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Archive for the ‘Texas’ Category

HB 93 Will Take Us Back to the Bad Old Days

Posted on May 10th, 2017 by The Red Headed Lawyer

Back in 1970, Texas became one of the first states to offer couples a less confrontational, less expensive way to end a failed marriage. It was known as “No Fault” Divorce, and many at the time believed it would be a disastrous social experiment with American families. However, there is evidence now suggesting that rather than encouraging divorce, the long term effect of this option has been to make divorces less frequent.

During the 1970s and into the early 1980s, divorce rates did rise as each state eventually passed legislation to offer some kind of no fault option. In economic terms, you could say there was pent-up demand that was suddenly being satisfied by the change in laws.

One common measure of divorce rates is the number of divorces per 1,000 people. From about 4.6 per 1,000 in 1970, divorces in the US rose throughout the decade, peaking in 1981 at about 6.9 per thousand. Since then, the numbers have steadily declined, dropping to 4.0 per 1,000 in 2000 and just 3.2 today. Here in Texas, we are fortunate to have a divorce rate below the national average at 2.7 per 1,000.

Clearly, this is one of those rare occurrences where it’s good to be below average!

Texas House Bill 93 (and a companion bill that lengthens the waiting period from 60 to 180 days) would undo years of progress on dealing with divorces in the state and bring us back to the bad old days. If this Bill becomes law, couples whose marriages have failed will no longer be able to claim the no-fault option of “insupportability” – basically another way of saying irreconcilable differences. Instead, they will need to file using one or more of the fault-based grounds – adultery, abandonment, cruelty, felony conviction, living apart for three years or confinement to a mental hospital.

In my opinion, this Bill would be a disaster for Texas couples. They are already going through one life’s most stressful events. Now, they will be forced to adopt a confrontational approach and air their dirty laundry in public. Kids will be forced to take sides with all the long-term hurt and emotional baggage such conflict would sow.

And what about the parents? Should they be penalized for admitting that they are no longer compatible? Currently, it is estimated that as many as 90% of divorces in Texas are filed on no-fault grounds. Eliminating this option will make divorces much more expensive as one party will have to prove malfeasance as described above. This could entail the hiring of private investigators, expert witnesses, and the like. These proceedings will also take much more time to complete, which will also run up the bills.

But it’s not just about money. For women (and men) who are in abusive relationships, a no-fault divorce can be the only way out. After years in such a destructive relationship, the abused party will likely be very reluctant and afraid to report the partner to authorities, which would be required in an at-fault divorce. There is more data supporting current law – since no fault divorces became common, studies show female suicide has dropped 8 – 15%, domestic murder is down 10%, and domestic violence (for male and females) has fallen as much as 30%. Also, given the inevitable rise in costs that would ensue, would divorce become an option only for the wealthy?

There are many groups that support this change in law, but I can tell that as an attorney, I do not support it. Kids will suffer, parents and their families will suffer, and what if people lose their jobs and careers? How would this development help the lives of those involved?

If you have any questions on this or any other family law matter, please feel free to contact us here at the Essex Law Firm.

Domestic Violence and Firearms – Some Texas Laws Could Be Changing

Posted on August 2nd, 2016 by The Red Headed Lawyer

domestic-violence-and-firearms

Here in Texas, we have a long (and some would say loving) relationship with firearms. Even before becoming a state in 1845, early settlers found their muzzle-loaders indispensable in obtaining food and dealing with predators and unsavory reptiles. There were also frequent skirmishes with the native Comanches.

Today, Texas has more gun dealers (about 8,500) than any other state according to Federal statistics. In addition, there is no registration requirement, no waiting period, and no limit on purchases. Gun control advocates are quick to demonize Texas for these reasons, but if you check the statistics, the state ranks 30th in deaths by firearms. This is better than Washington DC and Pennsylvania, each with some of the most restrictive gun laws in the nation.

The debate on gun control will likely rage on, but that’s not my topic today. Rather, it’s about existing Federal and state laws pertaining to gun ownership by people convicted of domestic abuse, and how Texas law on this subject may change.

First, here is a sad statistic. According to FBI and state crime data crunched by the Associated Press, a woman is shot in the US by her romantic partner every 16 hours. We all have heard that crime victims usually know their attackers – here’s some proof. Federal and state law acknowledges that domestic abusers should not own guns, and both make buying and possessing them after such a conviction illegal.

But there’s a legal wrinkle. There are no current laws requiring those convicted of domestic abuse to surrender firearms they already own. All ideology aside, I think everyone can see that leaving weapons in the hands of those already convicted of violence against their partners is a big gamble. Tempers are already running hot, and one could easily argue that the intent of current law is to keep these victims safe. If keeping these people from buying and owning guns is a good idea, then taking away those already owned seems to be a good idea too.

