Men and the Family Code

There’s the “Law and Order” level of legal knowledge we all have, which is not too far from the truth, but of course attorneys view the law at a resolution in which we can see clearly explanations for many of the more frustrating parts of a lawsuit which are obscure to the layperson, so a brief introduction to litigation itself, from this attorney, might help clients then to better understand their situation within the legal process: What is “the legal process” exactly? Since we are family law attorneys, let’s look at this in the context of a civil suit. In some ways a court is like the waiting area outside a monarch’s reception room, or a mafia don’s office. It offers an audience before a decision-maker whose decisions are ultimately enforced by the power of the state; by the blade of the fasces. These were axes (in bundles of sticks) carried by a Roman Consul’s bodyguards, to inflict capital punishment, which became the symbol of state power in our part of the world. You will see them in the courtroom, behind the judge. You are not meeting with the Don or King, but with a representative of his, with his own independent authority technically applicable also to the man himself. You may think of this representative as a consigliere or vizier but the Church once performed this role—Bishops, before the power gravitated to the King’s courts, which we call courts of law; the former we call equity courts. Once these two courts existed side by side but now they are combined in the same civil (and criminal) law courts. When a lawyer pleads to the equity he is pleading to the spirit of the law; when to law, he is appealing to the letter of it: to the corpus juris civilis (the “body of civil law”—the ancient collection of codes, precedents, and legal theories which make up “the law,” supposed applicable equally to us all). The notion of this tribunal called a “court” as something somewhat distinct from “the government”—as a place accessible to us all, in which we have a certain God-given dignity or “rights”—survives over from the ecclesiastical courts of equity and ancient citizen assemblies, and then of course many of those Godgiven rights and the independence of the judiciary are enshrined in the fundamental law of our land which is the United States Constitution, but these are unmistakably the King’s courts: They will enforce the will of the Legislature (the state itself—the Executive—is technically but another pleader in this court). They will enforce it, that is, unless it is unconstitutional, but no less important is this: This court will enforce your contracts. We will come back to that in our next article; but, having surveyed this awesome power (and it is awesome), let’s next consider how we invoke it: the dreaded lawsuit. The power to judge a case is invoked by filing a pleading with the court of appropriate jurisdiction, which is to say a court having jurisdiction of the subject matter of the case, situated in a place which is appropriate for hearing it, usually wherever the person who must answer the suit lives. Representing the lawmaking power of the sovereign, the Legislature divides the statewide general jurisdiction to hear legal cases geographically: cases arising in some place or another (whether the cause of the legal action occurred here or there) will usually determine where the jurisdiction is; but, secondly, in some localities or districts a clerk will assign cases to specialized courts. Here in the nation’s fourth largest metropolis there are 11 family law courts, in Harris County alone. Any case arising under the family code in this county—any claim for relief under the Family Code—will be assigned to the judge of one of these courts, or an associate of his. That claim is made in a pleading or petition filed with the clerk. To bind to your suit the other party— this is a dispute, so necessarily someone else is involved, which is to say it must be an actual controversy, your suit—you must request the clerk issue what is called a citation, or demand to appear before the court and answer the pleading. The clerk will keep a record of the case, which must include a return of the citation, showing on its face that the demand and pleading were delivered personally to the defendant, unless he cannot be found or otherwise evades service of the papers, in which case the court may allow some other medium of assuring that the defending party has notice of your complaint to it. Only with proof of this service of notice can the court have personal jurisdiction to bind anyone to a judgment. In some cases the respondent may be beyond the court’s personal jurisdiction, even if you personally serve him, and even if the court would otherwise have jurisdiction to decide the case. This is so where a defendant is a nonresident who lacks any connection with Harris County, for example, such that he would be fairly answerable to a court here. That lengthy subject (virtually the whole of a first year civil procedure class) we will leave aside from this article, but suffice to say: Two things must be done to “bring a lawsuit,” “sue somebody,” or “take someone to court.” Those are (a) file a petition, and (b) serve the other side with process (i.e. your complaint and notice that the court has accepted it, hand-delivered). Once that is done the case may proceed to trial but that verb has the same root as procedure. Remember: There is a process about this, which must unfold just as it was rolled up into the Rules of Civil Procedure. If you have heard the My Cousin Vinny judge’s drawl pronounce procedure you may have a sense of the fearsome majesty, ancient and arcane, with which civil procedure is regarded by the jurist, but it is not so esoteric in the general thrust of it: the judge wants the cases off his docket. His concern is first that his jurisdiction is properly invoked. He can dispose of the case immediately if not. This is called a dismissal. Second, if one of the parties is entitled to judgment under the undisputed facts