Battered Women: End the Violence (the Protective Order)

May 8th, 2011

The Texas Health and Human Services commission reported an estimated 982,916 Texas women were victims of domestic violence in the year 2006.  In Texas, more than 800 women were killed by their domestic partners between 1998 and 2005.  These statistics evidence the growing number of women in need of protection.

 

The legal system can offer some protection from family violence through the use of a Protective Order.  A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct.  All victims of family violence are eligible for a Protective Order.  A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future.  A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as a police reports.

 

Family, in Texas, has a very broad definition.  Family can include relatives by blood or marriage, former spouses, parents of the same child (even if not married), foster parents or foster children, or any member or former member of a household (whether related by blood or marriage).  Any adult member of the family may file for a Protective Order to protect himself or herself or any other member of the applicant’s family or household, including children or the elderly.  The application may be obtained through the office of the county or district attorney, a private attorney or a legal aid program.

 

Protective orders can be important in ending or deterring family violence.  The purpose of the order is to: prevent future violence, identify appropriate and inappropriate behavior and reinforce beliefs that family violence is wrong.  A judge can create various conditions of a Protective Order.  In such order he can force a respondent to vacate a residence, pay child support, attend counseling, and/or not possess a firearm.  A Protective Order can require the abuser to stay away from the victim’s home, workplace, children, children’s school, and to keep a specific distance between the abuser and the victim.  It can order the abuser to stop communicating in a harassing or threatening manner.  Abusers who violate a protective order can be fined, arrested or both.  Keep in mind, no piece of paper can protect you from all incidents of violence; however, a Protective Order provides a good deterrent in most situations. 

 

If the court reviewing the application determines there is a real threat of family violence, the court may issue a temporary ex parte order without notice to the abuser which is valid for up to 20 days.  The court will then set a hearing date for the final protective order which will take place within the 20 day period.  At the final hearing, if the court so determines necessary, it may grant a final Protective Order that may be effective for up to two years.

 

Protective Orders are also available for people going through divorce.  In this case, the Protective Order must be filed in the same court where the divorce is pending and the pleadings in both matters must state that the other matter is pending.  It is important to remember that a Protective Order is not a custody determination and can not be used by one party to gain an advantage in a divorce proceeding.

 

Please contact your local law enforcement or domestic violence prevention agency immediately if you or someone you care about is a victim of family violence.  Even if you are not eligible for a Protective Order, there may be other options available.  For information on family violence contact the Texas Council on Family Violence, P.O. Box 161810, Austin, Texas 78716; Phone Number (512) 794-1133;

Website: http://www.tcfv.org.

 

The following is a safety planning list of things to get together if you are planning to leave:  If you have children, take them and take your pets if you can:

 

Identification for yourself and your children:

Birth certificates

Social security cards

Driver’s license

Photo identification or passport

Welfare identification

Green card

 

Important personal papers:

Marriage certificate

Divorce papers

Custody orders

Protective orders or restraining orders

Health insurance papers and medical cards

Medical records for family members

School records for children

Investment papers/records and account numbers

Work permits

Immigration papers

Rental agreements/lease or house deed

Car title, registration and insurance information

 

Funds:

Cash

Credit cards

ATM card

Checkbook and bank (deposit slips)

 

Keys:

House

Car

Safety deposit box

Post office box

 

Way to communicate:

Phone calling card

Cell phone (pay as you go phone is less traceable)

Address book

 

Medications:

At least 1 month’s supply of all medications

 

Way to get by:

Jewelry or small objects you can sell if you run out of money

or your account access gets cut off

 

Things to help you cope:

Pictures

Keepsakes

Children’s small toys and books

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Divorce: What is separate property and what is community property?

April 29th, 2011

Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate.  Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested.  The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate.  Inception of title occurs when a party first has a right of claim to the property. 

Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate  and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.

In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse.  In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property.  The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character.  This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.

There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.

Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.

The Texas Family Code defines community property as follows:  “community property consists of the property, other than separate property, acquired by either spouse during marriage.”

Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence.  Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.  If property cannot be proved to be separate property, then it is deemed to be community property.

The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.

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Interstate Jurisdiction: Multi State Confusion in Child Custody Disputes

April 12th, 2011

Child custody issues can be difficult for the parties involved at any time, but when the custody case crosses a state line, many more conflicts and problems may arise.

Most states follow a uniform law regarding determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes laws which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act.  Texas has adopted these statutes. The Uniform Child Custody Jurisdiction Enforcement Act defines which state has or may maintain jurisdiction in a particular case and often mandates that other states recognize decisions handed down by the state determined to have jurisdiction.

The Act states, among other things, that a court may rule on custody issues if the Child:

  • Has continually lived in that state for 6 months or longer
  • Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
  • Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
  • Has been abandoned: or is safe in current state, but could be in danger of neglect or abuse in the home state

There are a number of core factors involved in determining which state is appropriate to initiate or maintain an existing suit.  Usually, there are only two states involved, but it is possible to have more than two states involved in cases where there is a frequent moving of the parties and or the children.  Generally, any state in which one of the parties and the child has continually resided for a year may establish venue to commence a lawsuit.

At the Nacol Law Firm PC, we represent parents trying to enforce these laws; cases where we try to persuade courts to apply the specific, narrow exceptions to these general rules in order to have child custody cases heard in the most convenient forum in which the most evidence is available; cases where the child’s home state or other basic questions need to be clarified, and cases where a parent has violated or has been falsely accused of violating these laws.

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