THE END OF A MARRIAGE:

Marriage Dissolution – Process and Procedure

Depending on how you divide it, a divorce can have 2-5 parts.  The parts are, or may be, as follows:

  1. Status

  2. Property Division and Debt Assignment

  3. Maintenance

  4. Suit Affecting Parent Child Relationship

  5. Other Causes of Action

Each of these has to be analyzed separately from a jurisdiction and venue standpoint.  Moreover, there may even be additional jurisdictional analysis to be done, if military retirement or Native American rights are involved.

Trying to deal with all of those issues in depth would take a multi-volume treatise set, at least.  This paper and talk are designed to hit the highlights of divorce, cover the basics, and make you aware of areas in which you may need to make further inquiry.  Additionally, topics tangential to a divorce will be covered briefly.

Prenuptial Agreements

            Prenuptial agreements may be referred to as either Premarital Agreements, Antenuptial Agreements, or Prenuptial Agreements.[1]  In fact, in some writings, you will see all three terms used within one paragraphs.  See, e.g., 22-93 Texas Transaction Guide--Legal Forms § 93.291 (“parties to a premarital agreement may contract with respect to the modification or elimination of spousal support. It remains to be seen whether this statute applies to spousal support pending divorce. In a case decided before the enactment of Family Code Section 4.003(a)(4), a trial court found that a prenuptial agreement between the parties provided that one spouse would not seek temporary alimony in the event of divorce. The validity of the antenuptial agreement was not an issue in the case.”)(emphasis added)  Accordingly, the terms will be used interchangeably in this article.

            The initial place to look for the current law on prenuptial agreements is the Texas Constitution and the Texas Family Code.  Tex. Const. Art. XVI, § 15 (“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;”); Tex. Fam. Code § 4.001 (2010), et seq.  Texas has adopted the Uniform Premarital Agreement Act and it is codified in Subchapter A, Chapter 4, Subtitle B, Title 1 of the Texas Family code.  See Tex. Fam. Code § 4.010 (2010)(“This subchapter may be cited as the Uniform Premarital Agreement Act.” Also known as the “UPAA”)

            The Texas Constitution and the UPAA, taken together, provide that prospective spouses can enter into agreements that address the following:

(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4) the modification or elimination of spousal support;

(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;


(6) the ownership rights in and disposition of the death benefit from a life insurance policy;

(7) the choice of law governing the construction of the agreement;

(8) the partitioning of all or part of the prospective spouses’ property, whether then existing or to be acquired;

(9) the exchange between the prospective spouses of the community interest of one future spouse in any property for the community interest of the other future spouse in other community property then existing or to be acquired; and

(10) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Tex. Fam. Code § 4.003 (2010); Tex. Const. Art. XVI, § 15

While it’s not possible to have an exhaustive list of what can not be contracted for in an antenuptial agreement, the code does limit what can be bargained for with respect to children.  The code specifically says that “the right of a child to support may not be adversely affected by a premarital agreement.”  Tex. Fam. Code § 4.003 (2010) The limits of what is meant by that statement, however, have not been clearly defined, due to the dearth of case law. 

In 2003, the Texarkana Court of Appeals found that a premarital agreement that limited the income of husband in a subsequent marriage could work to limit the child support owed to the ex-spouse-obligee from a prior marriage.  See In the Interest of Knott, 118 S.W.3d 899, 903 (Tex. App. Texarkana 2003) The Court held that the agreement was not an improper fraud of a prior creditor – which is specifically prohibited under Article XVI § 15 of the Texas Constitution.

Once entered into, a premarital agreement becomes effective on the date of marriage, and can only be amended or revoked by written agreement.  Tex. Fam. Code § 4.004 (2010); Tex. Fam. Code § 4.005 (2010); See also, In re Marriage of Cobb, 2007 Iowa App. LEXIS 930 (Iowa Ct. App. Sept. 6, 2007)(“[wife]'s assertion that the spouses abandoned the premarital agreement also must fail. . . . Texas law only authorizes revocation of a premarital agreement in writing.”)


With respect to enforceability, the presumption is with the party trying to enforce.  See Marsh v. Marsh, 949 S.W.2d 734 (Tex. App. Houston 14th Dist. 1997) (“The legislature and people of Texas have made a public policy determination that premarital agreements should be enforced. Beck v. Beck, 814 S.W.2d 745, 749 (Tex. 1991). Therefore, premarital agreements are presumptively enforceable.”); see also, Grossman v. Grossman, 799 S.W.2d 511, 513 (Tex. App. Corpus Christi 1990) The Marsh Court state that § 4.006 “places the burden on the party resisting the enforcement of the agreement by creating a rebuttable presumption that the agreement is enforceable.” 949 S.W.2d 734 (Tex. App. Houston 14th Dist. 1997)


            In order to defeat a premarital agreement, the party seeking to avoid it must prove that it was signed involuntarily or that it is unconscionable and all of the following:

he/she was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

he/she did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

he/she did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Tex. Fam. Code § 4.006 (2010) Moreover, the Code provides that unconscionability is determined by the Court and that additional common law defenses are not available.  Id.