Dallas County agrees, and the process, while very new, is pretty simple and will likely be effective. And from a victim’s rights perspective, it is a welcome process because it doesn’t need legislative approval (which couldn’t occur until next year at the earliest anyway.) Judges in Dallas County have instituted a process where domestic abusers covered by certain types of protective orders are required to turn in all firearms. If they don’t own any, they must attest to this fact under oath. Under certain conditions, firearms will eventually be returned to the original owners, in theory when a protective order expires (usually two years in Texas.) Some abusers subject to this process will never have their relinquished weapons returned.

This process was launched in May 2015, so it is too new for Dallas County to have useful data on its success or failure at this point. But clearly, Texas demographics are changing, as are attitudes towards firearms. It is possible that this process could catch on in other jurisdictions.

We are glad to represent clients with domestic abuse issues.

Texas Toughens Child Support Enforcement

Posted on July 11th, 2016 by The Red Headed Lawyer

texas-toughens-child-support-enforcement

In the old west, if you were convicted of certain crimes your punishment would be forfeiture of your horse. This was a serious punishment – at that time your alternative transportation options were quite limited.

Texas is taking a page out of the old west when it comes to dealing with anyone who falls far behind on their child support. But rather than targeting your horse, they are after your horsepower. Beginning this December, any Texas resident owing six months or more of child support will be unable to renew their vehicle registration.

For those with any knowledge of how Texas deals with child support scofflaws, this latest action is no surprise. The state is very aggressive in pursuing these individuals, and already holds the power to revoke all forms of personal licenses, including driver’s, professional, and recreational. This latest action by the Attorney General’s Office is just the latest measure to force compliance.

Here’s how it will work. This September, any resident already behind on their payments by six months or more will be notified of the new regulation in the standard three month renewal notice sent by the Texas Department of Motor Vehicles. The letter will likely state that there is currently a “hold” on that person’s registration renewal, which would normally be due in December. It will include information on how to have the hold removed.

These same individuals will also receive a letter from the Child Support Division of the Attorney General’s Office prior to the renewal date. It will outline what must be done to clear the hold on their registration. While this has obviously not yet gone to effect, as the rule stands now, anyone who doesn’t take the required action will have an expired registration come January.

While it is not my purpose to debate the pros and cons of this new child support enforcement mechanism, it is important to note that some contend this is bad public policy. Taking away a person’s transportation cannot help but make it more difficult to hold a job, make a living, and pay for their obligations. However, there is also the argument that asks, “how is revoking their auto registration going to make it more difficult to do what they are already not doing?” It is similar to the argument that putting a person in jail for not paying child support means that they will lose their job and have no chance of their paying the support they owe in the future. Judges do not usually buy this argument, for good reason. Anyone who practices family law in Texas knows that putting people in jail for not paying child support frequently results in the child support suddenly being paid. Somehow, the money becomes available. Child support becomes a priority, which it should be. The same may very well be true of revoking a scofflaw’s auto registration. It is important to add that only a small number of egregious cases result in incarceration for past-due child support.

The Attorney General’s Office will say that there are procedures in place to be sure that honest, hardworking parents who want to do the right thing and satisfy their debts to their children are able to continue to drive legally. First, there is a dedicated phone number for all registration-related inquiries. And second, parents will not be required to completely pay all past due monies – just establish a payment schedule and keep it current.

The reason this public policy question bears mentioning is because of how this rule was enacted. It was not written into law due to a bill that was passed by the Texas state legislature. The Attorney General’s Office believed it had the authority to make this change under the Texas Family Code. As such, it could be challenged (and possibly reversed) in court. On the other hand, many of the procedures the Attorney General uses have been put into place without the legislature being involved. They fall under the powers and mandate of the Office of the Attorney General to collect child support. In the 30 years I have been practicing law, the amount of child support collected has grown enormously. This has resulted in not only many more children being provided for by their own biological parents who have the responsibility for them, but an overall reduction in the costs to the taxpayers of Texas.

There is another criticism of this rule – it only targets registration renewals. If you buy a new vehicle, there will be no holdups if you’re behind on your payments. So stay tuned to see how everything turns out.

My firm will be glad to represent anyone served with such a notice.

Marriage and Divorce in Texas

Posted on July 29th, 2015 by The Red Headed Lawyer

An overview of how marriage and divorce works in Texas, taken from the Houston Bar Assocation Family Law Handbook.

