Legal Wills & Trusts in Texas : Contesting a Texas Will
At the Dallas firm of The Nacol Law Firm PC, our lawyer Mark A. Nacol, offers more than three decades of experience in resolving Texas probate matters and Texas contested wills. Our trusted legal counsel has assisted numerous clients throughout Texas.
For more information on Texas probate law and Texas will contests, from Dallas Attorney Mark Nacol, contact us today at (972) 690-3333.
Infidelity or Adultery in a Texas Divorce
In Texas, adultery or infidelity may play a significant role in how a divorce unfolds, impacting asset division in a divorce and even custody issues to a certain extent. Here’s how adultery generally affects the divorce process in Texas:
1. Grounds for Divorce:
- No-Fault Divorce: Texas allows for “no-fault” divorces, where neither spouse has to blame the other for the breakdown of the marriage. Commonly, the reason cited is “insupportability,” which means that the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
- Fault-Based Divorce: Adultery is also one of the grounds for a fault-based divorce in Texas. If one spouse can prove the other’s infidelity, it can influence the divorce proceedings, particularly in financial settlements and custody decisions. The Court of Appeals has given the following definition of Adultery: “the voluntary sexual intercourse of a married person with one not the spouse.” In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.)
2. Impact on Division of Assets:
- In Texas, the court divides marital property based on what is “just and right.” While this typically starts with the presumption of a 50/50 split, proven adultery can lead the court to award a more favorable division to the non-adulterous spouse. This is because the court may consider the circumstances and factors under which the property was acquired and the behavior of the parties during the marriage. Such factors include: Such factors include (1) the nature of the marital property, (2) the relative earning capacity and business opportunities of the parties, (3) the parties’ relative financial condition and obligations, (4) the parties’ education, (5) the size of separate estates, (6) the age, (7) health, and (8) physical conditions of the parties, (9) fault in breaking up the marriage, (10) the benefit the innocent spouse would have received had the marriage continued, and (11) the probable need for future support. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).
3. Impact on Child Custody and Visitation:
- While adultery by itself does not necessarily impact custody arrangements, the circumstances surrounding the adultery might. For instance, if adulterous behavior also involved other conduct that could be deemed harmful to the children it could influence the court’s decisions regarding custody and visitation rights. More common repercussions for Adultery or Infidelity in a divorce are what the Court’s call a “morality clause”. This provision usually prohibits one parent from having a romantic third-party guest stay in the house while the children are present from 8:00 pm to 9:00 am the next day.
4. Proving Adultery:
- Proving adultery in a divorce case requires evidence that convinces the court of the likelihood that infidelity occurred. Direct evidence is not necessarily required; circumstantial evidence that suggests the likelihood of both opportunity and inclination to commit adultery might suffice. The burden of proof is the preponderance of the evidence, thus just a little more than 50%. It should be known that actions of adultery and infidelity are still probably even after separation and during the divorce litigation.
Adultery and Infidelity are not as damaging in the modern era, though it is completely fact intensive and dependent on the Judge in your case. Some Judges take Adultery in a Texas Divorce more seriously than others. It is a liability to mitigate if it has occurred.
Julian Nacol
Nacol Law Firm P.C.
Dallas Divorce Attorney
(972) 690-3333
What is a DTPA claim?
DTPA stands for Texas Deceptive Trade Practice Act (the “Act”), which was codified in Chapter 17 of the Texas Business and Commerce Code. This act was codified in order to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breach of warranty, and to provide efficient and economical procedures to secure that protection.” The Texas DTPA statute allows a consumer to file suit against “any person whose false, misleading, or deceptive acts, or other practices cause the consumer’s harm. As a prerequisite to filing, a consumer must give written notice to the person against whom the consumer is claiming deceptive acts at least 60 days prior to filing suit advising the person in reasonable detail of the specific complaint and amount of damages, including attorneys fees reasonably incurred.
What is a consumer?
Under the DTPA, a plaintiff must qualify as a consumer to bring a claim. “A consumer is an individual, partnership, corporation, the state of Texas, or a subdivision or agency of the state of Texas, who seeks or acquires by purchase or lease any goods or services.” In order for a consumer to establish themselves as such, they must show (1) that they sought or acquired goods or services by purchase or lease, and (2) that the goods or services form the basis of the DTPA complaint.
The Laundry List
Texas Business and Commerce Code lays out a “laundry list” of examples that constitute “false, misleading, or deceptive acts or practices” that are violations of the Act. Thirty-four items are included in this non-exclusive laundry list. For reference as examples, the first five items on that list are:
(1) passing off goods or services as those of another;
(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(4) using deceptive representations or designations of geographic origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not;
DTPA Claims Under Other Statutes
According to Dorsaneo, Texas Litigation Guide, “the number of statutes that provide that their violation, or a violation of some of their provisions, constitutes a deceptive trade practice is constantly growing.” One need not only bring a DTPA claim under the DTPA statute. Violations of other statutes may give rise to claims under the DTPA statute, however a plaintiff may not recover actual damages and penalties under the DTPA as well as damages under another statute for the same acts. This makes sense, as plaintiffs should not be allowed to “double-dip” their claims.
If you believe you may have a claim under the Deceptive Trade Practices Act, please contact us to schedule a consultation with an attorney.
Nacol Law Firm P.C.
