By Julie C. Caskey

Registering a Foreign Child Custody Order in Texas.  Question: My ex-spouse and I were divorced in another state [or country] and we received an order from that state concerning access and visitation for our child.  Now, one of the parties has moved to Texas, and we want to make sure the foreign order is enforceable here.  What should we do?

Answer:  You will need to register the foreign order in Texas, often referred to as “domesticating” the foreign order.  First, you must determine which court in Texas has proper jurisdiction to register the foreign order.  Consult with a Texas family law attorney or a Woodlands divorce lawyer (if you live in Harris or Montgomery counties and their surrounding counties) to determine the proper jurisdiction.

The Texas family law attorney will register the order by providing the clerk of the proper court two copies of the order, (including one certified copy) and a letter requesting registration which includes the names and addresses of the parties seeking registration and the names and addresses of the parties who have been given access and visitation in the order which is sought to be registered.

The district clerk will cause the order to be filed as a foreign judgment and serve notice of the registration on all parties listed in the letter seeking registration. 

Contesting the Validity of the Foreign Order.  Parties who are served notice are given a short amount of time in which to request a hearing to contest the validity of the registered order.  Thus, if you receive notice that a child custody order has been registered in Texas, and you believe the order is not valid, it is crucial to speak with a Texas family law attorney immediately.  Failure to contest the registration within the requisite time limit will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

If a timely request for a hearing to contest the validity of the order is made, a hearing will be held.  At that hearing, the court will confirm the validity of the order unless it can be shown that:

1. The issuing court did not have jurisdiction to issue the order
2. The child custody order sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so
3. The party contesting registration was entitled to notice, and proper notice was not given.

If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

If you are a party to a foreign child custody order that needs to be registered in Texas, speak to an experienced Woodlands family lawyer today.

Julie C. Caskey is a family law attorney practicing with Garg & Associates, PC in The Woodlands, Texas.

By Julie C. Caskey

Yesterday, July 8, 2010, U.S. District Judge Joseph Tauro (Mass.) ruled that the federal ban on gay marriages is unconstitutional since it usurps the right of the states to define marriage.  In the suit, gay couples challenged the 1996 Defense of Marriage Act (“DOMA”).  DOMA has two major implications on the state of gay marriage in the United States.  First, DOMA allows a state the right to refuse to recognize relationships between persons of the same sex as marriage, even if the relationship is considered a marriage in another state, essentially disregarding the Full Faith and Credit Clause of the U.S. Constitution (which requires states to respect the “public acts, records, and judicial proceedings” of other states.)  Second, under DOMA, the federal government defines marriage as between a man and a woman, exclusively. 

Because the right to define marriage is a right that is left to state–not federal–government, Judge Tauro ruled the law unconstitutional, stating further that it violates the Constitution’s Equal Protection Clause:

“Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification the Constitution clearly will not permit,” Tauro wrote.

Plaintiff’s attorneys expect an appeal on the decision. If the decision is upheld on appeal, yesterday’s ruling could set a precedent for other states, and enable and encourage them to define marriage as between two people, regardless of sex.  Currently, five states and the District of Columbia have legalized gay marriage.   

Even still, yesterday’s ruling seems to have little impact on the state of gay marriages in Texas.  While states have the right to define marriage, Texas has unequivocally spoken on the matter through its state constitution and Family Code, defining marriage as between a man and a woman exclusively, and declaring same sex unions as against the public policy of the state.  To define marriage in any other way, would require amending the state constitution, which can only be accomplished through an act of the legislature, subject to voter approval. 

While gay rights advocates view yesterday’s ruling as a step in the right direction, the case did not touch upon the necessity of states to recognize gay marriages of other states.  If a successful challenge is ever brought to this seemingly glaring violation of the Constitution’s Full Faith and Credit clause, Texas would be required to recognize the gay marriages which are legal in other states–even if Texas law still prohibited gay marriage.

Julie C. Caskey is a attorney who practices Texas Family Law with the law firm of Garg & Associates, PC in The Woodlands, Texas.

