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witness testimonyThe Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense.  A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue.  The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.

In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition.  In June 2015, the wife filed for divorce and the husband filed a counterpetition.  The wife alleged the husband had assaulted her and committed adultery.  She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister.  The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.

When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges.  During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege.  He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…”  He refused to answer questions regarding his income, assets, and a list of property.  He also refused to identify documents.  There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.

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child custodyIn Texas custody cases, the best interest of the child is to be the primary consideration.  In Texas, courts may consider a variety of factors in determining what is in the child’s best interest.  These factors include the child’s desires, the child’s current and future physical and emotional needs, any current or future physical or emotional danger to the child, parental abilities of those seeking custody, the programs available to each party, each party’s plans for the child, the stability of the home, any acts or omissions of the parent that could indicate the relationship with the child is not proper, and any excuse for those acts or omissions.  The court is not limited to these factors, nor does it have to consider all of them.

In a recent case, a father challenged a court’s finding that granting the mother the right to determine the children’s primary residence was in the children’s best interest.  The parents’ relationship ended shortly after their twin sons were born in 2011.  The trial court originally appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.  A modification in 2014 gave the father the exclusive right to determine primary residence and allowed the mother access to the children under a schedule.  Pursuant to the order, the mother had the option to pick up the children on evenings the father was scheduled to work later than 10 pm.

The mother petitioned for the right to determine the primary residence in 2016.  She testified the father had his sister take care of the children when he was not available and prevented her from accessing them.  She testified she thought the children lived with their father’s sister.  She argued she could provide them more structure and stability than their father could.

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child supportEnforcing a child support order against a person who fails or refuses to pay can become time-consuming and expensive.  Texas family law provides multiple options for enforcing a child support order.  It also allows a person enforcing a child support order to recover reasonable attorney’s fees and costs if the court finds the other party “failed to make child support payments.” TEX. FAM. CODE § 157.167(a).

When a child support payment is not timely made, it becomes a final judgment by operation of law. TEX. FAM. CODE  § 157.261(a) In a recent case, the mother sought a writ of execution on the final judgment that arose as a result of the father’s failure to pay the child support.  The trial court found she had “a valid enforceable judgment” that was “wholly unsatisfied and subject to execution.”  The constable took possession of certain of the father’s property and held an execution sale.  Both the mother and father sought disbursement of the proceeds of the sale.

There was additional litigation related to the mother’s collection efforts.  The trial court ultimately ordered the father to pay $30,675 to the mother for attorney’s fees.  The trial court based the attorney’s fees on the attorney’s affidavit and timesheet.  The father appealed.

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divorceTexas recognizes common law marriages. To have a common law marriage, the parties must have agreed to be married, must have lived together as spouses after that agreement, and presented themselves as married.  When most people think of common law marriages, they consider couples who were never formally married.  However, in a recent case, a man sought a Texas divorce from his ex-wife, alleging there was a common law marriage after their original divorce.

The parties married in 2000 and divorced in 2005.  They lived together until at least 2006 and had children together in 2006 and 2007. They worked together.  Although they agreed that the relationship changed in 2012, they did not agree as to what happened later.  The husband claimed they moved back in together by the end of 2013 and continued their relationship until late 2014.

The husband filed for divorce in 2015. The wife moved for summary judgment on the grounds that they were not married.  She argued they did not meet the requirements of a common law marriage. She offered affidavits the parties signed in 2013 indicating they were not married, did not live together, and had not held themselves out as married.  In her deposition, she had denied living with the husband.  She also pointed out the husband was unable identify the exact date of an agreement to be married.  She also relied on documents in which the husband indicated he was divorced and not married, including a bankruptcy petition filed under oath.

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child custodyA Texas court generally cannot modify a custody order or parenting plan unless there has been a material and substantial change in circumstances.  Sometimes, a parent may seek modification because the other parent’s actions have created a change in circumstances.  Texas law provides examples of potential material changes, including marriage of one of the parents, changes in the home surroundings, and mistreatment of the child by a parent or step-parent.  Tex. Fam. Code Ann. § 156.101.

A Texas appeals court recently considered whether a modification allowing the father, rather than the mother, to determine the child’s primary residence was appropriate.  In the Texas divorce, the mother was awarded the family home, which was subject to a mortgage in both names.  The father paid child support.  At the time of the divorce, the child went to daycare while the mother worked, then spent a few hours with the father, and spent the night with his mother.

The mother subsequently started working a night shift.  The child continued going to daycare, but then spent both evenings and nights with the father.  The mother sold the family home to the father and moved into another home with the child’s maternal grandmother.  Soon afterward, she switched to the day shift.  She removed the child from daycare and left him with the grandmother during the day.  The mother then only allowed the father to see the child on the days specified in the divorce decree, and would deny him access to the child if he was late, even by a few minutes.

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empty walletProperty possessed by either party at the time of a Texas divorce is presumed to be community property.  To show that property was instead separate, the presumption must be rebutted by clear and convincing evidence.  If the assets were not maintained separately from community assets, they must be traced back to separate property by showing the origin of the property.  Income earned during the marriage is also community property.

