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San Antonio, TX Family Law and Military Divorce Blog

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. 

Friday, December 20, 2013

Annulment vs. Divorce: What's the Difference?

Today, it can be argued that there's little difference between a divorce and an annulment given our current "no fault" divorce laws. Afterward you are no longer married in either case. Still, some people favor an annulment over a divorce for religious or other moral reasons.

Technically, however, an annulment is based on a legal impediment that existed prior to marriage that makes the marriage "voidable." Examples of grounds for annulment from the Texas Family Code include underage; under the influence of drugs or alcohol; or, permanent impotency of which the complaining spouse had no prior knowledge.

A divorce is based on post-marital events that cause the marriage to be no longer viable. Examples from the Family Code include an irreparable breakdown of the marriage (“insupportability”); cruelty; adultery; imprisonment for more than a year; or abandonment for more than a year.

The discussion above is not an exhaustive review of all the factors bearing on an annulment or divorce. Consult a qualified attorney before taking legal 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. 

Wednesday, December 11, 2013

When to Update Your Will & Estate Plan

Your will is an ongoing process that needs reviewed periodically to ensure its validity and relevance. This is particularly true when changes occur in your family or personal situation. Your will and estate plan should be revised in response to life-altering events, such as:

Changes in Employment

Income changes may alter or invalidate portions of your will. Therefore, changes should be made in your will to reflect your change in circumstances. In addition, employment changes often entail an interstate move that subjects your estate to a new set of laws. Your will may require revision to comply with these different state laws.

Changes in Assets

Changes in your income, investing, saving, or spending may result in a change in assets. Whether you want to modify asset distribution or beneficiaries, your will needs updated to reflect changes in your assets.

Changes in Texas Probate or Tax Laws

An estate plan should be drafted alongside a Texas attorney to ensure your wishes will be carried out and you maximum tax benefits. Your estate planning attorney is also an expert on laws relating to estate taxation, asset distribution, and provisions for minor children. Hence, they are the best individual to consult when laws are changed or legislation is passed that will affect your will. Otherwise, your family may no longer be fully protected nor your wishes properly executed.

Changes in Marital Status

Whether you are newly married or divorced, your will needs updated. Both relationship changes may spark revisions to adjust assets, their distribution, or beneficiaries. The same is true for your life insurance policies, pensions, and retirement accounts. Estate planning becomes especially complicated with multiple marriages and divorces. Your Texas estate planning attorney will help you provide and protect for your family as you desire. Remember, changes in marital status of beneficiaries should also be reflected by revising your will.

Births & Deaths

Both parents and grandparents should modify their wills upon the birth of a new child or grandchild. A parent’s will needs to be amended to include designated a guardian if anything should happen. Moreover, you may want to include the family’s new addition in the distribution of your assets. Any changes, such as death or incapacitation, to appointed guardians or beneficiaries should reflect in your will’s revision.

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. 

Friday, November 29, 2013

When Is a Gift an Advancement on Inheritance?

Envision an unfortunate scene after your passing.  Your three adult sons are bickering about the inheritance each expects to get.  You had given your eldest son a $10,000 check a few years ago to help him out of a financial jam.  Now, the middle and youngest sons claim the eldest should get $10,000 less from your estate.  They argue that the only logical conclusion is the $10,000 had been an advancement against the eldest son's future inheritance.  The eldest disagrees.  He believes all three sons are due to share equally in the distribution of your estate.

Who's right depends on whether you died "intestate" and anything about the subject had been written down by either you or the eldest son. 

If you died "intestate," meaning without a Will or Trust, then the gift could only be an advancement on inheritance if one of two things had happened: 

  1. You (i.e. the "donor" or gift-giver) declared in a contemporaneous writing that the gift was an advancement (or that the gift would be used in computing the post-death distribution of your estate); or,

  2. The eldest son (i.e. the "donee" or gift-receiver) acknowledged in writing that the gift was an advancement (or that the gift would be used in computing the post-death distribution of your estate). 

Note there's no requirement for the donee or gift-receiver’s written acknowledgment to have been contemporaneous.  That's because the donee's written acknowledgment is  a statement against self-interest. 

It’s worth emphasizing that a contemporaneous writing by a gift-giver is one that occurs at or very near the time a gift is given.  In other words, nobody should expect a court to honor a written declaration that states, “The gift I gave my eldest son last year had been meant to be an advancement on his inheritance.”  Sorry, a year's lag time is too much to be considered contemporaneous. 

Okay, we've just covered how it’s determined whether someone who died intestate had given an advancement on inheritance instead of an outright gift.  On to the next option.

If you died leaving a Will or Trust, then the terms of the Will or Trust document would govern.  Generally, no discussion of the subject in the Will or Trust document would translate to no lifetime gift being treated as an advancements against inheritance. 

