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San Antonio, TX Family Law and Military Divorce Blog

Tuesday, October 20, 2015

Finishing a Pro Se or "Do It Yourself" Divorce Quickly

I frequently get calls from people who filed their own divorce but need help finishing the job.  The need for help generally stems from one of two sources:

  1. The forms have  become overwhelming and confusing;
  2. The Bexar County Staff Attorney's Office informs the person that the wait time for a court date is approximately 6 months after they turn in their completed paperwork - and they want to get divorced "now."

Regardless of the reason, we offer a very cost effective, flat fee solution to finishing the job.  Our services always include drafting a streamlined and legally accurate Final Decree of Divorce (because the pro se forms, frankly, present a mangled and confusing array of options and most people's do-it-yourself paperwork really won't produce the outcomes they intended).  When transfer of real estate is involved (e.g. one spouse is giving the other the marital home), we also prepare the deed paperwork and ensure it gets properly recorded in the county's official deed records.  Sadly, I have yet to see someone's do-it-yourself paperwork that is poised to properly transfer legal title to real estate.  That shortcoming, of course, wouldn't become apparent until months or years later when the spouse who got the house tries to refinance or sell it.

How fast can I help someone get divorced?  Assuming the 60-day waiting period has elapsed, I've gotten a formerly pro se client divorced in as little as four days.  In most other cases, the job's done in about two weeks.  It all depends on where the client is in the time line and whether the soon-to-be-ex-spouse will cooperate in quickly correcting the paperwork (and in some cases, no cooperation from the soon-to-be-ex is even necessary).  How long it will take depends on the specific facts of your situation.  We'll evaluate your case at a free consult to help you decide.  All you need to do is bring in all of your paperwork for our review.

Author Jim Cramp is a retired active duty colonel 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, October 12, 2015

Grandparents Raising Grandchildren: Obtaining Custody (i.e. Managing Conservatorship)

I've recently helped several grandparents who were raising their grandchild get legal custody (formally known as "managing conservatorship").   The most common basis for bringing a suit for managing conservatorship is when the parents have voluntarily relinquished actual care, custody and control of the child to the grandparents for at least six months' time.  It doesn't matter whether no court order exists or an existing court order granting one of the parents "primary managing conservatorship" must be modified.  The key criterion remains the same -- the grandparents have had actual care, custody and control for at least six months based on the parents' voluntary relinquishment. 

Know that if the grandparents obtain managing conservatorship, the court may still order one or both parents to pay child support.  In general, the court still will provide the parents with some visitation rights unless serious issues such as documented child abuse are present.

In some cases, time lines apply for bringing the lawsuit.  Speak with a qualified family law attorney for more information about grandparents obtaining managing conservatorship when a grandchild has been relinquished to their care for at least six months.

Author Jim Cramp is a retired active duty colonel 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, September 30, 2015

UCCJEA: How It Can Help Texas Retain Jurisdiction A Child Custody Determination

In my previous post, I introduced the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA.  In general, the UCCJEA's central rule is that only the "home state" of the child has jurisdiction to make an initial child custody determination.  The "home state" is the state in which the child lived with a parent or person acting as a parent for at least six consecutive months prior to divorce or other child custody litigation.  How does this legal scheme help Texas retain jurisdiction when a parent takes children across state lines?

Here's a common scenario that might help explain.  John's in the military and stationed at Ft. Sam Houston in San Antonio.  John and his wife Mary, and their two children, have been in San Antonio for the past two years.  Unfortunately, the marriage isn't working out.  Mary decides to leave the marriage and "go home" to Nevada, taking the children with her.

Whether John files for divorce in Texas or Mary files for divorce in Nevada, only Texas has jurisdiction to make the initial child custody determination under the UCCJEA (which every state but Massachusetts recognizes) until the children have lived in another state (like Nevada) for six months.  The key point being that Texas is where the children lived with a parent for at least six consecutive months if John would decide to start litigation within weeks or a few months of Mary's departure. 

UCCJEA jurisdictional matters can become quite complicated.  For now, speak with a qualified divorce attorney for more information about how the UCCJEA might impact your decision situation.

Author Jim Cramp is a retired active duty colonel 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. 


