Marriage — liberty and justice for all

Justices_smThe US Supreme Court found marriage of Constitutional proportions and extended the right of marriage to same-sex couples. This broad sweeping Constitutional rights opinion will have profound effects on many aspects of our society, not just the right to marry. It will apply to right of adoption, inheritance, death benefits, divorce, and maybe other ways we haven’t even thought of yet.

For my extensive view of the opinion in Obergefell v. Hodges, see my post here: Marriage Equality — The Whole Enchilada.

Is June 26 the day for LGBT Right to Marry?

Did you know I started a new blog on LGBT family law rights in Texas? Today I posted about the significance of the date June 26 in the LGBT rights movement. The significant case of Lawrence v. Texas, which held unconstitutional statutes criminalizing homosexual conduct, was handed down by the US Supreme Court on June 26, 2003. And, the Windsor opinion finding portions of the federal Defense of Marriage Act unconstitutional as applied to same sex couples, came out on June 26, 2013. So, it is significant that the US Supreme Court announced late last week that they are having an opinion-issue date this Friday, June 26, 2015. Most people believe that the Obergefell decision on the rights of same sex couples to marry will come out that day.

See my extended blog post here: Expected marriage equality decision on Friday, June 26

Divorce Agreements, Einstein and the Nobel Prize

When negotiating a final divorce settlement, every divorcing person must decide for himself or herself what to give up in exchange for getting a divorce. Rolled into that decision is the priority of guilt, moral values, and the willingness or unwillingness to continue to participate in the conflict of the divorce process.

These decisions and feelings are not solely the province of “regular people” – famous people go through it too.

einstein wedding picture

Wedding photograph of Albert Einstein and Mileva Marić, January 6, 1903

Take Albert Einstein, for example. A few months ago a group of universities released Einstein’s papers to the public. (See Digital Einstein.) These included correspondence between Einstein and his first wife Mileva Maric. Many beautiful love letters are includes as their love begins. But the unravelling of their love showed two strong-willed, ambitious people who grew apart. Not unlike many people going through divorce.

In 1914 the couple separated after eleven years of marriage and twenty-eight years as a couple. Two years later, he suggested a divorce, but his wife developed health problems, so he retracted the idea. When her condition improved four years after their separation, Einstein against proposed divorce. The letter he wrote to his wife shows his desperation, almost to the point of a bribe.

Dear Mileva,

The endeavor finally to put my private affairs in some state of order prompts me to suggest the divorce to you for the second time. I am firmly resolved to do everything to make this step possible. In the case of a divorce, I would grant you significant pecuniary advantages through particularly generous concessions.

  1. 9,000 M [$1,560 then, $26,000 now] instead of 6,000 M, with the provision that 2,000 of it be deposited annually for the benefit of the children.
  2. The Nobel Prize — in the event of the divorce and in the event that it is bestowed upon me — would be ceded to you in full a priori. Disposal of the interest would be left entirely to your discretion. The capital would be despited in Switzerland and placed in safe-keeping for the children. My payments named under (1) would then fall away and be replaced by an annual payment which together with that interest totals 8,000 M. In this case you would have 8,000 M at your free disposition.
  3. The widow’s pension would be promised to you in the case of a divorce.

Naturally, I would make such huge sacrifices only in the case of a voluntary divorce. If you do not consent to the divorce, from now on, not a cent about 6,000 M per year will be sent to Switzerland. Now I request being informed whether you agree and are prepared to file a divorce claim against me. I would take care of everything here, so you would have neither trouble nor any inconveniences whatsoever.

The divorce agreement was finalized in June 1918, with the Nobel Prize money the centerpiece of the agreement.

Prof. Einstein shall instruct, in the event of a divorce and in case he receives the Nobel Prize, the [award money] to become the property of Mrs. Mileva Einstein and shall deposit this capital in trust at a Swiss bank.

The divorce was granted in 1919. In 1921, Einstein was awarded the Nobel Prize “for his services to Theoretical Physics” and the prize money was awarded a year later. True to his word, the money was transferred to his prior wife.

Throughout the process, Einstein had to grapple with his moral obligation to his wife, versus his desire to be divorced and be with his new love. He had to wrestle with the wife’s illness, and his inability to divorce her until she was healthy. Then, he had to make an offer to her that she would accept in order to obtain her agreement for divorce. He had to determine how important getting the divorce completed was versus giving up the bounty of what was the most important achievement of Einstein’s life.

