Dallas Divorce Law Blog

Divorced parent rights in the aftermath of a tragedy

Michelle O'Neil — Tue, 21 May 2013 15:43:54 -0600

As if tragedy isn’t enough…. Today I read a post on Facebook from a Mom whose son lives with his Dad in Oklahoma. She can’t contact either of them after the tornado and is frantic. I know nothing more about these folks than what I read on Facebook. I’m not friends with her, but merely read a post that was shared through a friend of a friend. But, my heart breaks for her. We put provisions in custody orders that “require” notice to the other parent within certain short amounts of time. We give parents the right to be named as emergency contacts. But nothing that we draft can help the panic of a parent wanting to make sure a child is safe and healthy in a time of tragedy.

This mom commented later in the thread that she couldn’t contact the Dad even through Facebook because he had her blocked. She seemed frantic, as any parent would be. The good outcome is that through Facebook and the magic of social media, the comments thread shows that someone knew the Dad and confirmed that they are ok.

A decent ending, all things considered.

To me, the message to parents in split custody situations should be, whether you like the other parent or not, whether you can stand to talk to them or not, whether they somehow violate boundaries on Facebook or not, every parent should reach out during a tragedy and let the other parent know the child is safe and sound. Think of how you might feel in the same situation. Court orders can require parents to do the right thing, but those documents are an empty consolation when it is actually time to put the right action in to place.

Completing Your Social Study Questionnaire:

Sarah A. Darnell — Fri, 17 May 2013 12:05:59 -0600

There are many aspects to a social study evaluation. You can expect a typical social study evaluation to take from 8 to 18 months to complete. During this time period, the social study evaluator will review information provided by each party, including but not limited to collateral witnesses and documentation (this could include review of medical records, school records, police reports, etc.), references and reference letters, personal history questionnaires, and other written information. In addition to written information, the social study evaluator will also interview and observe both parents and the children, separately and with each parent.

During the social study process, you will be asked to complete written documentation and provide the same to the social study evaluator. You will be asked to provide information regarding your childhood upbringing, educational history, medical history, parenting strengths and weaknesses, concerns regarding the other parent, and other relevant information requested by the social study evaluator. You will also be required to disclose your prior criminal history, medical history, and substance abuse history. It is important to be candid when providing this information to the social study evaluator. If you have a “past” to disclose, regardless of how distant it may be, you should err on the side of disclosing too much rather than too little. My advice is that when completing your social study questionnaire, you should be the person to disclose any “skeletons in your closet.” It is better for this information to come from you rather than the other party. No one has had perfect past.

I generally advise clients to complete the questionnaire by themselves initially. At some point prior to returning this information to the social study evaluator it is best to have your attorney review the information for any errors, etc. Keep in mind that this is your opportunity to provide the social study evaluator with information relating to the support system, including family and friends that will be assisting you with your journey as a “single parent.”

This is also your opportunity to indicate to the social study evaluator your desires regarding parenting time with your children. If you desire to be the primary conservator of the children and/or if you desire to have equal parenting time with the other parent, then now is the time to tell the social study evaluator. In doing so, you must have a solid plan for how you intend to provide your child/children with a stable and consistent home environment while in your care. You need to have a plan for how you are going to provide for the children financially, emotionally, and mentally. Tell the social study evaluator how you plan to get them to and from school/extracurricular activities on a daily basis. Additionally, you should provide the social study evaluator with information relating to how you plan to meet their medical and educational needs. It is not enough to say that you want to be the primary conservator or share parenting time with the other parent. You must have a plan and be prepared to discuss it. This means knowing your children’s medical, educational, and emotional needs.

Improving Economy, Increasing Divorce Rate

Ashley Russell — Wed, 15 May 2013 09:05:17 -0600

Money (or lack thereof) is characteristically at the top of the list when it comes to reasons for a divorce. But in a depressed economy when people cannot afford to maintain two houses, sell their house, or pay the attorneys, divorce rates slow.

Now, along with the improving employment and job markets, it appears that the number of people filing for divorce is also increasing. Alton L. Abramowitz, a New York City divorce lawyer and president of the American Academy of Matrimonial Lawyers, attributed the recovery of the economy, particularly the stock market’s robust run.

Security that people will be able to take care of themselves, maintain two households, pay child support, and sell their house (often the main marital asset) can give people the confidence they need to get out of an unhappy or unhealthy marriage. If you are considering divorce or just want more information about the process and your rights, contact an experienced family law attorney for a consultation.

To read more about the improving economy and increasing divorce rate, click here: http://lifeinc.today.com/_news/2013/05/14/18250438-til-death-or-economic-recovery-do-us-part?fb_action_ids=10100274343784839&fb_action_types=og.recommends&fb_ref=AddThis_Blogs&fb_source=aggregation&fb_aggregation_id=288381481237582

Necessity of Prenuptial Agreements in the 21st Century

Katie Lewis — Mon, 13 May 2013 09:23:04 -0600

Requesting your future spouse to sign a prenuptial agreement in Texas can be a touchy subject. Many people are hesitant to obtain a prenuptial agreement for the simple fact that it may damage the relationship. This is a point I understand and do sympathize. However, when I have a client, regardless of their level of wealth, state that they do not need a prenuptial agreement; I have a very simple response.

