Hey Fathers! Beware of Assault and Family Violence
In modern times the District Attorney’s office in Dallas, Collin, and Tarrant County have a zero-tolerance policy on domestic violence towards women. Unfortunately, domestic violence occurs much to frequently in our society. Though helpful in certain situations, this Zero-Tolerance policy has the potential to be abused to gain leverage in a Child Custody proceeding.
A mere allegation, is usually sufficient for the District Attorney to file charges against a man, regardless of the proof. If there is an allegation of abuse reported to the dispatcher and a police officer is sent to a home, then one of the spouses will be heading to jail. If the spouse is a father, this can be detrimental in two ways. First, the arrest for Domestic Violence will open the father up to liability when pursing his rights during a custody battle. Second, a false allegation, tactically placed, may open up a second front on a father, forcing him to defend against the District Attorney’s office for a Class A Misdemeanor.
When a father is accused for domestic violence, he will have to explain this false allegation to the District Judge and furthermore if the Zero-Policy dictates that the District Attorney pursues the allegation, then the father will have to defend himself from the State.
The mere allegation of domestic violence has severe repercussions for fathers’ that are currently fighting a custody battle for their children. The best way to deter such behaviour is to:
- Be vigilant at all times and never visit your Ex-Spouse/girlfriend one on one;
- Never enter a situation to which your Ex-Spouse/girlfriend may claim domestic abuse;
- When picking up your child always have a third-party with you (mother, father, or friend) throughout the duration of the custody case;
- Use “family wizard” when communicating with your Ex-Spouse/girlfriend;
- If your Ex-Spouse/girlfriend threatens to make a false allegation write down the date, time, and location;
It is not healthy to be paranoid of your Ex-Spouse/girlfriend if the relationship is not high risk for domestic violence allegations. You should always attempt to co-parent and amicably resolve disputes with your Ex-Spouse/girlfriend for the betterment of the children. Having said that, there are situations and circumstances in which false allegations may be used to leverage one side during a custody suit. If a false allegation is filed with the District Attorney and you are a father do not expect to receive any sympathy from the District Attorney’s Office.
Julian Nacol
Father’s Rights Attorney
Nacol Law Firm PC
Temporary Spousal Maintenance in Texas
In any Divorce case a father or husband should expect two attacks right out of the door. First, is paying for child support because most District Judges in Dallas, Tarrant, and Collin counties do not look favourably on 50/50 custody during temporary orders. Second, is paying temporary spousal maintenance to the wife.
Temporary spousal maintenance is essentially money that the Court forces a husband to pay his wife during the pendency of the divorce. Unfortunately, the District Judge has broad discretion in awarding the amount and duration of the temporary spousal maintenance. The temporary spousal maintenance is awarded based on considerations of both the degree to which the Spouse is destitute of means to pay for her necessities during the pendency of the suit and the ability of the Husband to pay.
Essentially, these considerations are determined by the Judge and if the Spouse has no job or means to support herself then, the Husband should expect a large percentage of his paycheck to go to the Spouse for the duration of the case. In many cases, if the Ex-Wife has the means to support herself, the Court will still award her spousal maintenance to some extent. The amount that the Court fixes as temporary spousal maintenance is likely permanent until the conclusion of the case and only appealable on mandamus. Usually, the appeal will cost more than paying the Spouse. Unfortunately, the Court uses temporary spousal maintenance to help settle cases by forcing the Husband to support both individuals of the party.
If you are seeking a divorce and have a job that provides well for your family, prepare to be attacked for child support and temporary spousal maintenance for the duration of the case. To mitigate the temporary spousal maintenance amount and seek 50/50 custody with your children, find an experienced attorney that can prepare you for the temporary orders. Temporary spousal maintenance is a tool the Court uses to equalize the estate and force a compromise. Divorce is a painful process and temporary spousal maintenance makes the process even more painful, but regrettably the burden primarily falls upon the Husband’s neck.
Julian Nacol
Nacol Law Firm PC
Beware of Trusts in High Asset Marriages!
Consider the legal consequences of Trusts regarding the characterization of marital property, especially Trusts created by separate property prior or after marriage. A Trust can be a creative and useful tool depending on the perspective and actual need of the parties. To a spouse owning substantial separate property, an irrevocable Trust may be a safe haven that will guard the separate property and potentially the income from the separate property against property divisions in a Divorce Court. On the other hand, in some cases, a spouse that has no separate property may be defrauded by the other spouse.
