Recent Blog Posts

Caroline Badinelli Triumphs on Client's Behalf in Family Law Case

Galen Reeves-Darby — Wed, 29 Feb 2012 21:17:00 GMT

The Lorenzana Law Firm's own attorney Caroline Badinelli secured a sound victory in court recently for a client in Williamson County. Ms. Badinelli represented the father in a divorce which involved one child, a daughter. The parties were able to settle at mediation, where Badinelli obtained both a 50-50 split in possession, as well as the right to determine primary residence of the child (for purposes of the school district) for her client. Ms. Badinelli also was able to get the court to grant the father reimbursement for the child's cost of health insurance coverage at the mother's expense. The mother sought statutory child support, expanded possession, and primary residence designation. The settlement was reached in early February before Judge McMasters in County Court at Law 4. We at the Lorenzana Law Firm extend much-deserved congratulations to Ms. Badinelli for her victory and take great pride in counting her amongst our ranks.

Galen Reeves-Darby

Public Relations Coordinator

Presumption Of Community Property At Dissolution

Elias Lorenzana — Mon, 23 Nov 2009 07:27:00 GMT

How is property classified in Texas at the time of dissolution of the marriage?

All property on hand at the dissolution of marriage is presumed to be community property. Long v. Long, 234 S.W.3d 34, 37 (Tex.App.--El Paso 2007, pet. denied); Tex.Fam.Code Ann. § 3.003(a) (Vernon 2006).

Althoug, this is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Long, 234 S.W.3d at 37; Tex.Fam.Code Ann. § 3.003(b).

Separate Property.

Property owned before marriage, or acquired during marriage by gift, devise, or descent, is separate property. Long, 234 S.W.3d at 37; Tex.Fam.Code Ann. § 3.002. An example of this would be if the parent of one spouse were to give a cash lump sum gift to that spouse.

Where an asset is purchased during marriage with monies traceable to a spouse's separate estate, the asset may appropriately be characterized as separate property. Long, 234 S.W.3d at 37. If said funds were used in the purchase of an asset or property for the marital estate, then said spouse would also have a claim for reimbursement of his or her separate property, so long as the funds utilized for the marital estate could be traced back to the spouse' separate property.

Reimbursements in Texas Divorce Litigation

Elias Lorenzana — Mon, 23 Nov 2009 07:07:00 GMT

In Texas divorce cases, reimbursements come into play when one spouse contributes property, funds or assets to the community estate or for the benefit of the other spouse. In such cases, when the parties a marriage separate or divorce, the other contributing spouse may have a claim for equitable reimbursement.

The rule of reimbursement is purely an equitable one. Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex. 1982); Lucy v. Lucy, 162 S.W.3d 770, 776 (Tex.App.--El Paso 2005, no pet.). It is not an interest in property or an enforceable debt, per se, but an equitable right which arises upon dissolution of the marriage through death, divorce, or annulment. Lucy, 162 S.W.3d at 776. An equitable right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Id. A claim for reimbursement includes payment by one marital estate of the unsecured liabilities of another marital estate. Tex.Fam.Code Ann. § 3.408(b)(1)(Vernon Supp. 2008). The trial court resolves a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset if the court determines it to be appropriate. Tex.Fam.Code Ann. § 3.408(c). Benefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate on property that does not involve a claim for economic contribution to the property. Tex.Fam.Code Ann. § 3.408(d). The party seeking reimbursement has the burden of pleading and proving that the expenditures and improvements were made and that they are reimbursable. Vallone, 644 S.W.2d at 459.

The Lorenzana Law Firm, P.C. - Family lawyers and Divorce Attorneys.

Does Texas Recognize Common Law Marriage?

Elias Lorenzana — Wed, 11 Nov 2009 21:51:00 GMT

A common-law or informal marriage can be established by showing the parties

        (1) entered into an agreement to become husband and wife;
        (2) cohabitated as husband and wife; and
        (3) held each other out publicly as husband and wife.

TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).

However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).