of the case, he can decide it without a trial. This is called a summary judgment. Third, perhaps a trial will be unnecessary if the parties exchange the relevant evidence, either because one or the other will see that the undisputed facts lead to only one conclusion (and thus summary judgment) or because the parties will work out an agreement to avoid their respective risks in a trial. The latter is usually done in a mediation, to which the courts routinely refer anyone asking for a hearing; while the former is a hated thing called discovery, which we will not bother with in this article. The trend there is towards automatic exclusionary application of the rules and attorney’s fees awards for feet-dragging: If you have it, produce it; especially if you want to use it (i.e. give your attorney what you have). We are only quickly charting the mechanics of a lawsuit here, for this question what is a lawsuit surprisingly involves mostly just invoking the jurisdiction, for one important reason why citizens have hired attorneys since the centuries in which fasces-bearing lictors (executioners) accompanied a Roman praetor (judge) daily to the forum is that without training in law you may articulate your complaint to the judge just as eloquently as Churchill before brunch yet still fail to state a cognizable claim: fail to plead a set of facts which if true would entitle you to some relief at law. We all know why we are upset with this or that person, but the picture why the court can or should do anything about it is the art of pleading a case and it is best not to practice it on yourself, even if you are trained in the law (else you will have a “fool for a client” as they say, for the reason that your own recital of how you were wronged—however restrained your delivery—is unlikely to input the variables which will return a favorable judgment from the ancient formulas known as legal causes of action). You are unlikely to state a claim which will proceed neatly to a trial or settlement in which you receive whatever it is you are hoping for. Assuming you do not fatally prejudice your case, you are likely to present it from your own perspective, as the wronged party, not for the perspective from the bench: that of who you are asking for help, the Judge. Your lawyer is not only a zealous advocate for your case, he is also an adviser to you, in settlement discussions for example, and importantly he is an adviser to the court. He is admitted to stand at the bar which separates the judge’s bench from the audience bearing petitions. He advises the court as to what the law is, while urging your evidence, and guiding the judge to conclude that you are entitled to the relief prayed for. This is not something one should do for oneself, for the obvious reasons, but also because you are not alone in this: there is another side doing the same, but against you. You will need to anticipate their arguments and evidence, their challenges to yours, the judge’s skepticism of both, his desire to clear the room. All of this and more is what your attorney does for you: prosecutes your case. Starting with the pleadings you must assert the jurisdiction to hear the case, but also standing to bring it. You must have a legally cognizable interest in the subject matter of the dispute to have any claim for relief. Texas’s family code codifies standing and most of the rest of basic family law, so that whether you have standing is normally an easily answered, threshold question. Challenging the standing of someone making a claim against you is however, along with challenging the court’s jurisdiction over you (a “special appearance”) or the subject matter (a “motion to dismiss”), a first line of defense to a suit; together with picking apart their pleadings to expose them as insufficient (a “special exception”). Next you must plead the elements of a cause of action for which the relief you seek is available. These are like simple equations which can be deduced from the code and ancient precedent: If (a) and (b) are true and (c) is not then (x) relief is available, and the judge should grant it all because (d). This is simple enough but a trained attorney sees many more variables. Beyond how exactly you intend to meet the elements, given the evidence which exists in fact and what among that material is admissible in court, some important considerations are: What alternative relief is available, perhaps by way of another cause of action? What obstacles does the cause have? How may we plead differently to avoid those? What are the time constraints or potential delays and expenses involved with one course of action over another? Are we careful to avoid harmful inconsistencies arising when arguing the gravamen of the complaint? Are we inviting onerous litigation, to satisfy something which will ultimately prove relatively minor? How does our risk posture stand next to theirs? A lawyer’s “theory of the case”—if we are permitted some of the powdered wig theatrics—is exactly that: a plan to get what you want from the court, or not as the case may be.  As you can see, it is more complicated than can be fit into a hour-long television drama, or a brief article such as this, but we hope this walk through of what exactly a lawsuit is will help you to better understand where you are in the proceedings should you find yourself a party to one; to better understand why it is a process, not just two bickering souls and a bishop or king. The court must know that you are entitled to the relief, that cause for it is sufficiently pled, that it has jurisdiction to grant it, and that the evidence supports it. That this is carefully done in a process and with a language as obscure as the meaning of its steps may frustrate and confuse but we hope this sketch of the courtroom from the perspective of its bench gives confidence should you find yourself before one; and, in any event, you can be assured that we as your attorneys are talented and devoted advocates for your best interests, and those of your child.

