Posted 2 weeks ago by

Community and Separate Property in Texas

One of the more misunderstood aspects of Texas Law is the subject of community property.

It starts with the idea of an "estate," a concept meaning the nature of one's interest in property. In Texas, a community estate is created upon marriage. It is presumed that all of the couple's property (and income earned after marriage) is in the community estate and subject to division if and when the marriage ends.

Put another way, if you're married, the starting assumption is that everything is in the "pot" to be divided.

Separate property is that which is not in the community estate. For obvious reasons, parties in a divorce and their attorneys spend a lot of time attempting to "characterize" property as being either community or separate property.

Separate Property includes property owned before marriage, property inherited during marriage, and gifts received during marriage.

Under the "inception of title" rule, the time when a person gains a legal interest in property determines whether it is separate or community. For example, if you bought the house the day before the marriage, it's separate property.

This gives rise to "reimbursement claims," when one spouse's separate property is enhanced or improved during the marriage using community property or income or the other spouse's separate property. For example, if the spouse used her separate inheritance to improve the other spouse's separate property home during the marriage.

Commingling of separate and community assets also requires tracing and an accounting of assets to determine to what extent property retained its community or separate character. Many Texas family law court decisions have been made over the years to define these important concepts.

If you've got questions about community and separate property in Texas, I invite you to give me a call.
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Posted 1 month ago by

Supervised Possession in Texas Family Courts

A common request in contested child custody and divorce cases is where one parent requests that the other parent's access or possession of the child is supervised.

Supervision isn't appropriate in all (or even most) cases. Here are some examples where supervision isn't appropriate:

* The parent has been uninvolved in the child's life previously (this may call for a "stairstep" possession schedule instead)
* The child is very young (again, a "stairstep" may be a more proper result)
* The parents disagree on basic parenting and caregiving (this typically calls for coparenting education instead)
* One parent wants to punish the other parent for personal reasons

In these cases, it's necessary to separate one's own feelings about the other parent from the actual danger the other parent presents to the child.

Supervision is typically indicated in situations involving:

* Proven family violence (or threats of family violence) against the child
* Mental instability manifesting in proven unstable or odd behavior, hospitalization and/or criminal charges
* Addiction / substance abuse issues
* On recommendation by a neutral third party, such as Child Protective Services, an amicus or ad litem attorney, or a child custody evaluator
* Previous supervision of the parent or removal of a child from the parent
* Verified threats or actions to permanently remove the child from the area.

In such instances, courts often enter temporary orders (1) providing the supervised parent with a possession schedule conditioned on completion of various steps (2) enjoining (preventing) the parent from engaging in destructive behaviors (3) appointing an appropriate supervisor and (4) arranging for a follow-up hearing to determine the parent's progress.

The last point is probably the most important. In many supervised possession cases, the parent is simply unable or unwilling to "play ball" and resists what they see as being controlled by the court or the other parent. These cases often result in the parent's self-alienation from the child and the other party and end poorly because the court can't see a way forward. After all, if the parent can't behave right while they're before the court, how can the court trust that the parent will behave when nobody's looking?

The specific schedule and supervisor are going to vary highly based on the case itself. What are the parties' availability? Is the main parent willing and able to safely supervise the other parent? What about other family members? While known supervisors are preferred, often a neutral and safer approach (especially at the beginning) is to install a third party professional -- such as Family Court Services in Tarrant County -- to act as the supervisor. In other cases, private supervisors are also available for a fee.

Another supervisor option is "therapeutically supervised possession" in which a mental health professional is appointed to supervise access with the child in a clinical environment, often in conjunction with the child and parent's individual counselors. This sort of professional can be invaluable in giving the court objective information on the supervised parent's status and how the child is responding.

While the goal of supervision is to restore the parent to normal possession, in some cases the parent simply peaks -- or "plateaus" -- at a level of parenting that is not enough to justify Texas standard possession. Such cases are either resolved at mediation or end up being tried to the court.
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Posted 5 months ago by

Elections in Texas Family Courts

(Here's a preliminary fact: most people's first interaction with the court system is in family court. Keep that in mind as you read this.)