A wife recently challenged a court’s finding that a down payment made from her savings account was made with community funds.  After six years of marriage, the parties filed for divorce.  In the wife’s counter petition, she sought reimbursement to her separate estate for assets she alleged were spent for the benefit of the community estate.

At the hearing, the husband sought half the equity in the marital home and community funds he alleged the wife had deposited into her checking account and given to her adult child. The parties agreed on the value of the home and the amount of the down payment.  The husband admitted the down payment had come from the wife’s savings account, but argued that it came from community property funds that had been commingled into the wife’s savings account.  He testified that she deposited her paychecks into her checking account and transferred funds to the savings account.   He testified the savings account had $162,168.61 at the time of the marriage.  The bank records showed $282,847.69 was in the account before the withdrawal for the down payment.   The husband also testified he had given his wife cash to pay the utilities and half of the mortgage payment.

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cohabitationIn Texas, an informal or common law marriage can occur if the couple executed an informal marriage agreement pursuant to Texas law or agreed to be married and subsequently lived together as married in Texas and represented to others that they were married.

A Texas court recently found that a couple did not have an informal marriage, despite filing their taxes as “married filing jointly.” The couple began dating in 2003 or 2004.  The man proposed in 2005, and the woman accepted.  They moved to Texas together in 2006.  They wanted to build a horse clinic where the man would practice veterinary medicine and the woman would train horses.  They purchased property together and built the clinic.  They had joint bank accounts, but the bookkeeping for each business was kept separate.

They filed joint tax returns indicating they were “married filing jointly” from 2006 to 2013.  They co-habitated until 2013.  The woman filed for divorce in 2015.  After a bench trial, the trial court found the couple did not have an informal marriage and dismissed the divorce case.  The woman appealed.

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A spouse who improperly spends large amounts of community assets without the other spouse’s knowledge or consent may receive a smaller share of the remaining community estate during a Texas divorce.  A Texas appeals court recently considered whether a property division was just and right after the trial court found the husband had committed fraud on the estate by spending money on other women.money

The wife filed for divorce after learning her husband had been unfaithful.  The husband testified to having affairs for the past 30 years.  He took the other women on trips and shopping sprees, paid their rent and car payments, and hired some of them and gave some of them money for their own start-ups.  He paid for these things through his business accounts, company credit cards, and petty cash from his pharmacy.

The wife hired a CPA to provide an accounting of the husband’s businesses.  The CPA rendered an opinion that more than $7 million was either missing or spent in transactions that did not benefit the community estate.

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family lawThe court in a Texas divorce case must divide property in a just and right way.  This does not necessarily mean that property is divided equally between the parties, but the division must be just.  What happens, though, when only one party participates in the divorce proceedings?  A Texas appeals court recently found that the trial court had to have sufficient evidence of the property values to divide the property justly.

The husband petitioned for divorce, but the wife did not answer or appear at the hearing.  The husband testified that there were two vehicles and a mobile home in the community estate.  He asked the court to award all of the property to him, but allow the wife to keep the property in her possession.  He did not testify or provide evidence of the value of the property.  The court granted the divorce and awarded the husband the vehicles, the mobile home, furnishing, and other goods and cash in his possession and control.  The court did not award any property to the wife.

The wife filed notice of a restricted appeal.  To succeed on a restricted appeal, she had to show that she filed the notice within six months of the decree, she was part to the lawsuit, she did not participate in the hearing or file post-judgment motions or requests for findings of fact and conclusions of law, and error is apparent on the face of the record. She clearly met the first three requirements, so the appeals court had to determine if there was error.

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divorceIn Texas divorces, it is common for the parties to agree to a property division and ask the court to approve the agreement and include it in the decree.  Once the court does so, it generally may not modify or alter the property division included in the agreement.  It may, however, still divide property that was not divided in the agreement and decree.  It is therefore important for the parties to be sure the agreement to clearly divide everything, or they may have to go back to court to address something that was omitted.  This can be difficult in some cases, however. What happens, for example, when the agreement and decree divide the net amount of a bonus, but do not address pre-tax deductions that go to one of the parties?  A recent case addressed this issue.

The divorce decree incorporated the agreement between the parties, which included a detailed division of the marital estate based on the informal agreement the parties executed at a settlement conference.  The agreement stated the husband would receive 47% of the net amount of his 2013 year-end bonus and wife would get a 53% portion of the “net amount after taxes and deductions.”    The agreement also stated the wedding and engagement ring were the wife’s separate property.

The husband’s pay stub showed he received $460,000 for his 2013 bonus, but reflected two pre-tax deductions totaling $81,000.  The deductions included $75,000 for deferred annual bonus and $6,000 for personal savings account contribution. Taxes totaled $108,711.10 and the pay stub listed $270,228.90 as the “net pay” for the bonus.  The husband paid the wife 53% of the net pay amount.

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