Recently, a friend and fellow attorney asked me some questions regarding one of his cases. He was representing the husband in a divorce case. The facts were a little unusual in that they had competing divorce cases. The wife was living in Texas and the husband in another state.
The husband had managed to complete the divorce process first. Despite that fact, the attorney representing the wife was insistent on perusing the Texas divorce to completion even after my friend pointed out the couple was already divorced.
My friend wanted to know if there was some Texas law he was not aware of that would allow this attorney to divorce the couple twice.
I let my friend know that he was not crazy; the couple were divorced. This may have left some issues unresolved such as child issues or property issues, but those cases could be pursued using other Texas legal tools. Now that the couple was divorced, a divorce is no longer the proper legal tool for those issues.
In today’s blog post, we will focus on what legal remedies are available when a couple divorces and there are unresolved child and property issues.
The Texas Divorce
Generally, in Texas, what many people do not know is that a Texas divorce is a lawsuit that does more than end a marriage. A Texas divorce normally takes care of three things:
- Property – divides marital assets and debts
- Children – determines rights and duties of parents toward children, parental visitation, and establishes child support
- Marriage – ends the marriage
This may have been what the wife’s attorney in the above scenario was struggling with. The parties were divorced but there were still unresolved issues. Although Texas divorces normally resolve those three issues, that is not the only way to do things.
Other states will allow a couple to divorce and take care of those other two issues in separate lawsuits.
Post-Divorce Dissolution of Property
In fact, one tool for doing just that is in regard to property under the Texas Family Code Section 9.201. This section of the code is titled “Procedure for Division of Certain Property Not Divided on Divorce or Annulment.”
As mentioned, most of the time using this section of the Texas Family Code is unnecessary because Texas divorces generally try and resolve not only the marital relationship but the division of property and children’s issues in the same lawsuit.
Cleaning up Divorce Decrees
However, this has been a valuable tool for our office in a few of our cases. One case involved helping a wife who had handled her own divorce only to discover later that she had awarded herself the debt on the house and, in a very vague way, the house itself.
However, the decree was not clear enough for her to be able to sell the house itself. Our office was able to track down the husband who moved to Florida get him served, ultimately resolving the case in her favor.
Another reason that this section of the Family Code would be helpful is if a spouse had hidden assets during the divorce. The case could then be reopened for the purpose of dividing up those hidden assets.
Divorces from other States or Countries
As mentioned earlier in this article, not all states and for that matter countries follow the Texas approach to divorces.
In an article last year, we wrote about a Houston case that made the news in which a husband divorced his wife in Pakistan simply by saying “I Divorce You” three times. This is called “Talaq” in Islam. While in Pakistan the husband divorced his wife, then they both moved to Houston. His wife then sued him in Houston for divorce.
The court in that case decided to ignore the Pakistan divorce and proceed with a divorce in Texas.
However, in a very similar case out of a different Houston court, it was decided that the couple were divorced under Pakistan law but the wife was entitled to a post-dissolution of property.
My Friend’s Case
In my friend’s case, the court recognized the other state’s divorce and told the wife’s attorney there were other legal tools that could be used to resolve any remaining issues.
Suit Affecting Parent Child Relationship
A lawsuit that is filed in court to determine custody, duties, rights and visitation (among other things) for a child is called a Suit Affecting Parent Child Relationship (SAPCR). This is a lawsuit that is available to both married and unmarried parents.
Typically, when a couple is married, they will handle these issues in a divorce but not always. If a couple is unmarried, then this is the correct lawsuit to file in order to resolve these issues.
Out of State Custody Wrinkles – The Home State of the Child
In my friend’s case that I mentioned at the beginning of this article, the out-of-state divorce did one additional thing—it established child support.
The out-of-state divorce did not make any orders regarding custody, duties, rights, or visitation. This was because the child was living in Texas.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws in 1997.
The UCCJEA has since been adopted by 49 U.S. States, the District of Columbia, Guam, and the U.S. Virgin Islands.
The reason that the UCCJEA is important is it sets out the “Home State.” The “Home State” is the state that has jurisdiction or is allowed to make orders regarding custody, duties, rights, or visitation.
Under the Texas Family Code Section 152.201, a new case can be established regarding a child if:
- The state is the “Home State” of a child on the date the commencement of the proceeding.
- A court of another state does not have jurisdiction or has declined jurisdiction.
Under the Texas Family Code Section 152.102, Texas has defined “Home State” to mean “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”
In the state where the husband’s divorce case was finalized, a similar statute existed under that state’s laws and so only child support could be established.
Why Could Only Child Support be Established? – the Child Support Exception
The reason child support could be established even though the state the husband was living in was not the “Home State” was because an exception was made for child support under the “Uniform Interstate Family Support Act (UIFSA).” This is another one of the uniform acts drafted by the National Conference of Commissioners on Uniform State Laws in the United States.
Under Texas Family Code Section 159.401:
a) If a support order entitled to recognition under this chapter has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if:
- the individual seeking the order resides outside this state; or
- the support enforcement agency seeking the order is located outside this state.
(b) The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:
- a presumed father of the child;
- petitioning to have his paternity adjudicated;
- identified as the father of the child through genetic testing;
- an alleged father who has declined to submit to genetic testing;
- shown by clear and convincing evidence to be the father of the child;
- an acknowledged father as provided by applicable state law;
- the mother of the child; or
- an individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
(c) On finding, after notice and an opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders under Section 159.305.
Texas Family Code Section 159.401 – In Action
This section of the Texas Family Code has come up more than once in our cases. It is helpful for parents needing to get child support established. However, it is not so helpful for the parent not in possession of the child because it does not establish their rights or even get visitation going.
If they want to do that, it means they will have to go to the other state and start a separate lawsuit in that state or sometimes country.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
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- 6 things You Need to Know Before You File for Divorce in Texas
- I Want a Texas Divorce but My Husband Doesn't: What can I do?
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Law Office of Bryan Fagan, PLLC | Tomball, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.
A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.