What is a Divorce? We know of course that a divorce is the separation of a married couple. As every couple is unique, their separation is too, but the law—procedural and substantive—is the same for all, and is concerned only with a defined set of legal statuses and relations. The process involves first commencement of suit with the filing of an original petition. All civil suits begin thusly. A divorce is a suit for dissolution of marriage; a divorce with children: that and another, substantively separate suit said to “affect the parent-child relationship.” In this article we will discuss the former; and in the next, the latter. A suit to dissolve a marriage is concerned with division of the marital estate. There are of course many legal consequences of marriage (too innumerable and varied to quickly sketch) but these arise from the status of marriage—a status changed with the pronouncement of divorce just as easily as it was with the pronouncement of marriage. From the prospective of a family court, the most consequential result of a marriage is the creation of two legal realities: one, a community estate; two, a presumption of paternity (to be discussed in our next article). The community estate is created with the marriage. Its dissolution (as one would dissolve a corporation) is the object of a divorce proceeding (or, “suit for dissolution of marriage”). While the assets of a business corporation are sold off and distributed equally to shareholders once the entity’s debts are closed out, a marriage is a community of assets but not liabilities (those are individually held, though both parties may each have the same debt jointly, or a community asset may be subject to a debt). This is to say that if a marriage is thought of as a business, and divorce as “winding up” that business, then it is an enterprise with only assets to be identified, appraised, and divided among the only two partners (presumably) equally. Texas courts will presume that an equal division of the marital estate is “just and right”—the court’s goal in the proceedings: “In a decree of divorce … the court shall order a division of the [marital] estate … in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code § 7.002. That said, the “due regard” which the court should have for each spouse and any children of the marriage may in some situations permit and sway a judge to an unequal division of the estate, but these fact situations will tend to the extreme. For example, in my own practice I have once obtained a 80/20 split where the wife absconded to Easter Island with one of the parties’ children (the youngest, a six-year-old) and stayed there expending community funds constructing housing for the natives (of which she herself was one); and, although from that remote island she hired local counsel here in Houston to appear, she refused all court orders to return the child to Texas so that the court ordered the unequal 80/20 division and placed her cash portion in the court’s registry (bank account) stipulating that she could retrieve the $640,000 share only if she appeared with the six-year-old child in the court’s chambers fewer than six months from pronouncement of divorce. Because she did not, the court distributed her share to the husband, effecting a 100/0 split. This is of course a rare situation. Most marital estate divisions will be 50/50 though liquidity issues often frustrate the aim so that a Court will lean one way or the other in the division, often with attention to any fault in the break-up or disparity in earning potential and like mitigating or informative fact patterns. Fault is otherwise—since the introduction of no-fault divorce many years ago—not of much moment. It can inform a court of whose side to err on but only unusual fact situations will produce unusual divisions, such as the Easter Island case. It is not that the court is unsympathetic to the wronged party, if any (not every divorce is the fault of either party), but before no-fault divorce (for all of its merits, whatever they may be) a spouse could not obtain a divorce in even extreme cases such as your partner absconding with your child to the world’s most remote island to spend your life savings building housing for the natives. I once read a case in New York from the turn of last century in which the court acknowledged that the petitioner’s wife had gone insane, committed numerous horrendous acts much too graphic to mention here, and was then committed indefinitely (likely for life) to an aslylum, but still denied the husband’s petition for divorce, stating that he had vowed to take until death his wife both “in sickness and in health” and concluding with only the dismissive recitation: “The parties are left where they were.” It is this harshness and often silly efforts to evade it (e.g. private investigators did brisk business for decades arranging staged “infidelities”—couples would hire an “investigator” to go to a motel at an appointed time where one of them would purposely leave a window open for the investigator to capture what would appear to the court to be adultery: a ground for divorce, but not insanity) which prompted the “no-fault” changes of a half century ago. The first task then in a suit for dissolution of marriage is to identify or inventory the community estate. All income earned in marriage—both it and that which it purchased—is community property, but not everything on deposit nor all that is bought in marriage is. An inheritance, for example, is separate property. Retirement savings from before marriage are separate property, as is other property acquired before marriage, but its appreciation in value or payment of dividends in marriage is