I first ask the client “Do you have automobile insurance.” The client states “Yes.” I then ask “Do you plan on having a wreck in your automobile.” My client then looks at me curiously and states “Of course not.” I then respond with “a prenuptial agreement is a lot like car insurance; you don’t plan on getting in a wreck but it is there in case you do.” This is usually the point where you can see the light bulb over my client’s head turn on and they are in agreement that a prenuptial agreement is necessary.

The Huffington Post reported last week that “Fox & Friends” had a segment in which they addressed whether or not a couple should have a prenuptial agreement. Dave Ramsey reportedly stated, "Don't do prenups unless someone is extremely wealthy and the person they're marrying is not. Other than that, you'd stay away from prenups." Mr. Ramsey has obviously never spoken to me about the necessity of a prenuptial agreement.

I agree with Huffington Post Divorce blogger Diana Mercer when she states that “a prenup may benefit all married couples.” Prenuptial agreements are not only for the wealthy, they are for all walks of life. Divorce can be a very stressful and sometimes prolonged process. If a couple agrees in a prenuptial agreement as to how assets and debts are to be divided in the event of a divorce, it removes a lot of the bickering back and forth that can occur during a divorce. It can also shorten the length of time the divorce is pending in that the financial issues are already handled and addressed in the prenuptial agreement.

Don’t let a prenuptial agreement hurt a relationship or eliminate the romance. Just like automobile insurance, a prenuptial agreement is there in the event of a crash/ending of a marriage.

What you Need to Know to Be Prepared for a Social Study Evaluation-

Sarah A. Darnell — Thu, 09 May 2013 08:11:34 -0600

References and Reference Letters: During your social study evaluation, you will be required to submit reference letters to the social study evaluator. The number of personal references and reference letters requested can range from 3 or more. The following are some points to keep in mind when deciding who your references should be and what the focus of the reference letters should be.

1. DO NOT have family members serve as all of your references. Although family members as references can be helpful, generally family members are thought to be more biased for obvious reasons. The purpose of providing your references in a social study evaluation is so that the social study evaluator can obtain information regarding your parenting skills and involvement from as many difference sources as possible. Therefore, school teachers, babysitters, neighbors, friends, and/or co-workers can serve as excellent references. They tend to be thought of as more neutral.

2. DO NOT submit more personal references and/or reference letters than requested by the social study evaluator. Doing so would illustrate that you cannot follow instructions. If you have more references that you would like to submit, then advise the social study evaluator that you have more, and request his/her permission to submit more references.

3. DO contact your personal references and let them know that they may be contacted by your social study evaluator. Make sure that your references know the name of the social study evaluator assigned to your case. Generally, the social study evaluator will mail a reference questionnaire directly to the references that you listed in your initial paperwork. However, you do want to let your references know to expect a letter in the mail, email, or possibly a phone call from your social study evaluator.

4. DO make sure that your reference letters are completed and returned to the social study evaluator by the deadline. The social study evaluator will let you and your references know when he/she would like the completed reference letters.

5. DO make sure to inform your personal references that the point of them completing these letters is to discuss your character, but more importantly to discuss your strengths as a parent. In my opinion, this is a task that can be easily completed by having your references write about their personal observations of you interacting with your children. For example, your interaction with your children at soccer games, school functions, medical appointments, etc.

6. DO NOT have your personal references include negative attributes about the other parent involved in the social study evaluation. These reference letters are your opportunity to have people build you up as a parent and to discuss your strengths as a parent. Many social study evaluators will set a page limit for the reference letter. Do not let your references spend their valuable space disparaging the other parent. There is a time and place for everything. You will have the opportunity to discuss your concerns about the other parent during the social study evaluation. However, reference letters are not the time or the place.

When You Can't Appeal, Mandamus

Ashley Russell — Wed, 08 May 2013 08:33:42 -0600

What can you do if you lack an adequate remedy by appeal and the trial judge clearly misapplies the law in your case, violates your constitutional rights, or clearly abuses their discretion? As we discussed in my last blog, the remedy of a traditional appeal is not available to challenge rulings in all family law cases. A petition for writ of habeas corpus is only if a person’s liberty is restrained (which usually means jail). A petition for writ of mandamus in the court of appeals is your answer.

The burden is higher in a mandamus proceeding than in a direct appeal. To be entitled to relief, the “relator” (the party asking for a writ of mandamus) must show that the trial court violated a ministerial duty (like referring a case to arbitration when there is an existing arbitration order in place or refusing to enter an order after rendition of judgment), or that the trial court clearly abused its discretion. In both instances, the relator must also show that they lack an adequate remedy by appeal. Mandamus is also available to vacate a void order.

