Internal Memo of Law

MEMORANDUM TO:Yvonne Willams FROM:Matthew Carothers DATE:April 18, 2013 RE:Lisa Bergan: Analysis of Credible Spousal Support and Divorce (our file 99/1278) Issue Is Lisa Bergan entitled to temporary spousal support while a hearing is convened? under Texas Law, considering Patrick Bergan actions to threat with the intent to inflict malicious harm, harass, or alarm and inflict undue duress on his wife, Lisa Bergan, when he emptied all their joint accounts of $250,000 and cancelled all the credit cards with an available balance of $50,000; leaving her penniless and in care of support of their two minor children? Brief Answer Yes.

Because Patrick Bergan took such actions against Lisa Bergan, Mrs. Bergan should be issued orders awarding temporary spousal because she is currently unemployed, and for all practicality insolvent because the actions of Patrick Bergan. Mr. Bergan is a wealthy businessmen with assets of over $750,000 There are guidelines for temporary spousal support, which she has demonstrated in the provided financial statement. Facts Our client, Lisa Bergan, has accused her husband, Patrick Bergan, of grievous acts on April 5, Patrick Bergan took possession of the entire matrimonial estate leaving Lisa Bergan without any financial means.

Her marriage to Patrick Bergan has been for a period of fifteen years. Lisa Bergan stayed at home limiting her career opportunities while performing all the duties and responsibilities of a “stay at home mom. ”Mrs. Bergan has been forced to move her sisters and brother-in-law’s residence with her two minor children because of the actions of Patrick Bergan. Lisa Bergan is seeking an immediate divorce. Mrs. Bergan alleged that, over a five-year period, Patrick Bergan abused her emotionally and verbally and recently brought charges against him for domestic violence on April 1, 2013.

Mrs. Bergan’s family and friends witnessed the alleged abuse. Lisa Bergan has been diagnosed with severe depression for the past six months. Mrs. Bergan moved thirty-five miles away to her sister and brother-in-law’s home. Over past two week period, Mrs. Bergan and her sister saw Patrick Bergan’s vehicle parked across the Street from their residence almost daily attempting at further aggravating her diagnosis of depression. Discussion The Texas Family Code provides that: § 8. 051. ELIGIBILITY FOR MAINTENANCE; COURT ORDER.

In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if: (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred: (A) within two years before the date on which a suit for dissolution of the marriage is filed; or (B) while the suit is pending; or (2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8. 54, and the spouse seeking maintenance: (A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability; (B) is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or (C) clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8. 054.

The trial court may exercise its discretion to award spousal maintenance if the party seeking maintenance meets specific eligibility requirements. Pickens v. Pickens, 62 S. W. 3d 212, 214-15 (Tex. App. —Dallas 2001, pet. denied). Section 8. 051 of the Texas Family Code outlines the eligibility requirements for maintenance. In pertinent part, it provides as follows: In a suit for dissolution of a marriage . . . , the court may order maintenance for either spouse only if: …. 2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8. 054, and the spouse seeking maintenance: (A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability[. ] Page 279 Tex. Fam. Code Ann. § 8. 051 (Vernon Supp. 2005). Crane v. Crane, 188 S. W. 3d 276 (Tex. App. —Fort Worth 2006) Based on the definitions, the Crane case, and cases from other jurisdictions, immediate temporary spousal maintenance is warranted.

Further, when the underlying circumstances of the bad marriage and the prior history of verbal abuse and recent physical abuse, the threat becomes even more credible. Thus, given the harshness of the language and the abuse Mrs. Bergan suffered during the marriage, and the blatant actions of Patrick Bergan, it can be shown his intent was to leave Lisa Bergan without any means of self-support and at the mercy of her family, while she diligently seeks employment and means for self-support. She has registered at the Workforce Commission for employment and applied all the support which she is allowed under the law. Furthermore, Texas Family Code provides for Spousal Support in the manner: § 8. 003. Factors in Determining Maintenance

A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including: (1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently; (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training; (3) the duration of the marriage; 4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; (5) the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance; (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common; (7) the comparative financial resources of the spouses, including medical, retirement, This validity of Spousal support has been determined and the applicabilty in the case of Hale v. Hale 975 S. W. 2d 694 (Tex. App. —Texarkana 1998) Conclusion The facts and law show that Mr. Bergan did make it such that Lisa Bergan was entirely dependent upon him; as she was to the main care giver and to stay at home and provide for domestic responsibilities while limiting her ability to advance her academic and professional career. It is clear and convincing that she should be awarded immediate temporary spousal maintenance, file for the dissolution of the marriage and seek other necessary injunctive measures while the motion are being heard before State District Court.