In order to constitute a valid informal marriage, it must be established that the parties:

        (1) entered into an expressed or implied agreement to become husband and wife,
        (2) that such agreement was followed by cohabitation as man and wife, and
        (3) that they held each other out professedly and publicly as husband and wife.

TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).

There is, of course, one additional fundamental rule, that in order to establish a valid marriage, the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract. Franklin v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.--Corpus Christi 1981, no writ); Howard v. Howard, 459 S.W.2d 901, 904 (Tex. App.--Houston [1st Dist.] 1970, no writ); Esparza v. Esparza, 382 S.W.2d 162, 166 (Tex. Civ. App.--Corpus Christi 1964, no writ). Villegas v. Griffin Indus., 975 S.W.2d 745, 749-750 (Tex. App. Corpus Christi 1998)

Writ of Mandamus in Family Law Cases

Elias Lorenzana — Wed, 11 Nov 2009 21:24:00 GMT

On occasion a trial court may abuse its discretion with respect to rulings on family law cases so as to warrant an immediate review by a higher court. This process is called a writ of mandamus against the trial court judge making the incorrect ruling or abuse of discretion.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam). Therefore, the relator must establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence supports the trial court's decision. IKB Indus. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).

Appellate courts do not generally overrule trial court rulings, especially when conflicting evidence are submitted by opposing parties. Such was the case in the recent ruling by the 14th Court of Appeals last February in the case of In Re John W. Small who asked the higher court to compel the presiding judge of County Court at Law No. 1 of Galveston County, to set aside her October 31, 2008 order finding relator in contempt for failing to pay court-ordered temporary spousal support to real party in interest, Murriah S. McMaster, and to to reverse her November 1, 2005 order awarding temporary spousal support to McMaster. Because the trial court did not abuse its discretion, writ of mandamus was denied.

Civil Contempt In Family Law Cases

Elias Lorenzana — Thu, 29 Oct 2009 17:10:00 GMT

Many times in family law cases, the question or issue arises as to the liability of a party to comply with terms of custody, visitation, and or child support. Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court. See, Ex parte Padron, 565 S.W.2d at 924 (citing Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding)).

Texas case law dictates that command language is essential to create an order enforceable by contempt. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (orig. proceeding); Ex parte Padron, 565 S.W.2d at 924; see also Ex parte Duncan, 62 S.W. 758, 760 (Tex. Crim. App. 1901) (orig. proceeding) (stating the order alleged to have been disobeyed “must be in the form of a command”).

So often, parties recite terms in final orders such as a Final Decree of Divorce. However, merely incorporating an agreement into the recitals of a divorce decree, without a mandate from the court, is not sufficient. See, e.g., In re Dupree, 118 S.W.3d at 916 (holding that a party cannot be held in contempt for failure to pay alimony when his agreement to pay was incorporated in the court’s divorce decree without command language); Ex parte Harris, 649 S.W.2d 389, 391 (Tex. App.—Corpus Christi 1983, orig. proceeding) (holding that an agreement to pay child support that is incorporated in the parties’ divorce decree is not enforceable by contempt because the decree did not order the parties to comply with the agreement).

In other words, there must be something more than just an agreement term in the final decree to be enforceable as a contempt charge. True, terms under an agreement such as a final divorce decree is enforceable and valid just as with any other valid written contract. But to enforce a terms as contempt for failure to comply there must be a specific command or "order" from the court to comply, otherwise the term cannot be enforceable under contempt if a court never ordered it in the first place. A contempt arises from an order from a court, thus the term "contempt of court".

In Ex parte Gorena, the court upheld a contempt order for failure to make agreed payments incorporated in a divorce decree. See Ex Parte Gorena, 595 S.W.2d at 843. There, the decree ordered that the payments be made. Id. ( “‘It is decreed that Respondent (Mr. Gorena) shall pay to Petitioner (Ms. Barber) . . . .’”). The key underlying factor is that whether a court ordered the term as set forth in the decree or final order.

