What Happens if a Judge Makes a Mistake in My Divorce Case?

By | Divorce

Nobody is perfect. This applies to judges as much as anyone else. Sometimes judges issue a factually incorrect judgment. For example, say you and your spouse are getting a divorce. You manage to reach a settlement regarding the division of your property and present it to a judge for approval. The judge then approves the divorce, but the terms contained in the final decree do not match the terms of your settlement. Can you ask the judge–or even an appeals court–to correct that mistake?

Wife Waited Too Long to Assert Her Rights Under Settlement

The short answer to this question is “yes,” but you need to act quickly. Under Texas court rules, a trial court has the power to “modify, correct, or reform” its own judgment within 30 days after signing said judgment. Once this 30-day period expires, however, the court loses jurisdiction over the divorce–and it cannot be restored, even if both parties agree there was a problem. Furthermore, the 30-day rule applies even in cases where it was clearly the judge, not the parties themselves, that made the original mistake.

A recent Galveston divorce case illustrates how this rule works in practice. In this case, a wife sued a husband for divorce. They reached a mediated settlement agreement (MSA) regarding the division of their property. Among other terms, the MSA said the husband would pay the wife $750 per month for 12 months, as well as give her $201,000 from his 401(k) retirement account.

A few weeks later, the wife presented the MSA to the divorce court for approval. The husband chose not to participate in the hearing. The judge ultimately granted the divorce–but in the final decree, she did not include the 401(k) distribution to the wife, and she only required the husband to make a single $750 payment to the wife. Furthermore, the decree clearly stated that it overruled the MSA in the event of a conflict.

The court entered the decree on November 23, 2015. The following April, the wife sought to modify the judgment to correctly reflect the terms of the MSA. The judge granted this motion and modified the judgment with respect to the cash payments and the 401(k). The husband objected to this, noting that the court “lost jurisdiction” once 30 days elapsed following the entry of the final decree.

The Texas 14th District Court of Appeals agreed with the husband. It held the trial court’s modified order was void as a matter of law. While trial courts have the authority to “correct a clerical error in the record of a judgment” at any time, that does not apply to situations, like this one, where the judge “renders judgment incorrectly” and the final order “precisely reflects the incorrect rendition.” In other words, once the judge signed a decree that she incorrectly believe reflected the MSA, it was up to the wife to challenge that mistake within 30 days. Since she waited past that point, she was now out of luck.

Let a Galveston Divorce Attorney Help You

The potential for critical legal mistakes like the one in the case above emphasizes the importance of working with an experienced Galveston divorce lawyer. Contact the Law Offices of Tad Nelson & Associates today if you live in the Galveston area and need legal assistance with any divorce-related matter or call (281) 843-9776.

When Can a Texas Court Modify a Child Custody Order?

By | Divorce

When it comes to child custody disputes in Galveston, divorce is not always the last word on the matter. Texas courts have the authority to modify orders regarding “conservatorship or possession and access” with respect to a minor at any time post-divorce for good cause. Specifically, the parent proposing the modification must demonstrate there has been a “material change” in circumstances since the divorce and modifying the parent-child relationship now “would be in the best interest of the child.”

There is no fixed guidelines regarding what constitutes a “material change.” It may include the remarriage of a parent, the “poisoning of a child’s mind” by one parent against the other, a change in the child’s living situation, or a change in the parent’s ability to properly care for the child. In addition, if the parent with primary custody–the “managing conservator” in legal terms–attempts to unduly restrict the other parent’s access in accordance with the original divorce decree, that may also constitute a material change in circumstances.

Court Shifts Custody to Father Due to Mother’s Post-Divorce Actions

Here is a practical illustration of how Texas courts apply these general principles. This is taken from a recent Texas appeals court decision where a father successfully sought a modification of a divorce decree. Previously, the court granted the mother the “exclusive right” to determine the primary residence of the couple’s child. But a year later, the court found there was a material change in circumstances that justified transferring that exclusive right to the father.

Here is what happened. At the time of the divorce, the mother and child lived in the formal marital home. The wife’s job required her to work during the day, so the child was placed in daycare. The father was also granted a “few hours in the evening” with the child each night.