            With respect to the procedure for challenging or upholding a antenuptial agreement, the Summary Judgment can be a useful tool.  See generally,47 S. Tex. L. Rev. 409, 530-531 (“a movant for summary judgment seeking to enforce the agreement may rely on the agreement itself as the only evidence in support of the motion for summary judgment. Then, the burden shifts to the nonmovant to come forward with enough evidence to raise a fact issue on whether the agreement is unenforceable. A party seeking to enforce such an agreement also may file a no-evidence motion for summary judgment to challenge an involuntary execution defense.”)

Annulment

            In all likelihood, a practitioner will be asked about annulments dozens of times more often than he/she will file them. They are often misunderstood, and only available in limited circumstances.  Similar to contracts, marriages come in three flavors – valid, voidable, and void.  An annulment is the remedy for a party to a voidable marriage that does not want to get a divorce.  See 4-1 Texas Family Law: Practice and Procedure Q1.01 (“A suit for annulment is an action brought to have a voidable marriage declared invalid, based on some fact that prevents at least one of the parties from having the legal ability to enter into a marriage relationship.”)

An annulment can (theoretically) be obtained more quickly than a divorce, and arguably allows the parties to deny that they were ever married.  See Home of Holy Infancy v. Kaska, 397 S.W.2d 208, 213 (Tex. 1965)(superceded in part by statute)(“The annulment decree may relate back to the time of the marriage as between the parties to the former suit, but it will not be given that effect in determining the legitimacy of their child.”); See also Fernandez v. Fernandez, 717 S.W.2d 781, 782 (Tex. App. El Paso 1986)(“it is apparent that although a voidable marriage is void ab initio, it is really not void for all purposes, such as division of property and legitimacy of children.”); See also Saad v. Barrows, 2004 U.S. Dist. LEXIS 11085 (N.D. Tex. June 16, 2004)(“A decree annulling a marriage is not merely a dissolution of the marriage, but a judicial declaration that no marriage ever existed. See 4 AM. JUR. 2D, ANNULMENT OF MARRIAGE § 1. Once a marriage is annulled, it is said to be void ab initio, i.e., void from its inception.”)

The grounds for an annulment must be one of the following:

1. One or both parties were between the ages of 16 and 18 and did not have parental consent or a court order to marry.  Tex. Fam. Code § 6.102 (“Annulment of Marriage of Person Under Age 18”)[2]

2. The party seeking the annulment was under the influence of alcohol or drugs at the time of the marriage.  Tex. Fam. Code § 6.105 (“Under Influence of Alcohol or Narcotics”)

3. One or both parties were impotent at the time of marriage.  Tex. Fam. Code § 6.106 (“Impotency”)

4. The respondent used fraud, duress, or force to induce the petitioner into marriage. Tex. Fam. Code § 6.107 (“Fraud, Duress, or Force”)

5. One or both parties lacked the mental capacity “to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect.  Tex. Fam. Code § 6.108 (“Mental Incapacity”)

6. The respondent concealed the fact that he/she had gotten a divorce within the previous 30 days. Tex. Fam. Code § 6.109 (“Concealed Divorce”)

7. The marriage took place during the 72 hour “waiting period” after the issuance of the license.  Tex. Fam. Code § 6.110 (“Marriage Less Than 72 Hours After Issuance of License”)

As a general proposition, an annulment is barred if the petitioner has cohabitated with the other party once the impediment is lifted, the facts become known, or a reasonably prudent person would have discovered the facts.  See, e.g., Tex. Fam. Code § 6.107 (“if: . . . and (2) the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.”); See also 8-2 Texas Court's Charge Reporter No. 80-2-30 (“You are instructed that the term "cohabitation" means having the same habitation, not a sojourn, a habit of visiting or remaining for a time; there must be something more than mere meretricious intercourse. You are instructed that by the term "cohabitation" is meant living together as husband and wife and having sexual intercourse as husband and wife.”) Additionally, other time limits act as a “statute of limitations” in certain circumstances.  See, e.g., Tex. Fam. Code § 6.110 (“Marriage Less Than 72 Hours After Issuance of License”)(“A suit may not be brought under this section after the 30th day after the date of the marriage.”)


Legal Separation

Clearly, there is no requirement that spouses live together.  In fact, in the event it is ever needed, there is even case law to support that proposition.  See Worden v. Worden, 222 S.W.2d 254, 257 (Tex. Civ. App. 1949) rev'd on other grounds, 148 Tex. 356, 224 S.W.2d 187 (1949)(“There is no law in this state compelling a husband and wife to reside together as such. They may permanently separate by agreement, by action of either party refusing to live with the other.”)

