Overcoming the Presumption Against Alimony in a Galveston Divorce Case

By | Divorce

Spousal maintenance–aka alimony–is not as common as you might think in Galveston divorce cases. In fact, Texas law contains a presumption against the award of spousal maintenance by either side in a divorce. But this presumption can be overcome in a number of ways. For instance, if the couple has been married for at least 10 years, a spouse may receive alimony if he or she can prove they lack “the ability to earn sufficient income” for their “minimum reasonable needs.”

Wife Receives Spousal Maintenance Due to Limited Job Training

So how does a spouse go about proving they lack the “ability” to earn enough income? A recent divorce case from nearby Harris County offers a helpful illustration. In this case, a husband sued his wife for divorce. The couple had been legally married for about 10 years, and they had lived together as husband and wife for a longer period–in fact, the wife was just 16 when the relationship began.

According to the wife’s testimony at the couple’s divorce trial, her husband prohibited her from working outside the home during the marriage. After divorce proceedings began, the wife found work as a waitress, and later as a retail clerk. She testified her monthly income was insufficient to meet her “reasonable minimal needs.”

More to the point, the wife said her limited education–she only finished high school–prevented her from obtaining a higher paying job. While she was interested in acquiring additional training to work in the healthcare field, she said that would take at least five or six years, given she had to work full-time and support two young children. Indeed, Texas officials told her she had to maintain her current full-time job in order to retain custody of her children.

The husband testified he never prohibited his wife from working during the marriage, and that her failure to obtain additional education could be attributed to alcohol abuse. The trial judge ultimately credited the wife’s testimony and awarded her spousal support. The husband appealed.

But the Texas First District Court of Appeals affirmed the award. As the appeals court explained, the wife presented sufficient evidence to “overcome the statutory presumption against spousal maintenance.” Specifically, she “exercised diligence” in obtaining full-time work and “attempting to develop the necessary skills to provide for her minimum reasonable needs,” while acknowledging the limitations imposed by state officials.

The First District also upheld the length of the spousal maintenance award. Alimony in Texas is not for an indefinite period. By law when a couple is married between 10 and 20 years, the maximum duration of alimony that a court award is five years. That is precisely what the trial court ordered here. The husband argued that was too long. But the appeals court said five years was reasonable given it would take the wife that time to complete an educational program so she could find a better-paying job.

Do You Need Help From a Galveston Divorce Attorney?

Rebuilding your life following a divorce can be overwhelming, especially if you lack the financial means to fully support yourself and your family. An experienced Galveston divorce attorney can help you by working to make sure you obtain the most favorable financial terms in any final settlement or judgment. Contact the Law Offices of Tad Nelson & Associates in Galveston at (281) 843-9776 if you need to schedule a consultation with a lawyer today.

 

How Legal Notice Requirements Protect Your Rights in a Contested Galveston Divorce Case

By | Divorce

Obtaining a divorce in Galveston is not a quick process. Even in cases where the parties’ split is amicable, there are certain legal deadlines and waiting periods that must be observed. Generally speaking, such delays are necessary to ensure that both spouses receive proper notice of any court proceedings and have an opportunity to prepare a response.

Appeals Court Reverses Divorce Judgment Due to Lack of Proper Notice to Wife

For example, under Texas civil court rules, when a contested divorce case is initially set for trial, the judge must give both sides at least 45 days notice of the hearing. In other words, a judge cannot receive a contested divorce petition and schedule the trial for a week later. This violates the basic due process rights of the litigants, especially the spouse who is responding to the divorce petition.

When a spouse does not receive proper notice, he or she may move to set aside any adverse order against them. Here is a recent Texas divorce case on point. A husband sued his wife for divorce. In his petition, the husband asked for sole custody of the couple’s three children and an order requiring his wife to pay child support.

The wife contested the divorce petition and filed her own counter-petition seeking sole custody and child support from the husband. She also alleged the husband committed acts of domestic violence and should be denied “access to the children.”

