Blog2024-06-16T18:17:23+00:00

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

The Pitfalls of Pro Se Representation

Pro se is a Latin term meaning “for oneself” or “on one’s own behalf.”  To represent oneself pro se means to advocating for one’s own self before a court, rather than being represented by counsel.  The right of a party to a legal action to represent his or her own cause has long been recognized in the United States, and even predates the ratification of the Constitution.  But is this the wisest course of action?

According to National Center on State Courts, 71% of domestic relations (family law) cases have at least 1 unrepresented party.  In 18% of cases both parties are pro se litigants.  So where does the problem lie when a litigant decides to walk into a courtroom without proper legal representation?  The simple fact is that the vast majority of pro se defendants lose their cases.

The following is a quote from a judge used against a Defendant who represented himself after murdering his girlfriend. “You don’t know how to ask a question…You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not…  I do not say this to insult you…You do not know the law.”

What’s important to highlight from the judge’s speech is that it really underscores the greater reason why it is tough for a party to represent themselves in court.  Poor representation is likely to antagonize a judge.  Being a lawyer in the United States requires a vast amount of knowledge regarding proper legal rules and court procedures.  Areas of knowledge like the federal rules of evidence, state rules of civil procedure, and local rules of court are generally very foreign and unnatural concepts to a pro se litigant.  However, these were created for reasons of fair, speedy, and efficient justice.

The justice system is designed, in large part, for the traditional full representation model. Virtually all aspects of the system, from the rules to the training of judges and court staff to the physical layout of the courthouses themselves, have been oriented to cases in which knowledgeable attorneys represent the parties.  The ability of a party to proceed without an attorney in prosecuting or defending a civil action is largely a matter of state law, and may vary depending on the court and the positions of the parties.

Pro se appearances may delay a trial proceeding and enhance the possibility of a mistrial and a subsequent appeal.  Pro se litigants are not entitled to an award of attorney’s fees.  However, a Court may order a pro se litigant to pay the attorney’s fees for the opposing party.

In some instances, pro se representation is not allowed.  A pro se litigant may not represent a corporation,   as a corporation is considered a “person” separate and distinct from its officers and employees.  A non-lawyer may not sign and file a notice of appeal on behalf of a corporation.  Similarly, a pro se litigant may not act as a class representative in a class action proceeding.  In other words, a pro se litigant may not bring a class action lawsuit.

Another situation in which appearance through counsel is often required is in a case involving the executor or personal administrator of a probate estate. Unless the executor or administrator is himself an attorney, he is not allowed to represent himself in matters other than the probate.

Few federal courts of appeals allow unrepresented litigants to argue, and in all courts the percentage of cases in which argument occurs is higher for counseled cases.

Legal forms are becoming increasingly available on-line.  However, numerous problems arise when deciding to use online forms and services.  More often than not, these services do not take into account specific state laws. Only an attorney authorized to practice law in a specific state can effectively advise a party regarding the various jurisdictional issues that may affect their case. Many states have varying requirements when it comes to witnesses, discovery, case experts, and specific language that must be included in legal forms. Failure to comply with state requirements may lead to a case being dismissed by the court and increase future litigation expenses.

While a party has the right to represent themselves pro se in a court of law, they should not expect any special treatment, help, or attention from the court. And enough importance cannot be placed on the fact that they must comply with the Rules of the Court, even if they are not familiar with them.

Perception is everything.  Representing oneself pro se can send out all the wrong signals to a judge and/or jury: that a party is not taking the matter seriously, determined to be obstructive, penny-pinching, unwilling to compromise, believe they are right and cannot maintain a proper relationship with counsel, or just downright difficult. Is this really the impression you want the court to have?

It will probably come as no surprise that the most common excuse for not employing a lawyer is that one cannot afford it. That may be short sighted. A good lawyer ought to be able to achieve a result that is fairer and of better value than a litigant struggling to do so on their own. Add to that the possibility that failure to understand and comply with court orders may result in orders for costs being made against the pro se party and the numbers start to mount up. It’s also the lawyer’s job to try to broker a settlement in order to avoid the expense of protracted proceedings and a costly trial. Trying to negotiate a settlement without proper legal counsel may end in disaster.

No Will: Now What?

When your loved one dies without a will, the Texas probate process can be expensive and frustrating. Absent a will, an individual must have his or her estate distributed per the laws of Intestate Succession. Intestacy is the process by which the Texas probate code will determine which assets go to whom.

If your mother or father dies without a will, here is the normal estate disbursement under the following conditions:

  • Mother and father are still married;
  • All siblings are born from mother and father, no out of wedlock or children of another marriage.

This is a common fact pattern for intestacy probate. If an individual die but their spouse is still alive then the assets will be distributed in the following manner:

  • Community Property: The spouse will receive 100% of the community property.
  • Separate Personal Property: The spouse is entitled to 1/3rd of descendants separate personal property. The descendants are entitled to the other 2/3rds of separate personal property.
  • Separate Real Property/Land: The spouse is entitled to a life estate in 1/3rd of the separate real property. The descendants are entitled to the remainder interest in that 1/3rd, plus a present possessory interest in the remaining 2/3rd of the separate real property.

