Wednesday, April 25, 2018

A (NOT SO) Simple Equation To Calculate What Your Case Is Worth.


A while ago, Jimmy Buffet wrote a song called "Math Sucks", a sentiment shared by many mathphobes.  But math probably never sucked harder than when it is being used to deconstruct your life and reduce years of memories and hard work down to such a feeble thing as a raw number.  But when you are involved in a divorce, getting the right number is critical in determining whether you will come out ok, or getting financially destroyed.  Now that REALLY would suck.

If your attorney is a good one, he is getting your case ready for the worst possible scenario and will be busily preparing your case for trial- that is the ultimate goal of his efforts.  However, the client’s calculations should be geared towards settlement, as that is often the most favorable result.  So how can you decide if a settlement offer is a good one or not?  Once again we have to turn to our old "frien-emy": math.

Knowing the total value of your property is the first and hardest step but unfortunately, it is not the only part of the equation.  You should also add in the costs of litigation to your calculation. So when you are considering whether to accept a settlement offer, you can use the following formula.

Total value of assets you think the judge will award you  -  the total amount of debt you think the judge will award you -litigation fees (Legal fees + Expert fees + other costs + time missed from work + mental health costs + time value of money)  < settlement offer.

In other words, if the value of the settlement offer is more than what you think the judge would award you LESS all the costs of litigation, you should take the offer.  

Obviously there are lots of variables in this equation and the values for each of these may be constantly changing.  But that is why the help of a good attorney team is essential to helping you decide if a settlement offer is even in the ballpark and even worth considering.

Sunday, April 22, 2018

Snoring, Fishing or Too Much Sex: Top 10 Excuses for Getting a Divorce


Unless you are VERY far behind the times, it should be no news that you do not need to prove that your spouse caused the breakup of a marriage to get a divorce- pretty much if you want a divorce, you can have it.  California was the first in 1970 and today all states in the union provide for some kind of "no- fault" divorce.  Seventeen states are "true" no-fault in that they don't provide any option for a claim of fault.  Thirty-three other states, including here in Texas, have an optional scheme: you can either plead no- fault, or plead one of the traditional fault based claims such as adultery, abandonment, or cruelty.

With great regularilty, bills are introduced into our state legislature that would make Texas return to the "fault-only" basis for granting a divorce.  Each time the bills are defeated, but it makes one wonder what would happen if such a bill did pass in the modern era.  The motivation behind such bills are clear- the proposal is an attempt to reduce the number of divorces by making it more difficult to obtain one- in the hope that parties will reconsider their action.  But would the amount of divorces really go down?

I certainly don't think so.  I think that most people will lie or at least exaggerate their circumstance to get what they want- a permanent, legal divorce.

Take the case of Great Britain.  They do not have "no fault" divorce.  There, divorces are granted only if the moving party can show that the spouse has engaged in some "unreasonable behavior"- although there is no legal definition for that term.  Basically, Brits must come up with a reason- any reason- for divorcing, and our usually conservative cousins across the pond can prove to be quite imaginative in their reasons.   A recent study has shown some of the most popular grounds for divorce in Great Britain.  They include every kind of annoyance-even if the behavior is seen by others as healthy or positive.  This includes seek divorce because the partner has become a fanatical cyclist or has started going to the gym every day, or has suddenly given up dairy and gluten. 

Here then are the top ten reasons given for divorcing in Great Britain:

1.  A partner's illness
2.  Snoring
3.  Going to the gym too much
4.  Being ungrateful for all the work their partner does
5.  Being hopeless with money
6.  Disagreement over respective politics
7.  Food fanaticism
8.  Fishing
9.  Sex- either not enough, being offered too much, or loss of interest
10.  Suspicion the other party is messing around

If Texas ever returned to a fault based divorce system, I wonder how creative our "top ten list" would be?

Tuesday, March 27, 2018

Liens and Forclosures: An Underutilized Child Support Enforcement Tool?

Texas attorneys may be missing out on a great opportunity to enforce child support orders through the use of liens and foreclosures.

It is quite galling to someone struggling to meet the basic needs of their child because ordered child support is not being paid, to see the obligor enjoying the use of his lavishly furnished lakeside vacation home complete with jet skis.  The Texas Family Code provides for liens and seizures of certain property but many Texas attorneys do not attempt this. The reluctance of many attorneys to consider the seizure of personal assets of the obligor may be from them incorrectly thinking that the exemptions provided in the Texas Constitution would make finding non-exempt property all but impossible.

However, child support is an expressed exception to the property exemptions of Property Code Sections 42.001 and 42.002.

In the case of Dryden v. Dryden, 97 S.W.3d 869 (Tex.App--Corpus Christi 2003, pet. denied), a Sherrif's sale was ordered for failure to pay child support and the Court of Appeals approved the sale of items including a second vehicle, jewelry, athletic equipment, sporting goods, and furniture.

If a seizure is sought, it is important for the attorney enforcing a Texas child support order to first file either an abstract of judgment or a child support lien notice.  Only then should a Writ of Execution be filed.

Texas Family Code 157.311-331 details the procedures of filing a lien.