In November 2016, the judge assigned to the case set a trial date that was 42 days later. The wife did not appear at the hearing. After hearing only the husband’s side of the story, the judge granted default judgment in his favor: The husband was awarded sole custody of the children and the wife would have to pay child support.

The wife appealed, arguing the trial judge failed to comply with the 45-day notice requirement. The appeals court agreed. While a party is free to waive their right to receive notice by showing up at the hearing, the wife here did not appear. Therefore, even if she may have been otherwise aware of the hearing date, the appeals court found there was no evidence “to show that [the wife] had received proper notice of this hearing date.” And since the 45-day notice rule is a basic component of due process under Texas law, the wife was entitled, at a minimum, to a new trial. Accordingly, the appeals court reversed the trial court’s previous award of default judgment to the husband.

Get Advice from a Galveston Divorce Lawyer Today

Deadlines matter in divorce litigation. While it is possible to shorten the process to a certain extent if all parties are on board, you should never feel pressured to waive your legal rights, especially when custody of your children is at stake. If you live in the Galveston area and have been served divorce papers–or are thinking about serving them yourself–you need to work with an experienced attorney who can make sure the courts and the other side comply with all legal deadlines. If you need to speak with a Galveston divorce attorney today, call the Law Offices of Tad Nelson & Associates at (281) 843-9776.

Dealing With Post-Divorce Litigation in Texas

By | Divorce

The best case scenario for a Texas divorce is when the spouses are able to amicably resolve their outstanding child custody, support, and division of property issues without the need for extended litigation. Ideally, the divorce allows all sides to obtain a fresh start so they can move forward with their lives. Unfortunately, we all known situations–including perhaps our own–where this ideal outcome proves impossible.

Texas Supreme Court Intervenes in Post-Divorce “Slander of Title” Dispute

If there is a worst case scenario, it is one where a spouse continues to litigate issues even after they have been addressed by the court. In some situations a spouse may go too far and engage in questionable conduct that draws a judicial sanction. This is why it is critical to work with an experienced Galveston divorce attorney both during and after a divorce, as you never know what ancillary problems may arise if the other spouse feels wronged in some way.

The Supreme Court of Texas recently addressed a dispute that has its roots in just such a post-divorce scenario. The parties in this case divorced more than eight years ago. The ex-husband received sole ownership of the family business as part of the final division of property, and in exchange he was required to pay his ex-wife $10,000 per month for the next four-plus years, until he paid a total of $500,000. The spouses were also named as joint managing conservators–i.e., awarded joint legal custody–of their minor children.

Both of these divorce terms led to subsequent litigation. In 2011, the trial court held the ex-wife in contempt “for violating the standing child-possession orders on 14 different occasions.” Contempt is serious business, even in a family law dispute: the judge ordered the ex-wife to spend seven days in jail.

The more recent dispute arose from the ex-husband’s obligation to pay his ex-wife $500,000 over 50 months. The problem was not that he failed to make the payments. He did. It was that after he purchased a new house following the divorce, the ex-wife recorded an abstract of judgment, which effectively noted a $500,000 lien against the property. The ex-husband only learned about this years later when he moved to sell the house.

In fact, a proposed sale fell through because the ex-wife refused to release her lien, forcing the ex-husband to carry the costs of two properties. The ex-husband then sued the ex-wife, accusing her of “slander of title.” A trial court sided with the ex-husband and awarded him over $98,000 in damages. The Texas Supreme Court reversed the award, however, holding it was “based in part on erroneous measure and unsupported by the evidence,” and returned the case to the lower courts for a recalculation.

How Can Our Galveston Divorce Attorneys Help You?

The fact that the spouses above continue to litigate more than eight years after their marriage ended is not typical outcome. But it does illustrate how post-divorce issues can require the ongoing assistance of a qualified family law attorney. Contact the Law Offices of Tad Nelson & Associates today in Galveston if you need help with any divorce or family law matter.

When Is a Qualified Domestic Relations Order Necessary in a Galveston Divorce Case?

