Legal Separation in Texas

There is no such thing as “legal separation” in Texas. The only legal proceeding for separation is divorce. Once a divorce is filed, the court can make temporary orders concerning the parties, their property, and their children. However, some couples fee they need to be “separated” for a time to determine if their relationship is reconcilable or if divorce is truly necessary. This can cause problems because property and finances may remain joint between the spouses while married.

While there is no such thing as legal separation in Texas, it is possible for spouses desiring a period of separation with separate finances and property to enter into various property agreements, changing the ownership of property from community to separate. However, the consequences of should be carefully considered.

Legally, the spouses would still be married, and may not be completely protected from financial decisions made by their spouse, no matter how careful their planning and detailed their property agreements. Additionally, once the nature of property is changed from community property to separate property, the change in property ownership will remain effective if the separation does in fact lead to a divorce, which may not have been the intent of one or both spouses. The same is also true if the parties do not get divorced, which may have an unintended effect on property distribution upon the death of one of the spouses.

Article by Sarah F. Berry.

How is a Promissory Note Different from a Forbearance Agreement?

Under Texas law, a promissory note “is a written unconditional promise to pay another a certain sum of money at a certain time.” (Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex.App. —Dallas 1992, no writ). The time need not be a specific date, but it must be a time that will certainly arrive. For instance, a note payable on demand or “on or before” a specified date may constitute a promissory note. A promissory note is also a contract subject to the rules applicable to interpreting contracts. DeClaire v. G & B Mcintosh Family Ltd. P’ship., 260 S.W.3d 34, 44 (Tex.App.—Houston [1 Dist.] 2008, no pet.).

The difference between a promissory note and a forbearance agreement is that a forbearance agreement is an agreement not to enforce rights you already have.

A forbearance agreement is an agreement typically between a creditor and a debtor whereby the creditor agrees to forgo some legal right in return for concessions from a debtor who is in default. Swilley v. City Inv. Co., 288 S.W. 485, 486 (Tex.Civ.App.—Galveston 1926, writ ref’d) (explaining that forbearance of a legal right is sufficient consideration for a promise of guaranty). A forbearance agreement is a powerful tool for creditors who face debtors in or near default on their obligations, and often should be used in lieu of entering into a promissory note.

In a typical forbearance agreement, a creditor will agree not to sue on a balance due in exchange for certain concessions by the debtor, such as an increased interest rate, as well as various admissions that can prove invaluable to a creditor should the debtor fail to fulfill the terms of the agreement.

It may also contain the remaining balance on the indebtedness, and an admission that the debtor is in default. A creditor might also receive an increased interest rate and a waiver of various notice requirements in the event of a future default. The agreement typically will also contain a provision that allows the creditor to reassert the rights that have been forgone under the agreement should the borrower fail to make a payment, or fail to fulfill any obligation of the agreement by a certain date. If this occurs, the debtor’s signed admissions concerning the original note could prove invaluable in a lawsuit.

Prepared by Chris Patterson. Reviewed and revised by Marc L. Lippincott.

What is Spousal Maintenance and when is it available?

Texas has very limited laws regarding the availability of spousal maintenance. Spousal maintenance is defined under the Texas Family Code as “an award… of periodic payments from the future income of one spouse for the support of the other spouse.” (Tex. Fam. Code § 8.001) In other words, “spousal maintenance” is something of a misnomer – it is actually paid by a former spouse after the divorce is granted and the two persons are no longer married.

Under Texas law, a person is only eligible to receive spousal maintenance if:

1) the other spouse was convicted of an act of family violence that occurred during the two years immediately before the date on which the petition for divorce was filed, or

2) the marriage lasted longer than ten years and the spouse to receive maintenance cannot support himself or herself.

In general, a Texas court may not order spousal maintenance for longer than three years after the divorce is final, and the court will limit the duration of payments to the shortest period of time possible. However, a person may be entitled to receive spousal maintenance for a longer period of time if he or she has an incapacitating physical or mental disability, or is caring for a child with such disability.

Factors in determining whether to award spousal maintenance include:

* the relative financial resources of both spouses,

* the duration of the marriage,

* the age and earning ability of the spouse seeking maintenance,

* the contribution of the spouse as a homemaker,

* infidelity or fraud during the marriage,

* the spouses’ respective education and employment skills, and

* one spouse’s contribution to the other’s earning power.

These factors are not exclusive. In Texas, there is a presumption against spousal maintenance, and it is not available unless the person requesting spousal maintenance has been diligent in seeking employment and improving his or her job skills and employability.

Lastly, the amount of spousal maintenance cannot exceed the smaller of $2,500 per month or twenty percent of average gross income per month of the spouse who is ordered to make payments.

In summary, spousal maintenance is not available unless the party requesting such payments can overcome the presumption against an award of spousal maintenance by providing evidence supporting the various factors, and – even when awarded – the payments are for a limited amount and only for a limited time.

This blog was prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

What is Spousal Support and when is it available?

In contrast to “spousal maintenance” (see related blog topic), Spousal Support in Texas is awarded on a temporary basis while a divorce suit is still pending. This temporary spousal support is meant to provide a financially dependent spouse with income during the divorce while the parties are working on a resolution to their financial situation.

Temporary spousal support is based on the common law duty to support one’s spouse during the marriage, by providing “necessaries” such as food, clothing, shelter and medical care. As a result, an award of temporary spousal support can be taken into account when the court divides the spouses’ community property, since the spouse who is providing such spousal support is entitled to reimbursement from their community estate.

To be entitled to receive temporary spousal support, the requesting spouse must demonstrate that: (1) the parties have a valid marriage, (2) he or she is unable to pay for necessary expenses, and (3) the other spouse can afford to pay the amount of spousal support sought.

If the spouse receiving temporary spousal support remains unable to pay for necessary expenses at the time of the final hearing/trial, he or she should consider requesting spousal maintenance for a period of time after the divorce is granted.



Blog prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

Dallas Cop Busted on Domestic Violence Charges, "Not Sober" When Arrested

Here in Dallas, it's very hot and staying that way as we endure a record-breaking heat wave.  Day after day of 100+ degree weather.  So, it's understandable that tempers are rising and that domestic violence calls are high.  It's not as easy to understand when one of those domestic violence events involves the cops: not the cops coming to the scene, but a cop smack dab in the middle of it. 

Seems that this weekend Dallas police officer Rafael Mendoza, on the force to protect and serve since December 2008, was arrested by his fellow law enforcement officers on charges of domestic violence.  Specifically, Mendoza has been charged with (1) domestic assault and (2) unlawful restraint, two Class A misdemeanors under the Texas Penal Code. 

Mendoza's also on administrative leave pending an Internal Affairs investigation (as well as the criminal investigation).  He won't face jail time, maybe he will be looking for another type of employment.  Have to wait and see on that one.

What happened for a Dallas Cop to get busted for Domestic Assault and Unlawful Restraint?

This past Sunday, according to media and police reports, Officer Mendoza was setting in a car parked near an apartment complex on San Jacinto.  It was a hot day, and apparently Mendoza was getting hot under the collar, arguing with a woman about an ex-girlfriend as they sat in the car.

It's reported that Mendoza and the woman stepped out of the vehicle - and that Mendoza then shoved the woman onto the ground, slammed plastic handcuffs on her, and telling her she was about to go to prison for 10 or 15 years. 

Scary stuff, right? 

After about an hour setting there in the parking lot, in the heat of that Dallas Sunday afternoon, Mendoza escorted the woman up to her apartment.  He un-cuffed her. 

Around 2 hours later, Officer Mendoza was busted by his colleagues.  It's reported that he was "not sober" at the time.