Most often in family law cases a petition for writ of mandamus is filed to correct a clear abuse of discretion by the trial court. The burden is high in these cases. On fact issues, the court of appeals cannot substitute its judgment for that of the trial court. This means that the relator must show that the trial court could reasonably have reached only one decision in order to prevail. For legal issues, the relator must establish that the trial court clearly failed to analyze or apply the law correctly.

Situations where petitions for writs of mandamus may be appropriate in family law cases include (1) incorrect rulings on standing and jurisdiction (under the UCCJEA or UIFSA), (2) appointment of a receiver in temporary orders, (4) change of the conservator with the right to designate the primary residence of a child in temporary orders, (4) certain discovery disputes, (5) and failure of the trial court to enter an order after rendition (the court’s oral ruling on the record). In these situations, given the issues at stake, it is often appropriate to request that the court of appeals enter an emergency stay prohibiting the trial court from taking any action to enforce or proceed with the challenged order until the court of appeals can decide the mandamus case.

Like a writ of habeas corpus, time is of the essence when it comes to a mandamus. Typically steps need to be taken immediately to try to prevent the trial court from acting on, enforcing, or otherwise proceeding with the order that you are challenging before irreparable damage is done to your family, your property, and/or your constitutional rights. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.

Parental Alienation Awareness Organization

Michelle O'Neil — Tue, 30 Apr 2013 08:28:11 -0600

PAAO
Parental Alienation Awareness Organization
Founders of
Parental Alienation Awareness Day (April 25)

According to the Parental Alienation Awareness Organization, parental alienation involves the mental manipulation and/or bullying of the child to pick between their mother or father. These behaviors can also result in destroying a loving and warm relationship they once shared with a parent. Parental alienation deprives children of their right to be loved by and showing love for both of their parents and extended family. Parental Alienation can occur in intact families, but is mostly seen in separated and divorced families.

Parents/guardians using alienation tactics to hurt the other 'target' parent have been compared to cult leaders. They deny access to anything that may challenge their view of the other parent, including any photographs, or communication.

Parental alienation syndrome (PAS) is a psychological condition most often observed in children affected by high conflict divorce and/or separation. It is one of the most damaging outcomes affecting children as a result of exposure to PA. The most common symptom of children affected by PAS is their severe opposition to contact with one parent and/or overt hatred toward such parent when there is little and often, no logical reason to explain the child's behavior. The effects of PAS can last well into adulthood and may last for a lifetime with tragic consequences.

Parental Alienation Syndrome (PAS) is different from Parental Alienation (PA). PAS refers to the behaviors of the child, whereas PA describes the abusive behaviors of a parent or caregiver. There are many debates as to whether PAS exists or is 'Junk Science'.

During the crisis of divorce, most parents fear whether their children will emerge unscathed. Any reasonable and empathetic parent sincerely believes in the value of his or her children having a healthy relationship with both parents. Ideally, parents deliberately work on comforting and reassuring the children that no harm will come to them. At the same time, both try to strengthen their parent-child relationships without degrading the other parent or causing the children to feel divided loyalty. They encourage visits, talk kindly of the other parent in the children's presence, and set aside their own negative feelings to avoid causing the children distress. They are sensitive to the children's needs and encourage positive feelings toward the other parent. This outcome is the goal.

However, any number of events can destroy the fragile balance of peace between parents. If this happens, an injured parent may seek comfort by aligning with the children, especially since be or she may feel threatened by the children's love for the other parent. A pattern of alienation usually begins without any malicious or conscious intent to harm or destroy the relationship between the other parent and the children. Though most parents mean well, they are often unaware of how subtle behaviors and comments can hurt the relationship between the children and the targeted parent. Alienating parents however learn how to manipulate and use their children to hurt the other parent on purpose, and with a vengeance. This can include anything from outright telling the children their other parent does not love them and does not want to be with them, to destroying and hiding communication from the other parent, to simply refusing to act as a 'parent' when a child does not want to spend time with, or is rude to, the other, and empowering their child to do as they wish.

Early signs of parental alienation include:

• Children perceive one parent as causing financial problems of the other parent;
• Children appear to have knowledge of details relating to the legal aspects of the divorce or separation;
• Children show sudden negative change in their attitude toward a parent/guardian;
• Children appear uneasy around target parent - they resort to "one word" answers and fail to engage openly in conversations as they previously have done;
• Children are uncharacteristically rude and/or belligerent to target parent;
• Access time is not occurring as agreed upon or court ordered - visitation is being unilaterally cut back by the other parent;
• Parent undermines the other parent or speaks disparagingly about other parent in the presence of the children;
• Parent starts making reference to other parent as being abusive and a risk to the children with no apparent good reason;
• Allowing children to choose whether or not to visit a parent, even though the court has not empowered the parent or children to make that choice;
• Telling the children about why the marriage failed and giving them the details about the divorce or separation settlement;
• Refusing the other parent access to medical and school records or schedules of extracurricular activities;
• Blaming the other parent for not having enough money, changes in lifestyle, or other problems in the children's presence;
• Rigid enforcement of the visitation schedule for no good reason other than getting back at the other parent;
• False allegations of sexual abuse, drug and alcohol use or other illegal activities by the other parent;
• Asks the children to choose one parent over the other;
• Reminding the children that the children have good reason to feel angry toward their other parent;
• Setting up temptations that interfere with visitation;
• Giving the children the impression that having a good time on a visit will hurt the parent;
• Asking the children about the other parent's personal life;
• 'Rescuing' the children from the other parent when there is no danger.