Whether you die with or without a Will or Trust, the key take-away remains this—if you want all gifts or only selected gifts given during your lifetime to be counted as advancements against the gift-receiver's inheritance, then it's best to say so in writing at or very near the time the gift is given.   

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. 

Friday, November 8, 2013

Five Years Living Together—Does that Constitute a Common Law Marriage?

Probably not.  A common law marriage can't occur "accidentally," merely because a couple has lived together for some period of time.  More is required.  Let’s take a closer look.

Not every State recognizes common law marriage.  Texas is one of the few that does.  Texas recognizes a common law or “informal” marriage if three elements exist:

  1. The man and woman agreed to be married;
  2. The man and woman lived together as husband and wife; and,
  3. The man and woman held themselves out to the community and others as husband and wife.

The first element–the agreement to be married—doesn’t require a written statement.  Texas allows an agreement to be proven by circumstantial evidence.  Circumstantial evidence typically evolves from the next two elements.

The second element—living together as husband and wife—includes no bright-line test.  Again, there is no specific length of time that a couple must live together before a common law marriage can be formed.  While Texas doesn’t require the couple to live together continuously, the “matrimonial togetherness” of any non-continuous arrangement must be prominent. 

The third element—holding out to the community and others that you’re a married couple—tends to tie it all together.  The couple's actions cannot be sporadic.  Rather, a clear and consistent pattern must exist.  A non-exhaustive list of conduct might include the following:

  • Maintaining joint financial accounts (e.g. checking and savings);
  • Purchasing a homein both names;
  • Purchasing personal property in both names (e.g. car or boat);
  • Financing purchases in both names (i.e. joint credit);
  • Filing Federal Income Taxes jointly as a married couple; and,
  • Introducing you and your “mate” to others as husband and wife consistently.

In the end, Texas courts determine whether a common law marriage exists based on the facts of each case.  Remember, a specific intent to be married must be evident from the couple’s conduct.  You cannot “accidentally” enter into a common law marriage.

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. 

Wednesday, October 23, 2013

Servicemembers Civil Relief Act—Not Every Default Judgment is Invalid

Serious misconceptions exist about the Servicemembers Civil Relief Act (formerly known as the Soldiers and Sailors Civil Relief Act).  Some military members believe that if they don’t appear in court, nothing bad can happen.  They believe military service entitles them to absolute protection.  Wrong.   When the member later appeals, they believe mere mention that “I was on active duty at time of the hearing” will force a court to throw out any default judgment.  Wrong again.

Section 521 of the Act states that a court does not have to overturn a default judgment unless the military member proves two elements:

(1)    The member’s military service “materially affected” his or her ability to present a defense; and

(2)    Had they presented a defense, it would have been “meritorious” (i.e. legally valid).

A real life example should help clarify.

In 2009, the ex-wife of an active duty Army member brought an action to increase child support.  The member had been served with notice of the hearing, but didn’t appear.  A default judgment was entered that granted the increase.  The member stated that he’d learned of the default judgment when the Defense Finance and Accounting Service (DFAS) began to garnish more of his paycheck.  The member then appealed in an effort to get the judgment thrown out. 

His appeal boiled down to two statements.  First, he’d been “in full duty uniform when he was served” with notice of the hearing.  Second, he’d been busy for the six weeks prior to the hearing “preparing for deployment to Iraq.” 

The court denied his appeal because he’d not shown that he was entitled to relief under the Act.  The court observed that he’d failed to demonstrate how his military service materially affected his ability to present a defense.  The court listed the key facts against him.  He hadn’t been deployed in the six weeks leading up to the hearing.  Rather, he’d been at a base in the continental United States “preparing for deployment.”  He hadn’t attempted to request a “stay” in the proceedings.  He hadn’t filed an answer.  He hadn’t proved that he’d requested leave to attend the hearing and been denied.  In sum—and despite having notice—he’d done nothing to satisfy the first element.

The court further reasoned that he’d failed to satisfy the second element as well.  He’d failed to demonstrate that had he been allowed to present a defense, it would have been meritorious.  It’s likely he had no meritorious defense.  After all, he couldn’t allege the child wasn’t his.  His paternity had been established in the prior court proceeding.  He couldn’t dispute that his pay had increased since the prior order.  His Leave and Earnings Statement (LES) would prove that.  Perhaps—and only if true—a meritorious defense might have been that he’d recently lost a stripe in an Article 15 action and his current pay was actually less—not more—than his ex-wife and the trial court believed.  Again, that’s only brainstorming a possibility.  The governing reality remained that he’d made no attempt to state a meritorious defense.

