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San Antonio, TX Family Law and Military Divorce Blog

Monday, July 31, 2017

Divorce and Medical Records: Must I Turn Over My Records if Requested in Discovery?

Must a party to divorce turn over their medical records in response to a "Request for Production" during discovery?  It depends.

In general, production of medical records in a civil proceeding, such as divorce, is prohibited by invoking the "Physician-Patient Privilege" set forth in Texas Rule of Evidence 509.  The rule, as it applies to civil proceedings, provides, in relevant part that:

  1. "Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed."

Read more . . .


Monday, July 10, 2017

Suspected Infidelity - Can I Use a Tracking Device on the Spouse's Vehicle?


Generally, the answer is "no."  Texas Penal Code Section 16.06, Unlawful Installation of Tracking Device," makes it an offense to knowingly install an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.

It is an affirmative defense to prosecution that the person installing the device obtained the effective consent of the "owner or lessee" prior to installation.   So what might that mean if the spouses are co-owners of the vehicle?  Can a spouse give consent knowing the other spouse has primary possession of the vehicle?  That would be risky, especially if the parties have temporary orders in place that give each spouse court-ordered "temporary exclusive possession, use, control and enjoyment" of the motor vehicle in question.


Read more . . .


Thursday, June 29, 2017

Former Spouse Military Retired Pay - What to do BEFORE Moving and Changing Banks


When planning a move that includes a change of banks, Former spouses receiving direct payments from DFAS must notify DFAS of the new address and new bank info (i.e. bank routing and account number) prior to cutting ties with their old location or bad things can happen.  Notice must be submitted to DFAS in writing at:

DFAS-HGA/CL
Assistant General Counsel for Garnishment Operations
P.O.


Read more . . .


Sunday, June 18, 2017

Visitation Schedules for Children Under 3 Years Old


You may be familiar with the Texas "Standard Possession Order or SPO" with the central features being that the non-custodial parent has visitation on:

  • the 1st, 3rd, 5th weekend of each months;
  • share times on major holidays;
  • mom's always get mother's day weekend;
  • dad's always get father's day weekend; and,
  • the non-custodial parent gets 30 days' extended summer visitation (42 days if the parent live more than 100 miles apart).

The Texas Family Code specifies that the SPO does not apply to children under 3 years of age.  The Code requires the court to craft an order that uniquely suits each youngster.  While the court can consider any factor that it considers relevant, the Code lists prominent factors for the court to consider, including:

  • caregiving provided to the child (by each parent) before and during the suit;
  • the effect on the child of separation from either party;
  • the availability and williingness of the parties as caregivers;
  • physical, behavioral, medical and developmental needs of the child;
  • the impact and influence of individuals, other than a parent, who will be present during periods of possession;
  • the presence of siblings during possession;
  • the child's needs to develop healthy attachments to both parents;
  • the proximity of the parents' separate residences;
  • whether the schedule should incrementally shift toward a SPO-like possession schedule taking into account: (1) the ability of the parents to share in the rights, duties, and responsibilities of parenting; and, (2) inconsistent or minimal contact by a parent; and,
  • any other factors that bear upon the best interest of the child.

If you have a child or children under 3 years of age, discuss with your attorney prior to your initial court hearing your thoughts and feelings about an appropriate custom possession schedule.


Read more . . .


Tuesday, May 30, 2017

Agreed Divorce - Questions to think about when discussing divorce with spouse


You and your spouse have agreed to divorce, but are you sure you've agreed on all areas of major concern?

  1. Do you own real property?
  2. Do you have children of the marriage who are under 18 or still in high school who live at home?
  3. Are substantial joint debts involved (e.g. high balance credit card in both names)?
  4. Are the vehicles titled in both names, with the debt in both names too?
  5. Are retirement accounts such as an IRA, 401k, military retirement,

Read more . . .


Friday, May 26, 2017

Federal Civil Service Divorce - Who Pays the Former Spouse Survivor Annuity Premium?

In Federal Civil Service divorce, OPM permits the court to order that the Former Spouse Survivor Annuity premium shall be paid by the Employee or the Former Spouse.  If the court order is silent on the subject, OPM will deduct the premium from the Employee's share of the retirement annuity.  Depending on the level of Former Spouse Survivor Annuity coverage ordered, the premium can be as high as 10% of the Employee's aggregate retirement annuity.  So, who pays the premium is not a trivial matter.

Read more . . .


Monday, May 8, 2017

Purchasing a New Home Prior to the Divorce Becoming Final


When couples divorce, it's not uncommon for one or both spouses to want to take care of important details prior to the divorce becoming final.  One important detail can be purchasing a new home to start your new "post-divorce" life.  Caution is warranted here.

In Texas, title to real property follows a rule called "inception of title."  As a general rule, inception of title occurs when the contract to purchase real estate is signed or a down payment that secures a right to purchase.


Read more . . .


Sunday, April 30, 2017

Waiving Military Retired Pay to Credit Military Service for Federal Civil Service Retirement - How to Protect the Former Spouse


What protection, if any, exists for a former spouse receiving military retired pay when a servicemember, who is now a Federal civil servant, opts to waive military retired pay to credit his or her military service toward a Federal Employees Retirement System (FERS) annuity?  Prior to the 1997 National Defense Authorization Act (NDAA), the answer would have been "no protection exists."  The former spouse's award would have been wiped out.  The 1997 NDAA enacted protection for the former spouse.1

The 1997 NDAA changed the law so a retired servicemember could not waive military retired pay to credit his or her military service toward a FERS retirement annuity unless he or she consents in writing to allow the Director, OPM to deduct and pay the former spouse the same amount from the employee's FERS annuity that is due as former spouse military retired pay.2

Speak with a qualified military and Federal civil service divorce attorney if you have questions.


Read more . . .


Thursday, April 20, 2017

Important Change to Uniformed Services Former Spouses' Protection Act


The 2017 National Defense Authorization Act (NDAA) made an important change to the definition of disposable military retired pay in the Uniformed Services Former Spouses' Protection Act (USFSPA) found at 10 U.S.C. § 1408.  The change affects the division of property in divorce decrees or domestic relations orders dated December 23, 2016 and after.


Read more . . .


Friday, April 7, 2017

Should a Servicemember (or Anyone) Fear a Geographical Restriction When It Is Time to Relocate?


Servicemembers are frequently ordered to leave their location and move to another county in Texas, another state or another country.  These moves are most often required for continued military service and rarely are they done by request.  If a servicemember has children, and a court has ordered a geographic restriction on your residence with the children to a county or counties in Texas, what does this mean for a servicemember's future military career?   Should they fear the restriction preventing them from moving their family to a new location? 

If your move to a new county, state or country is a purely economic move, the courts generally understand your situation.  Purely economic move means, the move is for the benefit of your family to maintain your career in the armed forces or it is required by the military for continued advancement of your military career.  Further, without the move, your ability provide the quality of life that your family has become accustomed to will no longer be possible without the move.


Read more . . .


Monday, February 13, 2017

Transfer on Death Deeds Part 3


This is part three of a three part series on Transfer on Death Deeds. In part one, you learned about what a Transfer on Death Deed was and how a person could validly create one.  In part two, you learned about what happens after a grantor signs a Transfer on Death Deed but the grantor is still alive.
Read more . . .


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