dallas fathers rights

Divorce: What is separate property and what is community property?

Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate.  Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested.  The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate.  Inception of title occurs when a party first has a right of claim to the property. 

Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate  and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.

In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse.  In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property.  The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character.  This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.

There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.

Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.

The Texas Family Code defines community property as follows:  “community property consists of the property, other than separate property, acquired by either spouse during marriage.”

Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence.  Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.  If property cannot be proved to be separate property, then it is deemed to be community property.

The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.

By Nacol Law Firm | Property and Asset Division
DETAIL

Warning Signs of a Parental Alienation Syndrome Child

Parental Alienation Syndrome is the systematic denigration by one parent with the intent of alienating the child against the target parent. In most cases, the purpose of the alienation is to gain custody of the child and exclude involvement by the target parent. In other cases the alienator wants the target parent out of the way to start a new life, or the alienating parent wants more of the marital money and assets than he/she is entitled to and uses the child as a pawn. The alienating parent hates the target parent and the children become false weapons. These are just a few reasons Parental Alienation occurs in domestic disputes.

Parental Alienation Syndrome is common because it is an effective device for gaining custody of a child. Through systematic alienation, one parent may slowly brainwash a child against the other parent. The parent involved in such alienation behavior then may gain the misplaced loyalty of the child.

In a recent survey, one in five parents stated that their primary objective during the divorce was to make the experience as unpleasant as possible for the former spouse; despite the effects such attitudes and behavior have on the children.

Parental Alienation Syndrome is a form of emotional child abuse. Parents in hostile separations may suffer depression, anger and anxiety or aggression. The expression of these feelings results in withdrawing of love and communication which may extend to the children through the alienating parent. When the mother is the alienator, it is a mechanism employed to stop the father from having contact with his children; and can be described as the mother holding the children “hostages.” The children usually are afraid of the mother and obey her as a means of survival. The child may also be instilled with false memories of the father, coached and/or brainwashed. Parental Alienation Syndrome is recognized by the courts but is very difficult to define and in most cases requires bringing in County Social Services, Child Protective Services, and/or other professionals. Anyone claiming Parental Alienation Syndrome should look for family therapy as a constructive way forward. Other forms of abuse are physical, sexual, and neglect which are much easier to identify.

If the parental alienation has been successful and has influenced the child against the target parent, the observer will see symptoms of parental alienation syndrome. Many children appear healthy until asked about the target parent.

Warning signs of a Parental Alienation Syndrome Child:

  1. The child is a “parrot” of the alienating parent with the same delusional and irrational beliefs and consistently sides with this parent.
  2. The child develops serious hatred for the target parent and rejects a relationship with the target parent without any legitimate justification. The child sees nothing “good” about this parent and only wants to destroy the relationship.
  3. The child refuses to visit or spend time with the target parent.
  4. The child’s reasons for not wanting a relationship with the target parent are primarily based on what the alienating parent tells the child.
  5. The child feels no guilt about his/her behavior toward the target parent and will not forgive past indiscretions.
  6. The child’s hatred extends to the target parent’s extended family without any guilt or remorse.

Children having some of these symptoms may be experiencing Parental Alienation by one of his/her parents. Please contact an attorney and discuss your options on how to help this child. Formulate a plan to move forward. Do not give up your parental rights! Your child desperately needs and is entitled to your help!

By Nacol Law Firm | Parent Alienation
DETAIL

What About Texas Spousal Support Laws ?

In September 1, 2011, Texas House Bill 901 ( Texas HB 901 ) revised the spousal maintenance law in the Texas Family Code effective for divorce cases filed on or after September 1, 2011. The bill revised the conditions that establish eligibility for spousal maintenance, commonly referred to as alimony, and changes the factors required to be considered by a court in determining the nature, amount, duration, and manner of periodic payments for a spouse who is eligible to receive maintenance.

Eligibility for spousal maintenance still requires that the spouse seeking maintenance lacks sufficient property to provide for the spouse’s minimum reasonable needs.

The law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.

Some of the major items in the Texas Spousal Support Law are:

1. The maximum amount of spousal support that courts may award increased from $2,500 to $5,000.00 per month, although it is still limited to 20 percent of the payer’s average gross monthly income.

2. The duration of spousal support in Texas is a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.

3. The law clarifies if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.

4. The law also clarifies a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.

In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:

(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2) The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3) The recipient is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR

(4) The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

The court can order maintenance to continue for:

(1) 5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;

(2) 5 years if the parties were married more than 10 years, but less than 20 years.

(3) 7 years if the parties were married more than 20 years, but less than 30 years;

(4) 10 years if the parties were married for more than 30 years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.

What about Termination?

a. The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the oblige.

b. After a hearing, the court shall order the termination of the maintenance obligation if the court finds that the obligee cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.

c. Termination of the maintenance obligation does not terminate the obligation to pay any maintenance that accrued before the date of termination, whether as a result of death or remarriage

If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support the provisions of the law.