By | Divorce

One of the trickier issues in a Galveston divorce is dividing a spouse’s retirement or pension plan. These assets are generally managed by third-party administrators. And as a matter of law, the administrator cannot directly pay any benefit to the non-employee spouse without a court order.

More specifically, a Galveston judge must issue a qualified domestic relations order (QDRO). This is a separate order from the actual divorce decree. A QDRO is issued to the pension plan administrator, who must then determine if the order is “qualified.” For example, the Teacher Retirement System of Texas, one of the state’s largest pension plans, says it can only qualify a QDRO when the following conditions are met:

  • The order “clearly specifies” the name of the pension plan, as well as the names and addresses of the plan participant and any alternate payee (i.e., the other spouse);
  • The order states the “amount or percentage of the participant’s benefits payable” to the other spouse or the “manner in which such amount or percentage is to be determined”; and
  • The order states the “number of payments” or the period of time in which it is applicable.

The plan administrator may reject a QDRO if it is defective in any way.

The Difficulty in Changing a QDRO

It is important for divorcing spouses to resolve any outstanding issues regarding the division of a pension plan. Once the divorce is final and the judge issues a QDRO that is accepted by the plan administrator, it can be very difficult to amend or correct the distribution. Even if you think there was a mistake in determining the division of the pension plan, the judge is not required to grant your request for a new order.

Here is a recent case in point. A husband and wife received a divorce in July 2015. At the time the judge ordered the division of the husband’s 401(k) plan. The wife was to receive $120,000 from the pension plan, with the husband retaining the balance, which at the time had an estimated value of about $186,000.

In August 2015, the judge issued a QDRO, which the plan administrator qualified. But approximately four months later, the husband asked the court to “modify or clarify the QDRO.” He maintained the “valuation date” of the 401(k) was incorrect and did not accurately reflect the division of property in the divorce decree. The judge denied the husband’s motion.

An appeals court also ruled against the husband. The court noted the burden was on the husband to prove an amendment was justified under the law. But he failed to explain how the purported discrepancy in the valuation date would actually affect how much his ex-wife received from the 401(k). Nor was the order itself vague or unclear in any way. Accordingly, the court dismissed the husband’s request for a new order.

Need Help From a Galveston Divorce Attorney?

The division of property in a divorce is often complicated, especially if you and your spouse have significant assets. It is important to work through any outstanding property division issues in a thorough, professional manner in order to avoid any misunderstandings later. If you need assistance from an experienced Galveston divorce lawyer with this or any related subject, contact the Law Offices of Tad Nelson & Associates today.

How Informal Settlement Can Resolve Your Galveston Divorce

By | Divorce

Not all Galveston divorces end up in a lengthy court battle. To the contrary, many divorces are resolved through formal mediation or informal settlement conferences. With informal settlement, the spouses are free to meet with or without their attorneys to discuss – and hopefully resolve – outstanding issues like division of property, child custody, and spousal or child support.

Informal settlement talks do not automatically bind either party to a resolution. However, if an agreement is reached, it is may become binding if it is in writing and signed by both sides. Under Section 6.604 of the Texas Family Code, a binding informal settlement must also contain a “prominently displayed statement that is in boldface type or in capital letters or underlined, that the agreement is not subject to revocation.”

After an agreement is signed, the judge must still review it and grant final approval. Section 6.604 says the court is bound by any settlement terms if it finds they are “just and right.” If the court has reason to believe that this is not the case, the judge can either direct the parties to revise their agreement or schedule the case for trial.

The Risks of Reneging on a Final Settlement Agreement

While it is possible to reopen or amend a final divorce settlement under certain circumstances, a former spouse must proceed carefully. Simply trying to re-litigate issues because you later decide you were dissatisfied with the outcome is not just counterproductive. In some case it can lead to court-ordered sanctions.

Consider this long-running Texas divorce case. The wife initially filed for divorce from her husband in 2009. The parties spent two years informally negotiating a settlement. Eventually, they reached an agreement, which the court approved. As required by Section 6.604, the final agreement contained language stating it was “not subject to revocation and was binding on all parties.”

