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Jake Gilbreath: Thanks for tuning into the “For Better, Worse, or Divorce” podcast where we provide you tips and insight on how to navigate divorce and child custody situations. I’m Jake Gilbreath. I’m with my partner Brian Walters and we’re the partners at Walters Gilbreath. Today we’re going to celebrate our 80th episode. We have a simple, straightforward episode and will recap some of our last episodes of things that we’ve talked about, do some listener questions, as well as get some insight into what’s to come. So, Brian, we have some trending topics and episodes that have been popular with our viewers, so why don’t we recap some of those for people tuning into this episode?
Brian Walters: Yeah, we’ve done several things over the past few months. Of course, every two years around September we have updates to the Texas Family Code, so we certainly had some of those. There’s generally nothing earth-shattering about those, but there were some interesting changes, especially to protective orders and some other things. We went over those. We talked about the stock market and divorce. How that can affect you and how you value separate property, community property, and all of those types of things.
I interviewed a child custody evaluator named Daphne Ainsley. That episode went into pretty good detail about what a child custody evaluation looks like, how they’re conducted, how to maximize your performance, and your client’s performance in them. Those are some of the things I did. And we did a four-part series on real estate and divorce. Anywhere from who keeps the home to mortgage lending about dealing with rising interest rates and how that could affect the way things are handled in a divorce, and about who moves out of the marital home on short notice. I think you did a couple of other ones, which you might want to go over as well.
Jake Gilbreath: Yeah, one I like doing was an interview with a former client of mine who was nice enough to jump on the podcast and talk about his experience. I remember when I represented him, we had lots of frank discussions about the business, the business of the law firm, and his experience as a client. He was always great for feedback. Off the clock whenever we weren’t talking about his case, we would brainstorm and think about different ways that we can continue to improve the product that we have here at the law firm. He and I have stayed in contact since representing him and we continue to brainstorm on various things, that was nice to get him on the podcast.
Like you said, I love the real estate and divorce series. Sometimes those topics can seem a little dry, but then when you actually apply them to real-life situations and think about how it’s going to play out in a divorce, it’s I think really informative. As we said in the series, the marital home is often the most important, both emotionally and financially, the most important asset in a divorce. I hope thinking through that was really helpful for our listeners.
I think you mentioned Brian, we had a financial analyst and estate planner thinking about life after the divorce. It’s of course really important. So, we continue, Brian, you and I remember last week we were conducting interviews with law students who were going to come work for us. And one of the things I’m proud of is being able to talk to people about the podcast. The way I like describing the podcast, which we’ve said on prior anniversary episodes, is I like that it’s just us talking with people who know what they’re doing in their field. And we really go in depth. I don’t feel like we dumb it down for anybody in this podcast. We want our listeners to know what we know. We don’t want some curtain of secrecy behind between us, the client, and what we know.
Which kind of leads us to our next section. We like any listener questions. We like listener feedback, we love listener reviews and we love listener questions. There may be something that we haven’t covered for you all or was not clear and we’re happy to answer those questions. Brian, pinging off one another let’s answer these questions and I’ll give you the first one. First question I think we got from a listener was, “Can I dismiss a divorce if I’ve changed my mind after filing for one? If so, what’s the process?” That’s a listener question we got. I actually got that question last week from somebody who is in a consult considering filing. So what’s the answer to that?
Brian Walters: Yeah, you can. There are several caveats with it. First of all, it’s a fairly common question. I don’t know what the total percentage is. I don’t know if it’s 5% or probably somewhere between 5% and 10% of all divorces that are filed are ultimately dismissed. People change their minds, decide to work it out, or whatever the situation is. If it’s just you that’s filed, if just one of the spouses has filed, it’s pretty easy. You file what’s called a non-suit, which says, I don’t want to have this suit anymore, and it is dropped.
Now if you’ve served the other side and they filed a response or what’s called an answer or a counter petition, that’s more complex. Typically, in that situation, you’d want both of you to file one together, or each file your own saying the same thing. Let’s say they start the divorce, the other side counter-files for divorce, and then the first person, what we call the petitioner, decides they don’t want to go forward but the other spouse does. Well, too bad, you’re still going to get divorced in that situation. It only takes one of you to decide to go forward on one side. The other person who’s called the respondent has filed a counter-petition saying, “Yeah, by the way, I want a divorce too.”
At that point, it takes both of you to drop it, not just one of you. So generally pretty easy to do, but it can get a little sticky if the other side isn’t so keen on dropping it. Then there’s another question along these lines. “What if I inherited a property from my parents while I was married? Now that I’m going through a divorce, is my spouse entitled to the property that my parents left me, or do I have to split it with my spouse?” How would you answer that?