By Julie C. Caskey

As anyone who has ever been involved in family law proceedings in Texas can probably tell you, Texas courts are consumed by one issue when children are involved: what is in the child’s best interest?  Even if parties reach agreements about the amount of child support, or the length and frequency of visitation and access, a Texas court will veto the agreement if it determines that the arrangement is not in the child’s best interest.

But what about divorce overall?  Can divorce ever be in a child’s best interest? Myths abound about the effect of divorce on the emotional development and well being of children.  Many parents choose to stay in a poor marital relationship for fear that the divorce will negatively impact the kids.  However, a recent study reported by Live Science seems to prove otherwise, and indicates that ”staying together for the kids” might do more harm than good. 

Researcher Constance Gager, of Montclair State University in New Jersey, recently reviewed the results of a national survey of nearly 7,000 married couples with children in the United States.  The study concluded that children who grew up in high-conflict homes fared better in adult relationships if their parents were divorced.

If you are considering divorce, contact an experienced family lawyer to discuss your options and protect your rights today. 

Julie C. Caskey is an experienced attorney who practices family law with Garg & Associates, P.C. in The Woodlands, Texas.

By Julie C. Caskey

Who pays child support? In Texas, all parents have a duty to support their children.  This means that a parent must provide his or her children with food, shelter, clothing, education, and other things necessary to live.  Generally, the children will live primarily with one parent, and the other parent will be ordered by the court to pay child support.  If a parent is ordered by a court to pay child support, that parent is called the obligor.  A parent who receives child support is called an obligee.

How much child support will I receive or have to pay? The amount of child support that a court will order depends on a number of factors, but usually the court will consider how many children the obligor has a duty to support, the special needs of those children–if any, and the amount of the obligor’s income (including current income and income for the previous two years).  Texas law has guidelines for child support which are calculated based on the obligor’s net resources.  Child support is considered proper if set as follows:

1 Child: 20% of Obligor’s Net Resources

2 Children: 25% of Obligor’s Net Resources

3 Children: 30% of Obligor’s Net Resources

4 Children: 35% of Obligor’s Net Resources

5 Children: 40% of Obligor’s Net Resources

6 or More Children: Not Less Than 40% of Obligor’s Net Resources

How does a court determine an obligor’s net resources?  In determining net resources, the court will take the total amount of money received from all sources and deduct social security taxes, federal taxes, union dues, and the cost of the child’s health insurance.  The amount left is the obligor’s net resources.

What if the obligee and obligor reach an agreement about child support that is not in accordance with the guidelines? If the court finds that the amount of child support is in the child’s best interest–even though it may be more or less than what guidelines suggest–the court will order the agreed upon amount.  If the court finds the amount is not in the best interest of the child, the court may request the parties to submit a revised agreement or will order an amount that it finds to be in the child’s best interest.

Will child support be deducted from my paycheck? In most cases, a court orders child support to be withheld from an obligor’s paycheck, using an order called an Income Withholding Order.  If the parties agree, the court will allow the income withholding order to be suspended, and then the obligor will make child support payments directly to the state disbursement unit.  Even when parties agree to suspend income withholding, it may be ordered if the obligor falls behind in payments. 

What if the obligor does not pay child support? Interest begins to run on unpaid child support at the rate of 6% per year.  Several penalties exists for failure to pay child support including contempt and suspension of the obligor’s driver’s license.  An order to pay child support can be enforced by filing a motion for contempt.  Enforcement can also be accomplished without contempt by seeking a monetary judgment from a court.  If you need assistance enforcing your child support order, contact an experienced Texas family law attorney.   

How long will I receive or have to pay child support? A court will usually order child support to be paid until the child reaches 18 or graduates high school, whichever happens later.  If a child is disabled, child support may be ordered indefinitely.  If a child is emancipated earlier (for example, marries or is emancipated by court order) child support payments will end at that time.

Is child support paid directly to the obligee parent? No, courts generally order child support to be paid directly to the state disbursement unit, who keeps records of payments and then pays the obligee parent.

Does my obligation to pay child support end when I die, or will my estate be required to continue payments? The Texas Legislature recently changed the law regarding this aspect of child support.  If an obligor dies still owing child support, the amount of all child support owed–including future child support that would have been paid if the obligor were alive–is accelerated and the obligor’s estate will be liable for the remaining amount of child support.   See my article here for a more in-depth discussion.

