How to Pursue Contractual Alimony and the Remedies Available

Before reading this post, make sure you know if the payments are contractual alimony or spousal maintenance.  My prior post on the topic should help.

If a spouse (now ex-spouse) fails to pay contractual alimony, your remedies are the same as if they had breached any other contract.  You look for the damages you suffer, which include both the payments outlined in the decree that the ex-spouse has not paid, any foreseeable damages, and attorney’s fees.

The missed payments should be easy to figure out.  Tally up the amounts the ex-spouse has not paid.

Attorney’s fees are available through the Texas Civil Practice and Remedies Code section 38.001.

Foreseeable damages would be any additional penalties, fines, and other monetary amounts that the spouse could have foreseen you would suffer by their non-payment.  For example, if the payments were known to be used to pay a mortgage, the paying spouse failed to make multiple payments, and the mortgage was foreclosed and the house lost, you could argue any additional penalties/fees, moving expenses, and perhaps other expenses were foreseeable and should be compensated.

Some issues for the suing party to consider are whether the ex breach the entire agreement or whether the breach was only of the specific payments not made.  Things get more complicated here, since sometimes parties argue the contract was modified by different events or a pattern of past behavior, as well as the more limited breach of an installment contract versus the total breach.  If arguments like this begin to surface, consult a lawyer familiar with this topic.  It will serve you well, and in this setting, contingency fee contracts or retainer agreements are both typically available, depending on the firm.

Relocation in Texas (also known as Geographic Restrictions or lack thereof)

How does a Court determine if a geographic restriction for the child’s primary residence should be put in place, and if so, the area of that geographic restriction? 

OVERVIEW

In Texas, the Court’s power to determine geographic restrictions comes from Texas Family Code sections 153.134(b)(1)(A) and (B).  The first section allows the Court to establish a geographic area for the child’s primary residence while the second, (B), allows the Court to specify that the conservator with the right to determine the primary residence of the child has no geographic restrictions in making that decision.

The Court, in making this decision, then looks to the public policy of the State of Texas and the best interest of the child as laid out in Texas Family Code sections 153.001(a) and 153.002.

153.001: Public Policy

(a) The public policy of this state is to:

     (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

     (2) provide a safe, stable and nonviolent environment for the child; and

     (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

153.002: Best Interest of Child

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

SPECIFIC FACTORS

As you can see, there is not a lot of guidance.  Fortunately, two cases lay out the factors to consider.

For the best interest of the child, we look to Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).  While an older case, it is still continuously cited and is still considered good case law.  In fact, when searched on LexisNexis on January 6, 2012, Holley was cited 963 times.

Those factors are:

1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a roper one; and
9. any excuse for the acts or omissions of the parent.

This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

For factors to consider in the relocation context, we look to Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  In Lenz, the Texas Supreme Court dealt with two German citizens and their children.  One parent wanted to move back to Germany.  The Texas Supreme Court stressed that old standards of relocation which place a burden on the parent choosing to move may not be feasible or appropriate in our society today, since there is “[i]ncreasing geographic mobility and the availability of easier, faster and cheaper communication.”  The Court then looked at other states to discuss factors now deemed more relevant in today’s society.   Those factors are:

1. reasons for or against the move;
2. comparison of health, education and liesure opportunities;
3. whether special needs and talents of the children can be accommodated;
4. the effect on extended family relationships;
5. the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and
6. whether the non-custodial parent has resources to relocate.

OTHER CONSIDERATIONS

Echols v. Olivarez:

Another case sometimes referenced is Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.– Austin, 2002).  Echols takes some of the language of Lenz and expands on it so that the “context of the custodial parent’s happiness” should be a factor as well.  The idea is the custodial parent’s happiness can influence the child’s happiness.  Since the Texas Supreme Court in Lenz left the list of factors open, this seems a legitimate factor to consider in the relocation context, though the weight that should be assigned this factor is certainly not determinative of the relocation issue.  Later cases cite this factor and the current attitudes on this in the scientific community as evidenced by expert testimony at the trial court level.  However, that will need to be another post.

