Dallas Divorce Law Blog by Michelle O'Neil

New case out of the Dallas Court of Appeals… Magness v. Magness, 241 S.W.3d 910 (Tex. App. — Dallas 2007)… If you owned a house prior to marriage and, through refinance or whatever circumstances, added your new spouse’s name to the deed after marriage, the law creates a presumption that you intended to make a gift out of the interest to the new spouse.

Facts: Wife held title to the home prior to marriage. Ater marriage, she refinanced the home, executing a deed transferring a one-half interest in the home to her husband. The couple divorced and wife claimed that she did not intend the deed to be a gift transferring ownership to husband. Husband did not testify about whether wife had made a gift. The trial court found that husband and wife each owned a one-half separate interest in the home. Wife appealed.

 

Held: Affirmed. The granting of the deed to husband created a presumption that wife intended a gift. The trial court did not err in finding that this presumption was not overcome.

Opinion: Inception of title shows that he house was originally wife’s separate property. The question remaining is whether the wife intended the deed transfer to constitute a gift. “A deed for property from one spouse as grantor to the other spouse as grantee creates a presumption the grantee spouse received the property as separate property by gift.” This presumption may be rebutted by proof of fraud, accident, or mistake. The trial court, as the exclusive judge of credibility and weight given to evidence, determined that this presumption was not rebutted. This was not an abuse of discretion.

Signing what the title company puts in front of you, ignorant of the consequences, is insufficient to rebut the gift presumption.  Affirmative factual evidence – not just conclusions – of fraud, accident, or mistake must be shown.  This case provides fairly clear direction for the all-to-common refinance situations.

Divorce can be a complex process that affects just about every aspect of your life, from financial to emotional, physical to legal.  Unless you have been married a short time and have no property, assets or kids, your divorce may be more complicated than you expect.  The central figure in your divorce (besides the obvious you, your spouse and kids) is your lawyer and her staff.  But assembling the best team to assist you through the process can help achieve your goals for the divorce more efficiently.

Financial planners (here’s one) can be useful in helping prepare budgets and examine the cash flow needed after divorce.  Accountants (here’s one) can help with tracing assets for characterizing as community or separate property and valuing business assets.  A therapist can help you with the emotional turmoil of divorce.  A litigation coach can help you navigate the waters of testifying and making strategic decisions.  Sometimes private investigators (check this out) are necessary to discover certain information.  And, forensic computer specialists may be useful to trace information contained on a hard drive.

Experienced family lawyers are familiar with the experts in these fields and can assemble the right team for your case.  If you are in need of a team that specializes in divorce, please contact us.

The outcome of your divorce proceedings will change the course of your life forever; so invest the time and money to find the lawyer who will do the best job for you.  Here are some suggested questions to ask during your initial interview:

• Do you practice family law exclusively? What percentage of your practice is family law?
• What is your retainer? Is this fee refundale?  What is your hourly rate?
• What is your billing technique?
• Approximately how much will my divorce cost?  Your lawyer can only provide you a general idea of costs based on the information you provide and a guess about how amicable the process will be.  Even if you think your case is simple, but the other side makes it unnecessarily complicated, you can expect your costs to increase.
• What do you think the outcome will be?  Remember you are looking for an honest assessment, not necessarily what will make you happiest.
• If you spouse has retained an attorney, ask your prospective lawyer what she knows about this attorney. Have you worked with her before? Do you think she will work to settle?
• What percentage of your cases go to trial?  You actually want to choose a lawyer with a balance of settled cases versus trials.  Do not choose a lawyer that tries too many cases because that shows a lack of willingness to settle and will be more costly for you in the long run.
• How long will the process take?  Again, the best this can be is an approximation.
• What are my rights and obligations during this process?
• Will you actually handle my case or will someone else in your firm be responsible for my case?
• Should I consider mediation?
• What information will you need from me?
• What happens next?

An effective witness is one that is perceived as honest and likeable.  Particularly important for witnesses that are not aligned with one of the parties, it is important to be seen as impartial.  For example, if a teacher is asked to come to court by one of the parties, she should maintain her neutrality and avoid acting too cozy with either of the parents.  After all, she should be there for the child and not to advocate for either party.  If she is perceived as being an advocate for either party, her credibility will be shot with the Judge.

