We moved! We are on the other side of the move and in the new, pretty office amid boxes and pictures on the floor. The new office is at the intersection of the Dallas North Tollway and LBJ Freeway. Our new address is: O'Neil Anderson, Two Lincoln Centre, 5420 LBJ Freeway, Suite 500, Dallas, Texas 75240. Our phone numbers are the same: Telephone 972-852-8000 and Facsimile 972-852-8001.
Drop by for a tour if you are in the area.
"Change is inevitable. Growth is intentional."
Effective September 1, 2009, an agreed parenting plan may either designate the conservator who has the exclusive right to designate the primary residence of the child or provide that the child's primary residence is required to be within a specified geographic area. The Texas Legislature passes HB 1012 amending Texas Family Code section 153.133.
See the text of HB 1012 by clicking here.
Comment: The law has shifted back and forth over the years as to wehther the parties may agree to a geographic restriction instead of awarding one party or another the right to establish the primary residence. This has usually arisen as an issue between two very involved parents who want to share custody of their children and who want to live in a small defined area. Although many divorce lawyer in Dallas and other parts of Texas entered into these agreements when settling cases, the law did not specifically authorize such. This new law expands the authorized possibilities in fashioning an agreement between parties to raise their children and requires a court to approve such an agreement when reached. Usually this right is important only when there is a question as to which public school the child must attend within a school district. Otherwise, the remainder of a typical family law court order sets out each parent's respective periods of possession of a child (aka parenting time) and otherwise delegates decision-making authority.
Note, however, that the new law only makes this provision for no geographic restriction when dealing with agreements between parties. In a contested trial, a court may only render an order that designates the conservator who has the exclusive right to determine the primary residence of the child and the geographic area in which the residence shall be maintained. The law does not change this. A judge cannot, after a contested trial, only designate a geographic restriction on the children's residence without designating a primary parent.
This will encourage settlement of disputes because the parties will be able to fashion a remedy that the court cannot award at a contested trial.
Dallas divorce lawyer Michelle May O'Neil presented a speech on pretrial appellate remedies entitled Mandamus and More. The continuing education conference for Texas divorce lawyers was titled Family Law on the Front Lines and it was held at the Hyatt Regency Hill Country Resort June 18-19, 2009.
Ms. O'Neil discussed the standards for pursing mandamus appellate remedies when a trial court makes an error in the middle of a case, prior to trial, that requires review before a trial can be held. She, together with co-presenter Rick Flowers of McEvily and Flowers in Houston, discussed the seminal mandamus case of Walker v. Packer that set for the standards for seeking mandamus as requiring a 1) clear abuse of discretion by the trial court, and 2) lack of adequate remedy by appeal at the conclusion of the case. Further, she reviewed the impact of the 2004 Texas Supreme Court opinion in In re Prudential, which expanded the examination of the adequacy of appellate remedy by adding a balancing test of the detriments versus benefits of mandamus review. Lastly, Ms. O'Neil examined the 2008 Texas Supreme Court opinion in McAllen Medical Center, which clarified the Prudential balancing test to include an analysis of the expenditure of money, time and judicial resources if mandamus is not considered.
Recently I posted an entry about the lamb, the bulldog and the fox, In keeping with that post it is fitting to share an entry which describes the perils of being overly aggressive. In Fox Rothchild's New Jersey Family Law Blog the author described how fighting for the sake of fighting distracts the court from the two most important things: (1) our client; and (2) our client's rights and needs. Clients hire divorce attorneys for two main reasons: (1) the attorney knows the law; and (2) the attorney will be objective. If the attorney is more interested in fighting for the sake of fighting, then objectivity is frequently lost. When objectivity is lost the client is the one who suffers.
Although our Dallas divorce firm zealously advocates on behalf of our clients, we also understand how to combine the right amount of aggressiveness with tact in order to acheive the absolute best result for our clients.
The Texas Legislature repealed the economic contribution statute, which has been a bane to Texas Family Law Attorneys since it was originally passed. Instead, Senate Bill 866 replaces economic contribution with a system of reimbursement and offset based on equitable principles. Further, it clarifies that the party seeking the offset has the burden of proof.
Click here to see the text of SB 866. This law is effective on September 1, 2009 to any newly filed case.
A claim for reimbursement under the new section 3.402 of the Texas Family Code includes:
The new law further allows for offset of competing reimbursement claims against each other when appropriate. Any benefit for the use and enjoyment of property may be offsent against a claim for reimbursement for expenditures to benefit a marital estate, except a separate estate of a spouse may not claim an offset for use and enjoyment of a primary or secondary residence owned wholly or partly by the separate estate against contributions made by the community estate to the separate estate.
Where funds are sought to be reimbursed for improvements to another marital estate, the court is to use the standard of enhancement of value.
It is easy to get lost in your emotions amidst a divorce. During such an emotional time it is easy to forget that divorce may be the end of a marriage but not the end of a family. Sections 153.311 through 153.317 of the Texas Family Code sets forth the standard possession order promulgated by the legislature to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child. Consequently, co-parenting is viewed as a necessary means to achieve the legislature's intent. Couples who separate but continue to work cooperatively as parents give their children the best chances for a smooth adjustment to living in two separate households and continued growth.