Texas, however, does not recognize “legal separation” as a separate status.  See Pilot Life Ins. Co. v. Koch, 617 S.W.2d 786, 788 (Tex. Civ. App. Eastland 1981)(“the words "legally separated" should not be considered only on the basis of Texas law which does not recognize legal separation.”)  Moreover, Texas does not recognize any form of “limited divorce.” See Tanton v. State Nat'l Bank, 125 Tex. 16, 20 (Tex. 1935)(“Limited divorces, a mensa et thoro ("from bed and board"), are unknown to the law of Texas. 15 Texas Jurisprudence, pp. 436-7, Sec. 2. With us a divorce, when it becomes final, involves a complete dissolution of the marriage relation. Speer's Law of Marital Rights in Texas, (3d ed.), Sec. 625.”)

Notwithstanding the lack a “separated” status, Texas courts have long enforced “separation agreements” of separated spouses.  See, e.g., Rains v. Wheeler, 76 Tex. 390 (Tex. 1890)(“A voluntary post-nuptial agreement made between husband and wife after a long and final separation -- and made fairly and honestly so as to give full justice and equal distribution of property rights to the wife -- and entered into in order to promote peace and good order and the welfare of the family, will be upheld in equity, and the settlement will be treated as intended between the two parties.”)


The exact distinctions, between separation agreements, partition (or marital property or post-marital) agreements, and agreements incident to divorce are frankly blurred in judicial opinions on the subject.  See, e.g. Miller v. Miller, 700 S.W.2d 941, 952 (Tex. App. Dallas 1985).  Unlike other agreements, separation agreements arise from common law, not from the Texas Constitution or statute.  See Patino v. Patino, 687 S.W.2d 799, 801 (Tex. App. San Antonio 1985)(“There is extensive common-law precedent empowering a husband and wife to effect a division of their property on permanent separation. The only prerequisite to such agreement is that it be fair and equal.”) Despite the absence of bright-line guidance for the requisites of a separation agreement, however, it would be reckless to rely on an oral agreement.  See, e.g. Miller v. Miller, 700 S.W.2d 941, 952 (Tex. App. Dallas 1985)(“we see no reason why a writing should be required when the spouses are living together but not when they have separated. Consequently, we hold that the trial court did not err in excluding Howard's testimony concerning the alleged oral agreement.”) The wise practitioner will advise his/her client to utilize a written document, in the form most recognized by the courts.  See State Bar Form. 48-8, Separation Agreement; See also 5-4 Texas Family Law: Practice and Procedure X4.100 (“Creating Separation Agreement”)

Divorce

Status.  The foundational part of any divorce case is that dealing with the “status” of the parties.  The determination of status is the determination of whether the parties remain married or are divorced.  A status determination is a quasi in rem proceeding.  Therefore, a Texas Court can render a valid divorce decree in a marriage in which only one of the parties is a domiciliary of Texas.  See Dearing v. Johnson, 947 S.W.2d 641, 644 (Tex. App. Texarkana 1997)(“Divorce actions are quasi in rem so that the court has jurisdiction over the res-the status of the marriage-even though its personal jurisdiction over the parties may be imperfect.”)

Property Division and Debt Assignment.  The beginning point for understanding the basic law on division of property at the time of divorce is Texas Family Code § 7.001 et seq. The code provides that:

In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code § 7.001 (2011)

While there is absolutely no requirement that the division be equal, it likewise is not to be arbitrary.  See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981)(“community property need not be equally divided.”); Dutton v. Dutton, 18 S.W.3d 849, 852 (Tex. App. Eastland 2000)(“The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles or whether the act was arbitrary and unreasonable.”)

The steps generally followed to get from the outset of the case to the ultimate division are as follows:

1.         Inventory

2.         Characterize

3.         Value

4.         Determine Existence of Reimbursement Claims

5.         Determine Proposed Division

6.         Marshall Evidence of:

a.         Estate

b.         Characterization

c.         Valuation

d.         Reimbursement

e.         Basis for Requested Division

1)         Fault Grounds

a)         Adultery

b)         Cruelty

2)         the spouses' capacities and abilities

3)         business opportunities,

4)         education,

5)         relative physical conditions,

6)         relative financial conditions and obligations,

7)         disparity of ages,

8)         sizes of separate estates,

9)         the nature of the property,

10)       disparity in earning capacities or of incomes, and

11)       wasting of community assets.

See Phillips v. Phillips, 75 S.W.3d 564, 573 (Tex. App. Beaumont 2002)(“The fact that there are ten "non-fault" factors, as well as the fact that the list is nonexclusive, should continue to give a trial court very broad discretion in making its ‘just and right’ division. . .”)