Several months later, the mother’s job moved her to an evening shift. The child still spent the days in daycare, but now the child stayed with the father on those nights the mother worked. This arrangement changed yet again when the mother sold her house to the father and moved in with her own mother, the child’s maternal grandmother. When the mother subsequently returned to the day shift at her job, the grandmother babysat the child during the day.

The father objected to the grandmother’s role caring for his child. Before the court, the father introduced evidence of the grandmother’s “history of drug abuse” and her use of profanity in the child’s presence. The father also objected to the mother imposing additional restrictions on his access to the child after she moved in with her mother. For example, the mother refused the father access during court-ordered visitation hours if he was “between 1 to 17 minutes late.”

The trial court found this evidence sufficient to modify child custody in favor of the father. The Court of Appeals affirmed the trial judge, noting there had been several material changes in the child’s circumstances, including moving in with the grandmother despite her drug history, the sale of the house, and the mother’s interference “with father’s right to spend time and bond” with the child.

Get Help from a Galveston Divorce Attorney Today

Just because one parent is designated as a child’s managing conservator in a divorce, that does not give said parent license to do whatever they wish. Any material change in the parent or child’s situation may justify a court revisiting and modifying the original custody order. If you are a parent on either side of such a dispute and need assistance from a qualified Galveston divorce lawyer, contact the Law Offices of Tad Nelson & Associates or call (281) 843-9776 today.

Can I Still Be Convicted of Domestic Violence If I Acted in Self-Defense?

By | Domestic Violence

Not all domestic disputes are one-way matters. There are many cases where someone is accused of domestic violence but, in reality, was simply protecting him- or herself from the abusive actions of their accuser. Unfortunately, proving self-defense in court is not as easy as you might think.

Court Rejects Defendant, Accuser’s Changing Stories Regarding Self-Defense

For example, a Texas appeals court recently rejected a defendant’s claim he “acted in self-defense” and that the evidence used to convict him of assault on a family or household member was insufficient.

The criminal charge was the result of an October 2016 incident. The defendant and the accuser were previously in a dating relationship. On the day in question, the accuser allowed the defendant into her home. She said he then “broke her television” and was “frightening her.” This led to a series of 911 calls.

When police later arrived at the scene, the accuser “showed them fresh bruises on her neck and arms,” which she said the defendant caused. In a subsequent written statement, the accuser said the defendant “grabbed her arm twice with his hands, caused her pain, and left her with bruises.” However, several months later the accuser recanted her story and signed a “non-prosecution affidavit” in which she now said the defendant “did not assault her.” At trial, the accuser changed her story again, stating she was the one who hit the defendant and that she “supposed” he acted in self-defense when he then injured her.

The arresting officer also testified at trial. He told the jury that on the day of the incident, the accuser said the defendant assaulted her. She never mentioned hitting the defendant herself or him acting in self-defense to restrain her. Nor did the defendant raise self-defense when he initially spoke to the officer. Instead, he said he had “an argument” with the accuser but that it did not turn physical.

The jury found the defendant guilty. The Court of Appeals affirmed the conviction. As the appeals court explained, there were only three possible scenarios in this case:

  • The defendant assaulted the accuser, causing her bruises;
  • The defendant and the accuser had a verbal fight that did not escalate into physical violence; or
  • The accuser assaulted the defendant and he bruised her while reacting in self-defense.

Based on the evidence presented, the Court of Appeals said the jury “could have found beyond a reasonable doubt” that the first scenario was the truth. Notably, the court pointed to the failure of either the defendant or the accuser to raise self-defense at the time of his arrest and the recording of the accuser’s 911 call, which indicated the defendant “terrified her and that she was focused on avoiding physically confronting him.”

Contact a Galveston Domestic Violence Attorney

Even in cases where you know self-defense is the truth, proving it to a jury is still not an easy task. This is why you need to work with an experienced Galveston domestic violence lawyer. Call the Law Offices of Tad Nelson & Associates at (281) 843-9776 if you have been accused of domestic violence and require immediate assistance.

Does an Accuser or Prosecutor’s Financial Incentives Matter in a Domestic Violence Case?

By | Domestic Violence

There is understandably a high level of emotion surrounding a domestic violence allegation. But there are also legal and financial incentives at play. For example, under the Violence Against Women Act, the federal government administers a series of grant programs designed “to develop the nation’s capacity to reduce domestic violence, dating violence, sexual assault, and stalking by strengthening services to victims and holding offenders accountable.” Along similar lines, federal immigration laws allow victims of crime to seek a special type of non-immigrant status known as a “U visa” to encourage them to report offenses like domestic violence.

