I spoke last about community property in Texas. I wanted to follow that up with a more detailed discussion of what is considered separate property in Texas and what separate property means for a Texas divorce.
Separate property is property that does not owe its existence to the marriage and is owned individually by a respective spouse. It generally consists of property owned or acquired by a spouse before the date of marriage. or property that is given to an individual spouse as a gift or property that a spouse inherits. It can also include property recovered for personal injury whether recovered before or during the marriage.
During a divorce, if property is determined to be the separate property of a spouse the court must confirm that property to the spouse. The court is prohibited from taking the separate property of a spouse and awarding it to the other spouse. However, the court may order the property be sold to pay or settle support for minor children.
Any property that is found not to be separate property will be classified as community property. If you own property that's separate property then you don't have to worry about losing title to that property. Therefore, it is important to have an attorney who can accurately advise you on what property may be subject to court division and what isn't subject to division.
The Texas Family Code § 3.002 defines community property as that “property, other than separate property, acquired by either spouse during the marriage.” This leads to the obvious questions- what is separate property?
Separate property is generally one of three things:
1. Property owned prior to marriage;
2. Property acquired by a spouse by gift or inheritance; or
3. Any recovery for personal injuries sustained during the marriage, except for loss of earnings.
So, generally, property that doesn’t fall within one of those three categories is considered community property. Texas law also presumes that property possessed by either spouse during the marriage is community property. The spouse claiming that a piece of property is separate has the burden of proving that the property is, in fact, separate and not community property.
How a property is titled does not determine if it is separate or community property. For instance, if a married couple purchased a house but only put one name on the mortgage and title to the property, then the house would still be community property despite having only one name on the title. The house was purchased during the marriage and, absent other facts, it would be community property.
If you were married later in life you may have already acquired substantial separate property before the marriage. On the other hand, all property owned by you and your spouse may be community property that needs to be divided in the divorce. An attorney can sit down with you and review all property that might be involved in the divorce and whether Texas divorce law would consider it community or separate property.
if you have questions and would like to schedule a consultation, you can contact our office at at firstname.lastname@example.org or 972-542-6820.
The Supreme Court of Texas has issued a new order on court re-openings. The Order restates that whenever possible court participants should be allowed to participate via video or telephone conference. The Order also states that justice or municipal courts (i.e. small claims or traffic tickets) should not hold in-person jury trials until at least December 1.
The order does allow district court (family and felony cases) along with county courts (misdemeanor cases) to hold jury trials if they meet certain conditions such as (1) submitting a plan to the the Office of Court Administration, (2) gained approval from the local administrative district judge and Regional Presiding Judge, (3) consulted with the local public health authority regarding appropriate precautions, (4) has established protocols to prevent anyone with COVID or who's been exposed to COVID from participating and (5) the court have considered any appropriate objections or motions from the parties participating.
Social distancing requirements will prevent the courts from conducting normal docket schedules but this at least allows for the possibility of holding in person proceedings. It also allows defendants in jail waiting for jury trial to finally have their cases resolved.
A full copy of the order can be found here.
Court proceedings are intended to be open to the public as a way of ensuring accountability. In most cases, any one can walk into any court room and observe proceedings. The constitution guarantees the right to a "public trial" in the Sixth Amendment partly as a way ensuring that all proper laws and rules are followed during trial.
Courts in Collin County and throughout north Texas have continued to hold hearings through the use Zoom and other video conferencing and have worked to ensure the public nature of court proceedings through the use of YouTube. Collin County courts each have their own YouTube channels where any one from the public can go on and watch court proceedings.
Courts throughout Texas are taking part in this practice and although it does present some challenges it does help to meet the goal of having public access to court proceedings. Slate.com has an interesting article regarding the various concerns and how those concerns are being addressed https://slate.com/technology/2020/08/zoom-courts-livestream-youtube.html.
So anyone wanting to watch real court proceedings can now just tune into YouTube.
Although many courthouses throughout the country are shut down. Judges in Collin County are still doing their best to move cases forward. Judges have encouraged parties attend mediation to settle disputes out of court and Zoom video hearings have been taking place in most courts. Judge Miskel in the 470th Judicial District Court has even conducted a jury trial via Zoom https://www.reuters.com/article/us-health-coronavirus-courts-texas/texas-prepares-for-a-pandemic-first-a-jury-trial-by-zoom-idUSKBN22U1FE?feedType=RSS&feedName=technologyNews.
The parties in that case picked a jury by video conference and then presented evidence to the jury. The amount of people needed for jury trials presents a special challenge for cases set for trial, but apparently even Zoom conferences can help to meet that requirement.
It will be interesting to see how this develops in the future. Many courts are eyeing a return to in-person hearings, but this may be one way to limit the number of people required at court even when things do start to open up. The judges recognize the need for justice to continue during the pandemic and are doing their best to meet that need.
If you have a question or would like to schedule a consultation, you can contact Michael Diaz at 972-542-6820 or email@example.com.
It's been a while since Texas courts have conducted very many in-person proceedings, but new guidance from the Texas Office of Court Administration is making that a reality again. The Office of Court Administration has set June 1 or after as when counties may once again start conducting non-essential hearings in person. Courts are advised to discuss guidelines for reopening with the county and local health authorities. Additionally, courts must submit an operating plan to the Regional Presiding Judge. Upon receipt by the Regional Presiding Judge and acknowledgement that the operating plans meets certain requirements, courts may commence in-person proceedings.
This update doesn't include jury trials and there's still no guidance on when jury trials when be held again. The Office of Court Administration does anticipate that jury trials will resume this summer.
Many courts have been able to conduct much of its regular docket via video conferencing, but it will definitely be easier once in-person hearings are available again. The full guidance from the Office of Court Administration is available at here.
Although the courthouses for Collin County and surrounding counties are closed for non-essential hearings and, even essential hearing are being conducted by video conference, it is possible to still move forward on cases. The Collin County courts have issued a Joint Statement Encouraging Mediation.
Mediation is common in most family law cases before trial. The Collin County judges have clarified that they still expect mediations to take place if they can be done by video/remote conference. The courts do not want parties canceling mediation simply because the mediation can’t be done in person.
Additionally, the Collin County courts are encouraging all issues that might usually require a hearing be heard by a mediator. For instance, typically at the beginning of a family law case there will be a Temporary Order hearing to put orders in place during the pendency of the case. Rather than have people in limbo because they can’t have a hearing in front of the judge, the judges want people to mediate those issues so a hearing isn’t necessary. This can’t prevent a back log of cases and give people guidance without having to wait for the courts to open back up.
If you have questions or need assistance, you can still schedule a phone consultation to answer your questions at 972-542-6820 or firstname.lastname@example.org.
We are all facing uncertain times due to the corona virus. It has affected everyone and changed the way we go about our day to day lives. One of the biggest changes is that kids aren't going to school and are home all day. I've received several questions about how school changes affect custody possession schedules.
The Collin County District Courts have addressed some of this uncertainty by issuing an "Emergency Standing Order Regarding Possession Schedule During School Closures." These emergency orders state "the original published school schedule shall control in all instances." So parents should continue drop off and pick up schedules according to the regular school district calendars that were in place prior to COVID-19. Additionally the orders state that if the school closures continue into the summer, the regular summer schedule applies including schedules for Extended Summer Possession.
If you have any questions about custody schedules, we are still offering phone and video consultations. You can contact us at 972-542-6820 or email@example.com.