Texas Divorce Attorney Blog
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 ›
Establishing Paternity in Texas Part III
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?
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
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
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
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
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?
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
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).