I recently came across a South Carolina Family Law Blog posting discussing five tips for effective co-parenting. Although much of the advice is common sense, it must be remembered that sometimes our emotions override our "common sense." Here are the five tips:
In addition to basic parenting issues, the couple must somehow find a way to do what was probably a challenge in their relationship: communicate clearly and effectively with each other. Working together is essential to the success of a co-parenting arrangement. It may be hard to work through your communication issues, but everyone will benefit if you do.
Time Magazine has an article entitled Facebook and Divorce dated June 22, 2009 touting the relationship between Facebook and other social networking media and divorce litigation. As the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators, states the article by reporter Belinda Luscombe.
The article suggests five no no's for divorcing couples as it relates to social media:
The article goes on to say:
Lawyers, however, love these sites, which can be evidentiary gold mines. Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.
Battles over finances and custody remain the Iwo Jima and Stalingrad of divorce cases. Opposing lawyers will press any advantage they have, and personal information on sites like Facebook, MySpace and LinkedIn is like decoded bulletins from enemy territory.
Half the fun of social-networking sites is the posting of personal news. The other half is the posting of personal opinion, something spurned spouses typically have in spades. MySpace and its ilk offer the giddying cocktail of being able to say something in the privacy of your home that will be publicly accessible, along with a chaser of instant gratification. All this at a time when people are often less than their best selves. On the walls of two Facebook groups — I Hate My Ex-Husband and I Hate My Ex-Wife, which together had been joined by 236 Facebook users as of early June — posts include all manner of (often misspelled) vitriol, including some colorful British slang: "my husband is ... a dirty smelly chavvy theivin alcoholic drug addict selfish scum bag" and "my ex wife is a no good lieing slag," each of which was posted alongside a smiling photograph of the commenter.
There's little the besmirched can do legally, unless there are children involved. Family-law courts routinely issue restraining orders to prevent one parent from disparaging another to a child. "The question is, If it's on the Internet, can that speech be blocked?" says Stephen Mindel, a managing partner at Feinberg, Mindel, Brandt & Klein in Los Angeles. "The First Amendment is going to come into conflict with the family-law courts."
It seems everybody — except perhaps some lawyers — would be better off if divorcing spouses gave each other some space on MySpace. But when confused, anguished people look for ways to work through their feelings, a social-networking site can be an almost irresistible venue.
In my Dallas divorce cases, I've had issues regarding social media come up. In one case, I represented a mother seeking to show the father's job history to support the argument that the father should pay retroactive child support over the past history of the child's life. I found the father's LinkedIn profile and used his job history posted on there as evidence.
I also represented grandparents who had custody of their granddaughter in a suit for access filed by the child's father. I found the father's MySpace page where listed that he had no children and lied about his education and other qualities and used that as evidence against him as to why his access to the child should be supervised.
Shout out to Barbara Glesner Fines of the Family Law Prof Blog for pointing out this article.
House Bill 1012, which has been passed by the Texas Legislature and is awaiting the Governor's approval, eliminates the provisions for a written designation by a child over the age of 12 years to choose with whom he or she wants to reside primarily. Instead, a child over the age of 12 years has a right to express a preference to the judge in chambers as to the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child. The new law will take effect September 1, 2009 and will apply to any pending or newly filed suit.
See the text of the bill by clicking here.
Comment: As a Dallas divorce attorney, I have found that judges rarely appreciate parents who involved their children in the legal matters by having a child sign a written preference. I have also found that judges rarely appreciate parents who involved their children in the legal matters by requesting the judge to interview the child in chambers. Judges are more tolerant with an older teenager than a younger one, as older teenagers are more prone to strong preferences and to act out if their voice is not considered.
See related blog entry Changes to the Texas Standard Possession Schedule.
The Lege has adjourned and left us with a bunch of new laws to sort out. One of those that applies to Dallas divorce cases involves changes to the Texas Standard Possession Schedule, scheduled to be effective on September 1st.
House Bill 1012 (click here to see text of enrolled bill) provides that the new default time for the beginning and ending of a possession period will be 6:00 p.m. This time will apply automatically unless a different time is elected by a conservator at the time the order is rendered. The parent opposed to the new time selected by the other parent must show the time change is not in the best interest of the child.
Under the old law, a parent could elect to have weekends begin at the time school is regularly dismissed, but other parts of the schedule were unclear as to the beginning and ending times of the possession period. Now, all of these times begin and end at 6:00 p.m., unless otherwise specifically stated.
Upon request, the court must alter the standard possession order unless the court finds that alteration is not in the best interest of the child to allow the possession to begin or end when school lets out or resumes for the following periods of possession: weekends, Thursdays, Spring Break, Christmas, Thanksgiving, and Mother's Day/Father's Day. In most districts, Father's Day occurs during the summer when school is not in session, but it can be extended to another time upon request.