Dallas Litigation Attorneys
Call (972) 690 -3333
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
Consolidation of Cases
Suppose, for example, that you have decided to bring a suit against your employer for workplace harassment that occurred in the Fall of 2022. Suppose also that one of your co-employees also brings a suit against that employer for workplace harassment due to the same or similar actions on the part of the employer that also occurred in the Fall of 2022. Pursuant to Tex. R. Civ. P. 174(a):
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Consolidation is appropriate if one trial or hearing would serve the same purpose as two, provided no party is prejudiced. A court will consolidate two cases if the result is fewer trials, reduction of time consuming examination of evidence, and reduction of costs. Essentially, a court will consolidate to promote judicial efficiency. [H. Rouw Co. v. Tex. & N.O.R. Co., 260 S.W.2d 69, 69–70 (Tex. Civ. App.—San Antonio 1953, no writ); see Frumer, Multiple Parties and Claims in Texas, 6 Sw. L.J. 135, 138 (1952)].
If several independent actions that could have been joined as one action originally (see Tex. R. Civ. P. 40(a), 51) are pending in the same court, a court may order the actions consolidated into one action. Tex. R. Civ. P. 174(a). A court also has the discretion to transfer a case to another court in order for those cases to be consolidated.
Considering the above scenario where you and one of your co-workers brought nearly identical separate actions against your employer, the chief consideration of a court in deciding whether the two cases should be consolidated is whether the two cases derive from a “common question of law or fact.” In this simplified scenario, it is highly likely that a court would consolidate the two cases because they have same questions of law (i.e., the same causes of action and legal theories) and of fact (i.e., the same factual scenario of being discriminated against within the same time period). While there could be an argument made that your suit contains different facts and scenarios because you are a completely different party from that of your co-worker, such an argument may be futile because courts have an abundance of discretion on this issue and are chiefly concerned with judicial economy. A court would likely see two harassment cases arising out of similar actions of the employer that occurred around the same time period and conclude that the cases likely have a common question of law or fact, almost certainly could have been joined as one action originally, and would be more efficiently tried as one case.
As you can imagine, more complex, nuanced questions of consolidation can arise. Say, for example, you are sued for breach of contract by an individual and separately for fraud by an LLC owned by that same individual. Suppose, while those claims are different, they are still related to the same set of factual circumstances. May a court still consolidate these cases together? Perhaps. The court has broad discretion when determining whether to consolidate. At the end of the day, “the underlying test remains whether the two actions have a logical connection in the sense that it would be more convenient and efficient for the two actions to be tried together.” 7 Dorsaneo, Texas Litigation Guide § 112.02 (2024).
Nacol Law Firm P.C.
Dallas Civil Litigation Lawyers
Call (972) 690-3333
Disclaimer: The information provided in this article is in no way intended to constitute legal advice. The information provided is merely an overview of the relevant law. Do not act on this information. Always consult an attorney for legal advice.
Preventing Custodial Parent From Relocating Children Out of State
Mom and Dad are divorcing or have been divorced and are now sharing joint custody of their children in the same city in Texas. One parent receives a letter from the other parent’s attorney requesting that this parent be allowed to relocate the children to another state so he/she may take a better job position with another company! This is a dilemma no parent ever wants to experience! Child Custody cases involving interstate relocation jurisdiction issues cause much heartache and are costly legal battles.
What can a Parent do to protect themselves from children being relocated away from the non-moving parent to another state without her/his consent? How may this affect the parent’s relationship with the children?
The Texas Family Code 153.002 Best Interest of Child states “The best interest of the child shall always be the primary consideration of the court in determining the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
The Texas Family code does not elaborate on the specific requirement for modification in the residency-restriction context, and there are no specific statutes governing residency restrictions or their removal for purposes of relocation. Texas Courts have no statutory standards to apply to this context.
The Texas Legislature has provided Texas Family Code 153.001, a basic framework on their public policy for all suits affecting the parent-child relationship:
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The public policy of this state is to:
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Assure the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
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Provide a safe, stable, and nonviolent environment for the child;
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Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA 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 and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
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Allowing or not allowing the move.
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Order of psychological evaluations or social studies of family members
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Modification of custody and adjusting of child’s time spent with parents
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Adjusting child support
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Order of mediation to settle dispute
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Allocating transportation costs
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Order opposing parties to provide all information on child’s addresses and telephone #
Help to Prevent Your Child’s Relocation in a Texas Court by Preparing Your Case!
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Does the intended relocation interfere with the visitation rights of the non- moving parent?
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The effect on visitation and communication with the non-moving parent to maintain a full and continuous relationship with the child
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How will this move affect extended family relationships living in the child’s current location?
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Are there bad faith motives evident in the relocating parent?
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Can the non-moving parent relocate to be close to the child? If not, what type of separation hardship would the child have?
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The relocating parent’s desire to accommodate a new job, spouse, or other criteria above the parent-child relationship. A Parent’s personal desire for move rather than need to move?
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Is there a significant degree of economic, emotional or education enhancement for the relocating parent and child in this move?
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Any violation of an order or prior notice of the intended move or a temporary restraining order
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Are Special Needs/ Talents accommodated for the child in this move?
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Fear of child and high cost of travel expenses for non-moving parent or child to visit each other to be able to continue parent- child relationship.
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What other Paramount Concerns would affect the child concerning the relocation from the non-moving parent?
At the Nacol Law Firm PC, we represent many parents trying to prevent their child from relocating to another city or state and having to experience “A Long Distance Parental Relationship” brought on by a better job or new life experience of the relocating parent! We work at persuading 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 qualifying, honest evidence is available; cases where the child’s home state or other basic questions are clarified, and cases where a parent has the right in close proximity with their child regardless of other less important factors.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization