Texas Divorce Attorney Blog

Establishing Paternity in Texas Part III

Published on: February 17, 2015 | by Bryce Hopson

Welcome back to the third and final installment on the ways in which paternity is established in the state of Texas. This blog post will focus on adoption and some of the interesting intricacies that can spring up as prospective parents peruse the legal landscape of adoption in Texas.

Chapter 162 of the Texas Family Code contains the statutory rules surrounding adoption. A question commonly asked of family law attorneys is: “Who may be adopted?” Section 162.001 provides that a child residing the state of Texas may be adopted if: Continue Reading ›

Should I Get a Divorce or an Annulment? What’s the Difference?

Published on: February 11, 2015 | by James ''JT'' Gage

Should I get a divorce or an annulment? What is the difference?

New clients often ask whether they should seek a divorce or an annulment. The answer, unsurprisingly, is, “it depends.”

First, it is important to understand the difference between a divorce and an annulment. One way to remember the distinction between them is this: with a divorce, a court is saying the marriage is over; with an annulment, a court is saying the marriage never existed in the first place.

How do you know if you are eligible for one or the other or both? Continue Reading ›

Spouse Cannot Use Texas Law to Seize Federal Survivor Annuity Benefit

Published on: February 3, 2015 | by Francesca Blackard

Many of you may know about ERISA, but for those of you who do not, here is a quick run down:

ERISA is the Employee Retirement Income Security Act of 1974. It is a federal law that sets minimum protective standards for almost all voluntarily established pension plans in the private sector.

Just recently, the D.C. Circuit Court held in Vanderkam v. Vanderkam that ERISA preempts a party’s attempt to use state law to seize a benefit that federal law has vested in a spouse or former spouse entitled to a survivor annuity. ERISA usually bars alienation or waiver of a spouse’s survivor annuity unless the spouse waives the annuity in writing in conformity with section 205 of the content and timing rules of ERISA. This may sound confusing, so let me give some background on this issue…

John Vanderkam was employed by a corporation and was a participant in the pension plan. He married the defendant, Melissa Vanderkam in 1984 and designated her as a 100% beneficiary of his joint and survivor annuity of his pension plan, paid upon his death. John retired in 1994, at which time the survivor annuity vested in Melissa while John began to receive his monthly benefits from the pension plan. In 2002, John and Melissa divorced. This is where it all gets tricky… Continue Reading ›

Establishing Paternity in Texas Part II

Published on: January 6, 2015 | by Bryce Hopson

Welcome back! Let’s dive in to the third way in which paternity can be established in Texas: an adjudication of paternity. Under chapter 160 of the Texas Family Code, an “adjudicated father” is defined as a man who has been adjudicated by a court to be the father of a child. Well that is not very helpful is it? Kind of like trying to describe the color blue to a blind person by saying that it looks very blue. Let’s dig a little deeper, shall we?

Texas law provides that a civil proceeding may be maintained to adjudicate the parentage of a child, and that such proceedings are governed by the Texas Rules of Civil Procedure. One of the main considerations when discussing suits to adjudicate parentage in Texas is whether you have standing to bring the suit. Subject to certain exceptions, a proceeding to adjudicate parentage may be maintained by: Continue Reading ›

Establishing Paternity in Texas

Published on: January 5, 2015 | by Bryce Hopson

If you have ever wondered how paternity is established under Texas law, here are a few key points to remember. First, there are five ways in which a father-child relationship can be established:

(1) an unrebutted presumption of the man’s paternity;
(2) an acknowledgment of paternity;
(3) an adjudication of paternity;
(4) adoption; and
(5) the man consents to assisted reproduction by his wife resulting in the birth of the child.

Now, what does it take to be considered a “presumed father” under Texas law, and how can that presumption be rebutted? Well, a man is presumed to be the father of a child if: Continue Reading ›

Camille Cosby- To Divorce or Not to Divorce, that is the Question

Published on: December 16, 2014 | by Francesca Blackard

In light of the recent rape allegations against Bill Cosby, many are wondering whether Camille Cosby, his wife, will be filing for divorce. Bill Cosby married Camille in 1964; they have been married 50 years. Her and Bill had five children together—both her and the children were the storylines for the famous NBC series “The Cosby Show.” Over time, their marriage has taken some rocky turns, but has surprisingly outlasted the obstacles, at least until now.

You may remember when Bill Cosby admitted he had an extramarital affair with Shawn Berkes after having being blackmailed by an alleged daughter, Autumn Jackson, in 1997. A few years after, in a 2000 interview with Oprah Winfrey, Camille mentioned that the reason she had not gotten divorced was because, “You cleanse yourself of all of that baggage, and you look at each other and determine whether the relationship is worth salvaging, whether you really love each other and want to be together.” Although Bill had been accused of sexual misconduct in the past, it would be a shock if the revival of the rape allegations would not end in divorce. One thing is cheating, another is rape.

Devon Still and Outstanding Child Support? What if in Texas?

Published on: December 5, 2014 | by McClure Law Group

Many have heard the story of Devon Still and his daughter Leah—a four year old in a battle with cancer. Recently, it was reported that Devon Still ex, and mother of Leah, is accusing Mr. Still of failing to pay child support for many months. The question that many are asking is whether Mr. Still’s financial support for his daughter outside of “child support” would offset his child support obligation. If this occurred in Texas, what would a Court say?