Family law parties should request this key ingredient in any final order or final decree of divorce, or order for modification, custody, child support and or order for visitation. This ensures that the sought after terms can be legally enforced under contempt for non-compliance or failure to follow the court's order.

Common Law Marriage in Texas

Elias Lorenzana — Tue, 27 Oct 2009 04:45:00 GMT

A common-law or informal marriage can be established by showing the parties

(1) entered into an agreement to become husband and wife;

(2) cohabitated as husband and wife; and

(3) held each other out publicly as husband and wife.

TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).

However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).

In order to constitute a valid informal marriage, it must be established that the parties:

(1) entered into an expressed or implied agreement to become husband and wife,

(2) that such agreement was followed by cohabitation as man and wife, and

(3) that they held each other out professedly and publicly as husband and wife.

TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).

International Family Law Matters in Texas: Necessity Subject Matter Jurisdiction

Elias Lorenzana — Tue, 27 Oct 2009 04:37:00 GMT

In international family law cases, parents frequently run into jurisdictional issues as to which court, i.e., Texas or an international court has jurisdiction to hear a custody case. Whether in a divorce, modification or enforcement action, in Texas the court hearing the custody case must have subject matter jurisdiction.

Section 152.201 of the Texas Family Code, - INITIAL CHILD CUSTODY JURISDICTION.

states as follows:

(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:

(A) the child and the child's parents, or the child and at least one parent or a person acting

as a parent, have a significant connection with this state other than mere physical presence;

and

(B) substantial evidence is available in this state concerning the child's care, protection,

training, and personal relationships;

(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or

(4) no court of any other state would have jurisdiction under the criteria specified in

Subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

In the case of ANA MARIA TARQUIS ALFONSO v. MICHAEL SKADDEN, the courts delt with the issue of whether the Texas court had subject matter jurisdiction in a divorce decree that was sought to be enforced four years after an alleged default.

The fact of the case are as follows:

Michael Skadden and Ana Maria Tarquis Alfonso were married in Houston in 1991. In March 1999, Tarquis filed for divorce in Spain, and one month later Skadden (a Houston lawyer affiliated with a Madrid firm) filed for divorce in Harris County, Texas. Each of the parties claimed they were not served in the other’s suit, although Skadden appeared by attorney in Spain and Tarquis was served by publication. When Tarquis failed to appear in Texas, the trial court granted default, divided the property, named both parents managing conservators of their only child, entered a standard possession order, and ordered Skadden to pay child support. By contrast, the Spanish court granted sole custody to Tarquis, denied visitation to Skadden on the basis he had no relationship with the child (Skadden admits he has not seen their child since 1998), and also ordered Skadden to pay child support.

Four years and three months after the Texas decree was signed, Skadden sought to enforce it. Tarquis answered and argued the 1999 judgment was void due to lack of personal jurisdiction because she had not been served, and lack of subject-matter jurisdiction because Texas was not the child’s home state. The district judge — who had heard the 1999 case as an associate judge and recommended the divorce decree — reviewed the 1999 file, heard evidence, and then denied enforcement, finding the absence of an appointed ad litem or statement of evidence rendered service by publication improper. See Tex. R. Civ. P. 244.

While Skadden argued he never had proper notice or a hearing in Spain, his recognition of those proceedings established that Spanish courts had not declined jurisdiction. The trial court refused to enforce the Harris County decree on the basis of lack of subject matter jurisdiction. On appeal, the Texas Supreme Court agreed with the trial court. Subject-matter jurisdiction cannot be waived, and can be raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004). Because the trial court lacked subject-matter jurisdiction to enter the custody provisions in the 1999 divorce decree, it properly refused to enforce that portion of the decree.

Representing Yourself Pro Se in a Divorce or Family Law Case in Texas

Elias Lorenzana — Tue, 27 Oct 2009 04:32:00 GMT

There are advantages and disadvantages in representing oneself pro se in a divorce proceeding or family law case such as a custody dispute. Some of the immediate advantages include the following:

1. Not having to pay an attorney for legal fees;

2. Ability to make your own legal arguments; and

3. Some sympathy from the court or jury;

Although as simple as it may seem, the disadvantages may outweigh its advantages. For example, although the process may seem simple, legal procedure is fraught with complex meaning and ramifications. Frequently, the question arises, "do I really need a lawyer...?"