With one notable exception, judges that rule on family matters in Texas are elected.

In most counties, this is a State District Court that either has general jurisdiction (hearing all manner of cases) or a special Family District Court hearing only family matters. In some counties, County Courts at Law are also authorized to hear family matters. And in our large counties (Dallas, Tarrant, Harris, Travis, Bexar) there are associate judges that act as preliminary courts to assist the District Courts. In these counties, associate judges serve by appointment by the District Judges.

That little civics refresher out of the way, that means that the judges that will rule on the health, safety and welfare of children are subject to political review every four years.

Depending on the county you live in, that can either be a mere formality, with no opposition to the incumbent and no serious two-party general election, or an all-out political bloodbath at the primary and/or general election level.

So let's circle back to my opening factoid. You're more likely to be in family court than any other court.

So get informed. Vote -- even in the non-presidential years and yes, even in the primaries. Participate in our democratic processes and sift through the smears to find the best candidate and vote your conscience.

Because your vote matters to real people like you who rely on the sound discretion of a family judge to do right by our kids and families.
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Posted 6 months ago by

CPS and Texas Family Law

In some cases of alleged child abuse or neglect, CPS will become involved.

The Texas Department of Family & Protective Services -- still commonly referred to as "CPS" -- is Texas' primary investigative department regarding abuse and neglect of children. CPS officers have certain powers that make them, in some ways, analogous to police officers.

The purpose of this piece is neither to support nor denigrate CPS. Its personnel have a largely thankless job and they are subject to ordinary human flaws like the rest of us.

But here are some things to keep in mind if CPS becomes involved with you or a child in your family:

1. When a report of abuse or neglect is made, CPS has a DUTY to investigate.

2. CPS keeps track of all reports. They know who is reporting (although it is supposedly confidential) and who is being reported.

3. The result of an investigation is almost always one of three results:

"RULED OUT" - CPS believes there was no abuse or neglect as alleged

"UNABLE TO DETERMINE" - CPS simply can't determine whether abuse or neglect occured

"REASON TO BELIEVE" - CPS believes abuse or neglect occurred and is almost certainly moving forward with next steps (see below).

4. CPS personnel highly resent being "weaponized" by adverse parties in a family court case.

5. CPS takes its law enforcement role seriously and hates giving out information in active cases, if for no other reason than to prevent an abusive or neglecting parent advance knowledge of their next steps. Attorneys have a notoriously difficult time subpoenaing records from CPS.

CPS ACTION

Most CPS action begins with a "safety plan" -- an agreement between CPS and the relevant adults involved in the child's present and future care. This safety plan will include specific agreements as to conduct, care, education, and the physical location of the child going forward. A key part of many safety plans is the exclusion or limitation of the offending adult from the care of or access to the child.

In successful safety plan cases, no additional CPS action is taken other than monitoring.

More drastic CPS actions involve the removal of a child from a caregiver's possession. These cases always involve allegations of substantial abuse or neglect and require that a hearing be held within 10 days of the removal. Removed children are typically placed in foster care or in the home of approved relatives.

CPS removal cases often result in the filing of a motion to terminate parental rights filed by the District Attorney in District Court (or Family District Court in larger counties with such specialty courts), and in bad cases criminal abuse or neglect charges are brought. Termination cases often take a year to resolve and require numerous court appearances.

FAMILY COURTS AND CPS

Even in non-removal cases, CPS action is a relevant factor in divorce, child custody, and modification cases where one parent is alleged to have abused or neglected the children. CPS officers are routinely subpoenaed for testimony as collateral sources of information for the court to consider in determining the parties' rights, duties, possession, access, and support of the children.

Because the courts hear such cases regularly, it is important that allegations of abuse or neglect be genuine and necessary. Calling CPS for one routine childhood bruise, or missing a single meal while under a parent's care, is a mistake. Save your calls to CPS for real abuse situations; when in doubt, call an attorney.