Participating in parental alienation can be devastating from the perspective of custody litigation. If a judge finds that a parent is attempting to alienate a child, it may result in the alienating parent having custody completely taken away.

It's Never Too Late to Settle Your Divorce

Katie Lewis — Mon, 29 Apr 2013 09:00:41 -0600

Last week, Kim Kardashian and Kris Humphries settled their divorce case. After seventy-two days of marriage, Kim Kardashian filed for divorce in October, 2011. The divorce had been ongoing for a year and a half. The pair was set to go to a final trial on May 6, 2013 but on April 19, 2013, advised the Court that they had reached a settlement to their divorce.

When going through a divorce in Texas, I always tell my clients at the beginning of their case that there are only two ways you are going to get divorced: 1) is an agreement on all issues or 2) a final trial. Let’s say that there are ten disputed issues and the parties are able to reach an agreement on eight of the ten issues; then we can have a final trial on the two remaining issues. The bottom line is the parties either agree or a Judge will decide the issue at a final trial. This is a concept I remind my clients of not only at the beginning of their case but throughout their pending divorce.

When a person files for divorce in Texas, there is not automatically a final trial date assigned to the case. A person must request a final trial date from the Court and the date that is given is based upon the legal issues, the anticipated length of the final trial and the Court’s availability. Depending upon the Texas County you live in, it could be up to a year and a half before you will have a final trial date.

Kim Kardashian and Kris Humphries are an example of the length of time until there is a final trial in a divorce in any state. It is also an example of settling on your own terms is usually better than a third party (the Judge) making the decisions for you.

What you Need to Know to Be Prepared for a Social Study Evaluation

Sarah A. Darnell — Thu, 18 Apr 2013 09:30:04 -0600

Social Study Evaluators:

Texas courts generally order a social study evaluation at the temporary orders hearing in cases where conservatorship or possession of or access to a child is being contested. If the parties are unable to agree on a social study evaluator, then the Court will appoint a social study evaluator. Once a social study evaluator has been appointed, do your research on the person appointed to complete your social study evaluation. The Texas Family Code contains specific minimum qualifications for social study evaluators in Texas. Most social study evaluators in Texas have a human services/mental health background. The qualifications of social study evaluators in Texas can include licensed professional social workers, licensed professional counselors, and psychologists. It is important to know who your audience is when getting ready to participate in your social study evaluation, so be sure to research the evaluator appointed in your case. You can search the state licensing board that governs the social study evaluator appointed in your case to familiarize yourself with their professional standards and ethics. For example, the Texas Administrative Code contains the professional standards for most mental health professionals. It could also be helpful to search the internet and/or review his or her résumé.

Next week I will outline the documents and information that you need to obtain in preparation of your initial interview with your social study evaluator. I will also provide a list of “do’s” and “don’ts” as it relates to reference letters and your initial social study interview.

How does the DSM-V effect family law litigation?

Michelle O'Neil — Tue, 16 Apr 2013 10:47:54 -0600

Today, I wanted to share an article that I received from Dr. John Zervopoulos, a board certified forensic psychologist and lawyer with Psychology Law Partners. We often hire Dr. Z to consult with us when we have mental health issues involved in a child custody case. Dr. Z will help navigate through the mental health issues and steer the attorney in preparing for litigation on those issues. Because he is a lawyer and a psychologist, he understands the litigation process and how mental health evidence affects a case, especially a child custody case.

So, here's what Dr. Z has to say about the DSM-V coming out in May (read more about the DSM-V at its website):

WILL DSM-5 CHANGE EXPERT TESTIMONY?

Bipolar Disorder. Narcissistic and Histrionic Personality Disorders. These diagnoses from DSM-IV-TR quickly catch a judge’s or jury’s ear—and raise concerns. DSM-5, the next revision, is scheduled to be published in May. Revisions portend changes, and DSM-5 promises them—adding diagnoses, recasting some, dropping others. For example, Narcissistic Personality Disorder is expected to remain; Histrionic Personality Disorder won’t make the cut. Controversy among mental health professionals abounds.

Nevertheless, too many mental health experts will continue to misuse DSM diagnoses in the same way—as broad-brush, professional “stamps of approval” that substitute for clear, trustworthy testimony. The most common misuse occurs when an expert attaches diagnostic criteria to cherry-picked events from a litigant’s life or to selected test responses of the litigant.