Despite this, about a year after agreeing to the settlement the wife attempted to withdraw her consent and asked the judge to set aside the agreement. The wife alleged her husband and members of his family conspired to hide assets from her. But the husband replied the wife’s motion was meritless and made in bad faith, as all of the allegedly “hidden” assets were already known to her and therefore covered by the agreement.

The judge agreed with the husband. Not only did the court deny the wife’s motion to set aside the divorce settlement, it also ordered her to pay over $32,000 in attorney’s fees to the husband, plus an additional $50,000 in the event of an unsuccessful appeal. And as it turned out, the wife’s appeal was unsuccessful. On November 3, 2017, some eight years after the original divorce filing, the Texas Fifth District Court of Appeals affirmed the trial court’s divorce decree.

Get Advice From a Qualified Galveston Divorce Lawyer

Divorce is an emotionally charged event for many people. Sometimes that emotion overrides reason and leads parties to pursue unfortunate litigation strategies. In some cases this goes squarely against the advice of counsel–indeed, the wife in the case above was apparently “represented by at least ten attorneys during the course of her divorce proceeding,” according to the Fifth District.

Do not put yourself in this position. Divorce does not have to be a long, drawn-out battle. Work with an experienced Galveston divorce attorney who can help you obtain a divorce settlement that treats you fairly and lets you move on with your life. Contact the Law Offices of Tad Nelson & Associates to schedule a consultation today.

What Happens to My Child Support Obligations If I Am in Jail?

By | Family Law

Texas courts base child support orders on a non-custodial parent’s income and other “net resources.” But what happens when a parent is in jail and has no income? Does that eliminate an existing support obligation? And can an inmate lose his or her parental rights because she is unable to make support payments?

If there is an existing child support order in effect against you, the fact that you are incarcerated does not automatically absolve you of responsibility. Even though you are legally unable to work or earn income in prison, you still need to ask a judge to change the terms of a support order. However, if you are incarcerated for more than 90 days, that is considered a “substantial change in circumstances” and a court can consider this in modifying an earlier support order. In addition, if you are sentenced to prison for at least 90 days when a support obligation is initially established, the judge must look at your “actual income earned,” which in many cases will lead to a zero-support order.

Incarceration and the Potential Loss of Parental Rights

It is important to seek judicial modification of child support upon incarceration or any other change in circumstances that affect your ability to pay. Simply not paying could lead the custodial parent to petition the court for termination of your parental rights to the child. Under Section 161 of the Texas Family Code, a judge can terminate parental rights if the parent “failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition.”

In such cases, the burden is on the custodial parent to prove by “clear and convincing evidence” that the non-custodial parent failed to provide support. This is a higher burden than “preponderance of the evidence,” which is the normal standard in civil trials. Courts take this burden of proof seriously. For instance, a Texas appeals court recently reversed an order terminating parental rights due to the custodial parent’s failure to meet her burden.

The father in this case is incarcerated for drug-related offenses. He was initially ordered to pay child support in 2013. But payments stopped in June 2016. In December 2016, the mother filed a petition to terminate parental rights. At the time of the court’s hearing on the petition in April 2017, the father was in jail and did not attend the hearing.

While the trial court granted the mother’s petition, the appeals court said the evidence was “factually insufficient.” As noted above, the Family Code only permits termination of rights when a parent is unable to pay child support in accordance with his or her ability. Here, the mother knew the father had lost his job and was in jail. She presented no evidence that he had any means or ability to continue paying support while in prison. Therefore it was inappropriate for the trial court to terminate the father’s parental rights.

Do You Need Help With a Texas Child Support Matter?

Even if a parent is not in jail, there are many scenarios where change in circumstances may be ground for altering a child support obligation. A qualified Galveston child support attorney can assist you with seeking modifications of an existing order. Call the Law Offices of Tad Nelson & Associates at (281) 843-9776 today to schedule a consultation with our office.

Can I Receive Alimony If I Am Disabled or My Children Have Special Needs?