On most cases, the answer is generally yes. Courts are also not easily inclined to have sympathy on pro se litigants. As one court put it, "While we have compassion for the plight of the pro se litigant attempting to follow the rules of legal procedure and substantive laws, and therefore construe pro se pleadings and briefs liberally, we must still hold appellant to the same standard as a licensed attorney, requiring that he follow those same rules and laws." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184‑85 (Tex. 1978); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex. App.- Dallas 2008, no pet.). To do otherwise would give a pro se litigant an unfair advantage over a litigant represented by counsel. Mansfield State Bank, 573 S.W.2d at 185; Cooper, 254 S.W.3d at 693.

On one occasion, a client indicated that at first they thought that a lawyer was not necessary in handling a simple state tax collection matter. At the end, the matter ended up to be a $250,000 judgment against the client. Although on some cases such as on uncontested matters, representing oneself pro se may be cost effective, however in most situations it behooves a client to get good legal representation to avoid the legal pitfalls of legal procedure and law.

Texas Pre-Marital or Prenuptial Agreement

Elias Lorenzana — Tue, 27 Oct 2009 04:28:00 GMT

In Texas pre-marital or pre-nuptial agreements are enforceable so long as it is in writing and is signed by both parties. The agreement is enforceable even though without consideration, unlike a deed where consideration is necessary. Under Section 4.001 of the Texas Family Code, a 'Premarital Agreement" is a written agreement between prospective spouses in contemplation of marriage and is effective upon marriage.

The parties to a premarital agreement may contract with respect to:

(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4) the modification or elimination of spousal support;

(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

(6) the ownership rights in and disposition of the death benefit from a life insurance policy;

(7) the choice of law governing the construction of the agreement; and

(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Spousal Maintenance or Alimony in Texas

Elias Lorenzana — Tue, 27 Oct 2009 04:21:00 GMT

In Texas, "Maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.

Generally speaking, a spouse in a divorce action or dissolution of marriage can only claim for spousal maintenance or Texas alimony if:

(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:

(A) within two years before the date on which a suit for dissolution of the marriage is filed; or

(B) while the suit is pending; or

(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:

(A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;

(B) is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or

(C) clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054.

What factors does the court consider in awarding Texas alimony?

(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;

(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;

(3) the duration of the marriage;

(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

(5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

(7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(9) the property brought to the marriage by either spouse;

(10) the contribution of a spouse as homemaker;

(11) marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.

Contact an experience high net worth divorce attorney in Austin, Texas at (512) 338-0529.

http://www.lorenzanalegal.com/

http://www.austindivorcelawattorney.com/

Parent vs. Grand Parents Rights to Child Custody in Texas

Elias Lorenzana — Tue, 27 Oct 2009 04:11:00 GMT

A grandparent’s rights are generally subordinate to a parent’s. See Tex. Fam. Code § 153.433(2); see also Troxel, 530 U.S. at 64-65 (plurality opinion) (discussing how statutory rights extended to grandparents and other relatives can create a substantial burden on a parent’s traditional role in a child’s upbringing). As the Troxel plurality stated, “‘[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents.’” Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Troxel also recognized that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court [of the United States].” Id.

Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.” Tex. Fam. Code § 102.004(c). As Texas courts recently recognized, "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” See In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68); see also Troxel, 530 U.S. at 72-73

The Texas Constitution does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.

Section 153.433(2) of the Texas Family Code requires that a grandparent seeking court-ordered access overcome the presumption that a parent acts in his or her child’s best interest by proving by a preponderance of the evidence that “denial . . . of access to the child would significantly impair the child’s physical health or emotional well‑being.” Tex. Fam. Code § 153.433(2). A trial court abuses its discretion when it grants access to a grandparent who has not met this standard because “‘[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts[,]’ even when the law is unsettled.” See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).