Sunday, September 20, 2015

UCCJEA: Avoiding Jurisidictional Disputes Among States in Making Child Custody Determinations

In a previous blog, I highlighted that military and Federal employees (and their spouses) absent from Texas on public service may still file for divorce in Texas if Texas remains their "domicile" (i.e. permanent home to which they intend to return).  Click here to access that blog post.  The fact that a public servant serving outside of Texas can file for divorce in Texas doesn't automatically give Texas jurisdiction to determine the initial orders for custody and visitation of the children.  Which states has jurisdiction to make the initial custody orders is determined by a uniform law called the UCCJEA.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted in every state except one, that state being Massachusetts.  Massachusetts may soon join the fold as it has active legislation aimed at approval.  According to its authors, the purposes of the UCCJEA are to:

  1. Avoid jurisdictional disputes among states;
  2. Promote cooperation between courts of different states in interstate custody disputes; and,
  3. Discourage use of the interstate system to: (a) deter child abductions; (b) avoid re-litigation of custody decisions made by other states; and (c) facilitate enforcement of custody orders made by other states.

Under the UCCJEA, only the "home state" of the child has jurisdiction to make an initial custody determination (with few exceptions).  The "home state" is the state in which a child lived with the parent (or person acting as a parent) for at least the six months immediately before "commencement" of a child custody proceeding.  A proceeding "commences" upon the first filing of legal papers in a dispute touching upon custody (e.g. suit for divorce or suit for custody).

So, a military member or Federal employee (or spouse) who is a Texas domiciliary, but absent from Texas because of Federal service, may find that the state in which they currently reside--and only that state--has jurisdiction to make an initial custody determination. 

The UCCJEA contains narrow exceptions to its application.  And in other cases, some specific facts of the case might bear upon how the UCCJEA gets applied.  Some of these twist and intricacies will be the topics of later blogs.  For now, speak with a qualified military or Federal civil service divorce attorney for more information about how the UCCJEA might impact your decision, as a military or Federal employee (or spouse) on duty outside of Texas, to file for divorce in Texas.

Author Jim Cramp is a retired active duty colonel 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, September 10, 2015

Texas Domiciliary Absent on Public Service May Still File for Divorce in Texas

To maintain a suit for divorce in Texas, one of the parties must be living in Texas for six months and the county of filing for 90 days prior to filing the suit.  Sometimes that's not possible for military members and other Federal employees who are absent on public service.  All is not lost.  The Texas Family Code Section 6.303, "Absence on Public Service," provides and exception for these public servants and their spouses.

Military members and other Federal employees serving outside of Texas can still file for divorce in Texas if Texas is their "domicile" (i.e. if Texas is considered to be the permanent home they intend to return to after completion of public service that compels their absence).  The same right exists for a spouse who is a Texas domiciliary but absent because of the other spouse's public service.  Perhaps two examples will help clarify.

Example #1.  John grew up in Bexar County Texas and considers it to be his domicile, or permanent home.  John has been living outside of Texas for the last 8 years due to three military assignments.  His first assignment was in Germany.  The second was in California.  While assigned to and residing in California, John met and married Mary.
John and Mary are now living in North Carolina, on John's third military assignment.   Sadly, the marriage is not working out.  John may, if he wishes to do so, file for divorce in Bexar County, Texas.  The time John has spent outside of Texas and Bexar County does not count against him since his absence was driven by military service.

Example #2.  Sally grew up in Bexar County, Texas and considers it to be her domicile or permanent home.  Sally met and married William, a Federal employee (Dept of Homeland Security) while William was stationed in San Antonio.  Despite being stationed at San Antonio, William always considered Syracuse, New York to be his domicile or permanent residence.  Eventually, the Dept of Homeland Security reassigned the couple to duty Ohio.  Sadly, the marriage is not working out.  Sally may, if she wishes to do so, file for divorce in Bexar County, Texas.  The time Sally has spent outside of Texas and Bexar County does not count against her since her absence was driven by her spouse's public service.

Despite having the right to file in Texas, there may be reasons for a Texas domiciliary absent by reason of public service for not doing so.  Other important jurisdictional issues may apply that affect children and/or property.  Speak with a qualified military or Federal civil service divorce attorney before deciding whether filing in Texas is best based on the facts of your specific situation.

Author Jim Cramp is a retired active duty colonel 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. 

 

 

 

 


Sunday, August 23, 2015

Can A Court Order Payment of College Expenses?

In a divorce proceeding, can a Texas court order one or both parents to pay future college expenses as additional child support?  No.  The court has no authority to order either parent to support a child once they emancipate at the later of attaining 18 years of age or graduating high school.  An exception exists for a disabled child incapable of self-support, but we'll skip that discussion and focus only on payment of college expenses for a normal, healthy child.