The obligee parent is refusing to let me see the child.  Do I still have to make child support payments? Absolutely.  The duty to pay child support is not conditioned on possession or access to the child.  In fact, courts in Texas are forbidden by state law to render an order which conditions payment of child support on possession or access.  If you are under an order to pay child support, you must continue to faithfully make those payments until the court changes the order.  If a parent is forbidding you access to your children, speak with an attorney about your rights.

Julie C. Caskey is an attorney who practices family law with Garg & Associates, PC in The Woodlands, Texas.

By Julie C. Caskey

The Texas Family Code defines certain types of marriage void as a matter of law.  Parties to these marriages can end the marital relationship by filing suit to have the marriage declared void. 

Types of Void Marriages

Relationship of the Parties.  If the parties to the marriage are related within certain degrees of consanguinity, Texas law defines the marriage as void.  Examples include marriages between siblings, a marriage to an ancestor or descendant, a marriage to an aunt or uncle, a marriage to a niece of nephew, a marriage to a current or former stepchild or step-parent. 

Already Married. A marriage is void under Texas law if, when entered into, either party has an existing marriage to another party (including an informal or common law marriage) that has not been dissolved.

Same Sex Marriages. A marriage between persons of the same sex or a civil union is contrary to the public policy of the State of Texas and is void in this state.

Marriage to a Minor. A marriage is void if either party to the marriage is younger than 16 years of age, unless a court order has been obtained.

If you would like more information about void marriages, or would like to speak to an experienced Texas family lawyer, contact the law offices of Garg & Associates, P.C. today.

Julie C. Caskey is an attorney practicing family law with the law firm of Garg & Associates, P.C. in The Woodlands, Texas.

By Julie C. Caskey

As you may know, in many circumstances, divorce can be a long, tedious process.  Why not just have the marriage annulled instead?  Many clients believe that if a marriage is relatively new, an annulment can be granted and the divorce process avoided.  However, Chapter 6 of the Texas Family Code presents specific guidelines on which marriages can be dissolved through annulment.  If the facts of your particular case do not fall into one of the categories below, your marriage must be dissolved through another available avenue under Texas law:  (1) declaring the marraige void or (2) dissolving the marriage through divorce.  If you have questions about whether your marriage can be annulled, you should speak with an experienced Texas Family Law Attorney,who can help protect your rights.  Speaking with an attorney will help you explore various options to protect your rights and help you decide if annulment is the best route to take in your particular situation.  In many circumstances, it is in the client’s best interest to pursue a divorce rather than seeking an annulment, and only an experienced family law attorney can help you make that difficult decision on an informed basis. 

Grounds for Annulment

Person Under the Age of 18.  A court may grant an annulment of a marriage of a person 16 years of age or older but under 18 years of age that occurred without parental consent or without a court order.  The Family Code gives standing to several classes of people who may bring this type of annulment.  They include (1) a “next friend” for the benefit of the underage party, (2) a parent, or (3) the managing conservator of legal guardian of the underage party.  If a “next friend” brings an action under this section of the Family Code, the suit for annulment must be brought within 90 days after the date of the marriage, or the action to annul is barred by Texas Law.  Tex. Fam. Code Section 6.102(c).

Under Influence of Alcohol or Narcotics.  A party to a marriage has standing to annul the marriage under Section 6.105 of the Texas Family Code if two conditions are met.  First, the party seeking to annul the marriage must have been under the influence of alcoholic beverages or narcotics at the time of the marriage, and as a result did not have the capacity to consent to the marriage.  Further, the party seeking to annul the marriage must not have voluntarily cohabited with the other party to the marriage once the effects of the alcohol or narcotics ended. 

Impotency.  Impotency exists as a grounds for annulment of a Texas marriage under these limited circumstances: (1) Either party to the marriage, for physical or mental reasons, must have been permanently impotent at the time of the marriage; (2) The party seeking to annul the marriage on this basis must not have known of the impotency at the time of the marriage; and (3) The party seeking to annul the marriage must not have voluntarily cohabited with the other party since learning of the impotency.