That said, it's undeniable that in cases where it is warranted, CPS action not only protects children but also provides valuable evidence for the party seeking a court order to limit the possession and access of a child by an alleged abuser or neglectful parent.

If you or your family are dealing with concerns of child abuse or neglect, I invite you to give me, Jessica, and Tamara a call.
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Posted 7 months ago by

Make a Resolution to Seek Resolution

We think of New Year's Resolutions as a sort of promise for the coming year. We are "resolved" to make changes for the better, and hope for the change and renewal that the new year may bring.

In another sense of the word, around this time of year we seek "resolution" of a problem or situation we're facing.

It's no surprise then that many of us put off things until the New Year -- because that's when we all collectively seem to gather ourselves and take care of necessary business.

If a personal family law problem has been lingering -- something that needs resolution or perhaps something you've been painfully carrying through the holidays -- now may be the time to make a resolution to seek resolution.

Maybe 2018 can be better. Maybe 2018 can be a year of resolution for you.

Jessica, Tamara and I are here to help. Please give us a call at (817) 548-5696. Get your questions answered and a game plan on moving forward and ending your family conflict.
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Posted 8 months ago by

I’m an apologist for our legal system, warts and all.

So it’s no surprise that to many of us, the increasing hostility toward our judiciary, from within and without the legal profession and at all levels of our judicial system, are damaging to our way of life and yes, our freedom.

The attacks come, predictably, from those receiving a bad outcome in court. From people that lack a basic understanding of American civics, how judges are selected politically but then shielded from political interference in carrying out their duties. There is a basic failure to understand that our courts constitute an equal branch of government.

The attacks come from those who are accustomed to getting exactly what they want and are genuinely surprised that someone else in a black robe has the audacity to disagree.

If you are before a judge, there is a significant likelihood that you made a substantial mistake or error in judgment. That you failed to resolve your problems with the other party. So you seek redress and Justice. And if you or your adverse party (or both of you) are batshit crazy, then you’re in for a long and painful ride, and very likely the outcome will be inadequate or downright awful from your point of view.

So you might want to avoid going to court. But here is the truth if you end up there:

1. There are very few unique cases. Such cases are like unicorns, mystical and elusive and seen only in your peripheral vision. The truth is that almost certainly judge has heard your case before — likely, many times. The specific combinations of facts and personality may vary, but they are merely variations on a theme.
2. The amount of information the court or jury can actually process is relatively tiny compared to the mass of potential evidence in a given case, let alone the facts and memories in your head. Those who cull down their case to its essence with relevant facts have a better chance at a better outcome.
3. The judge or jury are subject to ordinary human flaws, including boredom, prejudice, taking shortcuts, and frustration. Most try very hard to maintain focus and even-handedness.
4. It’s human nature for us to “slot” others — and judges are no different. Be aware of such slotting and try to avoid being the guy that unintentionally waves the red flag in front of the bull in black robes.
5. The judge is very likely focused on a different aspect of the case than you. In family law, for instance, the judge is typically locked in on child issues first, which then dictates the majority of outcomes for the parents involved. When people lose badly in court, it’s often because they failed to see what mattered to the court and/or that their facts matched up poorly to that issue.
6. Your decision is between settling your case or leaving it up to the judge. The outcome in which you get everything you want doesn’t exist.
7. Don’t be unprepared.
8. Don’t be an arrogant, histrionic jackass. And don’t hire an attorney that is one either.
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Posted 8 months ago by

It's National Adoption Month. It's a special thing for many people, and that includes me.

In 1967, options were limited for my birth mother. She chose to take me south to Los Angeles to place me for adoption. That brave, selfless decision (at a young age, with the world going crazy around her) made my future possible, and let my folks adopt me into the life that I have lived ever since.

Adoption is a gift, and a promise.

It's a gift by the birth parents, to recognize the better reality that awaits the child on the other side. It's priceless. It's often the exact right thing to do.

It's a promise by the adopting parents, to never stop loving and caring even when things are hard. It's a promise to persevere.

It's something magical that happens in relationships and finds culmination in a courthouse. The reality of loving relationships becoming sanctioned and real by law is both wonderful and awe-inspiring.