Temporary Orders Related to Divorce Cases

Elias Lorenzana — Sun, 20 Sep 2009 03:37:00 GMT

Temporary orders as it relates to a pending divorce can normally dictate the terms on the following issues:

1. Child support;
2. Visitation;
3. Use of the homestead;
4. Use of community property, such as cash in bank accounts;
5. Spousal support (as applicable);
6. Freeze on the community debt;
7. all other issues related to a divorce case

Generally, as a matter of rule, temporary orders expire with the entry of a final judgment
and cannot function as a final disposition on an issue. Coke v. Coke, 802 S.W.2d 270, 273 (Tex. App.CDallas 1990, writ denied). However, a trial court may extend a temporary order in its final decree. See In re Lozano, No. 01-06-00655-CV, 2006 WL 2640634, at *3 (Tex. App.CHouston [1st Dist.] Sept. 14, 2006, orig. proceeding); Coke, 802 S.W.2d at 273; see also Mathis v. Mathis, No. 04-95-00386-CV, 1996 WL 668849, at *3 (Tex. App.CSan Antonio Nov. 20, 1996, no writ) (not designated for publication) (holding that trial court had discretion to continue temporary orders, which stated that they would continue in full force until the signing of the final decree or until further order of the court, after entry of decree).

On some occassion, there may be multiple temporary order hearings superseding prior temporary orders as parties attempt to gain better ground for each side of the divorce. This usually occurs with respect to contested child custody issues.

Although a temporary order may not supersede a judgment once the temporary order has expired, a trial court may enter temporary orders independently of the final decree. Coke, 802 S.W.2d at 273; see also Tex Fam. Code Ann. 6.502 (Vernon 2006). Additionally, the rendition of a divorce decree does not itself nullify any temporary order. See Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App.CDallas 1980, orig. proceeding); Villarreal v. Villarreal, No. 14-04-00071-CV, 2005 WL 3116218, at 4 (Tex. App.CHouston [14th Dist.] Nov. 23, 2005, no pet.). For example, a temporary order setting child support is superseded as to future child support obligations by a final divorce decree, but the obligation, as fixed by the temporary order, continues unless specifically modified by the provisions of the divorce decree. Shaver, 597 S.W.2d at 500; Villarreal, 2005 WL 3116218, at 4.

However, for most cases, if the final decree addresses all issues in a divorce case, then temporary orders usually are superseded by the final decree. Consult a Texas Family Law Attorney for your individual divorce and custody case evaluation. The Austin Texas divorce and family law attorneys of the Lorenzana Law Firm, P.C. can assist you in navigating your divorce or family law case.

Prenuptial Agreements: The Bone of Contention

Roxanne Heuschkel — Fri, 18 Sep 2009 14:58:00 GMT

Americans are divided on their opinion concerning the morality behind a prenuptial agreement. Around one fourth of Americans think premarital agreements are for the “rich and famous”, while well over a fourth agree they are a must for making smart financial decisions in a marriage. Although pre-nups are often used to protect the assets of a wealthy spouse, many couples of more modest means, such as a middle class income, are turning to prenuptial agreements for their own purposes. Some of these reasons might be to split up property for children from previous marriages, define each spouse’s financial rights, and avoid conflict in case of divorce by splitting up assets in advance.

“San Francisco family law attorney Stephen Ruben sees more Baby Boomers entering such contracts after marriage-known as post-marital agreements- as their parents die. “They want to preserve their inheritances so it doesn't’t go to their spouse. They want it to remain within the bloodline,” he says. Kathleen Pender, San Francisco Chronicle 05/04/08.

What is a prenuptial and what purpose does it serve?

A prenuptial agreement is a contract written between two prospective spouses on the terms of marriage and property. It is a legally binding agreement between a couple before entering marriage and secures or segregates separate and community property such as rights to certain real property, account, and other assets as well as debts. The contract states all of the property each person owns and how the assets will be divided in the event of a death or divorce.