Three foundational DSM-IV principles sure to survive in DSM-5 offer useful starting points for questions to experts who insist on basing their testimony primarily on diagnoses rather than on relevant documented behaviors tied to parenting demands or other capacities at issue in the case:

• The DSM-IV-TR was developed for “clinical, research, and educational purposes”—not for legal purposes. (Introduction, at xxiii).

• The DSM-IV-TR requires that mental health professionals exercise clinical judgment when interpreting and counting criteria that comprise a diagnosis. Diagnostic criteria “are meant to serve as guidelines . . . not meant to be used in a cookbook fashion.” (Introduction, at xxxii).

• The DSM-IV-TR cautions about using diagnoses in court, noting that “there are significant risks that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between questions of ultimate concern to the law and the information contained in clinical diagnoses.” Further, “It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.” (Introduction, at xxxii-xxxiii).

Whether DSM-IV or DSM-5, the basics of expert testimony still apply: “It is not so simply because an expert says it is so.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 713, 726 (Tex. 1998). If the expert invokes a DSM diagnosis, challenge the expert to specify why the diagnosis is relevant, the basis for the diagnosis, and how the diagnosis compromises the litigant’s functioning in matters of concern to the court.

Reference: John A. Zervopoulos, How to Examine Mental Health Experts 155-162 (2013).

Mandatory Presence in Court Really Means Mandatory Presence

Katie Lewis — Mon, 15 Apr 2013 08:56:20 -0600

There was another twist in the Kim Kardashian and Kris Humphries divorce this past Friday. As reported by ABC News, Kris Humphries failed to attend a mandatory settlement conference in the divorce action on April 12, 2013. The purpose of this hearing was to see if the parties were able to reach any kind of an agreement as to the final terms of the divorce before there is a final trial before the Court. As a result of Kris Humphries actions, the Judge on his own motion set a hearing for Kris Humphries to show cause as to why sanctions should not be imposed against him for his failure to attend the April 12, 2013 mandatory settlement conference. A hearing on the sanctions is scheduled to occur April 19, 2013. The case is set for a final trial on May 6, 2013.

During a divorce in Texas, there may be hearings and required conferences with the Court. It is important to communicate with your lawyer to find out whether or not your presence is required. There are many types of hearings where a litigant’s presence is required and a litigant’s attorney’s appearance on behalf of a litigant will not suffice. I always tell my clients prior to any hearing whether or not their presence is required. Even if my client’s presence is not required, I always invite my clients to attend any and all hearings in their divorce no matter what the purpose of the hearing.

Just like in the California court where Kim Kardashian and Kris Humphries divorce is pending, a Texas Court can award sanctions and attorney’s fees against a party for his/her failure to attend a hearing as well as a possible default of the matter that was scheduled to be heard before the Court.

Stayed tune for my future blogs regarding the April 19, 2013 sanctions hearing as well as the May 6, 2013 final trial in the Kim Kardashian and Kris Humphries divorce.

What you Need to Know to Be Prepared for a Social Study Evaluation:

Sarah A. Darnell — Thu, 11 Apr 2013 09:08:16 -0600

Most Texas courts will order a social study evaluation to be completed if conservatorship (custody) or possession of and access to a child are being contested. The Texas Family Code contains specific requirements for completion of a social study evaluation. It is important to be knowledgeable about the process of a social study evaluation. In Texas custody cases, the recommendations contained within a social study evaluation carry a great deal of weight with the Court. Many custody cases can be won or lost based upon these recommendations. As with all aspects of custody litigation, it is important to be prepared for what comes next in the process.

A thorough social study evaluation can take anywhere from 12 to 18 months to complete. During this time, the social study evaluator will conduct individual interviews with both parties to the case, joint interviews with each party and the child, and individual interviews with the child. The social study evaluator will request that each parent submit several references to be consulted regarding his/her parenting skills and involvement with the children. The social study evaluator will also conduct an in-home interview at each parent’s residence during this process. The social study evaluator will also consult with relevant collateral resources, such as school teachers, counselors, and healthcare providers. Once the social study evaluator has completed the evaluation he/she will prepare a written report detailing his/her findings and recommendations. These recommendations can include: which parent should be the primary conservator of the child, the residency restriction on the primary residence of the child, and the possession and access schedule for both parents. Although the Court is not bound by these recommendations they can be very persuasive evidence for the Court.

Over the next several weeks, I will outline the requirements of a social study evaluation pursuant to the Texas Family Code. I will also provide information that may be helpful to anyone that will be participating in a social study evaluation in Texas.

The disposition of business assets in a Texas divorce

Michelle O'Neil — Tue, 09 Apr 2013 07:56:51 -0600

Within the property division process, the Texas family law distinguishes community property from separate property. The analysis is necessary for the purpose of allocating property to parties pursuant to a divorce. This is because community property is treated different from separate property. Assuming there is not a

property division agreement

, under Texas law, all jointly held community property is divided by the family law court and distributed to divorcing spouses. However, some property can be variable and difficult to characterize. This is often the case when one spouse to an ending marriage holds ownership in a business.

