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Federal Civil Service Divorce

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, 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.


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. 


 


Friday, April 10, 2015

Geographic Restriction: Limiting the Child's Residence in Divorce Cases

Courts routinely impose a geographic restriction at the temporary orders hearing  in divorce cases that involve minor children.  The restriction normally limits the child's residence to the current county of residence plus contiguous counties ("contiguous" means the surrounding counties whose borders touch the current county of residence).  So, for example, a geographic restriction that limits the child residence to "Bexar and contiguous counties" means the custodial parent (and child) could live anywhere in Bexar, Medina, Bandera, Kendall, Comal, Guadalupe, Wilson or Atascosa counties.  The purpose is twofold: (1) to keep the custodial parent and children in the local area until the divorce is finished; and, (2) to facilitate the non-custodial parent's visitation rights. 

Whether a geographic restriction will also be included in the final decree of divorce is a separate matter.  Sometimes it is included.  Other times it isn't.  For final orders, one factor courts consider is the parents' near-term and long-term employment prospects.  If a credible argument can be made that the custodial parent needs to be able to move anywhere in Texas or some other State, then courts frequently remove the geographic restriction.  The need to be able to change residence without restriction is a key factor in military divorces and Federal civil service divorces.

It's important to emphasize that a geographic restriction only affects the "right to change permanent residence" and not the "right to travel."  So, if either parent wants to take the children out of Texas to visit the grandparents or go on vacation, that's okay.  Traveling does not violate a geographic restriction.

For questions about geographic restrictions and other issues in divorce, speak with a qualified divorce attorney.

Author Jim Cramp is a retired active duty colonel and the 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, March 30, 2015

Mediation in Divorce Proceedings

Courts routinely order that the parties attempt to resolve their divorce by mediation prior to scheduling a contested final trial.  One reason courts favor mediation is to help keep the judicial system functioning.  The system would be broken if every case had to go to final trial.  There aren't enough judges and courtrooms to meet the demand. 

Mediation is not arbitration.  In mediation, the parties are not "handed" the answer by the mediator.  Mediation only resolves the case if the parties both agree to the terms of the mediated settlement agreement. 

Sometimes only some of the issues can be resolved in mediation, such as division of the community estate (i.e. how much property and debt each spouse will receive in the decree).   Partial resolution helps "narrow" the issues for final trial.  If children are involved and both parents want primary custody, then that may be the only issue requiring the court's time.  Narrowing the issues can cut the time needed to try a case in half.  Judges appreciate that effort.

Mediation is not all about keeping the judicial system functioning.  It also is about helping the parties feel better about the outcome.  Mediation generally involves give-and-take and the parties are in control of deciding whether they can accept the terms of the agreement.  While neither party tends to get everything they want, each party should get enough so that it's worth compromising.  At final trial, the parties are not in control.  In a contested trial, each party risks all of their objectives.  Each side pleads its case and the court "hands" the parties an answer.  That answer may be better, worse, or about the same as what could have been achieved at mediation. 

For questions about mediation and other issues in divorce, speak with a qualified divorce 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. 

 

 


Thursday, October 30, 2014

Reimbursement Claims-Part 3: Prohibited Claims

This is the third post in a three-part series on "reimbursement claims" in divorce.  Recall that all claims for reimbursement are "equitable" in nature, meaning the court has wide discretion in deciding and balancing the outcome.  Some claims, however, cannot be considered by the court since that are prohibited by statute.

Texas Family Code Section 3.409 prohibits courts from considering the following:

  1. Payment of child support, alimony or spousal maintenance;
  2. Living expenses for your spouse or a child of your spouse;
  3. Contributions of nominal value; and,
  4. Payment of student loans owed by your spouse.

The first three categories make sense to most people.  That last one -- payment of your spouse's student loans -- often comes up as a sore spot during discussion with clients.  For better or worse, there really is no room for discussion.  The Texas legislature has handed down its decision.  In divorce, a reimbursement claim for contributions made to compensate for payment of your spouse's student loan debt is dead on arrival.

A close reading of Texas Family Code Section 3.402 adds to the list of prohibited claims any desire to claim an offset for "use and enjoyment" by the community of a spouse's separate property primary or secondary residence (e.g. a spouse's separate property homestead or vacation home)

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. 


Monday, October 20, 2014

Reimbursement Claims-Part 2: Offsets

This is the second post in a three-part series on "reimbursement claims" in divorce.  In Part 1, wife established a reimbursement claim on behalf of the community estate for the reduction in the principal amount of debt on husband's separate property home that accrued during 10 years of marriage.  In Part 1, we determined that the mortgage principal had been reduced by $60,000.  Here, we'll examine the effect of the husband's "offsetting" reimbursement claim for the benefit his separate property home conferred on the community.

For simplicity, let's assume that husband and wife filed a joint Federal income tax return during each year of marriage.  An examination of those tax returns revealed that the community's tax liability had been reduced by $40,000 by virtue of claiming the mortgage interest and property tax paid on husband's separate property home among the couple's itemized deductions.  Thus, husband's separate property estate (i.e. his home) conferred a benefit on the community estate (i.e. reduction in the spouses' tax liability).  Does husband's offsetting claim automatically reduce wife's reimbursement claim on behalf of the community to $20,000?  Not necessarily.

Courts are not required to offset reimbursement claims on a dollar-for-dollar basis.  As the court in Pennick said, evaluating equitable claims for reimbursement "is not merely a balancing of the ledgers" between the spouses' separate and community estates.  As in all "equitable" matters, courts have wide discretion to effect a "just and right" division based on all the factors at play in each parties' divorce.

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.  This blog cites Penick v. Penick, 783 S.W.2d 194 (Tex. 1988).


Friday, October 10, 2014

Reimbursement Claims-Part 1: The Basic Concept

This is the first post in a three-part series on "reimbursement claims" in divorce.  In fashioning a property settlement in divorce, claims for "reimbursement" are a common factor faced by the parties and courts.  In simple terms, a reimbursement claim requests "payback" for the benefit one marital estate conferred on another marital estate, such as when the community estate conferred a benefit on one spouse's separate property estate.  An example will help explain how this might work.

Husband bought a house prior to marriage.  Husband marries wife and they live together in husband's house for 10 years prior to wife filing for divorce.  In her divorce petition, wife asks the court to reimburse the community estate for the benefit it conferred on husband's separate property estate by way of the community's payment of the mortgage during 10 years of marriage.  How does this claim arise?  Well, each spouse's income, which was used to pay the mortgage, is community property.  The claim for reimbursement would hold even if husband was the only wage earner during the marriage because his income is community property.  A plea that "I used 'my' income to pay the mortgage on 'my' house" would ring hollow.

How much is the reimbursement claim?  Let's say the mortgage payment is $1,000 per month, which includes principal, interest, taxes and insurance.  Simple math might suggest that wife's reimbursement claim should be $120,000 ($12K/year for 10 years).  Is that the right amount?  You might think so, but the answer is, "no." 

Texas Family Code Section 3.402 defines reimbursement claims.  For our example (one spouse's separate property home, which is a secured debt), the Code limits the claim to the reduction in principal on the secured debt.  For simplicity, let's say that a comparison of the mortgage statement immediately prior to marriage with the statement immediately prior to divorce revealed that the mortgage principal had been reduced by $60,000.  Thus, the community estate that the court will divide in divorce should be increased in value by $60,000.

Reimbursement is not a "right."  Reimbursements are equitable claims that the court may, but is not required, to consider and grant based upon all the factors at play in specific case before the court.

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.


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