My hand still shakes when I take their pictures with the judge. These moments are among my proudest, and I'm humbled to be given the opportunity to be a part of adoptions.
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Posted 9 months ago by

Come to court sometime before you file a family case. Watch the courts, staff, bailiffs, attorneys, parties, and witnesses. Observe the sheer quantity of time, money, and emotion being spent. Watch the fear and frustration. Feel it all.

It’s the human relationship condition, with all its warts, on full display.

It can be an expensive and seemingly endless nightmare for many of the people here. And it’s even worse for those who end up with an unexpected or bad result.

Family lawyers deal with this daily. We’re used to it. But what’s normal for a divorce lawyer is not normal for a layperson any more than what’s normal for a trauma surgeon is normal for the rest of us.

It can be brutal, and can feel horribly unjust and unfair if you are unprepared or have unrealistic expectations.

So I hope you don’t need me. Truly.

But if you do need me — if you need an effective, tough yet empathetic advocate and friend — I invite you to call. We’ll figure out a proper approach and goals and proceed with purpose through the case — so that you and your children can get on with your lives.

Let’s get you through this.

Gene
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Posted 10 months ago by

The Naughty Bits: Adultery, porn, cheating, and shacking up in family court

In family court, everyone seems to want to talk about sex. Specifically, other people having it inappropriately and/or with the wrong people.

If you've been cheated on, I am terribly sorry. It's a natural reaction to be hurt and seek redress (or just plain payback) against your former beloved. It is one of the ultimate betrayals to discover a cheater and to unravel the lies and second lives of people we thought we knew. We may want to bring all the details up to the court to punish and shame the cheater.

Make no mistake -- cheating sucks, and it's still a leading cause of divorce and breakup. The pain it causes is real and lasting. And can cause lasting damage to the victim and kids.

Before I go further, let's make a few points clear. I'm not speaking of Illegal sex acts here, such as rape or child pornography -- which obviously are horrific and warrant criminal prosecution and protective orders.

What I'm talking about in this post is the unfortunately normal immoral sexual behavior between consenting adults -- Doing the naughty with the neighbor, or perusing ("normal") porn instead of your loving spouse. Hiring a prostitute. Shacking up with (or getting knocked up by!) the new boyfriend while you're still married. You get the idea.

We all on the same page here? Good.

Adultery, porn, and the like are relevant in two aspects of Texas family law cases -- as a basis for "fault" divorce as a cause of the breakup of the marriage and possible basis for a disproportionate share of the marital estate in favor of the blameless spouse, and in child custody matters, typically to show the cheater's poor judgment, inappropriate boundaries, or exposure of kids to adult sexuality.

So it's a factor and depending on the circumstances, it may be a large issue. But it is typically not the only factor. Be aware that family courts are regularly exposed to daily human drama and the darker aspects of our nature. Simply put, It can be difficult to get the court's attention and move the needle regarding immoral sex acts unless it's really bad or the harm is severe.

Put another way, courts will often view typical cheating behavior as one of the *reasons* for the breakup (along with the underlying causes of the infidelity) rather than as a basis to overly punish the bad actor.

I had a case a few years ago where the other party had weight loss surgery which (for her) enabled a second childhood of partying and sleeping around while leaving the kids home with her husband. One night she was with one guy at a hotel, and left the next day to meet another guy for lunch. She told her spouse and kids she had a work event.

While their marriage was (obviously) broken, wife's conduct clearly caused the breakup. Because she was so out control -- choosing her unstable lifestyle and self indulgence over motherhood -- we were able to get primary possession of the kids for husband.

In other words, linking the immoral conduct to problems in parent-child relationships and/or to financial harm caused by the cheating is what makes the sleazy behavior important -- not the cheating itself.

By all means, attorneys need to know all about this stuff -- for both sides in a family case so we can be prepared. But we're also important in these situations to provide a sense of perspective and some independent judgment about the relevance of the cheating conduct in any given case.

If you or a loved one are in family case facing these issues, I invite you to call me.
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