Suit Affecting Parent Child Relationship (SAPCR)

When parties to a divorce are also the parents of a minor child, a suit affecting the parent child relationship must be joined with the divorce, unless the child is under the continuing exclusive jurisdiction of another court.  See Giron v. Gonzalez, 247 S.W.3d 302, 308 (Tex. App. El Paso 2007)(“Under Section 6.406 of the Texas Family Code, any suit for dissolution of a marriage where the parties are the parents of a child, must include a SAPCR. See Tex.Fam.Code Ann. § 6.406(b); Diaz v. Diaz, 126 S.W.3d 705, 707 (Tex.App.-Corpus Christi 2004, no pet.)(default judgment void where petitioner failed to join mandatory SAPCR).”)

In order for a Texas Court to make a custody determination, the provisions of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) must be satisfied.  In most original actions, that means that the child has resided in Texas for the preceding six month.  See Tex. Fam. Code § 152.201 (“this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state”)

Given the virtually infinite number of fact patterns that may arise, however, it is important to understand the UCCJEA’s applicability to non-garden-variety situations.  For example, a practioner needs to be able to determine whether Texas can properly exercise jurisdiction in all of the following circumstances:

1.         A child that did live in Texas for a period in excess of six months, but has been taken to another state within the last six months.  See Tex. Fam. Code § 152.201(a)(1) (“[Texas] was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state”)

2.         A child that has not resided anywhere for six consecutive months.  See Tex. Fam. Code § 152.201(a)(2)

3.         A child whose home state has declined to exercise jurisdiction.  See Tex. Fam. Code § 152.201(a)(2)

Pursuant to its terms, the UCCJEA is the exclusive basis for jurisdiction in child custody matters and “physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” Tex. Fam. Code § 152.201(b) & (c)

Unlike custody, child support requires personal jurisdiction over the obligor.  See In re Barnes, 127 S.W.3d 843, 849 (Tex. App. San Antonio 2003)(“the trial court had no personal jurisdiction over Linda Barnes to impose child support, division of property outside the state, or other decrees involving personal obligations.”)  Keep in mind, however, that Texas Courts are specifically authorized to exercise partial jurisdiction “over those portions of the suit for which it has authority.” Tex. Fam. Code § 6.308

Other causes of action

A divorce is a lawsuit.  The normal rules of joinder apply, such that one party can bring as many claims as he/she has against the other party within the same case.  Tex. R. Civ. P. 51(“The plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party.”)

In divorce, these claims can run the gamut from Intentional Infliction of Emotional Distress to Assault to Fraud.  In the seminal case of Twyman v. Twyman, the Texas Supreme Court stated:

We now consider whether the cause of action for intentional infliction of emotional distress may be brought in a divorce proceeding. In Bounds v. Caudle, this court unanimously abolished the doctrine of interspousal immunity for intentional torts. 560 S.W.2d 925 (Tex. 1977). Ten years later, we abrogated interspousal immunity "completely as to any cause of action," including negligence actions for personal injuries. Price v. Price, 732 S.W.2d 316, 319 (Tex. 1987). Under the rules established in Caudle and Price, there appears to be no legal impediment to bringing a tort claim in a divorce action based on either negligence or an intentional act such as assault or battery.

Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex. 1993)

Possibly the more significant question is when the claims must be brought in order to prevent their loss through the doctrine of claim preclusion or res judicata.  See, e.g., Brinkman v. Brinkman, 966 S.W.2d 780, 783 (Tex. App. San Antonio 1998)(“Because Ms. Brinkman knew about her personal injury claim against Mr. Brinkman and used it to her advantage in the divorce proceeding, the claim should have been joined with the divorce action. If such joinder would have caused undue complication of the divorce proceeding, the proper remedy would have been severance, not the filing of a second suit after the first had been resolved.”)


Checklist of Documents and Sample Forms

  1. Petition (Appendix 1)

  2. TRO (Appendix 2)

  3. Answer (Appendix 3)

  4. Temporary Orders

  5. Counterpetition

  6. Decree

  7. Post-Divorce Documents

    1. Children

      1. Notification of Travel

      2. Consent of Travel

    2. Property

      1. Special Warranty Deed

      2. Deed of Trust to Secure Assumption

      3. Qualified Domestic Relations Order (QDRO)

©  Eric D. Beal, www.DFWDIVORCE.com, 2011

 

 

[1] Also colloquially referred to as “Prenupts” or “Prenups”  See, e.g., http://money.cnn.com/2004/03/19/pf/prenups/index.htm

[2] The proper vehicle to dissolve a marriage for a minor under 16 is a suit to declare marriage void.  See Tex. Fam. Code § 6.205 (“A marriage is void if either party to the marriage is younger than 16 years of age, unless a court order has been obtained under Section 2.103.”)