All is not lost, however.  The parties can agree to do things "contractually" that a court has no authority to compel them to do.   So, it is possible to include in a divorce decree an agreement for payment by one parent, or allocation among the parents, of college expenses.  The agreement would have to be worded such that it is binding and enforceable -- not as child support -- but as a contract.  It should be noted that it's possible to include in the contract conditions on payment of college expenses, such as that the child maintain a certain grade point average or "top out" at a maximum age (e.g. 22, 23, or 24 yrs old) whether or not the child has graduated college.  If the condition occurs, the contractual obligation to pay could terminate.

See a qualified family law attorney to ensure that any agreement to pay college expenses (and any conditions placed on the agreement) are properly worded so they are binding and enforceable as a contract.  Realize that failure to honor the contract will not be punishable by contempt (as with failure to pay child support).  The correct remedy would a suit for breach of contract that seeks damages (i.e. a money judgment)).

Author Jim Cramp is a retired active duty colonel 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, August 17, 2015

Does A New Spouse's Income Factor In My Child Support Obligation?

No, not in Texas.  The court may not use any portion of your new spouse's income to increase your net resources when calculating your child support obligation.

On the flip side, the court may not subtract the needs of your new spouse or step-children, if any, when calculating your child support obligation.  So, for example, if your new spouse is a full time student and has no income, you are not entitled to a reduction in child support.  Also, if your step-children's other parent fails to pay child support, you are not entitled to a reduction since you have no legal duty to support step-children.

Speak with a qualified family law attorney if you have questions other questions about how blended families may be impacted by child support issues.

Author Jim Cramp is a retired active duty colonel 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. 


Sunday, July 26, 2015

Stopping Annoying or Harassing Texts and Calls

I've been asked this question enough that I thought it merited a short blog post.  Is there anything "legally" that can be done to stop a soon-to-be-ex-spouse or their new love interest from sending annoying or harassing texts or phone calls?  Yes, on both the civil and criminal sides of the law.

On the civil side, if it's the soon-to-be-ex-spouse (i.e. the other party in divorce litigation), an enforcement action can be brought for violation of temporary injunctions that prohibit that sort of conduct.  If found in "contempt," the court can order fines up to $500; jail time up to 180 days; and/or, payment of attorney's fees. 

On the criminal side, a complaint can be made to the police (please call the non-emergency number) about "harassment" under the Texas Penal Code Section 42.07.   For example, Section 42.07 states that a person commits an offense "if, with the intent to harass, annoy, alarm, abuse, torment or embarrass another person, the person...sends repeated electronic communications [which includes text messages, emails and phone calls]...in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend" another person.  If prosecuted by the DA's office and found guilty, the offense is a Class B misdemeanor.  A Class B misdemeanor is punishable by a fine up to $2,000; jail up to 180 days; or, both.

Author Jim Cramp is a retired active duty colonel 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, July 10, 2015

Adding a Geographic Restriction on Children's Residence Post-Divorce

Is it possible to add a geographic restriction on the children's residence after-the-fact when no such restriction was levied in the decree or final order?  Yes, it's possible.  But, it's a tall order.  Adding the geographic restriction after-the-fact requires the court to find that a "material and substantial change in circumstances" has occurred due to a proposed or actual relocation. 

First, be aware that a proposed or actual relocation by itself does not equal a material and substantial change in circumstances.  This holds true regardless of the distance involved in the relocation.

Next, be aware that a finding of material and substantial change will depend on the court's evaluation of the specific facts of the case, including factors such as the following:

  1. the distance involved [balanced against the other factors below];
  2. the nature and quality of the relationship between the children and non-custodial parent;
  3. whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children;
  4. the impact of the move on the quantity and quality of the children's future contact with the non-custodial parent;
  5. the custodial parent's motive for the move (e.g. job change vs. discretionary relocation);
  6. the non-custodial parent's motive for opposing the move;
  7. the feasibility of preserving the relationship between the children and non-custodial parent through suitable visitation arrangements; and,
  8. the proximity, availability, and safety of travel arrangement.

Speak with a qualified family law attorney to learn more.

Author Jim Cramp is a retired active duty colonel 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 is based upon the following case: Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App.—El Paso 2002, no pet.).