In Texas, the answer is most likely no, and Mr. Still would be facing jail time for contempt of Court if he failed to pay court-ordered child support. Hypothetically, Assume that Mr. Still is under an order to pay child support in Texas. Would he have any defense for his failure to pay (other financial support, medical support, etc.)? The Texas Family Code has specific defenses for the failure to pay child support. These include voluntary relinquishment by the obligee (party owed support) to the obligor (party responsible for paying support). Basically, if the obligee gives the obligor more time than ordered by the Court, the obligor can have a defense to failure to pay child support if he also provided actual support of the child. In Mr. Still’s case, if he had possession of his daughter full-time due to the fact that her mother voluntarily relinquished their daughter to Mr. Still, then he would have an affirmative defense to the Court’s enforcement of his child support obligation. Continue Reading ›

How a Texas Court Might Have Handled the Hamm Divorce

Published on: December 1, 2014 | by McClure Law Group

This past November, an Oklahoma County Judge ordered billionaire oilman Harold Hamm to pay approximately $1 billion to Sue Ann Hamm, his wife of 26 years. Harold Hamm, who is the founder and CEO of Continental Resources, was specifically ordered to pay Sue Ann Hamm a total of $995.5 million, comprised of a lump sum payment of $320 million to be paid by the end of 2014, and the remainder to be paid via installments of at least $7 million per month.

If the Hamm divorce occurred in Texas, then the result might have been different. For one, Texas is a community property state; whereas, Oklahoma is an equitable distribution state. In Texas, all property existing at the time of divorce is presumed to be community property. To rebut the “community-property presumption,” a spouse must present clear and convincing evidence of the property’s separate character. Income from community property during marriage is generally considered community property, and under Texas law, once the character of property is established, that character will not change because of appreciation in the property’s value or because of mutations in the property’s form (for example, being exchanged or sold for other property). Texas Family Code, Ch apter 3.

In Oklahoma, however, the money a spouse earns while married is considered “marital property” (property that can be divided upon divorce) if it is made through skill. On the other hand, if the money is attributable to “changing economic conditions, or circumstances beyond the parties’ control,” then that money is not considered marital property. If all of Mr. Hamm’s fortune was acquired by means other than by gift, devise or descent during the marriage, then a Texas trial court could have found that the assets comprising Mr. Hamm’s approximate $14 billion net worth were community property and made a ruling in conformity with such a finding (which likely would have resulted in a substantially greater sum than $1 billion being awarded to Sue Ann Hamm).

Are Prenups Worth It?

Published on: November 1, 2014 | by Francesca Blackard

The short answer is “yes.” Texas Courts tend to enforce prenuptial agreements and postnuptial agreements. Section 4 of the Texas Family Code states that Courts should enforce marital agreements unless the party trying to invalidate the agreement can prove the following:

The party did not sign the agreement voluntarily; or
The agreement was unconscionable when it was signed and, before signing the agreement, that party: (a) was not provided a fair and reasonable disclosure of the property of financial obligations of the other party; (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (c) did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Should you stand to inherit family money, you should know that any inheritance is your separate property. So, your spouse is not entitled to any funds you have inherited or were gifted from your family whether before or after marriage. However, a prenup is still encouraged. The reason being is that should you make income off your inheritance, invest into your community estate, or comingle inheritance with your community income or estate, your spouse will be entitled to a portion of the money- especially if you cannot trace your separate property funds.

Same Sex Divorce In Texas

Published on: February 5, 2014 | by McClure Law Group

Article 1 Section 32 of the Texas Constitution states that “Marriage in this state shall consist only of the union of one man and one woman… this state may not create or recognize any legal status identical or similar to marriage.” Also, under the Texas Family Code, the Legislature of Texas enacted section 6.204 which states that same-sex marriage and civil unions are void as they are against the public policy of Texas. This section further states that same-sex marriage and civil unions from other jurisdictions are void as well. The United States Supreme Court recently ruled that the Defense of Marriage Act was unconstitutional—effectively making same-sex marriage recognized on the federal level. So if a same-sex married couple gets married in a state that recognizes same-sex marriage, then moves to Texas, how does this couple get divorced? The couple would be married in the eyes of the federal government (for example in filing an income tax return with the IRS), but would not be married in the eyes of the state of Texas. Divorce is an issue that is handled on the state level. State Courts, not Federal Courts, grant divorces.

So if a member of a same-sex couple who was married in a state that recognizes same-sex marriage wishes to get divorced while living in Texas, what can he or she do? That is the question that is currently in front of the Supreme Court of Texas. The Court faces a tricky legal question because granting a divorce in Texas requires the existence of a valid marriage. If the Court chooses to grant the divorce, then the Court would be acknowledging a valid marriage which violates the Texas Constitution. On the other hand, if the Court were to deny the divorce, then the same-sex couple would, against their wishes, still be married in the eyes of the federal government and states that recognize same sex marriage.
The same-sex married couples’ options would be file a suit in Texas to declare the marriage void—which tells other states and the federal government that the parties were never validly married (even though they were validly married in the state where their same-sex marriage was granted)—or, establish residency and obtain a divorce in another state. Continue Reading ›