Whether one is a company owner or spouse of the business owner, he or she should integrate corporate law principles into the assessment of the property division process. One could be entitled to a fair share of business-related community property; however, this could be overlooked if the assets are disguised in what appears to be a separate business. If this is the case, one spouse could walk away with the businesses’ assets, which were supposed to be divided equitably in the divorce within the community estate.

Property division of business assets

A corporation is generally considered its own entity, meaning it is characterized as separate property. In most divorce cases, a spouse’s interest in a corporation is subject to division by a family law court; the remainder of the corporate property is off limits and not pushed into the community property portion. However, there is an exception to this rule when an “alter ego” exists.

The “alter ego”

If a business is an “alter ego” of a divorcing spouse, courts may transfer assets out of the separate company and divide them among litigants in the property division process. A business is an alter ego of spouse if the corporate veil of the business is “pierced,” changing the disposition of company property. The corporate veil will be “pierced” if a family law court finds that there is essentially no distinction between the business and a divorcing spouse (as if the business no longer exists and the two are one in the same). Furthermore, the divorcing spouse will be considered the alter ego of the company if a spouse’s use of the business damaged the community estate (the couple’s marital assets) beyond repair to the point where it would be fraudulent or unfair to separate the spouse from the entity. This might happen, for example, when a personal business completely funds a family’s income.

When the property division process begins, courts will look at all jointly held property. It is important to ensure that all assets subject to property division are included in the community property estate. Likewise, it is just as important to protect separate business assets, if necessary. To make sure that your property division resolution is equitable, retain the assistance of a qualified family law attorney in your area. A lawyer can explain business principles and how they apply to your particular situation.

Having Another Child Will Affect Your Child Support in Texas

Katie Lewis — Mon, 08 Apr 2013 09:07:19 -0600

As reported by the Huffington Post on Friday, April 5, 2013, Halle Berry is expecting her second child (the father is Olivier Martinez). Halle Berry has a five year old child, Nahla, from a previous relationship with Gabriel Aubry. Reportedly, Halle Berry pays child support to Gabriel Aubry. However, with the birth of a second child, Halle Berry may seek a reduction in child support.

In Texas, when the parent who has a child support obligation has another child, the parent paying child support is entitled to a modification of their child support obligation. The legal burden to modify a person’s child support is a “material and substantial change in circumstances.” When there is a birth of another child, the percentage of a parent’s monthly net income for child support purposes changes.

If Halle Berry were paying child support to Gabriel Aubrey in Texas, her child support obligation would be 20% of her monthly net income ($7,500.00 is the maximum for monthly net income) plus the cost of the child’s monthly health insurance premium. Once her second child is born, Texas recognizes the fact that Halle would have another child to support. Therefore, the percentage of her monthly net income for child support would change from 20% to 17.5% per month.

It is important to remember that these changes in percentages and thus the monthly child support obligation only changes when a person obtains a new Court order that changes their monthly child support obligation

Writs of Habeas Corpus: Get Out of Jail Cards in the Courts of Appeals

Ashley Russell — Wed, 03 Apr 2013 09:13:25 -0600

As part of our appellate practice, clients often come to us asking what they can do after they suffer an unfavorable ruling in the trial court. Most people are familiar with a traditional appeal (challenging the trial court’s final order in the courts of appeals). But a traditional appeal is not available in all family law cases and sometimes other appellate remedies are necessary.

For example, traditional appeals are typically not allowed from child support and possession enforcement orders. Because these orders often include penalties of contempt, which sometimes means jail time, these are some of the most common orders that people what to challenge. But what can you do?

The appellate relief in contempt cases is called a writ of “habeas corpus” (Latin for “that you have the body”). The Supreme Court and the courts of appeals have jurisdiction to issue writs of habeas corpus in cases in which a person’s liberty is restrained (meaning jail) because the person violated an order, judgment or decree (child support or possession for example) in a civil case. Because personal liberty is at issue, habeas corpus proceedings are expedited in appellate courts.

There are several bases on which a writ of habeas corpus may be granted including (1) lack of jurisdiction by the trial court, (2) violation of due process, (3) inadequate or no notice, and (4) if there is no proof that the contemnor violated the trial court’s order. But, if the contempt order does not involve physical restraint (i.e. jail), then mandamus (the subject of my post next week), not habeas corpus is the appropriate way to challenge the trial court’s order.

Time is of the essence when it comes to a writ of habeas corpus. You do not want either yourself or a loved one sitting in jail any longer than necessary. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.

Lamar Odom Tricky Custody Battle

Katie Lewis — Mon, 01 Apr 2013 09:19:45 -0600

As reported by the New York Post, Lamar Odom and the mother of his two children, Liza Morales, are in the middle of a custody battle. These parents are fighting over possession schedules, child support and whether the children can be permitted to be shown on each parent’s respective reality TV shows. Lamar Odom, the husband of Khloe Kardashian, appears on “Keeping Up with the Kardashians” and Liza Morales has appeared on three episodes of “Starter Wives Confidential.”

