Texas Divorce Attorney BlogThere has been a lot of talk in this country lately about recognition of same-sex marriage and same-sex divorce, but what about recognition of foreign divorces? In the melting pot that is the United States of America, divorce from foreign countries and their applicability to Texas family law cases are becoming increasingly common issues that are being addressed by trial and appellate courts in the Lone Star State.
Articles Posted in Divorce
Special Provisions for Active Military Members under the Texas Family Code
Are you currently serving in the military or know someone who is? Texas is home to one of the largest populations of active military members in the nation. As such, the Texas Family Code has specific statutes that address the unique issues facing our military members in the family law context.
For instance, what happens if you have primary custody of a child after a divorce and you are called overseas or ordered to military duty in another state? Texas Family Code § 153.701 states the following: Continue Reading ›
How to Catch Your Cheating Spouse–or How Not to Get Caught
Advances in technology are constantly changing how people work, play, and–unfortunately–cheat on their spouses. People often ask us what tools are available to catch a cheating spouse or what tools a spouse might be using to conceal their own infidelity. D CEO Magazine asked us how to catch a cheating spouse–or how not to get caught. Our responses are below and also appear in the April issue of D CEO Magazine.
Q: My spouse thinks I’m cheating. Are there apps or programs they can use to track me?
A: Spying and cheating are hot topics in family law. With so much personal information readily available on our smart phones, it’s easier than ever to track a suspected cheating spouse. Continue Reading ›
WANT TO SERVE YOUR SPOUSE WITH DIVORCE PAPERS THROUGH FACEBOOK? A NEW YORK COURT SAYS O.K.
Recently, a story out of New York has been circulating across the internet involving a Manhattan Supreme Court Judge that permitted a woman to serve her husband with divorce papers through a private Facebook message. According to the story, the husband was a somewhat transient individual who lacked a fixed place of residence and was not employed. The woman and her attorney tried everything they could to get her husband served, but even a private detective was not able to locate the whereabouts of the husband. When the woman told the Judge that her communication with her husband was mostly through Facebook, the Judge decided that service through Facebook message was the new frontier of ensuring due process in the twenty-first century.
THE STATE OF THE INSTITUTION OF MARRIAGE IS STRONG
Since no-fault divorce statutes were first implemented in the United States at the end of the 1960s Zeitgeist (with California being the first state to allow a “no-fault” divorce in 1969), many have cried that there is an epidemic of skyrocketing divorce rates that is only getting higher with the passage of time. Continue Reading ›
First Same-Sex Marriage License in Texas Leaves More Questions than Answers
A federal district judge in Texas rules that Texas’s Constitutional ban on same-sex marriage violated the Equal Protection Clause of the United States Constitution. That ruling was stayed pending appeal—a common procedure in this type of case (when a law has been ruled unconstitutional, it is common to keep the law in place until the appeals process is exhausted). This is an important note as the United States Supreme Court rejected a Petition from the state of Alabama to stay same-sex marriage until the issue is resolved by the Supreme Court of the United States. Many believe this move by the majority of the United States Supreme Court Justices is an indication of how they might ultimately rule on whether individual states can decide whether or not same-sex couples can get married within their state.
The state of Texas still has a Constitutional ban on same-sex marriage; however, in light of the Federal District Court Judge’s ruling that Texas’s Constitutional ban violated the United States Constitution, a Travis County judge ordered the Clerk of Travis County to issue a marriage license to Sarah Goodfriend and Suzanne Bryant. The Judge issues a “one-time” exception because Ms. Goodfriend has deteriorating health with ovarian cancer. On Friday, Texas’s Attorney General, Ken Paxton filed a petition with the Texas Supreme Court in order to declare the marriage license issued by the Travis County Clerk to Ms. Goodfriend and Ms. Bryant to be declared void. Continue Reading ›
Should I Get a Divorce or an Annulment? What’s the Difference?
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 ›
Camille Cosby- To Divorce or Not to Divorce, that is the Question
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.
How a Texas Court Might Have Handled the Hamm Divorce
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, Chapter 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).
Same Sex Divorce In Texas
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 ›