Divorcing spouses go through a similar thoughts when evaluating their options for agreement. How much are they willing to give up – whether property or time with their children – to accomplish the divorce by agreement? Is the difference worth having a trial to a judge to reach an outcome? Or, where jury trials are allowed in certain situations in divorce cases, is it worth going all the way to a jury?

While divorce lawyers may advise their client as to the propriety of settlement options, only the client may make the ultimate decision to settle their case. Even if the lawyer disagrees with the settlement option, the client may still choose to settle against the lawyer’s advice. Sometimes that may be more preferable than the alternative of trial.

Hat tip to Brain Pickings June 12, 1918: Einstein’s Divorce Agreement and the Messiness of the Human Heart

To Return or Not Return the Engagement Ring… That is the Question

BROKEN-ENGAGEMENTLife is all hunky-dory when two people get engaged. They are hopeful for the future and look forward to a long life together. But, sometimes people don’t quite make it to the alter before it all falls apart. I dare say it is probably better to find out before the alter than after. Even so, what happens to the sparkly and expensive show of affection purchased to solemnize the occasions – the Engagement Ring? The bigger the rock, the more at stake; even small rocks may be big to some.

An engagement ring is what is called a “conditional gift” in Texas. Ownership does not convey until the condition is met – in this case, marriage. Upon marriage, the engagement ring is a gift, making it the sole property of the recipient spouse. To give the ring then breakoff the wedding, there has to be a really good reason to justify the breakup to get the ring back. Likewise, if the receiver gets the ring then dumps the giver, there better be a good reason to keep the ring. Maybe documented cheating is enough.

Other gifts given during the pre-wedding relationship are not conditional, so don’t expect those back in case of a breakup.

Texas Monthly had an interesting post detailing cases that have been filed to get the ring back after a pre-wedding breakup. Interesting read.


Presumption of MATERNITY in Texas?

Texas Family Code 160.106 Presumption of Maternity

Texas Family Code 160.106 Presumption of Maternity

Did you know that the presumptions of paternity apply also to presumptions of maternity? Little known Texas Family Code section 160.106 says that the provision of Chapter 160 relating to the determination of paternity apply to a determination of maternity. In looking at the provisions related to paternity, the presumption of parentage would apply to a child born during a marriage, to a parent who signs an acknowledgment of parentage, or to persons voluntarily named as a parent on a child’s birth certificate. What about in 160.202 (5) where paternity is presumed for a man who, during the first 2 years of a child’s life, resides in the household with the child and represented to others that the child was his own — does that paternity presumption apply also to maternity? According to 160.106 it does. This is one of the sticky situations that may come with the recognition of same-sex marriages in Texas involves the parental presumptions that will arise with children of such relationships. Take a lesbian couple where one mother decides to give birth to a child during the marriage.  Once Texas recognizes those marriages, the non-biological partner could claim a presumption of maternity by virtue of being married at the time of the birth. Or, even if the couple were not married, but lived together during the first 2 years of the child’s life and represented to others that they were both mothers, a presumption of parentage could apply. This statute is part of the Uniform Parentage Act which was also adopted by California. There, the case In re D.S. actually finds that the presumption of maternity code section was designed to provide an avenue for presumed parentage for same-sex couples:

“[I]n the context of same-sex relationships involving two women, courts have found a child may have a biological mother and a presumed mother, to the extent the woman who is the nonbiological [or nonadoptive] parent meets the requirements of one or more of the presumptions listed in section 7611.” (In re Bryan D. (2011) 199 Cal.App.4th 127, 138–139; see, e.g., S.Y. v. S.B. (2011) 201 Cal.App.4th 1023 [upholding application of section 7611, subdivision (d) to give parental rights to a former partner in a same-sex relationship who had received the adoptive mother’s children into her home and held them out as her own].)

See In re D.S. at There are some courts and some judges in Texas — and maybe even some lawyers — that will be shocked to see that Texas already has statutes that contemplate rights for same-sex couples. Some parts of this chapter already apply, even without recognition of same-sex marriage. That’s why it is so important to talk to a lawyer who knows about the intricate rights of same-sex couples and can advise accordingly.

What divorce custody arrangement is best for the kids?