Here’s the key takeaway so you don’t make the same mistake.  If a military member with notice fails to appear in court, the mere fact he or she was on active duty at time of the hearing is not enough to prevent a default judgment from being entered and enforced.  More is required.  Now you know better.

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. 

For attorneys, this blog post draws upon the following case: In the Interest of K.B., 298 S.W.3d 691 (Tex. App.—San Antonio 2009, no pet.).

Thursday, October 17, 2013

What Happened to the Wedding Gift Down Payment on the Home?

Congratulations!  You are the proud parents (or grandparents) of the bride.  We’ll call her Susan.  Susan married Joe.  As a wedding gift, you wrote a $20,000 check to “Susan and Joe” to help the happy couple purchase their first home.  You thought about writing the check only to Susan but opted not to risk offending the couple on their wedding day.  The couple in fact used the $20,000 for the down payment on a $200,000 home.  They both signed a mortgage note for the $180,000 balance.  The deed was taken in both Susan and Joe’s names.   

It’s now fifteen years later.  Sadly, Susan and Joe are divorcing.  The court decrees that the home be sold with the net proceeds divided 60% to Susan and 40% to Joe.  It seems everyone has a different opinion on what should happen to your $20,000 wedding gift.  Some say Susan should get the first $20,000 from the net proceeds.  Some say it’s caught up in the court's 60-40 split.  Let’s answer the question.

Effect of the Wedding Gift 

The $20,000 proved to be a gift of $10,000 each to Susan and Joe since both names were on the check.  It isn’t possible to make a “community property” gift to the couple.  Susan and Joe each own a $10,000 share as their separate property.

Effect of the Down Payment

The gift's use for the down payment gave Susan and Joe each a $10,000 or 5% separate property interest in the home.  In effect, each contributed $10,000 of the $200,000 purchase price, which equaled 5%.  That means the home is 90% community property based on the $180,000 mortgage note signed by both spouses. 

Effect of the Court’s Order and Sale

The net proceeds of the sale should be divided as follows: (a) $10,000 or 5% to Susan, which reflects her separate property interest; (b) $10,000 or 5% to Joe, which reflects his separate property interest; (c) the remainder divided with 60% to Susan and 40% to Joe, which reflects the court-ordered division of the community interest.  How does this come about? 

Courts have no authority to give a person’s separate property to the other spouse in divorce.  Doing so violates the Texas constitution.  Courts only have authority to divide the community estate (or community interest) of the spouses.  Courts divide the community interest in a “just and right manner” which does not require a 50-50 split.

How It All Shakes Out

For sake of our example, let’s say the home eventually sells for $300,000 with $20,000 in closing costs.  Let’s say the mortgage balance at sale is $110,000.  That means the net proceeds would be $170,000.  Susan and Joe each should expect their $10,000 separate property interest to be restored first.  That would leave a $150,000 community interest to be divided per the court’s order.  From that $150,000 community interest, $90,000 would go to Susan (60%) and $60,000 would go to Joe (40%) as their respective court-awarded shares.  In the end, Susan should walk away with $100,000 and Joe with $70,000, which is the sum of their respective separate and community interests..

Why $10,000 Instead of the 5% Interest?

Susan and Joe each should have their $10,000 separate property interest returned because that amount is larger than 5% of the net proceeds (noting that 5% of $170,000 is only $8,500).  The law says a person’s separate property interest is pro tanto—meaning “to the extent of the contribution.”  Restoring only 5% or $8,500 to each would permit the court’s order to divest Susan and Joe of a portion of their separate property.  How so?  If only 5% was restored, then $1,500 of the original $10,000 each of them contributed would be included in the court's division of the community interest.  The Texas constitution doesn’t allow that. 

Change the Facts, Change the Answer

If we change the facts a bit, then we'll get a different answer.  How about if the net proceeds were much higher, say $220,000 (an increase of $50,000 from the previous example).  Then, 5% of the net proceeds would total $11,000.  In other words, the 5% separate interests of Susan and Joe appreciated from $10,000 to $11,000.  Why is that increase not community property?  Because the law also says that when separate property increases in value, the appreciated amount remains separate property.  It doesn't somehow morph into community property.  Here's how this one would shake out.  After subtracting the two $11,000 separate property interests, the remaining $198,000 would be divided 60-40 per the court's order.

The Ex-Spouses' Reaction

You already know Susan love you.  Joe remembers you fondly for your generous gift to him.

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. 

For attorneys, this blog post draws upon the following cases: In re Royal, 107 S.W.3d 846 (Tex. App.Amarillo 2003, no pet.); In re Marriage of Thurmond, 888 S.W.2d 269 (Tex. App.—Amarillo 1994, writ denied).

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