By | Divorce

In any Galveston divorce case, neither spouse is automatically entitled to alimony. The court has the discretion to order “spousal maintenance” if certain conditions are satisfied. For instance, a spouse may receive maintenance payments if he or she suffers from an “incapacitating physical or mental disability” or is the custodian of a special needs child and lacks sufficient income or property to provide for their “reasonable minimum needs” after the divorce becomes final.

Houston Court Reverses Alimony Award Due to Wife’s Disability Benefits

What constitutes a person’s “reasonable minimum needs” will vary from case to case. A judge will consider the testimony from the spouses as well as their respective financial statements. But remember, the burden of proof is always on the spouse seeking alimony.

Consider this recent appeals court decision. The husband and wife in this case were married in 1995 and separated in 2009. The wife sued for divorce in 2014. Following a trial where the spouses were the only witnesses, the court granted a divorce and, among other terms, ordered the husband to pay the wife $972 per month in alimony.

The husband appealed that and other parts of the divorce court’s judgment. The Texas 14th District Court of Appeals agreed with the husband that the award of spousal maintenance was not supported by the evidence. Accordingly, the court deleted the maintenance award while upholding the rest of the divorce judgment.

The appeals court noted that at trial, the wife’s testimony and supporting exhibits established she had monthly expenses of $1,455. Her monthly income included $1,409 in Supplemental Security Income (SSI)–the wife suffers from end-stage renal disease and two of the couple’s three children are classified as special needs–and under the final divorce decree adopted by the trial court, the wife will receive an additional $1,000 per month as part of the division of community property. Even excluding the children’s portion of the SSI benefits from the calculation of the spouse’s income, the 14th District said the wife will still have “at least $1,603 per month in property” following the divorce, which is enough to meet her “minimum basic needs” of $1,455 per month.

Need Help From a Galveston Divorce Attorney?

It should be noted that there are other scenarios aside from incapacity or the needs of a child where a spouse may still petition the court to award alimony, such as marriages that lasted at least 10 years or which ended due to the other spouse’s acts of domestic violence. But as the case above illustrates, the courts are not in the habit of granting alimony merely out of sympathy. There must still be concrete evidence that the spouse cannot meet their basic monthly expenses before maintenance payments may even be considered.

If you are in the process of going through a divorce, it is important to have skilled representation to assist you in handling issues like requests for spousal maintenance. If you need to speak with a Galveston divorce lawyer about your situation, contact the Law Offices of Tad Nelson & Associates today.

Can My Spouse’s Online Activities Prove Adultery?

By | Adultry, Divorce

Adultery can mean different things depending on the context. Psychologists often speak of “emotional adultery” when referring to spouses who carry out explicit relationships with non-marital partners over the Internet. While such emotional affairs “do not involve physical contact,” according to one expert, these extramarital activities can be “just as devastating to the family as a physical affair.”

But from a legal standpoint, “emotional adultery” is not the same thing as adultery. Texas courts have long said that when it comes to citing it as grounds for a fault-based divorce, adultery refers exclusively to the “voluntary sexual intercourse of a married person with one not the spouse.” While you do not necessarily have to catch your spouse “in the act” to prove adultery, you still need to offer the court direct or circumstantial evidence that proves intercourse likely took place. As a Texas appeals court observed in a 2009 adultery case, “clear and positive proof is necessary and mere suggestion and innuendo are insufficient.”

Following the “Digital Breadcrumbs”

With that in mind, there are cases where evidence of an online extramarital relationship may be used to help prove adultery. Your spouse’s emails, text messages, and social media posts may contain valuable information about who they are speaking or meeting with when you are not around. Also remember, we live in an age where people commonly record and publish their every action. Even if your spouse did not leave any “digital breadcrumbs” for you to follow, the person they are seeing may not be so careful. For that matter, a third party may have photographed or recorded your spouse at a public event where he or she was seen kissing or engaging sexual activity with someone else.