The custody dispute began in 2011 when Lamar Odom filed suit for a modification of the possession schedule with his children as well as modifying his child support obligation. Liza Morales and their two children live in New York City and Lamar Odom resides in Los Angeles.

If this case were to have been filed in Texas, Lamar would have the legal burden of showing that there had been a material and substantial change in circumstances since the prior Court order to be entitled to seek a modification of child support and the possession schedule. Since he filed his lawsuit, Lamar Odom has married Khloe Kardashian, appeared in his own reality TV show, and signed a lucrative deal with the LA Clippers. It is reported that Lamar Odom wants to have his children shown on his reality TV show and Liza Morales is not in agreement. In Texas, Lamar Odom would have the burden of showing that the children’s appearance on reality TV is in their “best interest.”

One must wonder how seriously Lamar Odom is taking these custody proceedings. In Touch Weekly published pictures of Lamar Odom sleeping outside of the courtroom on March 6, 2013 during a custody hearing. I can almost guarantee that the Judge of his case found out about this incident as not only were pictures published nationwide of Lamar’s napping in the hallway of the courthouse, but an officer of the court had to awaken Mr. Odom to make sure he was ok.

DOMA -- does it matter in Texas

Michelle O'Neil — Fri, 29 Mar 2013 07:55:57 -0600

Someone asked me today… if the US Supreme Court challenge to DOMA (federal Defense of Marriage Act) succeeds, will anything change in Texas? The truth is that even if the litigants in US v. Windsor prevail, they have challenged section 3 of DOMA, which prevents the federal government from recognizing a legal same-sex marriage granted by a state that has laws for such. The litigants there did not challenge section 2 of DOMA, which is the section that says that states do not have to recognize same sex marriages from other states. (See the wiki on DOMA here.) Section 2 overrides the US Constitution’s provisions that require each state to give “full faith and credit” to the laws of other states. (See the wiki on Full Faith and Credit Clause here.) In 2003, Texas passed its own version of the Defense of Marriage Act, mirroring the federal version. (See Governor Perry’s site on Texas’ Defense of Marriage Act here.)

So, in the event that the US Supreme Court agrees with the litigants in Windsor, the likely outcome of striking down section 3 of DOMA will only provide federal benefits to same-sex married couples, but will have no effect on each state’s rights to pass their own laws regarding same sex marriages. Until Congress or the US Supreme Court is faced with a challenge to section 2 of DOMA, squarely challenging DOMA’s provisions overriding the US Constitution, same sex couples are stuck with the current situation in Texas. That means that a couple who is married in a state that recognizes same-sex marriage, who then moves to Texas and breaks up, cannot get divorced under Texas laws. That couple faces a decision to move to a state that provides for divorce of same-sex marriages in order to legally dissolve their marriage. Texas provides very little remedies for these couples under the present laws.

U.S. Supreme Court Hears Arguments in Two Cases Involving Same-Sex Marriage

Ashley Russell — Thu, 28 Mar 2013 08:32:49 -0600

On Tuesday, the Supreme Court heard arguments in Hollingsworth v. Perry, involving the constitutionality of Proposition 8 (California’s controversial ban on same-sex marriage). Due to issues regarding standing (the legal right of a party to bring a suit), the real question facing the Court is likely not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all. Given the questions and comments at argument, the Court may not weigh in on the issue of same-sex marriage. We will have to wait and see.

Yesterday, in United States v. Windsor, the constitutionality of the federal Defense of Marriage Act (defining marriage as between a man and a woman) was before our highest court. During argument, Justice Kennedy indicated that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. However, if the Court was to strike down the law based on states’ right, it would not give same-sex couples the legal right to marry under the Constitution. From questions and comments during argument, it appears unlikely that the Court would strike down the DOMA because it denies same-sex couples legal equality under the Fifth Amendment (by denying them the right to marry). It looks like the constitutionality of same-sex marriage will not be reached in this case either. The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on sexual orientation.

Regardless of whether the Supreme Court reaches the constitutionality of same-sex marriage in Hollingsworth or Windsor, this is a matter requires clarity and guidance from our legislature. Until that happens, we must look to our courts to fill in the gaps. These two cases are the first of many more to come. Check our blog for updates.

To read more on this subject:

Argument recap: DOMA is in trouble (FINAL UPDATE)

What will the Court do with Proposition 8? Today’s oral argument in Plain English

Breaking Down the Sanders Divorce: Premarital Agreements in Texas

Katie Lewis — Wed, 27 Mar 2013 10:18:36 -0600

As discussed in my blogs earlier this week, there have been many rulings in the Deion and Pilar Sanders divorce this month regarding custody of the Sanders three children. Another significant issue was ruled upon this month which is that the couple’s 1999 premarital agreement is valid.