community. The inventorying process is one of listing what the parties own and characterizing each item as community or separate. Second, one must “trace” any contributions made to community property with separate property. For example, if an inheritance is spent improving the marital residence then the spouse who inherited the money spent made a “contribution” to the community estate requiring recompense. Also, if a party expends community funds improving separate property, or wastes community funds (e.g. spends community funds on a paramour) then the court may “reconstitute” the estate: divide the estate, from the perspective of the wronged spouse, as though the monies were not so expended. Once the community and any separate estates are identified, and the community property inventoried and appraised (informally usually), then the estate may be divided and divorce pronounced. Before then however the parties must mediate and wait out the statutory 60-day waiting period. Mediation is what statute labels “alternative dispute resolution.” Mediation is “shuttle diplomacy”—a term older couples may remember from the days when Henry Kissinger was a celebrity—in which a neutral third party serving as mediator (usually an attorney and often a former judge) shuttles between the two parties and their counsel impartially relaying that of the other side’s interests, concerns, grievances, bottom-lines, walk-aways, hopes, needs which that party permits to be communicated, crafting a deal with each roundtrip. The process is today usually by Zoom rather than Air Force Two, and is completely confidential: neither party may use what occurs at mediation at a trial; the mediator also cannot be called at trial. It is usually successful, often comprehensively so, in which case a final divorce decree is drafted by the parties’ attorneys and submitted for the ministerial act of the judge’s signature—no trial or other contested hearing. If not a final settlement then the parties may agree on temporary living arrangements pending final trial, may agree to return to mediation another time, or may agree finally on those questions on which they can, leaving the remainder for a trial (often the case where the parties agree on a property division but not on final orders concerning custody of their children—the divorce can be settled while the suit affecting the parent-child relationship continues to trial). The courts want the parties to seriously attempt a settlement before occupying the courtroom, its time and budget. To this end the law both requires mediation before any hearing and imports to any resulting “mediated settlement agreement” a finality that other agreements do not have: each party is entitled to judgment on the agreement without further ado (i.e. except in rare circumstances or where fraud can be shown, a mediated settlement agreement cannot be undone). Also the rules and the Family Code require the parties to within 30 days of appearing in suit (i.e. the date the responding party answers) produce to one another a financial information sheet (a monthly budget), the estate inventory (each party’s appraisal of the community estate), and recent tax returns or W-2s and paystubs (two each). With this in hand the parties at mediation can hopefully agree on the estate’s character and value, to then agree on a division. If this cannot be done, for whatever reason, then the parties may at least settle on temporary orders: an agreement regarding financial and living arrangements pending final settlement or trial. Temporary orders are often quite important, as it is common for one party to earn significantly more than the other. Because the parties are still married the court will seek to maintain the status quo financially during the separation but before the divorce. Temporary restraining orders (not criminal in nature) may be had commanding each party to not harass the other, not miss any regular expenses, not make unusual withdraws, not change passwords or payment settings, not post to social media regarding the litigation, and the like. These restraining orders last 14 days or longer if requested and are usually mutual (both parties are ordered identically and often agree to be so ordered). If a temporary orders hearing is requested then the court may make the restraining orders permanent pending dissolution of the marriage and will also, for example, grant one of the parties exclusive use of the marital residence, grant each party exclusive use of the vehicle in his or her possession, and order a higher earning spouse to monthly pay money support to the other, to maintain the marital residence (i.e. timely pay the rent or mortgage and utilities), and to pay the other side’s legal expenses. Fairness and maintenance of the status quo is the goal, from the court’s perspective, of the temporary orders hearing: a stay-at-home mom for example, should be able to access community funds, including her husband’s income, to make regular expenditures and hire counsel during the pendency of the divorce. Spousal maintenance after divorce is another matter: It is rarely granted in Texas. Where it is granted the marriage is usually a lengthy one (10-plus years), the receiving spouse has contributed “sweat equity” such as childrearing rather than employment income, and he or she does not have work history or marketable skills with which to readily obtain remunerative employment. Maintenance, if ordered, will be limited to months, rarely years. That said, parties sometimes agree to spousal maintenance (commonly referred to as “contractual alimony” as part of the division of the marital estate). This is done where there are liquidity issues. Often these issues