In addition to evidence of intimacy or sexual activity, your spouse’s online actions may also lead you to uncover financial evidence supporting the existence of an affair. Obviously, if you notice any unusual charges to your credit card, you should be concerned. But also consider more unconventional financial activities. For instance, is your spouse “investing” in cryptocurrencies such as Bitcoin? This can be a useful way of hiding assets from you–and sending money clandestinely to a secret lover.

Get Advice From a Qualified Galveston Divorce Lawyer

To reiterate a critical point, circumstantial evidence may not be enough to actually prove adultery in court. Merely hiding money from you or seeing someone without your knowledge does not always add up to sexual intercourse outside of marriage. And even if you think you have sufficient evidence to prove adultery, it may not be in your family’s best interest to make such allegations in open court. After all, Texas does recognize “no-fault” divorce, so you are not compelled to prove adultery in order to get out of a failed marriage.

On the other hand, proving your spouse’s adultery can work in your favor when it comes to the court dividing marital property or determining whether to award you alimony. This is why you should speak with a Galveston divorce attorney to discuss your options. Contact the Law Offices of Tad Nelson & Associates to schedule a consultation today.

 

Managing a Galveston Divorce When One Spouse Refuses to Follow the Rules

By | Divorce

Ending a marriage is often an acrimonious process. We see many Galveston divorce cases where the spouses choose to fight over every little detail. Such an aggressive approach is often counterproductive, however, and often accomplishes little more than delaying a final resolution of the couple’s outstanding issues.

Despite Wife’s Misconduct, Appeals Court Said Default Judgment to Husband Was Unjustified

If you are in the midst of a divorce and unable to resolve any critical issues with your estranged spouse, keep in mind that once you head into court, you are obligated to follow the judge’s orders and the general rules governing civil trials. This means, for instance, that when you are required to turn over certain information to your spouse (or their attorney), your failure to comply is not simply passive-aggressive behavior–it is a violation of the court’s orders and can get you in serious trouble.

How serious depends on the severity of the contempt. There are cases where judges have been known to impose “death-penalty” sanctions on uncooperative parties in a divorce. Of course, this does not literally mean death, but rather refers to a scenario where a judge awards one spouse relief solely based on the other spouse’s refusal to cooperate.

Judges are not allowed to impose such severe sanctions without good cause, however. Earlier this year, a state appeals court held that a death-penalty sanction was not justified despite evidence of the wife’s refusal to cooperate. In this case, the wife filed for divorce against the husband, who then filed his own countersuit. In his countersuit, the husband accused his wife of fraud and misuse of community property, among other allegations.

As explained by the Court of Appeals in its own opinion, the wife “largely failed to cooperate with oral and written discovery” requests made by the husband over a period of “several months.” The husband asked the judge to compel his wife to answer certain questions or impose sanctions for her refusal to do so.

During a hearing in open court, the judge deferred the question of sanctions but did order the wife to comply with her husband’s discovery requests. The husband was not satisfied with the wife’s subsequent responses and renewed his motion for sanctions. At a second hearing–where the wife did not show up or have an attorney appear on her behalf–the judge decided enough was enough. He imposed death-penalty sanctions in the form of striking the wife’s complaint for divorce, barring her from presenting any defenses to the husband’s allegations, and awarding default judgment to the husband. The judge later issued a final divorce decree addressing child support and the division of property, again without the wife’s participation.

The wife did manage to file an appeal. And the appeals court agreed with her that the trial court abused its discretion. Without commenting on the wife’s misconduct, the higher court said the lower court could only order death-penalty sanctions only after considering “lesser sanctions” and providing a “reasoned explanation concerning the appropriateness of the greater sanction imposed.” The trial judge failed to do so, and as a result its default judgment award and final divorce decree had to be reversed.

Need Help Learning the Do’s and Don’ts of Divorce?

As you can see, even judges have to follow certain rules when handling a contested divorce case. Indeed, following the rules is what keeps the entire divorce process from degenerating into a never-ending series of fights. If you are contemplating divorce it is important to understand the rules upfront. An experienced Galveston divorce lawyer can help. Contact the Law Offices of Tad Nelson & Associates today if you need advice on how to proceed with your own divorce case.