 

 


Tuesday, June 30, 2015

Jury Issues in Divorce

This is the first blog in a two part series on "jury topics."  In this first part, we'll look at what issues a jury can decide in divorce.  In the second part, we'll look at what issues a jury cannot decide.

 In divorce, either party has the right to demand a jury trial.   In a jury trial, the jury only decide questions of "fact," generally meaning whether or not something happened, or what about a fact question is true or not true.  The judge always decides questions of "law," generally meaning what are the legal consequences that follow once a fact has been established.  The questions of "fact" that a jury can decide follow:

  1. Grounds for divorce (e.g. (a) whether the marriage has become insupportable, meaning the legitimate aims of marriage have been destroyed such that no reasonable chance of reconciliation exists; (b) whether one spouse has been cruel to the other; or (c) whether one spouse has committed adultery, etc.);
  2. The character of property (i.e. whether property is one spouse's separate property or both spouses' community property);
  3. The value of property, whether separate or community (noting that the court can consider the size or dollar value of one spouse's separate property estate when making a "fair" division of the community property estate);
  4. Whether the parents or another applicant, such as a grandparent, should be appointed as a joint managing conservator, sole managing conservator or possessory conservator of the children;
  5. Which conservator should have the right to designate the residence of the children (i.e. primary custody); and,
  6. Whether a geographic restriction should be imposed on the residence of the children.

Even though each party has the right to demand a jury trial in divorce, it is not a decision to be taken lightly.  In general, a jury trial increases the length of the litigation by 4 to 6 months and doubles the cost (or more) since jury trials involve significant additional legal work for the attorneys.  Speak with a qualified family law or divorce attorney to learn more .

Author Jim Cramp is a retired active duty colonel 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. 

 


Saturday, June 20, 2015

Military Divorce: Jurisdiction to Divide Military Retired Pay

Filing a suit for divorce doesn't automatically give a State court jurisdiction to divide military retired pay.  Federal law (specifically, Uniform Services Former Spouse Protection Act found in Title 10 of the United States Code at Section 1408) requires that a State court establish jurisdiction over military retired pay in one of three ways, as follows:

  1.   The Servicemember must reside in the territorial jurisdiction of the court by reason other than military assignment;
  2.   The Servicemember must be a domiciled in the territorial jurisdiction of the court; or,
  3.   The Servicemember must consent to the jurisdiction of the court.

Let's take a closer look at each way in reverse order. 

First, a Servicemember consents to jurisdiction if they're the spouse who filed for divorce.  In other words, by asking the court to grant relief, the court's jurisdiction is invoked over the person filing (the "Petitioner").  On the other hand, if the Servicemember is the spouse being sued for divorce (the "Respondent"), they consent to jurisdiction if they file an answer with the court or participate in a hearing—without, first, objecting to jurisdiction over military retired pay via "Special Appearance," described later. 

Second, jurisdiction always exists over a  Servicemember domiciled in the territorial jurisdiction of the court.  "Domicile" is different from "residence," in terms of legal effect.  A person may have more than one place of residence (e.g. a "permanent" home in Texas and a vacation or rental home in Colorado).  A person only ever has one place of domicile, which is the place of residence that the person considers their "permanent" home.  By Federal law, a Servicemember doesn't give up their domicile simply because the military sends them on assignment in some other State.  So, a Servicemember who considers Texas to be their domicile may be sued for divorce in a Texas court while stationed in any State (including Texas) or foreign country.   Indicators of a person's domicile include but are not limited to the following: (a) the State in which their car is registered; (b) the State in which they're registered to vote; and, (c) the State claimed on their LES for tax purposes.

Last, if the only reason the Servicemember resides in the territorial jurisdiction of the court is because of their military assignment, then jurisdiction over military retired pay may be withheld—but only if the Servicemember takes the specific step of filing a "Special Appearance" prior to filing an answer or otherwise participating in the suit.  Filing a Special Appearance is a delicate legal procedure.  If done properly, the suit for divorce can still proceed, but a division of military retired pay cannot be part of it.  For example, a Servicemember whose domicile is Florida, but who resides in Texas only by reason of military assignment, may withhold jurisdiction over military retired pay if their spouse files for divorce in Texas and the Servicemember timely files a Special Appearance.

Filing a Special Appearance is not something to be done off the cuff.  See a qualified military divorce attorney for questions on establishing or withholding jurisdiction over the Servicemember's military retired pay. 

Author Jim Cramp is a retired active duty colonel 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. 


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