If your wife or husband dies with no children, then the estate will be distributed in the following manner:

  • Community Property: The spouse will receive 100% of the community property.
  • Separate Personal Property: The spouse will receive 100% of the Separate Personal Property
  • Separate Real Property: The spouse will receive ½ of the separate real property if the intestate is survived by a parent, sibling, or sibling’s descendant. The remaining ½ of the separate real property passes to the parent, sibling, or sibling’s descendant as if the intestate had no surviving spouse. If the intestate is not survived by a parent, sibling, or sibling’s descendant, the surviving spouse is entitled to all the .

This is a quick overview of the most common forms of statutory asset distribution when a loved one dies intestate. Though the above scenarios look simplistic, if your love one died without a will, it is imperative that you find a qualified Texas probate attorney that can guide you through the specific provisions within the Probate Court. The Dallas Texas probate attorneys at the Nacol Law Firm can help you navigate this unfamiliar terrain.

Texas Child Support Guidelines

Effective September 1, 2019 The Texas Child Support Division of the Attorney General increased the Maximum child Support under the Texas Child Support Guidelines from $8,550 to the “new cap”of net monthly resources to $9200 annually. This change in the law will increase the amount of maximum child support from of $1,710.00 to $1,840.00 monthly (20% of $9200. For one child)

Texas Family Code §154.125(a)(1) requires that every six years the presumptive amount of net resources to which the child support guidelines apply shall be reviewed and adjusted for inflation by the Texas Office of the Texas Attorney General (OAG). That section sets out the formula for doing so based on the consumer price index. The last adjustment was done in 2013 when the current amount of $8550 per month was established.

How does the “cap” work and what could this mean for you? If your net monthly resources are less than $8,550, the child support obligation will not change on Sept. 1. You are under the “current cap” and lower than the “new cap”. All stays the same. 

If you are currently going through litigation and your net monthly resources exceeds $8,550 and the Court orders child support prior to September 1, 2019, Texas Child Support Guidelines will mandate that the Court apply the appropriate child support percentage to the first $8,550 in net monthly resources based on the number of children.  But, if the Court orders child support after September 1, 2019, it will apply the new appropriate child support percentage to the first $9,200 in net monthly resources. 

Child support under the guidelines is determined by applying the applicable percentage, beginning at 20% for one child and increasing incrementally for each additional child, to the net resources amount. If a child support obligor has monthly net resources over $9200, a party seeking above the guideline’s child support has the burden of proving to the court that additional support should be ordered according to factors set out in Texas Family Code §154.126.

Important to Know: The new “cap” increase of September 1, 2019 will not automatically increase the obligor’s existing child support obligation. Any change in child support standing before September 1, 2019, can only occur through the court with a modification order to increase the child support to the new “Cap” amount of $9200. After September 1, 2019, any new suit for child support will be subject to the new “cap”. 

Please review the Texas Office of the Texas Attorney General (OAG) website for a child support calculator for the new breakdown: https://csapps.oag.texas.gov/monthly-child-support-calculator



The Nacol Law Firm PC
8144 Walnut Hill Lane
Suite #1190
Dallas, Texas 75231
Nacollawfirm.com

Texas Deceptive Trade Practices Act : Pre-Purchase Protection When Buying a Home in Texas

Purchasing a home can be a daunting yet exhilarating experience depending on the circumstances. Sometimes after a couple has purchased a home they regretfully discover many construction defects that were not disclosed to them by the Seller. Many undisclosed material defects within a home not detected by the buyer’s independent inspector that were misrepresented by the Seller may cause severe hardships in the future.

Legal relief requires an experienced real estate lawyer. A fraudulent misrepresentation made by a Seller when selling a home may give rise to a claim under the Deceptive Trade Practices Act of Texas. Multiple provisions relating to the misrepresentation of property per Tex. Bus. & Comm. Code §§ 17.46(b) are designed to protect a buyer. These misrepresentations if properly proven by the evidence will give rise to certain damages available to Buyers under the Texas DTPA Statute.

If you are the victim of fraudulent misrepresentations your independent inspector did not discover during the house inspection, you may still have relief. If circumstances prove that a misrepresentation was intently made or defect was concealed by the Seller, then under the DTPA you may be eligible to receive Economic Damages. Economic Damages include compensation for any pecuniary loss, including repair or replacement of defect. If the buyer of the home is victorious at trial, attorney’s fees and additional damages may be awarded as well.

If it can be proven that a Seller “knowingly” misrepresented a portion of the home to a buyer such as hiding evidence of termites, hiding foundation defect or old repairs, or electrical problems, then the buyer may be entitled to 3 times the amount of actual economic damages of the suit including attorney’s fees. The DTPA is a consumer based protection statute that ensures normal people are not taken advantage of due to their lack of knowledge.

If you are a buyer that has intentionally been taken advantage of by a Seller through fraud or deceit you should find an experienced attorney. DTPA actions are complex and time sensitive. An experienced attorney will give you the highest probability of success.

The Texas housing market is exploding and there are many out of state individuals moving into the Dallas / Fort Worth area. If you are a native Texan or a family transferring into the Dallas / Fort Worth area and feel you have been fraudulently deceived by a Seller, please call an experienced attorney with a firm hand to obtain the justice you deserve under the DTPA and other Consumer Protection Laws.   

Julian Nacol, Attorney
Nacol Law Firm P.C.

NACOL LAW FIRM P.C.

8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm

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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization

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