Is it right or wrong for you?

A prenuptial agreement may be beneficial to you and your spouse for many reasons. If you or your spouse have a substantial amount of wealth, expect to acquire a hefty inheritance, have been married in the past, own a business, have children from a prior marriage, have a high risk job, wish to keep all assets and debts separate, own income producing property, or wish to protect your hard earned existing assets then entering into a prenuptial agreement might be for you.

On the other hand, many people feel a prenuptial agreement takes away from the sanctity of marriage. Some view the prenuptial agreement as a big trust factor between prospective spouses, and say a prenup is never needed when the two people involved really love each other. Some feel the contract can doom a marriage from the start, and the topic can be an uncomfortable one to bring into a relationship.

These contracts only benefit a couple if they are planning ahead of the marriage and are comfortable with segregating property, income, and debts that will be utilized into the marriage or earned and acquired during the marriage. It will also help to segregate acquired or debt and liabilities incurred during the marriage between spouses. For most individuals, a prenuptial may not be necessary. However, if you are a high net worth individual or a person who has a high earning capacity, it is advisable to enter into a prenuptial with your prospective spouse as well as consult with a Texas prenuptial lawyer or family law attorney before entering into the marriage vow.

Mediated Settlement Agreements On Child Custody and Marital Property

Elias Lorenzana — Sat, 22 Aug 2009 06:05:00 GMT

Contested divorce cases frequently revolves around spousal disputes about the custody of the child or children of the marriage and or the proper division of the marital estate. In lieu of an all out contested divorce cases where the parties battle each other in open court, an alternative option is for the parties to enter into mediation, whose outcome is genreally the mediated settlement agreement. However, the question posed is, what happens if there is a mediated settlement agreement, however, one spouse decides to cancel the agreement and go to court instead?

This is what happened in the case of Brooks v. Brooks. Generally speaking in Texas and under Texas Family Code Section 6.602(b), and 153.0071(d), mediated settlement agreements are binding in suits affecting the parent-child relationship, as well as suits involving only marital property. Id, 6.602(b)B(c), 153.0071(d)B(e); Boyd, 67 S.W.3d at 402; Spinks v. Spinks, 939 S.W.2d 229, 230 (Tex. App.- Houston [1st Dist.] 1997, no writ). Tex. Fam. Code Ann. '' 6.602(b), 153.0071(d) (Vernon 2002 & Supp. 2007).

Texas has a public policy of encouraging the peaceful resolution of disputes, particularly those involving the parent-child relationship, and the early settlement of pending litigation through voluntary settlement procedures. See Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.- Fort Worth 2002, no pet.).

Trial and appellate courts are charged with the responsibility of carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d at 402; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 715 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (op. on reh'g).

The Texas Family Code also furthers this policy by providing that a mediated settlement agreement is binding on the parties if the agreement :

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and

(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.

Ordinarily, settlement agreements arising from mediation are not binding when one party timely withdraws consent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a contract that complies with rule 11 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. ' 154.071(a) (Vernon 2005); Padilla v. LaFrance, 907 S.W.2d 454, 461B62 (Tex. 1995); Boyd, 67 S.W.3d
at 402. Unilateral withdrawal of consent does not, however, negate the enforceability of a mediated settlement agreement meeting the requirements of 6.602(b), and a separate suit for enforcement of a contract is not necessary. Boyd, 67 S.W.3d at 402; Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.- Eastland 1997, writ denied). Rather, section 6.602 creates a procedural shortcut for the enforcement of mediated settlement
agreements in divorce cases. Boyd, 67 S.W.3d at 402; Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.- Houston [14th Dist.] 2000, pet. denied). Thus, a mediated settlement agreement that meets the requirements of section 6.602(b) is binding, and a party is entitled to judgment on the agreement notwithstanding rule 11 or another rule of law. Tex. Fam. Code Ann. § 6.602(b) (c); Boyd, 67 S.W.3d at 402.

Contact an experienced divorce attorney in Austin, Texas before entering into a mediated settlement agreement.