The Texas Standard Possession Order

In Texas, we have the Standard Possession Schedule, passed down to us by our Austin parenting experts, the Texas Legislature. It generally provides for the “non-primary” parent to have possession of the children alternating weekends, some summer time, and split the holidays. So, the child lives primarily with one parent and “visits” (yes, we still use that word in Texas divorces) with the other parent. Studies show this arrangement may not be the best thing for kids who are unwittingly subject to the parents’ divorce.

A new study published in the Journal of Epidemiology & Community Health (Fifty Moves a Year: Is there an association between joint physical custody and psychosomatic problems in children?) suggests that children are mentally healthiest when they are able to split their time with both divorced parents. Children who lived primarily with one parent had higher rates of sleep problems, difficulty concentrating, loss of appetite, headaches, tension, and sadness. On the other hand, children who lived for periods of time with both parents reported significantly fewer problems.

So, stability in housing was less of a factor for these children than the stability of their relationships with both parents.

The study also emphasized that kids become the most stressed out by the level of angry fighting between parents. It is not the parental separation or the divorce itself that causes kids stress. It’s the conflict and how the parents manage the conflict.

NOTE: The Texas Legislature has pending before it currently a HB 2363 that proposes to make “equal time” the standard in Texas instead of the Standard Possession Schedule. This bill remains in committee, so it seems unlikely that it will make it through before the end of the month, but it is one to watch.

Hat tip to Beth Greenfield’s article on Yahoo The Divorce Custody Arrangement that Benefits Kids the Most.

Tribute to Judge James Martin, presiding Dallas family court judge

Judge James Martin, 254th District Court and Presiding Judge of Dallas County Family Courts

Judge James Martin, 254th District Court and Presiding Judge of Dallas County Family Courts

On Sunday, April 19, 2015, the Dallas Family Courts lost one of their own. Presiding Judge James Martin lost his battle with lymphoma, leaving behind a legacy of advocacy for children. Judge Martin was elected to the Dallas Family Court bench in 2010, almost immediately garnering the respect and admiration of attorneys and litigants alike. He was reelected in 2014. Despite his illness, Judge Martin remained active on the bench until about a month ago, when he took a turn for the worse.

You can read the Dallas Morning News’ article about Judge Martin here:

Judge Martin’s passing leaves the 254th bench open at this time. Former Judge Carmen Rivera-Worley is sitting as a visiting judge until the seat is filled.  The seat will be most likely filled by Governor Greg Abbott by appointment, which is expected during the summer. Then, a special election will be held in the next cycle (2016) to fill the unexpired term. The winner of that election will sit for reelection in 2018 as well.


Historic day for marriage equality

Justices_smI believe that we will look back on today’s arguments before the US Supreme Court as one of the landmark historic days for civil rights in of our time. Today, the Court will hear arguments in the case named Obergefell v. Hodges — the combined six cases pending on various aspects of the marriage equality questions. Arguments will center around two primary questions.  One, whether it is unconstitutional for states to ban same-sex marriage, or stated another way, whether there is a constitutional right to marry by same-sex couples that overrides the states that wish to ban such marriages. Then, if there is not a constitutional-level right to marry and states may pass laws banning such marriages if they choose, then must states recognize marriages lawfully performed in other states that do recognize same-sex marriage?

Speculation will abound today about what might happen. Lawyers and media folks will look for clues in the questions asked during the argument, the tone of voice, pregnant pauses, and even questions not asked — maybe something will signal the outcome. Of course, none of that is reliable or even predictive of the actual outcome. Yet, we almost can’t help but speculate.

Windsor case signals outcome

The Windsor case from two years ago gives some clues as to the possible outcome. In that case, the US Supreme Court held section three of the federal Defense of Marriage Act unconstitutional, thus extending federal benefits to same-sex couples. The Court extended the Constitutional Due Process of equal protection to same sex couples in handing down this ruling. That part of Windsor is what signals clues to the ruling in today’s Obergefell case. The same arguments for equal protection in Windsor should apply to Obergefell and apply to strike down the state bans on same-sex marriage.

Justices leanings signals outcome

Another signal as to the likely outcome of the Obergefell case is the split of the Justices from Windsor and the known or usual leanings of those Justices.  Typically, Justices Ginsberg, Breyer, Sotomayor, and Kagan lean to the liberal side and are expected to hold the marriage bans unconstitutional (so, yes and yes to the questions presented). On the other side, Justices Scalia, Thomas, and Alito are the conservatives and are expected to vote as they did in Windsor, upholding state’s rights to pass laws banning same-sex marriage without acknowledging the laws of states that recognize same-sex marriages (so, no and no to the questions presented).