Houston, Dallas Courts Reject Appeals of Family Violence Convictions

But if you are accused of a family violence crime in Texas, does the fact that the prosecutor–or the accuser–received such federal benefits matter? In other words, can you argue there is an inherent and unfair bias against you because of these federal incentives that the jury has a right to know about before pronouncing judgment on your guilt or innocence?

According to two recent Texas appeals court decisions, the answer is “no.” In the first case, Guzman v. State, a defendant in Fort Bend County was charged with “assault family violence.” At trial, he attempted to argue the local district attorney’s office should be “disqualified” because it received VAWA grants. He also wanted the jury to know the accuser received financial benefits under VAWA, which gave her “an incentive to testify falsely.”

The judge declined to disqualify the district attorney and did not instruct the jury on the accuser’s benefits eligibility. After the jury convicted the defendant, he appealed to the Texas 14th District Court of Appeals in Houston. That court found the trial judge did nothing wrong. The appeals court noted that nothing in VAWA “ties a grant (or the amount of the grant_ to the number of cases prosecuted.” Furthermore, the applicant failed to present sufficient evidence that the accuser was eligible for VAWA benefits, much less applied for them.

In the second case, Quiroz v. State, the Fifth District Court of Appeals in Dallas rejected the arguments of another man convicted of assault-family violence who alleged the trial judge improperly limited his cross-examination of his accuser. More specifically, he wanted the jury to know the accuser applied for a U-visa, which the defendant claimed gave her a motive to “testify falsely that she was a victim of family violence.”

Here, the Fifth District said criminal defendants do not have an automatic right to question a witness about their immigration status. There must be some “causal connection” between their status and the testimony offered. In this case, the appeals court said there was no such connection, since the accuser’s eligibility for a U-visa was not tied to whether or not she testified in court about her alleged abuse.

Speak with a Galveston Domestic Violence Lawyer Today

Both of these cases illustrate the uphill battle domestic violence defendants face when seeking a fair trial. This emphasizes the importance of working with a qualified Galveston domestic violence attorney. If you are facing accusations and need assistance, contact the Law Offices of Tad Nelson & Associates at (281) 843-9776 today.

Is a Prenuptial Agreement Enforceable If It Has a Forfeiture Clause?

By | Divorce

Many Galveston couples choose to sign prenuptial agreements in order to minimize potential arguments over property in the event of divorce. Keep in mind, a prenuptial agreement is a legally binding contract. Texas law recognizes such agreements, and courts will not invalidate them except under narrow circumstances spelled out in state law.

TX Supreme Court Rules Wife’s “Rescission” Attempt Triggered $5M Penalty

The mere fact that an agreement may seem “unfair” to one side is not enough to invalidate it. For example, the Texas Supreme Court recently upheld a clause in a prenuptial agreement that nullified a payment to one spouse because she violated a “no-contest” clause that only applied to her. And we’re not talking about an insignificant amount of money either–the wife’s actions cost her $5 million.

The couple in this case married 13 years ago. Just before the marriage, they signed a prenuptial agreement. Basically, in the event of divorce the husband agreed to pay the wife $5 million as a “lump-sum” settlement. But the agreement also provided that if the wife “seeks to invalidate some of all of this agreement, or seeks to recover property in a manner at variance with this agreement,” she would forfeit the $5 million.

The husband filed for divorce six years after the marriage. The wife subsequently filed a counterclaim against the husband, alleging he failed to comply with other provisions of the prenuptial agreement. In a subsequent filing, the wife alleged the agreement itself “was marred with fraud” and asked the court for “rescission” of the entire contract.

After extensive litigation, a trial court judge held the wife’s actions constituted an effort “to invalidate all or a part of” the prenuptial agreement. She therefore forfeited the $5 million lump-sum payment. Both the intermediate court of appeals and the Texas Supreme Court affirmed this decision.

As the Supreme Court explained, “By seeking to rescind the Agreement, [the wife] sought what could have been a greater distribution of the marital estate under the Texas Family Code and related Texas common law than she would have received had the Agreement remained in place.”