The Texas Courts have indicated that separate Trusts created prior to marriage, that are irrevocable spendthrift Trusts are a valid means to shelter separate property of the marriage and the income from the trusts are not subject to division during the divorce proceedings. The beneficiary of the separate Trust (the spouse with the separate trust or beneficiary of a separate trust) do not have a present possessory right to any asset within the corpus of the Trusts. If the spouse is granted a present possessory right to any portion of the trust in the trusts, then the income from the Trusts may be divided in a Divorce Court as community property.
This is an area of concern to the other spouse. If you are married to an unsavory spouse, where separate property assets owned prior to the marriage are put into an irrevocable spendthrift trust, take measure to insure no money or other property acquired during the marriage is siphoned into those separate Trusts. One spouse may siphon community property throughout the marriage into separate Trusts in order to deplete the community estate. This constitutes fraud on the community estate and the innocent spouse may seek adequate compensation.
It is important to hire an experienced attorney that understand the intricacies of Trusts and the part Trusts can play in sheltering community funds from a spouse during the marriage. Many wealthy men or women may abuse the Trust formation to defraud their spouses from fair community property allocation. Wealthy spouses may use irrevocable or discretionary Trusts created prior to the marriage for asset protection instead of using prenuptial agreements or post marriage property agreements. The case law is still not completely settled in Texas regarding irrevocable Trust as they pertain to divorce and it is important to hire an attorney that can help guide you through these complexities and insure you are not being defrauded or taken advantage of in a divorce proceeding.
Delinquent Child Support in Texas = Denial of Motor Vehicle Registration Renewals
December 2016 the Texas Department of Motor Vehicles will start denying motor vehicle registration renewals for parents who have gone at least six months without making a child support payment. The law applies to Office of the Attorney General (OAG) child support cases.
The OAG also has the authority to bar the renewal of professional, recreational and handgun licensed of parents behind on child support payments.
Delinquent Parents will receive a notice from the Department of Motor Vehicles and a letter from the attorney general’s office about two months before their registration is set to expire.
Once parents receive a notice, they must agree to a payment plan with the Attorney General’s child support division before they will be able to renew their registration. This law only applies to motor vehicle renewals. New vehicle purchases are not affected.
Spousal Maintenance Law for a Texas Divorce
The origin and basis of family law statutes and precedent in Texas were heavily influenced by the predecessor Spanish/Mexican Law prior to the formation of the Texas Republic. Spanish Law required in large measure that a husband and wife share ownership and if a divorce was granted then a 50/50 split of all property would ensue. Though there are exceptions to this, a general tenant of Texas property law states that both spouses will receive half of all the property they accrue during the marriage called “community property”, not inherited or received by gift. The influence of Spanish Law is a primary reason that for many years Texas has not favored any type of permanent alimony (also called spousal maintenance) after divorce.
In 1995 the Texas Legislature passed the first Spousal Maintenance Law that allowed a limited type of alimony. The law has been amended many times but in its current form it allows, upon proper proof, a spouse, under specific conditions to receive post-divorce money from their spouse for future support. The eligibility for Spousal Maintenance in Texas is limited and narrowly constructed.
Texas Family Code 8.051 states the requirements for a spouse to be eligible for Spousal Maintenance (alimony) as follows:
The spouse in which requests the spousal maintenance has been a victim of family violence by their husband or wife and the offense occurred:
- within two years before the date on which a suit for dissolution of the marriage is filed or;
- while the suit is pending
OR
The spouse seeking spousal maintenance:
- is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
- has been married to the other spouse for 10 years or longer or lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
- 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.
The qualifications are narrow. Spousal Maintenance focuses on a spouse who has been a victim of family violence, has a mental or physical disability, or has been married for at least 10 years. The amount of money the Court will allow to be paid to a spouse monthly cannot exceed the lessor of 5,000 or 20% of a spouse’s average monthly gross income per Texas Family Code 8.005.
If you are in the process of divorce, and have been a victim of family violence or have been married for at least 10 years, then speak with an experienced attorney about the possibility of obtaining Spousal Maintenance. Spousal Maintenance is not a permanent fix but a temporary solution until you can get back on your feet. Texas Courts are hesitant in granting spousal maintenance because the spouse of a marriage generally receives half of all property accrued during the marriage. If the required extraordinary circumstances are present it is possible to receive some type of alimony for a limited amount of time.
Contact an experienced attorney that deals with matters to inform you if spousal maintenance is possibility. If you have been a victim of family violence or have been a stay at home mom for at least 10 years then you may have the ability to receive a limited form of alimony to help aid you with the daunting task of finding a new job and starting a new life.