Jake Gilbreath: A pretty straightforward question. It can cascade into nuances, but be a separate property. So separate property, remember, is property that was owned before marriage, property that was inherited, property that was gifted, or proceeds of a personal injury settlement that don’t have to do with compensating for work and lost wages. So in this situation, if it’s inherited and you can prove it, remember we have to prove separate property by clear and convincing evidence. If you can prove that the property was inherited from your parents, then it’ll be pretty clearly separate property. And do remember that if it has income off of that property, for example, if you inherit the brokerage account, or a lot of times you’ll see something go through an inherited IRA, the income off of that will be community property.
So, if you think about those interests and dividends that are spent off of brokerage accounts, stocks, bonds, those types of assets and are getting reinvested in the account, then there’s going to be a community component to it and it’s important to maintain good records. So if there’s a situation where you get a divorce, you’re going to have to be able to prove what’s separate, what’s a community, and that can be not necessarily difficult, but tedious. Again, with a brokerage account or inheritance IRA always keep good records on that. If you’ve inherited a piece of property, obviously keep good records on that, although most will be in county clerk’s office. But particularly brokerage accounts, inheritance IRAs, anything with stocks, and bonds, make sure you maintain all those records because there may be a community component to that.
Next question, Brian, “What’s the difference between a divorce and an annulment, and do we take on annulment cases?”
Brian Walters: Yeah, it’s another good question. A divorce means legally that you were married and then it is now ended, your marriage is over. An annulment means you were never married, essentially. It’s annulled. So, most people for annulments, that’s usually a religious question, they go through their church to get an annulment. But there actually is a procedure under Texas law to get an annulment as well. They’re extremely rare. I have handled them. We do take them on. There are specific reasons to get an annulment, but they’re very, I would say, really difficult to do. And to me it doesn’t make a lot of sense to pursue an annulment most of the time by itself because it may well be denied. Judges basically don’t like them and are suspicious of them.
What I have told people to do in the past is to file for both basically and say, “Well, judge, I like an annulment, but if you won’t give me that or if I don’t qualify for it, then please give me a divorce.” And that seems to be the safer way to do things. Otherwise, you might go through an annulment process in the Texas court system, and have it denied and then you have to start over and do a divorce anyway. So that’s generally not the best option.
So generally, it’s pretty easy in many churches to get an annulment, but again, in our system here in Texas, it’s very, very difficult. So that’s the difference. All right, here’s another one for you. “My husband and I have two dogs that we both love and have adopted during our marriage. Who gets to keep the pets when you get divorced?”
Jake Gilbreath: Another really common question, and I don’t love the answer as a pet lover and son of a veterinarian, but animals in the state of Texas are property. They’re legally defined as property, and so just like all property in a divorce, a judge has to award the property. Divide and award the property. Most people, as you can imagine, work it out amongst themselves about what they’re going to do with pets. Particularly when they’re told that the divorce is property, and a judge is not going to have the authority to have y’all share the animal. The judge is not going to be able to put in a possession schedule for the animal. The judge is going to be in a box. If y’all can’t agree to just say, okay, if there’s a family dog and the spouses can’t agree, then ultimately the judge has to decide who gets the dog, cat or whatever the family pet is and make a decision.
Again, usually people work that stuff out. But because pets are property too, in this scenario they talked about adopting during the marriage. And so, if we’re talking like property, which is what you would do in the divorce. If you couldn’t agree, then it sounds like the dogs are community property. The court would then have to make a decision, but a lot of times you’ll see pets where they have a separate property. The pets are actually separate property you own. Easiest example is, I own the dog before marriage. The dog is my separate property, and so it’s not an issue. The court has to confirm my separate property. A lot of times you’ll see pets as gifts and so then it will be separate property.
There’s actually an interesting third court of appeals case. I don’t have the name off the top of my head, but a third court of appeals case about the burden of proof for, I think it was a chihuahua and the spouses disagree. They all agreed that chihuahuas was purchased or adopted before marriage, and there was a dispute over who actually had purchased or paid for the chihuahua. Then the appellate court question was, is it clear and convincing evidence, standard because we’re talking about separate property or is it preponderance more likely than not standard? And as I recall the opinion, it’s preponderance because we’re all saying it’s separate property, so we don’t have to do clear and convincing. It’s just a question of whose separate property, and so it’s preponderance.