arise from an unwillingness of one of the parties to access the equity in the marital home (i.e. sell the house). Contractual alimony is a way for the party keeping the house to pay out the other’s interest over time, however as with all workarounds to a neat division of the community property, contractual alimony is fraught with danger for the promised spouse. It is all too common for the obligated spouse to neglect payments once the divorce is granted. Texas’s constitution does not allow for criminal punishment of nonperforming debtors (excepting for child support). The wronged party’s only remedy is to sue for enforcement of the decree, and the only relief available at court is reduction of the contractual obligation to a money judgment which may be pursued like any other (e.g. garnishment, liens), with the same obstacles (exemptions from execution) and likelihood of success (often small). In other words, the decree containing contractual alimony is not a money judgment: it is only a record of a contract. New and further litigation, then more still, will be required to collect from an unwilling ex. Agreements to pay debts are similarly illusory: the creditor will go after the borrower, whoever that is. A decree can include indemnity language, by which the party contractually assuming a debt from the other agrees to “hold harmless” the other for the debt (i.e. if the creditor sues the debtor then the indemnifying spouse can be interpled to provide defense and pay any resulting judgment), but as with contractual alimony this necessarily involves new and further litigation: the “judgment” which is the decree is here illusory. These risks should be avoided in forging any informal or formal (mediated) settlement agreement, with knowledge that the court is empowered and tasked with a just and right division which will be done quickly and neatly but also with blunt force: the court will for example sell the house, whether the parties like it or not, if necessary to divide the estate’s net value between the two; thus a party to mediation need not bend too much to access those monies. The home sale itself littered about with pitfalls. Ultimately a court will appoint a receiver who will take a share of the proceeds. While not done in every case, this ultimate remedy is in the court’s arsenal and will be removed from its holster and shown to the parties if they will not cooperate to sell the house. Usually parties get to cooperating when this done, but important to remember is that the parties should not naively enter a final mediated settlement agreement in which they agree to sell the home in such vague terms as default realtor, adherence to realtor’s recommendations, cooperation with showings, et cetera. Emotions can run high in a divorce of course and though a mediated settlement cannot legally be undone the not uncommon Monday morning quarterbacking of an unsatisfied, regretful party to last week’s mediation may lead him or her (particularly the one still living in the home) to in myriad and unexpected ways sabotage the home sale, requiring sometimes many rounds of post-judgment litigation that may result in a frustrated judge’s receivership order. Where an agreement calls for performance over some period of time it is often better to express the détente in temporary orders form, leaving final division dangling ahead as a motivator. Divorce need not be expensive. Some estates include small or even large private businesses, some voting shares in businesses, others complex compensation packages, any of which complicating fact situations (there are as many and varied as imaginable) can lengthen the proceedings and exacerbate the expense but the average separation and divorce will not for example require voluminous discovery, depositions, significant pretrial litigation, or a trial at all ultimately. With good faith participation by both sides, even a complex estate may be divided efficaciously and inexpensively, the process confidently completed with satisfaction and minimal risk to either side just as swiftly as a few months’ passing. One should however conservatively expect the process to be completed in six-to-12 months, with temporary orders had within three months. We know divorce can be heart aching, frightening, and difficult not only emotionally and financially but even physically. We want our clients to know that the business of dissolving the marriage—the division of the party’s estate—is something we will care after with reliable and broadly experienced advice to you (we have seen it all in our many years practicing); and should trial come to the trier of fact, whether the judge or jury, talented and zealous advocacy. We are respected advisors to the courts, protective advisors to you, and to the party who would oppose your rightful claims, or threaten the defense of your rights, we are skillful litigators. We aim to handle the business of your separation and divorce such that you may confidently attend to your wellbeing and future. We hope you will give us a call, and entrust us as your counsel along this path in your journey.

Forgive yourself- you did the best you could; Avoid replaying your mistakes and partners mistakes; Stay future oriented; Nurture relationships and start to build a new support network; Use creative outlets: photography, journal, draw, sing, dance; Reconnect with spiritual direction; Take care of your children, they need you now; Avoid substances and sugar addiction; Exercise; Be polite - be proud of being a good person in times of duress; Try mediation as a collaborative peaceful and respectful process. It will save you money and help your heart so you can move forward in a peaceful way