With the holiday break approaching for the kiddos, make sure to pull out your possession order and mark down the change from your regular possession schedule. Generally, the holiday possession schedule found in your Texas Possession Order will override the regular possession schedule. Each parent usually gets half of the holiday break depending if it is an odd or even year. Make sure you know which half you have this year and plan your holiday around the schedule. It is often difficult to handle issue that come up in this regard on the day of the holiday, so ensure any issues are worked out ahead of time. Happy Holidays!!
—Erin M. Bogdanowicz, Partner
In many cases, there is a great difference of earning power between spouses. One spouse may be able to easily afford attorneys’ fees in a divorce action, while the other spouse has no means to pay for representation. As a result, many courts will order that one spouse pay all of the attorneys’ fees in conjunction with the case. This is because that a spouse is responsible for the debts incurred solely by the other spouse if it is for a necessary. Over the years, the majority of courts have held that attorneys’ fees are necessary.
However, recently the Texas Supreme Court struck down this notion with the case of Tedder v. Gardner Aldrich, LLP. The Texas Supreme Court held that necessaries apply to items such as food, clothing and shelter. Accordingly, attorneys’ fees in a divorce proceeding should not be characterized as necessaries. Thus, in that case, the husband had no responsibility to pay for the attorneys’ fees incurred by his wife in their divorce proceeding.
This could have grave consequences for our legal system in the context of family law cases. First and foremost, this will severely affect the ability of a spouse who does not have their own source of income from being able to retain an attorney to represent them. This is because the case appears to forbid any award of attorneys’ fees in a divorce action, which limits the ability of an attorney to get paid while representing the less privileged spouse.
However, there is hope. The Texas Legislature acted quickly by enacting House Bill 1366, which clarifies that a trial court may still award reasonable attorneys’ fees in a divorce action. While this statute is vague and does not clarify in which instance the fees may be awarded, it is a step in the right direction. It appears as though the award of attorneys’ fees still rests within the discretion of the trial court – each award will just have to be evaluated on a case by case basis.
~ Whitney Keltch, Associate Attorney
I am often asked who can file for divorce and in what county that person must file. Texas has strict requirements regarding this. Under Texas Family Code Section 6.301, a petition for divorce may not be filed unless the petitioner or the respondent has been a domiciliary of Texas for the proceeding six-month period, and either the petitioner or the respondent has resided in the county in which the suit is filed for the proceeding 90-day period. Tex. Fam. Code § 6.301 and § 6.302. Such residency and domicile requirements outlined above are a mandatory prerequisite for filing a suit for divorce and cannot be waived.
To establish domicile, a person must live in Texas with the intention of making it his or her permanent home. In determining a person’s domicile, the court will analyze various factors. In determining whether the party is a domiciliary of Texas, the court will likely consider the party’s stated intentions, voter registration, payment of personal taxes, place of residence, place of driver’s license, and place of business. Generally, a party’s testimony that he or she meets the residency requirements is sufficient unless it is challenged by the opposing party.
Additionally, “temporary” absences from the county or Texas do not affect the party’s right to maintain a divorce action. Such absences do not necessarily break the chain of the residence requirement or change the party’s domicile. The Texas court’s have found it to be unrealistic to construe the residency statute so as to require the petitioner to have lived during the entire six month period in the state or county under all circumstances before bringing suit for divorce. However, whether the absence from Texas is to be considered “temporary” by the court would depend on the facts and circumstances surround each individual case.
-Jennifer L. Dauzat, associate attorney
The landscape of our country is rapidly changing with the rulings on the Supreme Court case of Hollingsworth v. Perry. In this case, the Defense of Marriage Act, which is a federal law blocking recognition of same sex marriage, was challenged as unconstitutional along with Proposition 8, which is a California law defining marriage as between a man and a woman.
Ultimately, the United States Supreme Court held that DOMA was unconstitutional, meaning that states who already recognize same sex marriage under the law, may continue to do so and that those who are married shall receive the same estate tax and other federal benefits from the passing of a spouse. However, the Supreme Court did not ultimately decide Proposition 8 as applied to the entire country. Instead, the Court held that those who were private sponsors of the law did not have standing to defend it’s constitutionality. In other words, because the proponents of Proposition 8 were not the State of California, they had no right to argue the case. The Supreme Court simply allowed the California lower court rulings to stand, which struck down the law. Thus, same sex marriage is once again recognized in the state of California.
So what does this mean for Texas? The short and simple answer is nothing. Because Texas does not recognize same sex marriage, there are no implications that currently flow from this ruling. However, if Texas does ultimately legalize gay marriage, this would mean that same sex spouses could not be denied federal benefits that would arise from a heterosexual marriage. Thus, once gay marriage is recognized in a particular state, it must truly be treated as equal under the laws of that state.
~Whitney N. Keltch, Associate Attorney
"If you are not willing to risk the unusual, you will have to settle for the ordinary."
- Jim Rohn