Guns are a hot topic these days. Some people love them. Some people hate them. Not too many people have no opinion on them.
If you own guns or ammunition, and you are headed for a Texas divorce, here are 7 Things you need to know.
Number 1. You can have big problems, even if you don’t do “anything wrong.”
Most people assume that if they are legally allowed to own or possess a gun before their divorce, they are allowed to possess one during their divorce. This is often not the case, for reasons discussed below.
Number 2. Your problems can include being charged with a Federal Felony that could lead to a significant fine and years in prison.
If you possess a firearm at a point in time that you are not allowed to, Federal Law provides that you can be charged in Federal Court with a Felony. The penalties for the violation can include being imprisoned for up to 10 years for nothing more than possessing a gun that you already legally own and have possessed for years. In this context, possession can mean the weapon is locked in a safe within your home.
Number 3. Your potential problems are caused by the fact that Federal Law says that you can’t possess a firearm or ammunition if you are subject to certain Court Orders.
Federal Law makes possession of a gun or ammunition illegal if you are subject to an order that was:
1. issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
2. prohibits you from harassing, stalking, or threatening your spouse or engaging in conduct that would place your spouse in reasonable fear of bodily injury or prohibits the use, attempted use, or threatened use of physical force against your spouse if it could reasonably be expected to cause bodily injury.
Notice that the law does not say that you had to have participated at a hearing or that any testimony was taken at a hearing.
Number 4. It doesn’t matter if you have never harmed anyone, threatened to harm anyone, tried to harm anyone, or ever will.
The Federal law does not discuss or care about whether you have ever done anything harmful, or whether you have ever thought about doing anything harmful, or whether you ever would do anything harmful.
The violation of the law is merely dependent on the Court Order being issued and you having a gun or ammunition.
Number 5. Orders that prohibit the things talked about in the Federal Law are commonly asked for in Texas Divorces.
The reason that you can have the problem caused by possessing a gun in violation of Federal Law is because in Texas it is very typical for one or both parties to ask for a Temporary Order that prohibits the things that the Federal Law prohibits – even when no one thinks the other person would ever do any of those things.
I realize that that may not make sense to someone that does not practice Family Law or Divorce Law in Texas, but there are reasons for it. One reason is that to deal with issues of Temporary Spousal Support, Temporary Child Support, the temporary payment of bills, temporary possession of the family residence, etc. the parties often want a Temporary Order entered. The second reason is that most lawyers and Judges would rather err on the side of having the conduct prohibited and not need it, than not having it prohibited – even though most of it is already illegal – and then finding out there was a need for it.
Number 6. Orders that prohibit the conduct talked about in the Federal Law are often entered in Texas Divorces, even where there has been no family violence, none is likely or expected, and none is even worried about.
Many times, the parties will agree to Temporary Orders that prohibit the conduct. If the parties don’t agree to the language, the Court will often put the language in the Order anyway.
And sometimes, the Court will enter an Order prohibiting the conduct, even when no one has asked for it.
Number 7. If you are a party to a divorce in Texas, and a Temporary Order has been entered that prohibits you from the conduct talked about in the Federal Law, and you possess a firearm or even one bullet, you could be facing years in Federal Prison and a big fine.
Yes. It’s that simple. And that crazy.
Here’s how simple big problems can be for the unrepresented: Showing up to Court by yourself and allowing a small box to be checked beside the words “Injunctions as to Persons” on a commonly used form can lead to Federal prosecution.
Here is the Warning that we provide our clients:
FEDERAL FIREARM WARNING
IF YOU POSSESS FIREARMS OR AMMUNITION THE FOLLOWING LANGUAGE OR SIMILARLY WORDED LANGUAGE, THAT IS CONTAINED IN VIRTUALLY ALL TEMPORARY INJUNCTIONS MAY SUBJECT YOU TO FEDERAL PROSECUTION:
1. Threatening the other party in person, by telephone, or in writing to take unlawful action against any person.
2. Intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party.
3. Threatening the other party or a child of either party with imminent bodily injury.
IT IS ROUTINE PRACTICE FOR THE COURTS TO ENTER MUTUAL TEMPORARY INJUNCTIONS, WHICH INCLUDE THIS LANGUAGE. ACCORDINGLY, YOU NEED TO PLAN TO REMOVE ALL FIREARMS AND AMMUNITION FROM YOUR POSSESSION, UNLESS THE COURT MAKES A SPECIFIC EXCEPTION FOR YOUR CASE.
All of this is yet another reason to get competent legal advice when facing any serious legal matter – and divorce can be a serious legal matter.