APPENDIX 1

 

ORIGINAL PETITION FOR DIVORCE

 

1.         Discovery Level

            Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas Rules of Civil Procedure.

2.         Parties

            This suit is brought by Jane Doe, Petitioner.  The last three numbers of Jane Doe's driver's license number are 999.  The last three numbers of Jane Doe's Social Security number are 666.

            John Doe is Respondent.

3.         Domicile

            Petitioner has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period.

4.         Service

            CITATION IS REQUESTED.  Private process service will be utilized.

 

5.         Protective Order Statement

            No protective order under title 4 of the Texas Family Code is in effect, and no application for a protective order is pending with regard to the parties to this suit.

6.         Dates of Marriage and Separation

            The parties were married on or about January 1, 2000 and ceased to live together as husband and wife on or about August 1, 2011.

7.         Grounds for Divorce

            The marriage has become insupportable because of discord or conflict of personalities between Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

8.         Children of the Marriage

            Petitioner and Respondent are parents of the following child of this marriage who is not under the continuing jurisdiction of any other court:

            Name:            Sammy Doe

            Sex:                Male

            Birth date:     January 1, 2005

            There are no court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting the child the subject of this suit.

            Information required by section 154.181(b) of the Texas Family Code will be provided.

            No property of consequence is owned or possessed by the child the subject of this suit.

            Petitioner and Respondent, on final hearing, should be appointed joint managing conservators, with all the rights and duties of a parent conservator.

            Petitioner should be designated as the conservator who has the exclusive right to designate the primary residence of the child.  Respondent should be ordered to make payments for the support of the child and to provide medical child support in the manner specified by the Court.  Petitioner requests that the payments for the support of the child survive the death of Respondent and become the obligations of Respondent's estate.

9.         Division of Community Property

            Petitioner requests the Court to divide the estate of Petitioner and Respondent in a manner that the Court deems just and right, as provided by law.

            Petitioner should be awarded a disproportionate share of the parties' estate for the following reasons, including but not limited to:

                        a.         fault in the breakup of the marriage;

 

                        b.         benefits the innocent spouse may have derived from the continuation of the marriage;

 

                        c.         the spouse to whom conservatorship of the child is granted; and

 

                        d.         wasting of community assets by the spouses.

 

10.      Separate Property

            Petitioner owns certain separate property that is not part of the community estate of the parties, and Petitioner requests the Court to confirm that separate property as Petitioner's separate property and estate.

11.      Reimbursement

            Petitioner requests the Court to reimburse the community estate for funds or assets expended by the community estate for payment of unsecured liabilities of Respondent's separate estate.  Those expenditures resulted in a direct benefit to Respondent's separate estate.  The community estate has not been adequately compensated for or benefited from the expenditure of those funds or assets, and a failure by the Court to allow reimbursement to the community estate will result in an unjust enrichment of Respondent's separate estate at the expense of the community estate.

12.      Postdivorce Maintenance

            Petitioner requests the Court to order that Petitioner be paid postdivorce maintenance for a reasonable period in accordance with chapter 8 of the Texas Family Code.

13.      Request for Temporary Restraining Order

            Petitioner requests the Court to dispense with the issuance of a bond, and Petitioner requests that Respondent be temporarily restrained immediately, without hearing, and after notice and hearing be temporarily enjoined, pending the further order of this Court, from:

            1.         Communicating with Petitioner in person, by telephone, or in writing in vulgar, profane, obscene, or indecent language or in a coarse or offensive manner.

            2.         Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.

            3.         Placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication.

            4.         Causing bodily injury to Petitioner or to a child of either party.

            5.         Threatening Petitioner or a child of either party with imminent bodily injury.

            6.         Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.

            7.         Falsifying any writing or record relating to the property of either party.

            8.         Misrepresenting or refusing to disclose to Petitioner or to the Court, on proper request, the existence, amount, or location of any property of one or both of the parties.

            9.         Damaging or destroying the tangible property of one or both of the parties, including any document that represents or embodies anything of value.

            10.      Tampering with the tangible property of one or both of the parties, including any document that represents or embodies anything of value, and causing pecuniary loss to Petitioner.

            11.      Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Petitioner or Respondent, whether personalty or realty, and whether separate or community, except as specifically authorized by order of this Court.

            12.      Incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by order of this Court.

            13.      Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by order of this Court.

            14.      Spending any sum of cash in Respondent's possession or subject to Respondent's control for any purpose, except as specifically authorized by order of this Court.

            15.      Withdrawing or borrowing in any manner for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by order of this Court.

            16.      Entering any safe-deposit box in the name of or subject to the control of Petitioner or Respondent, whether individually or jointly with others.

            17.      Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on the life of Petitioner or Respondent, except as specifically authorized by order of this Court.

            18.      Changing or in any manner altering the beneficiary designation on any life insurance on the life of Petitioner or Respondent or the parties' child.