Justices Kennedy and Roberts are the crucial swing votes in this case who will actually decide how the case comes out. Justice Kennedy, the Court’s most moderate Justice, voted with the liberal wing in Windsor and authored the majority’s opinion.  Kennedy wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Justice Kennedy’s legacy will show his favor for gay rights starting as early as 1996 when he wrote the Court’s opinion in Romer v. Evans invalidating a Colorado law against homosexual rights. He also authored the Court’s opinion in this historic Lawrence v. Texas case, which extended Due Process to homosexual people and banned laws criminalizing homosexual conduct. However, Justice Kennedy is also a state’s rights advocate. So, here, where state’s rights to pass laws is at direct odds with the Due Process rights of same-sex couples, Justice Kennedy could be conflicted. This may be the reason the questions are presented in two-parts, where an affirmative answer to the second question compromises the ability to acknowledge state’s rights but also the rights of same-sex couples.

Justice Roberts’ vote may also be on the table in Obergefell. In Windsor, Justice Roberts refused to sign off on the dissenting opinion and wrote his own dissent. He did not go so far as to agree with the conservative wing on the breadth of state’s rights, and seemed to leave a window open for the Constitution to trump state’s rights given the right set of facts before the Court. As Chief Justice, this Court will bear his name — known in history as the “Roberts Court”. So, his namesake and legacy will be known, at least in part, for this landmark decision. With the tide of public opinion so overwhelmingly changing on the issue of marriage equality, many doubt that Justice Roberts will want history to mark him as opposed to marriage equality, which may sway him to vote with the majority. On the other hand, as a state’s rights advocate, he may not go so far as to find a Constitutional deprivation of Due Process sufficient to override the state’s rights to pass laws. So, question two, requiring acknowledgement of other state’s lawful marriages — in other words, granting full faith and credit under the Constitution to lawful marriages — could be his compromise.


The ruling on Obergefell is expected in late June, but before the end of the US Supreme Court’s term.

Admission of text messages into evidence, predicate

Divorce text message

Text messages are becoming a more frequent piece of evidence in Texas divorce cases. Dallas family lawyers and those around the state must offer a predicate to authenticate a text message before it will be accepted into evidence. This means the document must be shown to be the actual (or copy) document and not be altered. It must also be shown to be an exception to the hearsay rule which prohibits out of court statements being offered in court as the truth.

The Texas Court of Criminal Appeals today announced a ruling regarding the proper predicate for admission of text messages. Butler v. State opinion is here.

In that case, certain text messages from the defendant to the victim were offered by the State to show threats of retaliation for reporting the crime. The State laid the following predicate:

Q. What is [Appellant’s] phone number?

A. 361-215-3899.

Q. Does that number appear on all the pages of the exhibit?

A. Yes.

Q. How do you know that that is [Appellant’s] telephone number?

A. Because that’s where he called me from and that’s what’s on the

same exhibit in front of me.

Q. You’ve read the text messages in the exhibit?

A. Yes.

Q. Who sen[t] you those text messages?

A. He did.

Q. How do you know that it was him?

A. Because he was the one texting me back and forth and he had

even called in between the conversations talking mess.

The Texas Court of Criminal Appeals, the highest criminal court in Texas, points to a liberal standard for showing a document is authentic. Specifically, to be authentic, the proponent must show that the document is what the proponent claims it to be. The Court says it isn’t enough to show as a predicate for admission of a text message that it is sent from the cell phone of a particular person — because “cell phones may be purloined” by another. However, the proponent of the evidence may use direct or circumstantial evidence to say that the person was the sender, even based on the content or inference of the message.

So how did the victim in Butler know the texts were from him? Because he texted her from that number, the content of the conversation inferred it was him, and he called in the middle of the texts, talking “mess”. So, the distinctive characteristics of the conversation showed it was Butler. The Court of Criminal Appeals held that the predicate laid was sufficient to allow the jury to find the document authentic, so admission of the evidence was proper.

Preserve Error and Don’t Get Sued

I was fortunate enough to be asked to give a TED-style talk at a lawyer education seminar about preservation of error.  Here’s the link to the podcast of the presentation:

I really enjoyed the TED-style talk and hope these catch on across the lawyer education forum.