The wife argued she should not be punished for seeking rescission because she believed “in good faith” that her husband “had already breached the agreement.” But the Supreme Court said it would not create what it considered a new exception to Texas law governing prenuptial agreements. The Court noted such an exception would “run afoul of our longstanding preference to protect the freedom of contract by enforcing contracts as written.” And in any case, Texas law “disfavors equitable exceptions to the enforcement of contracts as written.”

A Galveston Divorce Lawyer Can Help You

The lesson here is you should never assume a court will invalidate a prenuptial agreement just because you decide, in the midst of a contested divorce, that the terms are unfair or unreasonable. And if you have reason to believe your estranged spouse is not living up to his or her end of an agreement, you should speak with a qualified Galveston divorce attorney as soon as possible. Contact the Law Offices of Tad Nelson & Associates at (281) 843-9776 today if you need advice or assistance on any divorce-related matter.

 

Divided Texas Supreme Court Rules Wife Entitled to Entire Marital Home Following Husband’s Child Abuse

By | Divorce

Back in February, we discussed a pending Texas Supreme Court case involving the division of community property in a case where the husband committed multiple acts of sexual abuse against the wife’s daughters. A lower court held that despite the husband’s actions–for which he is currently serving a 60-year prison term–it would not be “just and right” under Texas divorce law to award the wife 100 percent of the marital home. Instead, the Court awarded the husband a 20 percent interest in the property.

Egregious Abuse or Insufficient Evidence of Husband’s Contribution?

By a vote of 5-4, the Supreme Court reversed the lower court. The five-justice majority could not agree on the reasoning for this decision, however, leaving the Court without a single controlling opinion. Effectively, this means the wife in this case will likely get 100 percent of the home, but it is unclear what precedent this sets for future cases involving similar facts.

A three-justice plurality led by Chief Justice Nathan L. Hecht concluded that it would not be “just and right” to allow a spouse to keep part of a family home when he was previously “convicted of using the home to sexually abuse his stepdaughter.” The Chief Justice was careful to note that acts of “family violence,” in and of themselves, do not justify depriving a spouse of “an interest in all or even a specific part of the community estate.” And the Supreme Court has made it clear in prior cases that the trial courts should not use the division of community property to “punish” one spouse for their fault in breaking up the marriage. But the Chief Justice said the “egregious” nature of this husband’s conduct in this case–i.e., that he sexually abused his stepdaughters for many years, he did so in the family home, and he was later convicted of criminal charges related to the abuse–all compelled reversing the 20 percent award.

Justice John P. Devine, writing for himself and one other justice, agreed with the Chief Justice’s conclusion but not his reasons. Instead, Justice Devine held that there was insufficient evidence in the record to support the husband’s claim he ever had any community property interest in the house to begin with. Originally, the couple lived in a home solely owned by the wife. After a fire destroyed that home, the wife used her insurance proceeds to purchase the present house. Justice Devine said it was unclear whether any portion of this insurance money was “burdened by the community,” or whether the husband added any “additional value” to the property.

Justice Jeff Boyd, writing for the four dissenting justices, argued the plurality was wrong because it substituted its own judgment of what is “just and right” for that of the lower court. And Justice Devine’s opinion was off-base because the wife never previously challenged the sufficiency of the evidence supporting the community property determination.

Speak with a Galveston Divorce Attorney Today

The Court’s narrow, divided opinion indicates the difficulty of overturning trial court rulings with respect to divorce. Indeed, the Chief Justice’s plurality went to great lengths to emphasize the exceptional nature of the husband’s history of criminal sexual abuse to justify its decision to overturn the lower court’s ruling.

Most divorce cases will not involve horrendous acts of child abuse. But even in more conventional divorces the same “just and right” standard applies to the division of community property. If you need help from a Galveston divorce lawyer in fighting for what is just and right in your case, contact the Law Offices of Tad Nelson & Associates today at (281) 843-9776.

How to Break the Cycle of Domestic Abuse

By | Domestic Violence

If domestic abuse has a pattern, that pattern would be the cycle. The key to ending abuse is to disrupt the cycle and using all legal means available. Read on for more information about how to end abuse—and possibly save your life in the process.

The Cycle of Domestic Abuse

According to experts, domestic abuse rarely comes out of nowhere. Instead, after the initial honeymoon phase, tension begins to build in the relationship. Your partner might insult you, try to control your movements, and isolate you from friends and family. Tension continues to escalate until it culminates in an act of domestic violence.