Monday, March 26, 2018

Can Parents Agree to Reduce/Settle Child Support Arrearages On Their Own?



YES, but only after the arrears has been reduced to a final written judgment of the court.

This relieves the pressure on the Custodial Parent/Obligee from having to agree to a reduced judgment on past due support out of desperation to receive some financial relief immediately. It offers the full weight of Enforcement mechanism of the Family Code to the Custodial Parent/Obligee.

“ Due to the financial hardships so frequently encountered by the custodial parent following divorce, the failure of the former spouse to pay court-ordered child support puts the custodial parent in a very difficult position. If the non-custodial parent offers to pay a portion of child support arrearages in settlement of the entire amount due, the custodial parent may be persuaded to accept the offer due to present financial difficulties and the possibility of further delay and expense in collecting the unpaid amount.” Williams v Patton

When drafting a contempt order, the judgment must first be addressed THEN a release of a set dollar amount and THEN a new judgment for the reduced amount (if any) with order to pay.

See Williams v. Patton, 821 S.W.2d 141 (1991)
https://www.leagle.com/decision/1991962821sw2d1411960

Thursday, March 15, 2018

Can a Court Use A Parent's Immigration Status to Deny Joint Custody?

Probably not.

Parents are generally always named Joint Managing Conservators (JMC) unless one parent can provide evidence that proves that a parent's immigration status has a material, adverse effect on their ability to parent.

In the recent case of Turrubiartes v. Olvera, 2018 Tex. App. LEXIS 1017 (Tex. App.--Houston [1st Dist.] Februrary 6, 2018)(opinion on rhr'g)(Cause No. 01-16-00322-CV). A father argued that the main reason he should be name sole managing conservator of his three children was that he was a U.S. Citizen and the mother was not. Father said he feared that the mother would be stopped while driving the kids in Texas and be deported.

The lower court granted Sole Managing Conservatorship to the father. In it's findings of fact on the ruling, nine out of the thirteen factors the court said it considered had to with the mother's immigration status.

The Court of Appeal for the 1st District overturned the ruling. They pointed out that "immigration status" is not expressly listed in TFC 153.134(a) as one of the factors that a court may use in overcoming the presumption that parents should be named Joint Managing Conservators. The COA said the father's fear of the mother being deported while driving the children was resolve by her being ordered by the lower court to find a licensed driver for the children. The Court of Appeals concluded that father's other points for him being named sole managing conservator were not sufficient to overcome the joint managing presumption.

Comment:
This is not the last we will hear of immigration status being used as a weapon in a custody case. With the recent Federal Court ruling upholding punitive measures used against so called "sanctuary cities", the political winds still seem to be blowing hard against illegal immigrants in Texas. It should be noted that in this case the COA seemed to ignore the catch all statutory factor under 153.134(a) of "any relevant factor"- which may be used in the future. Future cases, with the right fact pattern in may find success in using immigration status as a reason factor in custody cases. I would not be surprised if a conservative legislator will jump on this and seek to add immigration status to 153.134(a).

Friday, March 09, 2018

Is there a Statute of Limitations Concerning Money Judgment for Child Support?

Yes.
The court of continuing, exclusive jurisdiction retains jurisdiction to confirm the total amount of child support arrearages and enter judgment for past-due child support. The statute of limitations concerning a money judgment is ten years. The suit must be filed within ten years from the date the child becomes an adult, or the child support obligation terminates. (157.005(b)).

Saturday, January 13, 2018

40 Documents You Should Bring To Your Divorce Lawyer


Attorneys charge by the hour so it literally pays for you to be prepared. Here is a list of items you should be gather prior to meeting with your divorce attorney so that your initial interview will go quickly and efficiently.

1. Individual income tax returns for past three to five years (federal, state, and local)
2. Business income tax returns for past three to five years (federal, state, and local)
3. Proof of your current income
4. Proof or spouse’s current income
5. Prenuptial agreement, if already drafted
6. Divorce decrees from previous marriages
7. Bank statements
8. Certificates of deposit
9. statements
10. Retirement account statements
11. Trusts
12. Stock portfolios
14. Stock options
15. Mortgages
16. Property tax statements
17. Credit card statements
19. Loan documents
20. Utility bills
21. Other bills (e.g., school tuition, unreimbursed medical bills, etc.)
22. Monthly budget worksheet
23. Completed financial statements
24. Employment contracts
25. Benefits statements
26. Life insurance policies
27. Health insurance policies
28. Homeowner’s insurance policies
29. Automobile insurance policies
30. Personal property appraisals
31. Real property appraisals
32. List of personal property, including home furnishings, jewelry, artwork, computers, home office equipment, clothing and furs, etc.
33. List of property owned by each spouse prior to marriage
34. List of contents of safety deposit boxes
35. Wills
36. Living Wills
37. Powers of Attorney
38. Durable Powers of Attorney
39. Advance Health Care Directives
40. Your checkbook.

Your lawyer may not ask for all these items, but there is a good chance each of them will be needed at some course in your divorce.  Gathering them now will help you and your lawyer.

Sean Y. Palmer has worked as a Divorce and Family Law Attorney in the Houston Metro Area for the last 18 years.