Fraud, Duress, or Force. The court may grant an annulment of a marriage to a party to the marriage if: (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.

Mental Incapacity. A court may grant an annulment if the party seeking annulment shows that he or she was mentally incapacitated and therefore did not have the ability to consent to the marriage or understand the nature of the marriage ceremony.  In addition, the party claiming mental incapacity must not have cohabited with the other party to the marriage during a period when the person possessed enough mental capacity to recognize the marital relationship.  Texas law also provides provisions for annulling a marriage if the party seeking the annulment shows that the other party to the marriage was mentally incapacitated.  Other conditions must be met and a party seeking to annul a marriage under this provision should speak with an experienced attorney regarding his or her situation.

Concealed Divorce.  In Texas, once a divorce has been granted, parties must wait at least 30 days before they can marry a third party.  A court may grant an annulment of a marriage to a party to the marriage if:(1)  the other party was divorced from a third party within the 30-day period preceding the date of the marriage ceremony; (2)  at the time of the marriage ceremony the petitioner did not know, and a reasonably prudent person would not have known, of the divorce; and (3)  since the petitioner discovered or a reasonably prudent person would have discovered the fact of the divorce, the petitioner has not voluntarily cohabited with the other party.  If a party wishes to bring a suit for annulment based on this provision, the suit must be brought before the first anniversary of the marriage date.

Marriage Less Than 72 Hours After Issuance of License.  In Texas, to be married, parties must obtain a marriage license.  Texas Law also requires the parties to wait at least 72-hours after receiving the license before participating in the marriage ceremony. A court may grant an annulment of a marriage if the marriage ceremony took place during the 72-hour period immediately following the issuance of the marriage license.  If a party wishes to bring an action for annulment under this provision of Texas law, the suit must be brought within 30 days of the date of the marriage, or the suit is barred.

Julie C. Caskey is a family law attorney practicing with the firm of Garg & Associates, P.C. in The Woodlands, Texas.

By Julie C. Caskey

In Texas, standard procedure requires 60 days to elapse from the time an Original Petition for Divorce is filed until the divorce can be granted.  In other words, the standard rule is that a divorce may not be granted in Texas until the 61st day after the petition is filed with the court.

The 81st Legislative Session added an exception to this 60-day waiting period in certain situations involving family violence.  Effective September 1, 2009, a 60-day waiting period is not required if the Respondent has received a final conviction or deferred adjudication for an offense involving family violence against the Petitioner (the party seeking a  divorce) or the Petitioner’s family.  Under the new law, a waiting period is also not required if the Petitioner has an active protective order against the Respondent based on a finding of family violence because of family violence committed during the marriage.

This new law, which waives the 60-day waiting period, became effective September 1, 2009, for all divorces filed on or after that date.

Julie C. Caskey is an attorney practicing Texas Family Law with the law firm of Garg & Associates, P.C. in The Woodlands, Texas.

By Julie C. Caskey

Common Law Marriage.  Many clients have misconceptions about common law marriage and the requirements to establish such a marriage in the State of Texas.  Texas is included in the handful of states who recognize a common law marriage.

Basic Requirements.For a common law marriage (referred to as an informal marriage in Texas) to be valid in Texas, the couple must meet many of the same basic requirements needed for a fomal, ceremonial marriage:

• The parties must be a man and a woman; Texas does not recognize same-sex marriage
• Thirty days must have passed since either party was divorced from a previous spouse
• Neither party may be presently married
• The parties must not be related to each other as an ancestor/descendant by blood or adoption; a  sibling by blood (whole or half) or by adoption; an aunt or uncle by blood (whole or half) or adoption; a niece or nephew by whole or half blood or by adoption; a current or former stepchild or step-parent; or cousins (son or daughter of a parent’s brother or sister, by whole or half blood or by adoption)
• The parties must be 18 years of age, unless court order has been granted giving the under-age party permission to marry, or parental consent is given in a written declaration form supplied by the county clerk.