Deion and Pilar married in 1999 and prior to marriage the parties entered into a premarital agreement regarding their assets and debts. According to the Dallas Morning News, the premarital agreement “divides the couple’s property and awards Pilar Sanders $100,000 for each year they were married, with a cap set at $1 million.” During the ongoing divorce, Pilar Sanders has disputed the validity of the document based upon the assertion that there were missing exhibits and pages to the premarital agreement at the time it was signed by the parties. Pilar has also asserted that she was “tricked and defrauded” at the time she signed the 1999 premarital agreement.

Premarital agreements are not uncommon in today’s world. It is a binding contractual agreement entered into by spouses prior to marrying. The purpose of a premarital agreement is to protect a person’s assets that are owned prior to the marriage as well as to make certain financial provisions in case of a divorce.

Generally, Texas family courts recognize prenuptial agreements if the parties:

had independent counsel in creating the agreement,
were aware of their rights regarding property division under Texas law, especially if they agree to waive such rights,
entered into the agreement freely and voluntarily; and
were aware of each other’s income, and that full disclosures had been made.

This was not Deion Sanders first marriage. He was previously married to Carolyn Chambers whom he divorced in 1998. Having already been through one divorce, it is not unheard of for a person marrying for a second time to have a premarital agreement before entering into the second marriage.

The Judge’s ruling last week that the Sanders premarital agreement is valid is significant as the premarital agreement likely addresses and disposes of all property issues in the Sanders divorce.

Breaking Down the Sanders Divorce: Parenting Time and Possession Schedules in Texas

Katie Lewis — Tue, 26 Mar 2013 08:16:15 -0600

As discussed in my blog yesterday, on March 12, 2013, a Texas jury in the Deion and Pilar Sanders divorce ruled that Deion Sanders would have Sole Managing Conservatorship of the couple’s two boys and that Deion and Pilar would be joint managing conservators of the couple’s daughter with Deion determining the daughter’s primary residence. Last week, the Judge ordered that Deion Sanders was to no longer pay any child support to Pilar. He also ruled that Pilar is to have a Standard Possession Order with all three children.

What exactly is a Standard Possession Order? In Texas, there is a presumption, just like the presumption that two parents are to be Joint Managing Conservators, that it is in a child’s best interest that a parent have at least a Standard Possession Order with the child. This presumption is rebuttable. If you are requesting a parent have less than a Standard Possession Order, you must rebut the presumption by showing some form of child abuse, harm, or neglect or domestic violence as well as demonstrating that it is in the child’s best interest for the parent to have less possession and access than a Standard Possession Order.

The Standard Possession Order is as follows:

Weekends – On the 1^st, 3^rd, and 5^th weekend of the month beginning Friday at 6:00 p.m. and ending Sunday at 6:00 p.m.

Thursdays during the school year – Beginning at 6:00 p.m. and ending at 8:00 p.m.

Thirty Days in the summer – If a parent makes a specific designation by April 1^st of each year, a parent may designate thirty days which shall be operated in no more than two periods with each period of possession being no less than seven days.
If a parent does not make a specific designation for their thirty days in the summer by April 1^st, then the default possession is July 1^st – 31^st.
The other parent then gets to pick one weekend of possession to occur during the parent’s thirty days in the summer as well as one weekend of possession during the parent’s regular 1^st, 3^rd, and 5^th weekends of the month.

Spring Break in even years is awarded to the parent under a Standard Possession Order.

Holidays are divided between the parents based upon even and odd years.
Christmas Holidays in Even-Numbered Years - In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28^th
Christmas Holidays in Even-Numbered Years – In odd-numbered years, beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.
Thanksgiving in Odd-Numbered Years - beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

Depending on which parent is under a Standard Possession Order, that parent is entitled to either Mother’s Day or Father’s Day weekend (depending on their sex) beginning at 6:00 p.m. on the Friday before the Mother’s/Father’s Day and ending at 6:00 p.m. on Mother’s/Father’s Day.

A parent under a Standard Possession Order may make an election to have an Expanded Standard Possession Order if the Judge finds that an Expanded Standard Possession Order is in a child’s best interest. An Expanded Standard Possession Order means that a parent’s possession can begin at the time is school is dismissed and end at 6:00 p.m. on the respective day or it can begin at 6:00 p.m. and end at the time school resumes the day after the day of possession under a Standard Possession Order. For example: on the 1^st, 3^rd, and 5^th weekend of the month, a parent can elect (with the Judge’s permission) to have possession beginning at the time school is dismissed on Friday and ending at 6:00 p.m. on Sunday or beginning at 6:00 p.m. on Friday and ending at the time school resumes on Monday.

What is significant with the Judge’s ruling regarding Pilar Sanders possession schedule is that the Judge must have found that it was not in the children’s best interest for Pilar to have an Expanded Standard Possession Order with the children and instead only awarded her a Standard Possession Order.

Stay tuned for my next blog where I will discuss pre-nuptial agreements in Texas and the role Deion and Pilar Sanders’ pre-nuptial agreement plays in their divorce.