I made a much longer answer than the listener was anticipating when asked about animals and divorce. But I would strongly encourage all listeners to try to come up with something that works on animals. We talk about all the time in divorces. We’ve set up possession schedules and set up how we do with pet bills and stuff like that for folks that want to continue to raise a pet together. I’ve had situations where the animals travel with the children. And very rarely, but it has happened where I’ve had a situation, you have to go ask a judge. If you want to see a cranky judge, show up and tell them that one of the decisions they’re going to have to make is who gets the family dog or cat or something like that. So, try to work it out if you can.
Brian Walters: I agree. Here’s another tough one that we deal with. Here’s a question, kind of a scenario from our listener. “I’ve been in my stepson’s life since he was three years old. I’m currently divorcing his mother. The stepson is now eight years old. Can I get visitation rights for my stepchild?”
Jake Gilbreath: That’s a really hard one. I don’t have the case name in front of me, but it’s recently addressed by the Supreme Court and the answer is that it’s probably not. Every single case is fact specific, but we don’t have a statutory mechanism for stepparents to have what we call standing to come and ask for visitation rights. Depending how long the people have been separated or what they’ve done with the child, there’s an argument, but we’ve talked about how we have really limited grandparent rights in the state of Texas, and those are statutory. Those are actually statutes that address those in the family code. There’s no statutory rights to stepparents. There may be situations where a stepparent could argue care, possession and control for standing if it’s been long enough depending on what they’ve done, but it’s difficult.
This is another one, Brian, I don’t know about you, but I always encourage clients on both ends of this issue to try to work it out. Particularly it sounds like this person’s been in the step child’s life for five years, I’m sure has a very close relationship. So there’s the morally right thing to do, and then there’s the legal issue behind it. So both sides of it, what do you say to your clients when that issue comes up?
Brian Walters: Yeah, same issue. I mean, it’s really a sad one and there’s examples that are more extreme than this. Basically, they’ve been in the step child’s life since practically birth and the kid is now 15 and calls them dad or mom or whatever, and for all practical purposes, considers them that. But there’s really limited legal remedies as it’s related to it. You’re right. There’s probably a way with a particular type of separation and things that a very unusual set of facts that maybe you could try to get some standing, but it’s difficult.
And if the divorcing parent (the non-stepparent, the biological parent) really wants to be difficult about it and not expose the stepchild ever again to the stepparent, they are probably going to be able to do it legally. Probably not in the child’s best interest, but again that’s the way the law is. It’s sort of like with grandparents, it can be seemingly harsh. You can understand the public policy, why there wouldn’t be such a thing. You’d have a three-way visitation schedule for the child who’d be rotating between three houses potentially. That’s a problem. But yeah, it is something we deal with pretty regularly, and it is sort of like the pet issues or the grandparent issues. It can be a difficult one.
Jake Gilbreath: Well, so moving on, let’s talk about what’s coming up next with the podcast. So I think we have some exciting guests coming up. We have some experts, some family law attorneys from around the country actually to discuss family law trends. We’re going to be addressing substance abuse issues, child custody, child support, financial planning, interstate issues, all that’s coming up. We’re going to have some more episodes with actual clients who’ve been kind enough to agree to come on and talk about their experience with us and just the process and going through whatever legal situation they had. We’re going to have some information on prenuptial postnuptial agreements.
And then something that I’ve particularly enjoyed recording that’ll be coming up is a jury trial series. Everybody who listens regularly knows that Brian and I like talking about jury trials quite a bit. So, we did a full series on it. Including some episodes with Sarah Gilbreath, my wife, and the CEO of Walters Gilbreath, who you’ll hear in this series. We bring her to a lot of our voir dires, and you’ll learn from the series because she is particularly better at reading people than I know I am. And she has some insight that she’s going to bring in those episodes. So, all that’s coming up.
I can’t believe we’re 80th episode. I really enjoy this podcast and we really do appreciate all y’all’s feedback and the reviews that we’ve gotten. We love the questions. We love it when y’all suggest topics. This is just something that Brian and I have really enjoyed and continue to enjoy, and we hope that y’all find it informative. So that’s what we’ve got for today. Like I was just saying, if you like what you heard today, please do us a favor and leave a review. We really do appreciate all feedback. It helps us better the podcast. You can reach out to us at firstname.lastname@example.org. You can find us on the website. And we’ll wrap up this episode. I’m Jake Gilbreath and here with Brian Walters and thank y’all for listening.
For information about the topics covered in today’s episode and more, you can visit our website at Waltersgilbreath.com. Thanks for tuning into today’s episode of For Better or Worse or Divorce, where we host new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at Podcast@waltersgilbreath.com. Thanks for listening. Until next time.