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San Antonio, TX Family Law and Military Divorce Blog

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. 


Thursday, June 11, 2015

Military Divorce: An Alternative to When DFAS Requests a Clarification Order

Sometimes the Defense Finance and Accounting Service (DFAS) will not accept a former spouse application for military retired pay because the divorce decree or domestic relations order fails to provide enough information for DFAS to compute the former spouse's entitlement.  DFAS' letter of non-acceptance instructs the former spouse to obtain a a court order that clarifies the award.  That's one option, but another exists that can be quicker and less costly.

Department of Defense regulations provide that, in such cases, the former spouse may submit either a clarification order or a notarized agreement.  A notarized agreement is a statement signed by each spouse (before a notary) that provides DFAS with the missing information it requires.  The notarized agreement is only possible if goodwill and cooperation between the ex-spouses still exists.  Once the notarized agreement has been accepted by DFAS, it is irrevocable except by subsequent court order. 

It should go without say that if goodwill and cooperation don't exist between the ex-spouses, then the only option is to obtain a clarification order from the court.  Speak with a qualified military divorce attorney for more information.

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, May 30, 2015

Modifying or Enforcing Orders After Children Move

Lately, I've had a flurry of cases aimed at modifying one or more children's issues in a divorce decree from a distant Texas county.  One centered on lifting a geographic restriction on the children's residence levied in a decree from Harris County.  Another centered on defending against a request to modify the custody determination in a decree from Coryell County.  Another centered on a request to modify child support in a decree from Wichita County.  In each of these cases, the court that rendered the final order (i.e. the divorce decree) acquired something known as "continuing exclusive jurisdiction," or CEJ for short.

CEJ means only that court has jurisdiction to modify or enforce its orders.  CEJ can be lost, however, if the children have lived in another Texas county for six months or longer.  In such a scenario, the courts with CEJ in the distant county face a mandatory transfer of the case to the child's new county of residence.

Triggering mandatory transfer requires that a petition (or answer) in a suit to modify the prior orders be filed in the court with CEJ (i.e. in the court in the distant county).  Simultaneously, a motion to transfer the case must be filed that recites that the new county of residence (e.g. Bexar County) has acquired jurisdiction based on the children's residence of six months or longer in that new county.  Notice of the motion to transfer must be served on the opposing party, typically through their attorney.  The other party has roughly three weeks to challenge the motion to transfer (e.g. argue that the child has not lived in the new county for the requisite time).  If no challenge is timely made, the court in the distant county must transfer the case without the necessity of a hearing.

The advent of electronic case filing (which is available in many, but not all, Texas counties) made it possible in each of the three scenarios for me to file the petition to modify (or answer to the other side's petition) and motion to transfer without ever leaving the comfort of my office.  Remember, when the motion to transfer is unchallenged, the transfer order gets signed by the relinquishing court without the necessity of a hearing in the distant county. 

Electronic filing, when available, yields a cost-efficient solution for clients.  Once the order is signed, the case is transfer by the relinquishing district clerk's office to the gaining district clerk's office in several short weeks.   Then, the heart of the matter proceeds in the new court.  In the end, effecting transfer of a case adds roughly two months' time to the case's life cycle.  

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, May 20, 2015

Buy-Out of the Other Spouse's Interest in the Home in Divorce

In divorce, what should the divorce decree say in order to facilitate one spouse's buy-out of the other's interest in the community property homestead with proceeds from post-divorce refinancing?  The decree should include all of the following:

  • State the legal description of the property and divest the non-owning spouse of title convey sole title to the owning spouse;
  • Award a money judgement to the non-owning spouse for his or her share of the equity (i.e. the buy-out amount);
  • Secure the money judgement (i.e. the buy-out) by placing an owelty lien on the entire property;
  • Order the owning spouse to be solely responsible for the existing mortgage;
  • Order the owning spouse to execute a real estate lien note and deed of trust to secure owelty of partition in favor of the non-owning spouse; and,
  • Order the non-owning spouse to execute a special warranty deed with encumbrance for owelty of partition in favor of the owning spouse.

