Custody during COVID

home-header-law-building

The Texas Supreme Court has issued a new Emergency Order, number 26, on September 18, 2020. It goes into effect October 1 and extends many of the provisions of prior orders. These Orders must be followed by all courts in Texas until they expire or are modified by another Order.

Specifically for Custody, the Texas Supreme Court’s order states:

“In determining a person’s right to possession of and access to a child under a court ordered possession schedule in a Suit Affecting the Patent-Child Relationship, the existing trial court order shall control in all instances. Possession of and access to a child shall not be affected by any shelter-in-place order or other other restricting movement issued by a government entity that arises from the pandemic. The original published school schedule shall also control, and possession and access shall not be affected by the school’s closure that arises from the pandemic. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise…this Order expires December 1, 2020.”

This means that if you already have a court order in place then you need to follow that schedule. If your court order says visits start when “school begins” or when “school ends” then you need to follow the the published school schedule for when school starts and stops. Judges are undecided on those Fridays under an expended standard schedule. Should a non-primary parent have the ability to home-school at their house on the Friday instead of dropping off back to Primary parent’s house for the “school day” and picking back up from primary parent at the end of the “school day”? Your Order’s specific language is going to be key in this situation. Review it and see what says to make sure you are following it as best as possible.

Parents are strongly encouraged to cooperate and assist each other. The last lines of the Order says that. Judges in the central Texas counties have strongly stated that if one parent steps up and starts helping but then uses that as a reason for a future modification (or child support change) once COVID fears have subsided, the Judge will not look favorably on that parent. They want parents to help each other without fear of it being used against them later. For Example; if a Mom can’t stay home and has to go into work and Dad steps up and does the home schooling/virtual learning because his schedule can handle that, then Dad tries to later cancel child support or change custody based on the kids being with him every school day during the Fall, the Judge is not going to be impressed by that. This is an unprecedented pandemic and Judges are expecting parents to pitch in and help each other for the good of their children. We’re going to have to get to the other side of this and then take stock of what’s the new “normal” schedules for the kids before filing modifications.

Reimbursement Claims in Divorce

lady-justice-header

Texas Family Code 3.401 – 3.410 deal with reimbursement claims. Reimbursement claims come up in Texas Divorces when a spouse owns property before marriage and still own it when the divorce happens. Yes, you can trace sold property into other purchases, but that’s a tracing issue and beyond the score of this article. The separate property owned before marriage is likely to stay “separate property” and so not divided as party of the Community Estate. However, the separate property may have been enriched by the community estate, and so, a spouse can ask for the separate property to repay the community estate.

The increase in the separate property is not a market value increase. It is only the difference in the secured debt attached to that property. The decrease in the value of the debt (reduction in principal) and increase in value any improvements (increase in market value to the property not out of pocket cost of improvements made).

DECREASE IN SECURED DEBT

How this usually plays out in a divorce is: a house owned prior to marriage, a few years go by, and now a divorce happens. Community funds were used to pay down the mortgage all those years. That’s a valid reimbursement claim, the reduction in the mortgage during marriage. That’s NOT the value of every mortgage payment! Mortgage payments are payments of principal, interest, and usually escrow/insurance all rolled into one. Reimbursement is JUST the different in the old mortgage amount at the time of marriage to what the balance is now, at the time of divorce. Vehicles owned before marriage, but paid down during the marriage, follow the same idea; value of loan at time of marriage vs. value of loan at time of divorce, difference is reimbursement claim.

INCREASE IN VALUE

Increases in the market value of the house are not considered in reimbursement claims unless the increase is based on improvements made (with community funds) during marriage. New pools, remodeled kitchens, large improvements, not paint and curtains. Even then, the reimbursement is based on how much the house’s value changed based on just the improvements. Usually an appraiser or realtor is called to give two values, one with the improvements and one if the improvements had not been done. That’s the number used for reimbursement claims not how much was actually spent in materials and labor on the projects. One person’s home makeover masterpiece is another person’s design fail. Beauty (value) is in the eye of the buyer.

Spouses can ask for offsets to reimbursement claims, but “use and enjoyment” is not an allowable offset if it relates to the primary or secondary residence. You can’t say a reimbursement claim is bogus because the spouse “would’ve been paying rent somewhere else so it should be even!” Family Code 3.402(c) forbids that.

Reimbursement claims are tricky, so it’s important to consult with a local attorney to know how to value the claims as well as how they ultimately affect division of the remaining community estate.