            19.      Canceling, altering, failing to renew or pay premiums, or in any manner affecting the present level of coverage of any life, casualty, automobile, or health insurance policies insuring the parties' property or persons including the parties' child.

            20.      Opening or diverting mail addressed to Petitioner.

            21.      Signing or endorsing Petitioner's name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instrument payable to Petitioner without the personal signature of Petitioner.

            22.      Taking any action to terminate or limit credit or charge cards in the name of Petitioner.

            23.      Discontinuing or reducing the withholding for federal income taxes on Respondent's wages or salary while this case is pending.

            24.      Destroying, disposing of, or altering any financial records of the parties, including but not limited to records from financial institutions (including canceled checks and deposit slips), all records of credit purchases or cash advances, tax returns, and financial statements.

            25.      Destroying, disposing of, or altering any e-mail or other electronic data relevant to the subject matters of this case, whether stored on a hard drive or on a diskette or other electronic storage device.

            26.      Terminating or in any manner affecting the service of water, electricity, gas, telephone, cable television, or other contractual services, such as security, pest control, landscaping, or yard maintenance, at 777 Mockingbird Lane, Southlake, Texas or in any manner attempting to withdraw any deposits for service in connection with those services.

            27.      Excluding Petitioner from the use and enjoyment of the residence located at 777 Mockingbird Lane, Southlake, Texas.

            28.      Entering, operating, or exercising control over the 2009 Ford Expedition in the possession of Petitioner.

            29.      Disturbing the peace of the child or of another party.

            30.      Withdrawing the child from enrollment in the school or day-care facility where the child is presently enrolled.

            31.      Hiding or secreting the child from Petitioner.

            32.      Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or within the hearing of the child.

            33.      Consuming alcohol within the 8 hours before or during the period of possession of or access to the child.

            34.      Permitting an unrelated adult with whom Respondent has an intimate or dating relationship to remain in the same residence with the child between the hours of 12:01 P.M. and 11:59 A.M.

            Petitioner requests that Respondent be authorized only as follows:

            To make expenditures and incur indebtedness for reasonable and necessary living expenses for food, clothing, shelter, transportation, and medical care.

            To make expenditures and incur indebtedness for reasonable attorney's fees and expenses in connection with this suit.

            To make withdrawals from accounts in financial institutions only for the purposes authorized by the Court's order.

            To engage in acts reasonable and necessary to conduct Respondent's usual business and occupation.

14.      Request for Temporary Orders Concerning Use of Property

            Petitioner requests the Court, after notice and hearing, for the preservation of the property and protection of the parties, to make temporary orders and issue any appropriate temporary injunctions respecting the temporary use of the parties' property as deemed necessary and equitable, including but not limited to the following:

            Awarding Petitioner the exclusive use and possession of the residence located at 777 Mockingbird Lane, Southlake, Texas, as well as the furniture, furnishings, and other personal property at that residence, while this case is pending, and enjoining Respondent from entering or remaining on the premises of the residence and exercising possession or control of any of this personal property, except as authorized by order of this Court.

            Awarding Petitioner exclusive use and control of the 2009 Ford Expedition and enjoining Respondent from entering, operating, or exercising control over it.

15.      Request for Temporary Orders Regarding Child

            Petitioner requests the Court, after notice and hearing, to dispense with the necessity of a bond and to make temporary orders and issue any appropriate temporary injunctions for the safety and welfare of the child of the marriage as deemed necessary and equitable, including but not limited to the following:

            Appointing Petitioner and Respondent temporary joint managing conservators, and designating Petitioner as the conservator who has the exclusive right to designate the primary residence of the child.

            Ordering Respondent to pay child support, health insurance premiums for coverage on the child, and 50 percent of the child's uninsured medical expenses while this case is pending.

16.      Request for Interim Attorney's Fees and Temporary Support

            Petitioner requests the Court, after notice and hearing, for the preservation of the property and protection of the parties, to make temporary orders and issue any appropriate temporary injunctions regarding attorney's fees and support as deemed necessary and equitable, including but not limited to the following:

            Petitioner requests that Respondent be ordered to pay reasonable interim attorney's fees and expenses, including but not limited to fees for appraisals, accountants, actuaries, and so forth.  Petitioner is not in control of sufficient community assets to pay attorney's fees and anticipated expenses.

            Petitioner has insufficient income for support, and Petitioner requests the Court to order Respondent to make payments for the support of Petitioner until a final decree is signed.

            Petitioner requests that Respondent be ordered to pay estimated income taxes on the due dates as required by the Internal Revenue Service and under the Social Security numbers of both Petitioner and Respondent.

            Petitioner requests that Respondent be ordered to pay any ad valorem taxes and insurance premiums as due on the properties of the parties.