Child Support and Bankruptcy…

Unfortunately, many people ordered to pay child support have had to file for bankruptcy.  We see this occasionally, and while sometimes that person is attempting to avoid their child support obligation, many times the person truly is experiencing hard times.  Even more unfortunately, that person may believe bankruptcy will stay, halt or eliminate their child support obligation – that is simply not the case.  In fact, bankruptcy can make it easier for a person receiving child support to get paid.

To lay the argument out simply:

1) Child Support is seen as a domestic support obligation under the bankruptcy code – 11 U.S.C. 101(14A).

2) Domestic Support Obligations are not dischargeable through bankruptcy - 11 U.S.C. 523(a)(5).

3) In fact, the automatic stay associated with bankruptcy filings will not apply to collection of a domestic support obligation from property that is not part of the bankruptcy estate or with regard to a wage withholding order for future income- 11 U.S.C. 362(b)(2).

4) Finally, exempt property can be taken to satisfy domestic support obligations notwithstanding any State or Federal law to the contrary - 11 U.S.C. 522(c)(1).

What does this mean?

When a person (“debtor”) files for bankruptcy, they fill out certain schedules.  Those schedules include all of their property, their income and where that income comes from.  Because of (3) and (4), the person owed child support could look at those schedules, determine what the debtor is claiming is exempt, then file their Motion to Enforce Child Support.  Texas is allows for a debtor to claim quite a bit of property as exempt, but the debtor must list it in the schedule, which the person owed child support can then show the Judge and simply request that property or that income to satisfy the child support obligation.  While not a sure-fire way of getting that child support paid, looking through a debtor’s bankruptcy filing is a good start.

Parental Alienation Syndrome in Child Custody Cases

One concern many parents have is that the other parent is alienating their child from them, or that the child is suffering from Parental Alienation Syndrome (“PAS”).  Before going to far with this topic, understand that this is an extreme situation and does not apply to every case.  Many times a parent will vilify the other parent or a child will act out.  Those situations can still be acted upon and have an effect in a case without it being PAS.

If you know me, you know I try to always start with a definition -

Parental Alienation Syndrome:

The parental alienation syndrome (PAS) is a childhood disorder that arises almost exclusively in the context of child-custody disputes.  Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification.  It results from the combination of a programming parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.  

– See, The Parental Alienation Syndrome (Second Edition), by Dr. Richard A. Gardner, 1998, Creative Therapeutics, Inc., at xx.

This means PAS consists of two parts, (1) the child bad-mouthing the target parent without justification and (2) the alienating parent trying to program the child that the target parent is bad without justification.

Symptoms of PAS:

In addition to the above, PAS is defined by a number of symptoms evidenced by the child.  Those symptoms are:

1. A campaign of denigration
2. Weak, absurd, or frivolous rationalizations for the deprecation
3. Lack of ambivalence
4. The “independent-thinker” phenomenon
5. Reflexive support of the alienating parent in the parental conflict
6. Absence of guilt over cruelty to and/or exploitation of the alienated parent
7. The presence of borrowed scenarios
8. Spread of the animosity to the friends and/or extended family of the alienated parent

– See, The Parental Alienation Syndrome (Second Edition), by Dr. Richard A. Gardner, 1998, Creative Therapeutics, Inc., at xxv.

A couple of those symptoms are explained more fully below:

The first symptom, a campaign on denigration, is simply the child continuously discussing their hatred of the target parent or the imagined faults of the target parent, with weak or absurd reasons (second symptom) and lack of guild (sixth symptom).

Lack of ambivalence is the idea that one parent is all good while the other parent is all bad.

Independent thinker phenomenon is when the child refers to the alienating parent’s expressions or ideas as their own.  An example would be repeated what a parent said about the other, “Daddy doesn’t care about us,” and claiming it as their own.

Presence of borrowed scenarios is when a child incorporates speeches of a parent as reasons for hating a parent.  Typically this are obvious as the statements would never come from a child’s mouth, either because they do not understand the words or would not understand the context/situation.