Marriage and Divorce

  • Does Texas have an age requirement for marriage?
    Yes. Both parties must be at least 18 years old to obtain a marriage license. If either party is under 18 years of age, parental consent or a court order is required.
  • Can I marry someone who is related to me?
    It depends. You may not marry (1) someone who is an ancestor (mother, father, grandmother, grandfather, etc.) or descendent (son, daughter, grandson, granddaughter, etc.); (2) your brother or sister; (3) your parent’s brother or sister (aunt or uncle); (4) your niece or nephew; (5) your cousin; or (6) your step-children or your step-parents.
  • Can I legally marry someone of the same sex?
    In Texas, you may not marry someone of the same sex.
  • What is a “licensed marriage?”
    A “licensed” or “ceremonial marriage” requires a marriage license and is performed by an authorized official (minister, priest, rabbi, judge, etc.).
  • What is an informal marriage or “common-law marriage?”
    An informal marriage (sometimes called a common-law marriage) can be created when a man and woman sign and register an official document of marriage at the county clerk’s office. A man and woman may also
    enter into an informal marriage if they agree to be married, live together in Texas as husband and wife, and represent to others in Texas that they are married. There is no minimum time period necessary to create an informal marriage, and living together, by itself, is not enough to create one. An informal marriage may not be entered into if either party is less than 18 years old.
  • Is there a “common-law divorce?”
    No. If the parties to a non-registered informal marriage separate and live apart for two (2) years or more, the parties may or may not need a divorce depending on the circumstances. Parties to a registered informal marriage must be divorced the same as parties who were married in a ceremony with a marriage license.
  • Is an annulment different from a divorce?
    Yes. An “annulment” is a proceeding to have a marriage declared void as if it never took place. A “divorce” is the proceeding to end a valid marriage. However, in both an annulment and a divorce, the court will divide property and issue orders regarding any children.
  • What are the grounds for an annulment?
    An annulment will be granted if (1) the parties are related, by blood or adoption, or (2) either party was previously married and the prior marriage has not been dissolved. An annulment may be granted if at the time of the marriage one party to the marriage was (1) underage, (2) under the influence of alcohol or drugs, (3) impotent, (4) mentally incompetent, (5) forced to marry by fraud or duress, or (6) was misled about a prior divorce. In most cases, the law requires that the person seeking an annulment must stop living with the other party once the problem is discovered.
  • Must fault be found against a party for a divorce to be granted?
    No. In Texas, a divorce may be granted without either party being at fault. However, a divorce may also be granted when one party is found to be at fault in the break-up of the marriage.
  • How long must I live in Texas to get a divorce here?
    Before filing, one of the spouses must live in Texas for at least six (6) months and in the county where the divorce is filed for at least ninety (90) days.
  • Is this different if I am in the military?
    Not really. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.
  • Am I entitled to a court-appointed attorney?
    Not unless there are special circumstances.
  • What do I do if I can’t afford an attorney?
    There are several programs in Harris County that offer help to persons who cannot afford to hire an attorney; however, you will be required to meet certain financial guidelines. See the resource guide at the back of this handbook for more information. The Houston Volunteer Lawyer program provides limited document review in the basement of the Family Law building at 1115 Congress, Houston Texas 77002. Also, an extensive set of forms approved by the Family Law Section of the State Bar of Texas are available to help litigants at the Harris County Law Library located next door to the Family Law Building at 1019 Congress, 17th Floor, Houston, Texas 77002.
  • What is a board-certified family attorney?
    Attorneys who meet certain qualifications and pass a special examination may become board certified in family law by the State Bar of Texas, evidencing their level of knowledge and experience in this area of the law.
  • Do the rates charged by attorneys differ?
    Yes, attorneys set their hourly rates based upon their knowledge, experience, qualifications, and the complexity of the case.
  • How do I begin my divorce suit?
    A petition for divorce must be filed in the district clerk’s office and the required fees paid.
  • What if there are children of the marriage?
    If there are children born, adopted, or expected during the marriage, the suit for divorce must also address matters of custody, visitation, and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not, or may not be the biological child of her husband, that information must be given to the court as soon as possible. If the wife is pregnant or becomes pregnant while the divorce action is pending, the parties must wait until the baby is born before the court can grant a divorce. This is true regardless of whether the husband is the baby’s father.
  • Who is the “Petitioner” and who is the “Respondent?”
    The party who files for divorce first is called the “Petitioner” and the other party is called the “Respondent.”
  • Does my spouse get notified after I file my petition?
    Yes, if you make certain the proper steps are followed to notify your spouse.
  • How is my spouse notified?
    It is up to the party filing the suit to make sure the proper steps are followed to notify your spouse of the divorce case. Failure to notify him or her can result in a delay of your case or in some cases, dismissal of the case. Several methods to notify your spouse are available depending on the circumstances:
    1. By receiving a copy of the petition from a sheriff, constable, or court approved private process server after you have made the request and paid the required fees; or
    2. By certified mailing from the district clerk’s office; or
    3. If the parties agree, the non-filing spouse may, after the petition has been filed, sign and notarize a document called a “Waiver of Citation,” which indicates that the non-filing spouse is accepting service of the lawsuit; or
    4. If your spouse cannot be located, notice can be published in a court-approved newspaper or other court-approved publication.
  • What happens after my spouse is notified of the filing?
    Once a respondent is officially notified, there is a deadline to file a response to the petition. If the deadline is not met, the petitioner may be able to go forward and obtain a divorce by “default.”
  • What is a temporary restraining order?
    A temporary restraining order is a court order that sets forth the acts which either one or both parties are prohibited from doing immediately after the petition is filed. Sometimes this order is called a “TRO.” A TRO usually prohibits bad acts such as committing family violence, harassment, hiding money from the other spouse, attempting to hide a child of the parties, etc.
    Can I get a Temporary Restraining Order (TRO) without notice to my spouse?
    Yes, if the court approves the request for a TRO; however, it is effective only for a limited amount of time before you must go before the judge at a court hearing and ask that the TRO be put into effect until the divorce is granted.
  • What happens if the TRO is violated?
    A person who violates a TRO, or any other court order, can be held in contempt of court and punished by a fine and/or a jail sentence.
  • Can my spouse ask for a divorce also?
    Yes. The Respondent may file his or her own request for divorce in a document usually called a counter-petition for divorce.
  • What happens if I reconcile with my spouse?
    You may dismiss your divorce proceedings by filing a request for nonsuit.
  • How soon can the court grant a divorce?
    A petition for divorce must be on file with the court for at least sixty (60) days before the court can grant a divorce. The sixty (60) day waiting period may be waived in certain cases involving convictions for family violence and protective orders.
  • How long does it take to get a divorce?
    If the parties are in agreement, a divorce proceeding can be finalized soon after the sixty (60) day waiting period is over. If the parties are not in agreement, the time it takes will depend on the court’s schedule and the complexity of the case. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are not in agreement on some or all issues will usually take several months and up to one year if a trial is necessary.
  • How do I know when my case is set for trial?
    The court will issue a scheduling order that will inform you of all the deadlines you are expected to follow. Each party must make sure that the court and other parties are notified in writing at their current address, so that each will receive the scheduling order and other notices.
  • When am I divorced?
    You are divorced when all the property and child related issues are resolved and the presiding judge signs an order, usually called a Decree of Divorce.
  • How long must I wait to get married again?
    In most cases, you must wait thirty (30) days, but the court can grant a waiver to permit you to marry sooner.

