hearing of a felony or misdemeanor criminal act of family violence, then the servicemember's career is in serious jeopardy.  Department of Defense instructions establish what counts as a "qualifying conviction."  A servicemember with a qualifying conviction is unable to possess a weapon and ammunition in both his civilian and military capacities.  The servicemember now is instantly non-deployable.  Unless the servicemember can be used or retrained into a non-deployable career field, he or she may be subject to discharge. 

In the end, while being restrained by a civil Protective Order isn't necessarily fatal to the servicemember's career, violating the order and being found guilty of a qualifying conviction tends to be fatal to a military career. 

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. Jim was a three-time commander and retired from the U.S. Air Force in the grade of colonel after having served 29 1/2 years active duty.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Friday, February 28, 2014

Dreaded "Due-on-Sale" Clause

Anyone who has actually read their Deed of Trust (commonly called "the mortgage") noticed the dreaded "due-on-sale" clause.  Due-on-sale clauses are intended to stack the deck in favor of lenders. In simple terms, a due on sale clause gives lenders the right to accelerate or "call" the note and demand full payment of the debt any time the homeowner/debtor transfers his or her interest in the home.  If nothing else, these clauses facilitate lenders in collecting another set of handsome fees whenever they approve loan assumptions (but that's another story).  Awareness of the due on sale clause's effect causes many people to fear what might occur in three common situations:

  1. when the homeowner transfers the home into his or her own living trust;
  2. when the homeowner/spouse transfers his or her interest to the other spouse in divorce as part of a court-ordered division of property; and,
  3. when the homeowner/decedent transfers his or her interest to a relative after death either through a Will, Trust, or by the laws of intestate distribution for those who die without a Will or Trust. 

Despite lenders' efforts to stack the deck in their own favor, all is not lost.  U.S. laws affecting banks and banking contain a specific list of transactions in which lenders are prohibited from exercising their rights under  due-on-sale clauses.  The list is set for in 12 U.S.C. § 1701J-3(d).  Our three common situations noted above are among that list.  So, lenders cannot exercise a due-on-sale clause when a homeowner transfers the home into his or her own inter vivos (living) trust.  Next, lenders cannot exercise a due-on-sale clause when one spouse transfers his or her interest to the other spouse in divorce as part of a court-ordered division of property.  Finally, lenders cannot exercise a due-on-sale clause when the owner/decedent transfers his or her interest to a relative after death either through a Will, Trust, or by the laws of intestate distribution for those who die without a Will or Trust.  That's good news for the homeowner/debtor.  The banks and other lenders don't hold all the cards.  By the way, if you weren't aware of due-on-sale clauses because you've never read your Deed of Trust, now would be a good time to do so.  

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Tuesday, February 11, 2014

Federal Retirement Annuity and Thrift Savings Plan Estimator

Estimating the value of a Federal retirement annuity and Thrift Saving Plan (TSP) benefits is important to both Federal employees and spouses facing retirement or divorce.  The Office of Personnel Management (OPM) provides an online tool called the Federal Ballpark Estimator (FBE) that helps answer these questions.

The FBE's stated purpose is to help an employee estimate how much needs to be saved to meet retirement savings and income goals (i.e. retirement planning).  The flip side is that it also helps estimate what the percentage of an employee's retirement annuity awarded to a spouse in divorce should be worth (i.e. divorce planning).  As with any "estimator," the FBE works on a set of assumptions

As OPM explains, the FBE is a useful tool for employees covered by the Civil Service Retirement System (CSRS), CSRS-Offset, or the Federal Employees Retirement System (FERS) who plan to retired under the voluntary age and service rules.  Check it out.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Thursday, January 30, 2014

Federal Employment-Related Benefits in Divorce

Divorce is stressful.  Much of the stress is tied to uncertainty about what "life after divorce" might look like.  For Federal employees and spouses, questions linger about what employment-related benefits can be impacted by a court order.  Our firm's website provides a wealth of information about how a Texas divorce decree can impact benefits of both Civil Service Retirement System (CSRS) and Federal Employee Retirement System (FERS) employees. 

Some people benefit from reviewing information from multiple sources.  In that vein, we're pleased to mention that the Office of Personnel Management (OPM) published a booklet entitled Court-Ordered Benefits for Former Spouses that briefly explains a few of the topics covered in our website's section on Federal Civil Service Divorce.  Download a copy of OPM's booklet today.  It never hurts to have an additional source for important information.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Monday, January 20, 2014

Visitation When The Non-Custodial Military Parent Deploys

This blog post looks at an issue affecting military parents who don't have custody of their children.  Specifically, it answers the question of who can exercise visitation on behalf of a non-custodial military parent when they deploy--assuming Texas has jurisdiction to decide the matter.  Before diving into the subject, I'll quickly mention that this topic complements my blog post of January 10, 2014, entitled "Temporary Custody During Military Deployment."  Read both for a fuller understanding of the subject matter. Now, let's dive in.

In Texas, section 153.705 of the Family Code provides that a non-custodial military parent can designate a person of their own choosing to exercise visitation while the parent is deployed.  In response, a court "may" issue temporary orders that give the designated person some or all of the visitation rights that the non-custodial military parent normally enjoys.  "May" means that a Texas court is not bound to honor the request if the court finds the proposed arrangement not to be in the child's best interest.  Section 153.002 of the Family Code establishes the "best interest of the child" as one of the über-principles of Texas family law.  In that light, it's advisable for the non-custodial military person to designate only a person of good character and with whom the child has an existing, healthy relationship.