Dick Price recently posted 7 Tips for Witnesses on his blog.  Here are his tips:

“To be an effective witness requires preparation and forethought by the prospective witness. Ideally, there should be coordination and discussions with the attorney who is calling the witness. In the best situation, there would also be a rehearsal in a simulated courtroom environment, although that rarely happens in the ordinary case. The following are some basic steps that can be taken to prepare a witness to testify.

1. Review the facts, records or whatever will be testified about. Refresh your memory so that you remember the important facts and are clear about what happened. Sometimes, there is a long time between the event that occurred and when the testimony takes place. Be sure to review all the facts and any records about the event. It’s a good idea to record your observations right after an event occurs so that you can review that later to help remember what happened.

2. Talk with the attorney about what to expect. This would include reviewing possible questions, objections and strategies. Have the attorney try to anticipate what will be discussed so you can prepare for it. There is nothing unethical about rehearsing your answers to some questions, but you need to be careful to avoid appearing too rehearsed because that might appear dishonest or not credible. It’s nice to not be surprised. You can give a more accurate answer and be more helpful to a judge or jury if you have had time to think about an issue and have a clear memory about it.

3. Always follow the judge’s instructions. The judge is in charge and you will not win an argument with him or her. You can hurt your credibility if you don’t do something the judge ordered you to do.

4. Be sure to listen to the question before you start to answer. Think about your answer before you start giving it. This isn’t a race — you don’t have to hurry an answer. Pause before answering. Be sure you pay attention and hear the whole question, and then answer. If you don’t understand the question or didn’t hear it clearly, you can ask that the question be clarified or repeated.

5. Pay attention to basic courtroom etiquette.

• Don’t argue with the other attorney, and especially not with the judge.
• Don’t interrupt the questioner.
• If there’s an objection, stop talking and then do whatever the judge tells you to do — answer the question or don’t answer it.
• Just answer the questions. Don’t ask a question in response.
• Speak up so everyone can hear you.
• Don’t lose your temper. That will hurt your credibility enormously.

6. Don’t try to carry the whole load–rely on an attorney. The attorney will have a fresh perspective and be able to look at the big picture. If the attorney does not think that asking you a certain follow-up question will help, the attorney normally will more on to more important things. If you think you got “hurt” by some questioning, it is better to let the attorney decide whether to get back into the issue. The attorney is in a better position to determine what is important and what is not essential. If you get cut off and cannot give a full answer when you are being cross-examined, let your attorney decide on whether to pursue it.

7. Tell the truth! Don’t embellish, exaggerate or generalize. Attorneys and judges are usually very literal-minded. Don’t guess at the answer if you’re not sure. It is OK to say you don’t remember something. Just be truthful.

If you follow these simple tips, your experience as a witness will be less stressful, more productive and more effective.

Dallas County was the first county to implement the Standing Order in family law cases. Several other counties have followed their lead. The Standing Order is a set of orders that applies to every divorce (regardless of whether there are children of the marriage) and every suit regarding children (whether or not it is a divorce). I call them “do-right orders” because the main purposes of the orders are:

1. Minimize disruption to the children by ordering each parent to refrain from hiding the child, changing the child’s school or day-care, or saying negative things about the other parent to the child.

2. Preserve the property of the parties by ordering each party not to hide assets, change or deplete accounts, run up debts, open each other’s mail, turn off utilities at the residence of either party, or locking the other party out of the house.

3. Preserve the financial and personal records by ordering both parties to refrain from destroying important records.

4. Maintain insurance by prohibiting cancelation of insurance policies or changing beneficiaries.

5. Generally regulate the conduct of the parties by prohibiting the use of vulgar language, making harassing telephone calls, or threatening the other person.

Most of the orders are behaviors that normal people not in a divorce would know they should not engage in, but during a divorce people sometimes act out.

Nothing about the Standing Order for family law cases prohibits either party from conducting their usual business or occupation, hiring and paying for a lawyer’s services, or spending money or debt on reasonable living expenses.

Prior to adopting this Standing Order, and in counties that do not have a Standing Order, a Court would enter a Mutual Temporary Restraining Order containing the same provisions. (Do not confuse a Mutual Temporary Restraining Order as described with a Protective Order that addresses issues of domestic violence.)