Till Death Do Us Part? by Judith Bryant

Posted on October 10th, 2014 by The Red Headed Lawyer

There are many common myths concerning divorce in the state of Texas, which include:

  1. If I get the kids 50 percent of the time, I won’t have to pay child support.
  2. Texas has a no-fault divorce system, so my affair is irrelevant.
  3. Texas doesn’t have alimony.
  4. I bought it with my earnings, so it’s mine.
  5. I earned it, so it’s mine.

To find out the answers to these myths, read the full article here.

Texas-Bar-Journal-Oct-2014-Till-Death-Do-Us-Part

Written by Judith E. Bryant, a partner with the Austin law firm of Noelke English Maples St. Leger Blair, for the State Bar of Texas, Texas Bar Journal.

Spring Texas Divorce Lawyers

Posted on July 17th, 2014 by The Red Headed Lawyer

Looking for Spring Texas Divorce Lawyers? Marivonne Essex and the Essex Law Firm are your go to source for all family law issues including divorce, child custody and child support as well as wills and probate.

Why does Marivonne stand out?

  • She makes it personal. Clients and their families are important to her. She has maintained some client relationships for the entire span of her 29-year career.
  • She keeps things simple. Her goal is to avoid protracted litigation and to secure the best settlement/decision in the shortest, realistic time frame.
  • She makes it easy. How? By maintaining close communication and using new technology, the Essex Law firm keeps your information, files, and appointments at your fingertips. This keeps you in the know and reduces administrative fees.
  • Lastly, Marivonne and the Essex Law Firm make your legal needs affordable. They offer monthly payment plans as well as flat-fee options where appropriate.

So, if you are looking for Spring Texas Divorce Lawyers, you need look no further for professional, personal, and affordable representation. Watch her YouTube video to meet Marivonne and then give her a call at 281-350-4104.