17.      Transmitting Sexual Disease

            On or about June 1, 2011 Respondent breached his duty not to transmit any sexual diseases to the other spouse.  Petitioner can prove by a preponderance of the evidence that Respondent's actions were the proximate cause of the contraction of a particular sexually transmitted disease, commonly known as herpes.

18.      Damages

            This action proximately resulted in damages to Petitioner for which Petitioner now seeks relief.  Those damages include past and future medical expenses and mental anguish.

19.      Request for Change of Name

            Petitioner requests a change of name to Jane Samantha Roe.

20.      Attorney's Fees, Expenses, Costs, and Interest

            It was necessary for Petitioner to secure the services of Eric D. Beal of the BEAL LAW FIRM, a licensed attorney, to prepare and prosecute this suit.  To effect an equitable division of the estate of the parties and as a part of the division, and for services rendered in connection with conservatorship and support of the child, judgment for attorney's fees, expenses, and costs through trial and appeal should be granted against Respondent and in favor of Petitioner for the use and benefit of Petitioner's attorney and be ordered paid directly to Petitioner's attorney, who may enforce the judgment in the attorney's own name.  Petitioner requests postjudgment interest as allowed by law.

21.      Prayer

            Petitioner prays that citation and notice issue as required by law and that the Court grant a divorce and all other relief requested in this petition.

            Petitioner prays that the Court immediately grant a temporary restraining order restraining Respondent, in conformity with the allegations of this petition, from the acts set forth above, and Petitioner prays that, after notice and hearing, this temporary restraining order be made a temporary injunction.

            Petitioner prays for judgment against John Doe in a sum within jurisdictional limits of this Court for her actual damages as alleged, for prejudgment and postjudgment interest as allowed by law, for costs of court, and for general relief.

            Petitioner prays that Petitioner's name be changed as requested above.

            Petitioner prays for attorney's fees, expenses, and costs as requested above.

            Petitioner prays for general relief.

 

Respectfully submitted,

 

BEAL LAW FIRM

2920 W. Southlake Blvd., Ste. 140

Southlake, Texas 76092

Telephone 817.261.4333

Facsimile 817.281.0086

www.DFWDIVORCE.com

 

 

 

By:                                                                             

Eric D. Beal

State Bar No. 01949950

Attorney for Petitioner

APPENDIX 2

 

 

TEMPORARY RESTRAINING ORDER AND

ORDER SETTING HEARING FOR TEMPORARY ORDERS

 

            The application of Petitioner, Jane Doe, for temporary restraining order was presented to the Court today.  Respondent is John Doe.

            The child the subject of this suit is Sammy Doe.

            The Court examined the pleadings of Petitioner and finds that Petitioner is entitled to a temporary restraining order.

            IT IS THEREFORE ORDERED that the clerk of this Court issue a temporary restraining order restraining Respondent, and Respondent is immediately restrained, from:

            1.         Communicating with Petitioner in person, by telephone, or in writing in vulgar, profane, obscene, or indecent language or in a coarse or offensive manner.

            2.         Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.

            3.         Placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication.

            4.         Causing bodily injury to Petitioner or to a child of either party.

            5.         Threatening Petitioner or a child of either party with imminent bodily injury.

            6.         Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.

            7.         Falsifying any writing or record relating to the property of either party.

            8.         Misrepresenting or refusing to disclose to Petitioner or to the Court, on proper request, the existence, amount, or location of any property of one or both of the parties.

            9.         Damaging or destroying the tangible property of one or both of the parties, including any document that represents or embodies anything of value.

            10.      Tampering with the tangible property of one or both of the parties, including any document that represents or embodies anything of value, and causing pecuniary loss to Petitioner.

            11.      Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Petitioner or Respondent, whether personalty or realty, and whether separate or community, except as specifically authorized by this order.

            12.      Incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by this order.

            13.      Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order.

            14.      Spending any sum of cash in Respondent's possession or subject to Respondent's control for any purpose, except as specifically authorized by this order.

            15.      Withdrawing or borrowing in any manner for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by this order.

            16.      Entering any safe-deposit box in the name of or subject to the control of Petitioner or Respondent, whether individually or jointly with others.

            17.      Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on the life of Petitioner or Respondent, except as specifically authorized by this order.

            18.      Changing or in any manner altering the beneficiary designation on any life insurance on the life of Petitioner or Respondent or the parties' child.

            19.      Canceling, altering, failing to renew or pay premiums, or in any manner affecting the present level of coverage of any life, casualty, automobile, or health insurance policies insuring the parties' property or persons, including the parties' child.

            20.      Opening or diverting mail addressed to Petitioner.

            21.      Signing or endorsing Petitioner's name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instrument payable to Petitioner without the personal signature of Petitioner.

            22.      Taking any action to terminate or limit credit or charge cards in the name of Petitioner.

            23.      Discontinuing or reducing the withholding for federal income taxes on Respondent's wages or salary while this case is pending.