Problems with PAS:

First, PAS is commonly seen as ‘junk science.’  This diagnosis is still in the early stages of development and it has yet to be seen if PAS will become accepted by the scientific community.  What this means in the legal world is that attorneys are going to have a difficult time getting testimony and opinion about PAS specifically into  evidence.  I say specifically because while courts will address the actions of parents and the situations described as symptoms above, the court may not want to put it in the context of PAS.

Second, many times there is some justification, no matter how limited, for a child’s behavior.  The child may not want to go to a parent’s house because there was a bad experience in the past, or they will have to miss out on an activity they would otherwise enjoy.

Third, a parent may claim PAS only to flip the focus of the case from them to the other parent.  Courts are aware of this behavior, view PAS with scrutiny and often will re-focus on the parent alleging PAS if the court believes the claim unfounded.

Conclusion:

Alleging PAS, while certainly an option, should only be done with extreme caution.  All of the underlying actions a parent takes that make up the allegation can be addressed without alleging PAS.  Many courts view PAS with skepticism and the alleging party may lose some credibility before even stepping into the courtroom.  With that in mind, and the relative newness of this diagnosis, parties should be cautious in trying to assert it in a child custody matter.  Keep in mind that there are many roads to the same destination or goal, and some are better than others.

Trying to find those text messages?

I recently had someone call to ask about getting text messages from a phone company.  This comes up often with regard to allegations of adultery, and I found the below article.

http://www.divorce360.com/divorce-articles/cheating/catching/checking-text-messages.aspx?artid=1071

The gist is that some companies keep the actual data (text) sent, but most only keep the information regarding who sent and who received those text messages.

Don’t let this stress you!  Most of the time, parties are only looking for this information to prove adultery, which can be done with other tools and methods.  Once adultery is established by evidence, the party has done all they need to do to have the Judge take that action into consideration.  Those added texts probably will not have that much more effect than the evidence already presented.

Alimony (really Court-Ordered Spousal Maintenance) Changes on the Horizon

Any blog about Texas “alimony” should first state that in Texas, courts do not order “alimony,” courts order “spousal-maintenance.”  Alimony, or post-divorce spousal payments, must be agreed to by the parties while the court may order spousal-maintenance in some situations.

In the past, Texas required a spouse to either have been married for 10 years or have suffered domestic violence within the past two years to even be considered a candidate for spousal maintenance.  Even then, maintenance was limited to three years and the lesser of $2,500.00 or 20% of the payor’s gross income.

The legislature recently changed this by re-writing maintenance section of the Texas Family Code.  These changes take effect September 1, 2011, and hit three main areas, the 10-year bar language, the duration and the amount of maintenance.

10-Year Bar

The legislature saw fit to change the language in the 10-year requirement to state the court may order maintenance if a spouse is unable to provide for their minimum reasonable needs due to an incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.  This is slightly different wording than used before and may possibly lead to a more lenient view of when spousal maintenance is appropriate.

Duration of Maintenance

1. Maintenance can now be ordered for up to five years if the marriage lasted less than 10 years and the payee was the victim of domestic violence within the past two years, has an  incapacitating physical or mental disability or if the spouse is taking care of a child that requires substantial care and personal supervision due to a physical or mental disability and prevents the spouse from earning sufficient income to provide for their minimum reasonable needs.  The five-year maximum will also apply to a marriage that lasted more than 10 years but less than 20 years.
2. If the marriage lasted between 20 – 30 years, the court can order maintenance up to 7 years.
3. Finally, if the marriage lasted 30 years or more, the court can order up to 10 years of maintenance.

Amount of Maintenance

1. The legislature also saw fit to change the maximum maintenance a court could order.  Now the amount is the lesser of $5,000.00 or 20 % of the payor’s monthly income.

Other Considerations

Attorneys and parties should keep in mind that the factors determining maintenance still apply and can be used by either side in helping the court determine if and how much maintenance is appropriate.  This includes the amount of community property that the spouses will have post divorce and if that property is enough to provide for their minimum reasonable needs with the income each will likely have.  Finally, the court retains jurisdiction to review the maintenance order and a party can file to have that order reviewed upon proper showing of a material and substantial change in circumstances of one of the parties or a child of the marriage.