However, many abusers immediately plead for forgiveness and become even more attentive to their partners. The aftermath of the violence starts a second honeymoon phase—which does not last long.

Getting Off the Merry-Go-Round

Breaking the cycle takes willpower and incredible strength. It also requires facing some uncomfortable facts. That slap in the face? That is probably not an isolated incident. The drunken assaults which send you to the emergency room? Those are likely to increase in intensity.

The first step you can take: tell someone about the abuse. Make sure it is someone you can trust, otherwise they might casually tell the abuser what you told them. If there is no one you can trust, try to meet with a counselor or other mental health professional. They are professionally obligated to maintain confidentiality.

Also develop a safety plan. The only way to really end the cycle is to leave. Ahead of time, you should pull together an escape plan, which should include:

  • Ways of leaving the home in a fast, safe manner
  • Important phone numbers, such as the number to a nearby shelter
  • A bag of everyday items that you will need
  • Important documents, such as Social Security cards, birth certificates, medical records, driver’s license, and car registration
  • Medicine that you will need
  • Money, credit cards, or checks (preferably not for a joint account which your partner could close)
  • Items your children will need, if you have children

Finally, seek an order of protection against your abuser. This is a court order telling your abuser that they cannot contact you or come near you. You must request an order from the court in the county where the abuser lives. For help, you can work with an attorney, visit a legal aid clinic, or download the protective order kit available at the Attorney General’s website.

Speak with a Galveston or League City Domestic Abuse Attorney

Breaking the cycle of domestic abuse is difficult—but possible. You may have legal options that you are unaware of. To schedule a consultation with a talented Houston criminal defense attorney to discuss your case, please call the Law Offices of Tad Nelson & Associates today, 281-843-9776.

How to Fight a Protective Order in Galveston, Texas

By | Domestic Violence

Protective orders are powerful tools. If a judge issues a domestic violence order of protection against you, you might need to move out of the house and turn over any firearm in your possession. Protective orders can frustrate your ability to take care of yourself and deter you from seeing your children. As a result, it is not unusual for a person to make rash and outright false allegations of domestic violence to get a protective order against a partner.

Fortunately, you do have options for fighting a protective order so that you can get back to your normal life. Follow these tips below.

Immediately “Lawyer Up”

You can try to fight the order on your own. But chances are you will not be very persuasive before the judge or know how to expose inconsistencies and gaps in your partner’s story. Instead, find an experienced Galveston domestic violence attorney to represent you.

Review the Protective Order

The police probably delivered it to you, which might have come as a complete surprise. When you can get a moment to think clearly, look at the protective order. It should explain the threatening or violent conduct you allegedly engaged in.

The accusations should be fairly detailed, though it is not unusual for crucial details to be missing. Remember that emergency protective orders are issued without ever hearing your side of the story, so do not be surprised if the allegations are presented in a slanted way.

Collect Evidence

Ideally, you should convince the judge at your hearing that you did not engage in the violent or threatening conduct. This is the best defense—much better than “she started it.” Simply pointing out that your boyfriend or girlfriend is also violent does not do much to convince the judge that the protective order is unnecessary.

Instead, collect any of the following:

  • The names of witnesses who observed the event. They might be able to testify that your partner actually attacked you while you tried to stop the violence.
  • Any physical evidence, such as clothing or beer bottles. Your partner might have been out of control because she was drunk.
  • Emails or letters in which your partner admits what really happened during the incident giving rise to the protective order.

Be Professional in Court

Judges, like everyone else, make snap judgments based on appearance, so look as professional as possible—neatly groomed, cleanly dressed, etc. You will also have to answer questions at the hearing. Remember to be honest and keep your answers factual. Do not engage in character assassination or vulgar language. If you need an interpreter because you do not speak English well, then ask for one.

In a Jam? Contact a Galveston or League City Domestic Violence Lawyer

Those accused of domestic violence have rights, one of which is the right to a fair hearing in front of a judge. To protect yourself, build the strongest defense possible, using high-quality evidence. If you need help in Houston, contact the skilled criminal defense attorneys at the Law Offices of Tad Nelson & Associates for a consultation. We have helped many people accused of domestic violence and are prepared to discuss your options with you. Call (281) 843-9776. 