Establishing an Informal Marriage.  Once the basic requirements outlined above have been satisfied, an informal marriage in Texas can be established in one of the following ways:

1. File a Declaration of Informal Marriage.  The parties can file a Declaration of Informal Marriage form prescribed by the Bureau of Vital Statistics and provided by the County Clerk.  The form includes information about both parties including their names, address, date and place of birth, and social security number.  Proof of age and identity must be provided, and the parties must assert that they are not related to one another as outlined above.  Further, the parties must swear and affirm that they (1) agreed to be married, (2) and after that agreement, they lived together in the State of Texas as husband and wife, and (3) represented to others in the State of Texas that they were husband and wife.
2. Satisfy a Three-Prong Test.  If a declaration is not filed, then an informal marriage can still exist as long as the three prong test described above is met.  In other words, as long as the parties meet the basic requirements, agree to be married, live together as husband and wife in the State of Texas after that agreement, and represent to others in the State of Texas that they are husband and wife, then an informal marriage exists.  An informal marriage cannot exist until the moment all three requirements have been satisfied and coexist.  The moment all three requirements are satisfied, an informal marriage exists. Note that there is no cohabitation length requirement.  Many clients mistakenly believe that the parties must cohabitate for at least six (6) months or longer to establish a common law marriage.  This is simply not the law.  In Texas, one night is sufficient, as long as the other requirements are met.

Proving an Informal Marriage.  An informal marriage may be far easier to establish than it is to prove in a court of law.  In fact, proving an informal marriage in cases where the couple has not filed a declaration can be extraordinarily difficult.  You must present evidence to the court that an agreement was made.  Parties rarely present consistent evidence on this topic.  You must present evidence that you cohabitated as husband and wife in the State of Texas.  And, you must show that you represented to others that you were husband and wife.  This may be done through contracts you may have signed as husband and wife, income tax returns that were filed jointly, or through the testimony of eyewitnesses who can claim that you referred to or introduced one another as husband and wife.  In order to avoid the difficulties of having to prove the existence of an informal marriage, it is often recommended that a couple file a declaration.  However, every circumstance is different, and before taking any legal action, it is always advisable to speak with an attorney.

Common Law Divorce.  Many clients believe that if the marriage is informal, the divorce can also be accomplished in this manner.  In Texas, however, once a marriage has been established–either through a declaration, by meeting the three-prong test, or ceremonially–a formal divorce is required to dissolve the marriage. Parties cannot simply cease cohabitating, or cease holding themselves out as husband and wife to end the marriage.  And, if a common law marriage has been established, and no formal divorce obtained,  a party who marries another commits bigamy. For more information about the divorce process in Texas, see my article here.

Julie C. Caskey is a family law attorney with the law firm of Garg & Associates in The Woodlands, Texas.

By Julie C. Caskey

In a May 21, 2010 news release, the Texas Workforce Commission reported that unemployment rates in Texas for the month of April decreased–albeit only slightly–from 8.5% in March to 8.4% in April.  Despite this slight drop, many Texans still feel the negative impacts of a depressed economy.  The condition of the economy has left many Texas parents wondering about ways in which their child support order can be modified.  Parents who are paying want to reduce the amount; parents who are receiving want to up the amount.  Many clients want to know if a child support order can be modified, and if so how?

Under Texas law, orders for Child Support can be modified. The Texas Family Code outlines the requirements which must be met before a court will modify a child support order:

The court may modify an order that provides for the support of a child if: 

(1)  the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition; or

(2)  it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.

Thus, a child support order can be modified at any time if the party seeking modification can show a change in circumstances that is material and substantial.  Examples of these types of changes depend on the specific circumstances of the parties but can include significant increase or decrease in the obligor’s income or increases in the needs of the child (child becomes ill or disabled, for example).

Once three years have  elapsed, a party seeking to modify a child support order is not required to show a material change in circumstances if he or she can meet the change in income requirement.  Courts will modify a child suport order if applying the child support guidelines to the payor’s current income results in a child support payment that differs by 20% or $100 from the amount in the previous order. 

Generally, courts are reluctant to decrease child support orders.  It is usually far easier to get a child support order increased than to have it decreased.  However, each situation is unique.  If you would like to speak with an experienced family law attorney about modifying your child support order, contact the law office of Garg & Associates, P.C.

 Julie C. Caskey is an attorney who practies family law with Garg & Associates in The Woodlands, Texas.