 

By Nacol Law Firm | Spousal Support
DETAIL

Parental Alienation Issues in the Texas Family Courts

Parental Alienation are destructive actions by an alienating parent to discredit and sabotage the target parent in the eyes of the child. This will eventually cause increased hostility and decreased contact with the child and the target parent. The alienating parent programs the child to believe that the target parent is mean, unloving, worthless and selfish, and makes the child believe that he/she will be happier if the targeted parent is erased from his/her life.

Since the American Psychiatric Association does not formally recognize Parental Alienation Syndrome/Disorder, The State of Texas does not provide legal standards to evaluate a parental alienation presence in a child. Texas courts have started to act when there is suspected parental alienation. Some of the aids are courts appointing guardians ad litem, parenting facilitators and forensic psychologists used to study the child’s living situations and mental health of both parents and the child. Reports from these specialists have been used in making some very important rulings for the benefit of the child and the families in suspected Parental Alienation cases.

What are some symptoms of Parental Alienation by the Alienating Parent?

  1. Interference with the target parent visits. Giving children unhealthy choices when there is no choice about the visit. Not allowing any target parent visits.
  2. Depriving the target parent from information regarding educational, medical and social activities of the child and excluding or not informing the target parent of all of the school, medical, social activities of the child.
  3. Sharing with the child “everything” about the marital relationship with false information to be “honest” with the child. Blaming the target parent of breaking up the family, financial problems, or not loving the child enough to stay, the alienating parent tries to turn the child and his/her anger against the target parent.
  4. Interference with or not supporting contact between the child and the target parent. Listening into telephone conversation or reading all emails, texting, or correspondence between the child and target parent.
  5. Making major unilateral decisions regarding the child without consulting the target parent.
  6. Refusing to let the child take his/her possessions to the target parent’s residence.
  7. Telling the child, in a time of juvenile crisis, that the target parent has been abusive and the target parent may hurt the child.
  8. By defying the target parent’s authority and supervision, the alienating parent is asking the child to impossibly choose one parent over the other. This causes considerable stress and potential long term emotion scarring for the child and much unnecessary pain, difficulty, and anxiety when trying to love both parents.

The alienating parent will try to program the child to dislike, hate, or fear the target parent. By causing the child to disown or distance themselves away from the target parent, the alienating parent may, in the end, cause a very distrustful and emotionally scarred child. The goal may be achieved, but not with the desired results of the alienating parent. Many times, the child, without hope, will turn on both parents and never be able to have trusting, loving relationships in his/her life.

By Nacol Law Firm | Parent Alienation
DETAIL

Texas Interstate Jurisdiction – Child Custody Cases That Cross State Lines

With the increase of parents moving from state to state and internationally, Child Custody cases involving crossing state lines, is causing many legal conflicts and costly legal battles. Most states follow a uniform law regarding determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act.  Texas has adopted these statutes. The Uniform Child Custody Jurisdiction Enforcement Act defines which state has or may maintain jurisdiction in a particular case and often mandates that other states recognize decisions handed down by the state determined to have jurisdiction.

How does The State of Texas view the initial Child Custody determination?

Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may rule on custody issues if the Child:

*Has continually lived in that state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.

*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.

*Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state

*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state

How can Continuing Exclusive Jurisdiction be lost?

  1. When A Texas Court determines that neither the child, or a child and one parent have a significant contact with Texas, and substantial evidence is no longer available in Texas concerning the child’s care, protection, and personal relationships
  2. Texas or another state determines that the child and the child parents do not presently reside in Texas.

What about Jurisdiction to Modify an Existing Order?

In the absence of temporary emergency jurisdiction, Texas cannot modify a child custody decision made by another state’s court unless or until a court of this state has jurisdiction to make an initial custody determination and one of the following occurs:

  1. Another State determines it no longer has continuing jurisdiction or finds that Texas would be a more convenient forum.
  2. A court determines that the child and the child’s parents do not presently reside in the other state.

What about Temporary Emergency Jurisdiction?

Temporary emergency jurisdiction is reserved for very extraordinary circumstances. The court has and may assert jurisdiction only when a child is present in the state and has been abandoned or is in need of protection because of a threat or subjected the child to mistreatment or abuse.

When involved in an international child custody case where the child has been abducted or is wrongfully retained, the issue may be determined if the International Child Abduction Remedies Act, 12 USC Section 11.601-11610, of the Hague Convention, is applicable.  If so, The US State Department Office of Citizen & Counselor Services should be contacted or any attorney may file suit for return of the child.

At the Nacol Law Firm PC, we represent parents trying to enforce these laws; cases where we try to persuade courts to apply the specific, narrow exceptions to these general rules in order to have custody cases heard in the most convenient forum in which the most evidence is available; cases where the child’s home state or other basic questions need to be clarified, and cases where a parent has violated or has been falsely accused of violating these laws.

By Nacol Law Firm | Interstate Jurisdiction
DETAIL