            24.      Destroying, disposing of, or altering any financial records of the parties, including but not limited to records from financial institutions (including canceled checks and deposit slips), all records of credit purchases or cash advances, tax returns, and financial statements.

            25.      Destroying, disposing of, or altering any e-mail or other electronic data relevant to the subject matters of this case, whether stored on a hard drive or on a diskette or other electronic storage device.

            26.      Terminating or in any manner affecting the service of water, electricity, gas, telephone, cable television, or other contractual services, such as security, pest control, landscaping, or yard maintenance, at 777 Mockingbird Lane, Southlake, Texas or in any manner attempting to withdraw any deposits for service in connection with those services.

            27.      Excluding Petitioner from the use and enjoyment of the residence located at 777 Mockingbird Lane, Southlake, Texas.

            28.      Entering, operating, or exercising control over the 2009 Ford Expedition in the possession of Petitioner.

            29.      Disturbing the peace of the child or of another party.

            30.      Withdrawing the child from enrollment in the school or day-care facility where the child is presently enrolled.

            31.      Hiding or secreting the child from Petitioner.

            32.      Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or within the hearing of the child.

            33.      Consuming alcohol within the 8 hours before or during the period of possession of or access to the child.

            34.      Permitting an unrelated adult with whom Respondent has an intimate or dating relationship to remain in the same residence with the child between the hours of 12:01 P.M. and 11:59 A.M.

            IT IS FURTHER ORDERED that Respondent is authorized only as follows:

            To make expenditures and incur indebtedness for reasonable and necessary living expenses for food, clothing, shelter, transportation, and medical care.

            To make expenditures and incur indebtedness for reasonable attorney's fees and expenses in connection with this suit.

            To make withdrawals from accounts in financial institutions only for the purposes authorized by this order.

            To engage in acts reasonable and necessary to conduct Respondent's usual business and occupation.

            This restraining order is effective immediately and shall continue in force and effect until further order of this Court or until it expires by operation of law. This order shall be binding on Respondent; on Respondent's agents, servants, and employees; and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise.  The requirement of a bond is waived.

            IT IS FURTHER ORDERED that the clerk shall issue notice to Respondent, John Doe, to appear, and Respondent is ORDERED to appear in person, before this Court in the courthouse at________________________, located at _________________________________, on        _______________________  at   ___ . M.  The purpose of the hearing is to determine whether, while this case is pending:

            1.         The preceding temporary restraining order should be made a temporary injunction pending final hearing.

            2.         The additional temporary injunction prayed for should be granted.

            3.         Petitioner should be awarded the exclusive use and possession of the residence located at 777 Mockingbird Lane, Southlake, Texas, as well as the furniture, furnishings, and other personal property at that residence, while this case is pending, and Respondent should be enjoined from entering or remaining on the premises of the residence and exercising possession or control of any of this personal property, except as authorized by order of this Court.

            4.         Petitioner should be awarded exclusive use and control of the 2009 Ford Expedition, and Respondent should be enjoined from entering, operating, or exercising control over it.

            5.         Petitioner and Respondent should be appointed temporary joint managing conservators, and Petitioner should be designated as the conservator who has the exclusive right to designate the primary residence of the child.

            6.         Respondent should be ordered to pay child support, health insurance premiums for coverage on the child, and 50 percent of the child's uninsured medical expenses while this case is pending.

            7.         The Court should order Respondent to pay support to Petitioner until a final decree is signed.

            8.         The Court should order Respondent to pay reasonable interim attorney's fees and expenses.

            9.         The Court should order Respondent to pay estimated income taxes on the due dates as required by the Internal Revenue Service and under the Social Security numbers of both Petitioner and Respondent.

            10.      The Court should order Respondent to pay any ad valorem taxes and insurance premiums as due on the properties of the parties.

            11.      The Court should make all other and further orders respecting the property and the parties that are pleaded for or that are deemed necessary and equitable and for the safety and welfare of the child.

SIGNED on         ____________ at  _____   __   .M.

 

 

                                                                                   

JUDGE PRESIDING

APPENDIX 3

RESPONDENT'S ORIGINAL ANSWER

 

            John Doe, Respondent, files this Original Answer to Original Petition for Divorce.  The last three numbers of John Doe's driver's license number are 333.  The last three numbers of John Doe's Social Security number are 222.

1.         General Denial

            Respondent enters a general denial.

2.         Prayer

            Respondent prays that Petitioner take nothing and that Respondent be granted all relief requested in this Original Answer.

            Respondent prays for general relief.

 

Respectfully submitted,

By:                                                                             

John Doe, Pro Se

777 Mockingbird

Southlake, Texas 76092

Telephone 555-555-5555

 

 

                                                          Certificate of Service

            I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on August _______, 2011.

 

 

                                                                                   

John Doe

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