What to Do when Your Ex-Spouse Interferes with Visitation

By | Divorce

Divorce is often an emotionally-draining experience, so it is normal to breathe a sigh of relief when you reach the end. You might expect your post-divorce life to be easy in comparison to your marriage and your divorce.

Unfortunately, problems often crop up between ex-spouses, even after a judge has signed a divorce decree. Your ex-spouse might interfere with your visitation rights. Helpfully, Texas law provides parents with the ability to compel compliance with the visitation order, but you should meet with an experienced Galveston, Texas divorce attorney as soon as possible.

Documenting the Interference

First, you should fully document the reasons why visitation has fallen through. Your ex-spouse might have plenty of excuses, none of which sound believable—your child is sick, an emergency has arisen, etc. Write down every date in which visitation was cancelled and document the reason given. If you were sent emails or voicemails, then preserve those, since they are helpful evidence.

You also should show up at the drop-off point, which might be a point halfway between where you and your ex live. Even if you know your ex is not bringing your child, you should still show up. Fully document that you were there at the time and place and that no surrender of your child took place.

Filing for Contempt of Court

Second, you should meet with a Galveston child custody attorney to discuss filing for contempt. Contempt of court means that a person subject to a judge’s order is disobeying it, and judges have inherent authority to compel compliance. When an ex-spouse interferes with visitation, they flout two orders:

  • To surrender your child at a certain date and time
  • To give you possession of the child for the amount of time spelled out in the custody order

To bring your ex into compliance, a judge might:

  • Fine your ex until he or she agrees to start following the visitation schedule
  • Send your ex to jail until he or she agrees to abide by the visitation schedule
  • Award you attorneys’ fees
  • Some combination of the above

Many ex-spouses are shocked to find themselves in jail for a few days for not letting you see your children. Nevertheless, judges do take contempt cases seriously, since your ex is flatly challenging the judge’s authority in this case.

Speak with a League City or Houston Child Custody Lawyer

Parents are not required to suffer in silence as their ex-spouse uses the children as pawns. Instead, concerned parents should immediately vindicate their parental rights in court, including their right to visitation. To start the process, please contact Galveston child custody attorney Tad Nelson to schedule your free consultation. Call 281-843-9776 or submit our contact form.

What are Community Property and Separate Property?

By | Divorce

A Texas divorce does more than free up each spouse to marry someone else. Instead, a marriage is an economic unit, and a divorce completely unwinds your financial entanglements. As part of your divorce, a judge will need to divide your marital property, which is called “community property” in Texas. Read on to find out more about what a judge will divide.

Community Property—What You Acquired Together

There is an easy, quick way to understand community property—it is any property you acquired while married. Generally, it does not matter whose name is on the title to the house, boat, or car. What matters is that you were married when one of you acquired the property.

Wages earned are also community property, as is anything bought with wages. If your husband bought a condo secretly using only his wages, the condo is still community property, which means each spouse owns a 50% stake in the property. Usually, community property is divided 50/50 upon divorce.

Separate Property

Separate property is often something you owned before getting married and brought into the marriage, such as the car you bought six months before walking down the aisle. It can also be a retirement account, cash in a checking account, or investments. However, income earned on separate property is often community property. For example, if you own a rental property, then the rent earned while married belongs to both you and your spouse.

Texas law also considers some property obtained while married as “separate” property, such as:

  • An inheritance. Say your mother died while you were married and left only you her home. Typically, the inheritance is your separate property.
  • A gift. If someone gave you a gift, then it is yours.
  • Some recoveries for personal injury claims. If a driver struck you, and you have a lawsuit seeking compensation, then the money is typically yours. You do not have to share it.

Sometimes there is a good faith dispute as to whether something is community property or separate property. For example, a family friend might have given you an expensive gift. But was it really for you and your spouse? A lot will depend on the facts.

Are You Confused? Speak to a Galveston, Texas Divorce Lawyer for Help with Your Case

Before divorcing, you should fully understand what property you can walk away with. However, community property rules are complex, and you should meet with an experienced Galveston or League City divorce lawyer to review your situation. Contact the Law Offices of Tad Nelson & Associates today at 281-843-9776 for a free consultation. We are eager to assist you throughout each step of your family law case.