With these structures in place, the owning spouse--after the divorce has been finalized--may now refinance the property solely into his or her name and use proceeds from refinancing to pay-off the money judgement/note.  Making this happen, of course, rests on the assumption that the spouse who will receive sole title can qualify for refinancing and sufficient equity exists to execute the buy-out.  Once everything has been completed, the non-owning spouse's name is off the deed and mortgage.  Anyone considering this option should speak with both a qualified divorce attorney and qualified mortgage broker experienced in divorce refinancing.

 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, May 10, 2015

Divorce and Conveying Title to the House

Many times in divorce one of the spouses will keep the house.  In all cases, the divorce decree should contain a legal description of the house and clearly divest one spouse of his or her community interest by giving that ownership interest to the spouse who will keep the home.  But, once the decree is signed by the judge, the work is not done.  Transfer of the divested spouse's interest must be visible in the county's real property records, otherwise the spouse owning the home may run into difficulty when it comes time to sell (i.e. a title company cannot verify the transfer when investigating the chain of title).

In general, making the transfer visible in the county's real property records can be done in one of two ways.  First, the divested spouse can be ordered in the decree to sign a Special Warranty Deed as "grantor" conveying his or her interest to the spouse keeping the home, the "grantee."  The deed is then recorded.  Second, the decree itself can contain language that  makes it a "muniment of title for all property awarded and transferred herein."  A "muniment" is merely a document that evidences title -- the decree serves as the equivalent of a deed.  The decree is then recorded in the county's real property records. 

What is the advantage of one over the other?  Transferring title by Special Warranty Deed costs less to record since the deed is about 3 pages.  It also keeps the other terms of the decree out of the public's eye.  Transferring title by the decree serving as a muniment of title gets the job done quickly when the other spouse is hostile and getting cooperation in signing a deed is uncertain at best.

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, April 30, 2015

Compelling Return of a Child: Habeas Corpus

A Petition for Writ of Habeas Corpus provides the means to compel return of a child when the other parent is in wrongful possession.   The petition can be filed in the court of continuing exclusive jurisdiction (e.g. the court that rendered the last final order affecting the child) or in a court in the county where the child is found.  The parent filing the petition is known as "the Relator."

Only the right to possession is determined in a Habeas Corpus proceeding.  The determination hinges on the existence of a valid court order that gives the Relator a superior right of possession.  The issue of which parent "should" have possession based on any real or perceived change of circumstances cannot be relitigated.   In that light, any attempt by the parent in wrongful possession to argue that the "best interest of the child" require a change of possession must fail.  Once a superior right of possession is established, grant of the Writ of Habeas Corpus "should be automatic, immediate, and ministerial."  In re deFilippi, 235 S.W.3d 319, 322 (Tex. App.—San Antonio 2007, no pet.).

Speak with a qualified family law attorney for more information about this and related topics.

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, April 20, 2015

Divorce and Title to Real Property Located Outside Texas

Some couples getting divorced in Texas, such as military or Federal civil service families, own real property outside of Texas.  This begs the question of whether a Texas divorce decree can dispose of real property located outside of Texas when dividing the marital estate.  The answer is, yes, as long as the court has personal jurisdiction over the spouse ordered to covey title.  The most clear example of a court acquiring personal jurisdiction over a spouse is when the spouse either filed the suit for divorce (i.e. they are the Petitioner) or the spouse responded to suit by filing an answer or otherwise participating in the proceeding (i.e. they are the Respondent). 

With personal jurisdiction established, a Texas court can hear evidence to characterize the property (i.e. determine whether it's one spouse's separate property or both spouses' community property), value the property, and order one of the spouses to convey title to the other.  The key point is that the court's power to order a spouse to convey title rests on the court's personal jurisdiction over that spouse.  If the spouse refuses to convey title, he or she can be found in contempt

What a Texas court cannot do is render judgment affecting title to real property outside of Texas (or, for that matter, outside of the court's jurisdiction if the property is in some other Texas county).   For example, a divorce court in Bexar County, Texas, could not render judgment in a suit to quiet title (i.e. determine the true owner) for real property located in some other State.

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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