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Federal Civil Service Divorce

Sunday, January 10, 2016

Divorce & Attempted Reconciliation: How Long Case A Case Be "On Pause?"

Occasionally in divorce, the parties wish to try to reconcile while leaving the suit for divorce active in the Court's system.  The three most common questions are: (1) are there any "official" requirements to put the cause on pause; (2) how long can a case be on pause; and, (3) if we decide to end the divorce, how do we do that?  This blog will deal only with the first question: what, if any, official requirements exist to put a divorce case on pause.  The second and third questions will be dealt with separately in my next two blogs.

Regarding the first question, while there are no official requirements for putting a case on pause, my preferred technique is for the two attorneys to file a "Rule 11 Agreement" that agrees to suspend the litigation, pending further notice.  Texas Rule of Civil Procedure 11 specifies that for any agreement between the parties or attorney to be enforceable by the Court, it must be in writing and filed with the Court (hence, the term "Rule 11 Agreement").  In general, the agreement should state the following:

  • That the parties wish to to suspend all litigation activities to provide for a period of time for attempted reconciliation;
  • That during the period of suspension, any pending discovery requests are abated (i.e. on hold, with deadlines to be reestablished if the suspension is later lifted), and neither party will initiate any new discovery requests or make settings for further hearings or final trial;
  • That either party may terminate the suspension of litigation and resume the case upon written notice to the other party, by and through the other party's attorney of record; and,
  • That the Rule 11 Agreement for Suspension of Litigation and an Notice of Termination of Suspension of Litigation shall be filed with the Court.

From a practical perspective, any attempt at reconciliation should be given about 4 to 6 months before the parties decide whether to terminate the divorce.  The 4 to 6 month period is a prudent time frame because a commitment to attempt reconciliation is like falling in love all over again.  It tends to promote a burst of commitment to more kindness and better behavior.  However, and since we humans tend to be creatures of habit, most people tend to slip into old habit patterns somewhere within the 4 to 6 month time period (+/-).  In other words, while long-term positive change in marital behavior is possible, it tends to be difficult to achieve.  Thus, 4 to 6 months is a prudent benchmark for the parties to test if the change each seeks in the marriage has "sticking power."   

 My next blog will address the second question, being how long a divorce case can be on pause.  Stay tuned.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firms also provides Wills and Estates and Probate services.

 


Wednesday, December 30, 2015

Recoupment of Overdue Former Spouse Military Retired Pay or FERS Annuity Payments

I get a steady stream of requests from former military spouses and former spouses of Federal Civil Service members for help in obtaining a clarification order that will cause DFAS or OPM to start the former spouse's monthly payments.  Sometimes years have gone by since the military servicemember of civil servant has retired and started receiving retired pay. 

What can and should be done to make things right for the former spouse in the aftermath of military divorce or Federal Civil Service divorce, particularly when the member has long since retired?  First, a clarification order must be obtained and a new application submitted to DFAS or OPM, as it applies, so that the former spouse can begin to receive the monthly payments that rightfully have been theirs all along.  Unfortunately, neither DFAS nor OPM will calculate arrears or pay arrears on payments long since overdue.

Presuming the divorce decree or accompanying domestic relations order named the military servicemember or civil servant as "constructive trustee" for receipt and transfer of payments due to the former spouse, relief is available.  Texas case law has established that the member named "constructive trustee" owes a fiduciary duty to the former spouse to see that he or she receives payment1.  The former spouse can bring suit for "breach of fiduciary duty2." 

The Civil Practices and Remedies Code establishes that a suit for breach of fiduciary duty carries a four year statute of limitations3.   Thus, the former spouse can sue for recoupment of payments the servicemember or civil servant received, but never transferred, for up to four years from the date of filing the lawsuit for breach of fiduciary duty4

Designation as "constructive trustee" and its implication in permitting a suit for breach of fiduciary duty with a four year statute of limitations is a distinction of huge importance.  Otherwise, and what many opposing attorneys will try to argue, is that the two year statute of limitations under the Texas Family Code governs5.  A former spouse and his or her attorney should not bite on that.  Failing to file and argue the correct cause of action (i.e. breach of fiduciary duty with a four year statute of limitation instead of enforcement of a property division with a two year statute of limitation) can cut in half the relief available to the former spouse.  Speak with a qualified military divorce or Federal Civil Service divorce attorney for more information.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firms also provides Wills and Estates and Probate services.

___________________________

Note1See Preston v. Preston, 2004 Tex. App. LEXIS 7376 at *5-6 (Tex. App.—San Antonio, Aug. 18, 2004, no pet.) (memo op.).

Note2Id.

Note3:  Civ. Prac. & Rem. Code Sec. 16.004(a)(5).

Note4See Preston v. Preston, 2004 Tex. App. LEXIS 7376 at *5-6.

Note5:  Tex. Fam. Code Sec. 9.003.

 


Thursday, December 10, 2015

Overseas and Facing a Militay or Federal Civil Service Divorce / Family Law Issue?

Our firm has helped many military or Federal Civil Service member who are PCS or deployed overseas handle an array of family law matters such as:

Our firm's ability to service and counsel client needs is global.  We've helped military or Federal Civil Service clients who are either PCS, deployed to, or with issues tied to assignment in countries such as:

  • Afghanistan
  • Germany
  • Honduras
  • Italy
  • Japan
  • Mexico
  • South Korea
  • United Arab Emirates

Our firm's approach is unique, in ways as follows:

  • We use a cloud-based case management system that provides the client with 24/7 access to all case-related documents; an ability to upload documents to the system in a secure environment; an ability to view a calendar of scheduled events; and, an ability to communicate securely via an inter-system messaging capability.
  • We routinely schedule Skype sessions with overseas clients because we understand that high-quality, interactive "face-to-face" communication between the attorney and client is important.
  • We routinely have overseas clients appear at mediation or trial remotely via Skype to facilitate their "personal presence" at these critical events.

If you are a military or Federal Civil Service member who is PCS or deployed overseas and looking for a family law firm to help with an issue in the courts of Bexar and surrounding counties, you are invited to send us a consultation request through our website to arrange a free consult.  We'll be glad to set up a convenient time to Skype with you to learn more about your situation, answer questions, and discuss strategies for a way forward.

Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm helps clients in the greater San Antonio region, across the United States, and globally with family-law related matters the courts of Bexar and surrounding counties.

 


Sunday, November 1, 2015

Amicus Attorney versus Attorney Ad Litem - What's the Difference?

Sometimes in a suit affecting the parent-child relationship (e.g. a custody dispute associated with a divorce or between unmarried parents), the court might appoint an Amicus Attorney or Attorney Ad Litem (and, on rare occasion, both).   The different focus of their respective roles is not well understood.

The focus of an Amicus Attorney is to provide legal services to the Court.  The Amicus Attorney helps the court determine and protect the child's best interests.  The Amicus Attorney's focus is not on providing legal services to the child.  The child (or the child's parent) is not the Amicus Attorney's client. 

The focus of an Attorney Ad Litem is to provide legal services to a person, such as a parent or the child.  Whether the client is the parent or the child, the Attorney Ad Litem owes the client complete loyalty, confidentiality in all communications and diligent and competent representation.

When the court appoints an Amicus Attorney or Attorney Ad Litem, the attorneys for the Petitioner and Respondent will work with these court-appointed attorneys while still advocating for their respective client's objectives.

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. 

 


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. 

 


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. 

 


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