Finally, and as mentioned in the previous blog post, temporary orders terminate automatically when the non-custodial military parent returns from deployment.  There is no need or requirement to go back to court in order to hit the reset button.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. Jim retired from the U.S. Air Force in the grade of colonel after having served 29 1/2 years active duty.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Friday, January 10, 2014

Temporary Custody During Military Deployment

A question that comes up quite often among unmarried and remarried military parents is this: who gets custody of your child when the military parent is ordered to deploy?  Is it the new spouse who is the child's stepparent?  Is it the other parent?  Is it someone else?  The answer contains three key components.  Let's briefly discuss all three.

First, know that your military Family Care Plan only satisfies your obligation to the Department of Defense.  Any temporary custody designation in your Family Care Plan does not trump State law.  In other words, if the other parent brings legal action to get temporary custody during your deployment, the fact that your Family Care Plan designates your new spouse as custodian will have no influence on the court proceeding.

Second, the State that has jurisdiction over the issues of custody, visitation and support for your child matters.  If an existing court order was rendered in a State other than Texas, then the laws of that State may drive the answer.  It all depends on the facts of your situation.  A qualified attorney can answer the question of which State has jurisdiction only after discussing the facts of your situation with you.

Third, if Texas has jurisdiction, then the answer is driven by section 153.703 of the Texas Family Code.  The hierarchy of preference for who gets custody during your deployment goes like this:

  1. The other parent will get custody under temporary court orders.
  2. If appointing the other parent is not in the child's best interest, then a person designated by the deploying military parent will get custody under temporary court orders.
  3. If neither of the above options prove to be in the child's best interest, then some other person chosen by the court will get custody under temporary court orders.

A court's temporary orders terminate automatically when the military parent returns from deployment.  There is no need to return to court to "reset" things. 

The Texas Attorney General's Office published a handbook entitled "Military Parents: Paternity, Child Support, Custody & Parenting Time" that provides a brief discussion of this and other related issues.  While the law itself often is more nuanced than the handbook presents, the handbook's discussion remains a useful resource and starting point for military and other parents. 

My next blog post will discuss one of those related issues laid out in the handbook.  When a military parent without custody is ordered to deploy, who can exercise visitation during that parent's absence?  Stay tuned.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. Jim retired from the U.S. Air Force in the grade of colonel after having served 29 1/2 years active duty.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Tuesday, December 31, 2013

Common Estate Planning Mistakes

Planning for the care of your property or family members after your death is often a complex process.  The following list of common estate planning mistakes will help to ensure that you are making smart decisions to protect your loved ones and legacy.

Planning your estate by yourself. An estate planning attorney has the knowledge and experience essential to develop a sound estate plan. Your attorney can also serve as a crucial resource in minimizing tax implications and ensuring your estate plan will meet your objectives. Individuals frequently try to plan by themselves and all too often fail to consider important issues or complete necessary paperwork to ensure their wishes are able to be honored.

Delaying estate planning due to finances. While estate planning does bear some upfront costs, it is an important step in outlaying your family’s future and well-being. In addition, proper estate planning often results in larger cash savings over the long run.

Assuming your loved ones know your wishes. Family members must handle your estate in a time of grief and stress. Inadequate planning can lead to a rift between even the most agreeable siblings and may ultimately mean that your estate is not executed as you wished. At an emotionally vulnerable time, make sure that your family will not have further stress and grief over money, funeral arrangements, and sentimental items.  

Believing your estate plan does not need to be changed. Life and relationships are constantly changing. Hence, estate plans need frequent revisions, especially in response to changes such as marriage, divorce, birth, death, and property sales or acquisitions.

Not notifying family about your estate plan. Your executor, successor trustee, and beneficiaries need to be aware of your estate plan and have access to the documents.

Naming only one trustee, agent, or executor. Don’t forget to name alternate agents, executors or successor trustees. You may name a family member to fill one of these roles, and forget to revise the document if that person dies or becomes incapacitated. By adding alternates, you ensure there is no question regarding who has the authority to act on your or the estate’s behalf.

Leaving the burden to your spouse. Relying on your spouse to solely handle your estate may have devastating consequences on your family. For instance, if your partner is incapacitated simultaneously, there will be no one to execute your plan. Therefore, it is vital you appoint alternative representatives.

Using the same individual as your healthcare and financial powers of attorney. Identifying one person to be in charge of both your finances and healthcare gives that individual a very large influence over your future. As a consequence, it’s usually recommended that you   split decision-making authority between multiple parties.

Making changes without your attorney. Changing details of your estate plan without professional assistance can easily cause unintended legal or tax implication and affect other provisions. The best way to avoid these mistakes is to hire an experienced Texas estate planning attorney.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Archived Posts

2019
2018
2017
November
October
September
July
June
May
April
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013



© 2019 Cramp Law Firm, PLLC | Disclaimer
Alamo Towers West, 901 NE Loop 410, Suite 800, San Antonio, TX 78209
| Phone: 210-762-4502

Practice Areas | Principles | Fees & Discounts | Attorney Bio

FacebookGoogle+TwitterLinked-In CompanyYouTube

Law Firm Website Design by
Zola Creative


×