Thursday, January 04, 2018

Twelve Rules for Better Writing Better Legal Emails


Better e-mail writing can result in proposals that win contracts, get you promoted, and just get your message across to the receiver and ultimately win your case. Here are 12 tips on style and word choice that can make your legal e-mails clear and persuasive.

1. PRESENT YOUR BEST SELF
Its human nature for your moods to vary. The beauty of emails is that real time conversations , e-mails are written alone and on your own schedule. Take advantage of this and take the time to let your best personality shine through. Although it is tempting to immediately reply to an email to get it out of your inbox, a better strategy for important e-mails is to compose our answer when your time is not pressured- and especially wait if your are angry.

2. WRITE IN CLEAR CONVERSATIONAL STYLE
Most lawyer lean too much in the direct of formality and the emails tend to be long winded and stiff. The better way is go is to keep it simple. Write to express- not to impress. A relaxed conversational style can add vigor and clarity to your emails.

3. BE CONCISE
Lawyers are busy people and they charge by the hour. Make your writing less time-consuming for them to read by telling the whole story in the fewest possible words. Avoid redundancies - needless wordiness and phrases that repeat the same conference.

4. BE CONSISTENT
Good writers strive for consistency in the use of numbers, hyphens, units of measurement, punctuation, etc. Keep in mind that if you are inconsistent in any of these matters of usage, you are automatically wrong at least part of the time.

5. USE JARGON SPARINGLY
Use legitimate legal or technical terms when they communicate your ideas precisely, but avoid using legal jargon just because the words sound impressive.

6. AVOID BIG WORDS
Using big, important-sounding words instead of short, simple works is a mistake. Fancy language just frustrates the reader.

7. PREFER THE SPECIFIC TO THE GENERAL
Readers of emails want facts. Don't just say good, bad, or fast. Say how good, how bad, how fast.

8. BREAK UP YOUR WRITING INTO SHORT SECTIONS
Long, unbroken blocks of text are stumbling blocks that intimidate and bore readers. Break up your writing into short sections and short paragraphs which makes the text easier to read.

9. USE VISUALS
Drawings, graphs and other visuals can reinforce your e-mail. Especially with legal communications, visuals can make your emails more effective.

10. USE THE ACTIVE VOICE
Voice refers to the person speaking works or doing an action. Whenever possible, use the active voice. Your writing will be more direct and vigourous; your sentences will be more concise.

11. ORGANIZATION
Poor organization stems from poor planning. Before you write an email, plan. For very important emails, you should create a rough outline that spells out the contents and organization. The outline is a tool to aid your organization, not a commandment etched in stone. If you want to change it as you go along- fine.

12. LENGTH
Keep your email as short as possible. The art of being concise in your e-mail writing can require considerable effort in the rewriting and editing stage. Philosopher Blaise Pascal once wrote to a friend and apologized for sending a long letter. He said, "I would have written a shorter letter, but I didn't have the time."

Top 15 Texas Family Code Sections Dealing with Contempt of Court


A motion for contempt is not limited to the Texas Family Code.  A violation of other types of court orders may also be the subject of an family law enforcement action- for example, a temporary order concerning the emergency protection of children.

A court clearly has the power of contempt to enforce such orders, assuming the order meets certain tests.

Listed here are the Top 15 Family Code sections that mention contempt or enforcement or define when something becomes an order of the court and is therefore enforceable, such as Associate Judge's recommendation or registration procedure.

1. § 6.506- Violation of temporary court orders concerning divorce and property, including spousal support.

2.  §105.001(f)-  Violation of temporary orders concerning children.

3.  §157.007-  Affirmative Defense to Motion for Enforcement of Possession or Access

4.  §157.008- Affirmative Defense to Motion for Enforcement of Child Support

5.  §9.008 and 157.421-  Clarification of orders not specific to permit contempt

6.  §160.622- Violation of Orders Concerning Paternity Testing

7.  §9.012- Enforcing the Division of Property

8.  §152.303- Enforcing a Custody Decree from Another State

9.  §154.188- Enforcing Orders Requiring Health Insurance for a Child

10.  §81.004, 85.024, 85.026- Provisions of Title IV Protective Orders

11.  §159.603- Uniform Interstate Family Support Act (same effect as Texas order)

12.  §264.306-  Child and Family Services, Refusal to Participate in Counseling Regarding Abused or Neglected Child- Community Service as Sanction for Contempt

13.  §201.013- Associate Judge's Recommendation Becomes Order When Signed by the Court

14.  Civil Practice and Remedies Code §31.002-  Although Not Not Contained In the Family Code, The Turnover Statue is included Because it Has Application to Enforcement of Judgments.  The Court May Enforce By Contempt Its Order Concerning Turnover of Assets.

15.  §8.059- Maintenance (Alimony) When AN Order of the Court Or When An Agreement For the Payment of Maintenance Has Been Voluntarily Entered Into Between The Parties And Approved By the Court.

The proper handling of a contempt matter requires technical skill and care and a vast knowledge of the Family Code and other applicable Texas Codes.  If your case involves contempt, you should seek out the help of an attorney who is experienced in this complex area of the law.