Comment: As a Dallas Divorce Lawyer, who is Board Certified in Family Law, I think this law may be somewhat confusing in application. Our current standards provide that the Texas Standard Possession Schedule automatically applies unless a party shows a reason why it should not, making the Texas Standard Possession Schedule the presumption and placing the burden on the party opposed to it. This new law makes the changes to the Texas Standard Possession Schedule the presumption, which may cause confusion in figuring out who has the burden of proof regarding the changes. MMO
Thanks to Bruce Bain of Tyler for the referral to this article. Lesson to be learned here for lawyers and litigants on Facebook... don't mention anything specific about any of your cases online. Facebook is no different than a party, just a cyberspace social situation. You wouldn't discuss the specifics of a case with a judge at a party. Why would you post it on Facebook???
Judge Reprimanded for Friending Lawyer and Googling Litigant
A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.
Judge B. Carlton Terry Jr. and lawyer Charles Shieck both posted messages about the child custody and support case heard last September, the Lexington Dispatch reports. Terry also accessed the website of the opposing litigant and cited a poem she had posted there, according to the April 1 public reprimand (PDF) by the North Carolina Judicial Standards Commission.
The opinion says Terry and Shieck first discussed Facebook in chambers in the presence of the opposing lawyer in the case, Jessie Conley, who said she didn’t know what Facebook was and didn’t have time for it. After the discussion, Terry and Shieck friended each other. Shieck later posted a Facebook reference to the issue of whether his client had had an affair, saying “How do I prove a negative?” according to the opinion. Shieck also wrote, “I have a wise judge.”
Terry told Conley about Shieck’s posts the day after he read them. The same day during court proceedings he referenced the poem he found and posted a Facebook message that the case was in its last day of trial. After the hearing concluded, Terry disclosed to both parties that he had visited the website of Conley’s client, where he found the poem, and then disqualified himself at the request of Conley.
Terry told investigators the poem had suggested that Conley’s client was not as bitter as he first thought and had given him hope for the litigants’ children. He also cooperated in the investigation, the opinion says.
The opinion says the ex parte communications and the independent gathering of information indicated a disregard of the principles of judicial conduct.
Supreme Court backs judges' recusals in big donors' cases
The U.S. Supreme Court ruled Monday that judges must step aside in cases involving their large political contributors, prompting renewed calls for Texas to change a system in which judges raise money to run in partisan elections. Experts and lawmakers said the decision, which was narrowly drawn and did not set a standard for what is impermissible influence, might not force immediate change in Texas, where contributions to judges are limited. But advocates of reform, including Texas Supreme Court Justice Wallace Jefferson, said they hoped it would focus the debate on how to improve the system.
The 5-4 ruling in a West Virginia case "challenges us to do more to remove the perception that judicial campaign contributions influence decisions in Texas courts," said Jefferson, a Republican who won re-election in November after spending more than $842,000. Months ago, speaking before the Legislature, he was blunt about the problem, saying: "This is an area where perception itself destroys public confidence."
Since 1995, Texas has had contribution limits in judicial races: Individual families can donate $5,000, and political action committees are limited to $300,000. Most experts said that those limits could prevent a conflict as significant as the one in the West Virginia case, Caperton vs. Massey Coal Co., in which the chief justice of the West Virginia Supreme Court must now recuse himself from a $50 million suit because he accepted $3 million in campaign contributions from the top executive of the coal plant.
But criticism is not unprecedented. The question of influence over the Texas Supreme Court arose last year when the court overturned an $800,000 arbitration award to Bob and Jane Cull of Mansfield, who had sued Houston homebuilder Bob Perry, the largest GOP contributor in the state. The Culls had lodged a 10-year fight over a house with cracked foundations and walls, but their court victories were set aside by the state's highest court, where all nine of the justices had received contributions from Perry totaling $260,000. The contributions were directly from him and through a political action committee.
Texans for Public Justice, which has fought to rid judicial campaigns of political money, said the U.S. Supreme Court ruling shows that Texas judges should stop raising money from those who have business before the court.
"The court invites greater scrutiny -- and more federal challenges -- to determine when the corrupting influence of judicial campaign money violates the U.S. Constitution," said the group's director, Craig McDonald. Texas is one of four states where all general jurisdictional judges are selected in partisan elections, along with Louisiana, Alabama and West Virginia. The system works just fine, said Kirsten Gray, a spokeswoman for the Texas Democratic Party. Both the Republican and Democratic parties have fought legislation that would change how the state elects its judges, saying Texans are fiercely protective of the opportunity to vote for judges.
Partisan labels are helpful for voters, and appointing judges doesn't remove the politics, Gray said. "Whether chosen by voters or appointed by the governor, ideology will be taken into account, so it's better to have those people who live in that area chose their own judges," Gray said.
Sen. Robert Duncan, R-Lubbock, and former Chief Justice Tom Phillips have both worked for a system in which judges are appointed and then the voters decide whether to retain them in office.
"The most useful thing the opinion might do is give further background to the debate on how we select judges," Phillips said. With partisan labels and money-raising pressures, "the whole system is bad," he said.
Duncan said he doubts the court decision will be much of an impetus to change Texas' ways because "there are just too many stakeholders who have an interest in keeping it the way we have it." But it could cause more judges to be asked to step aside in cases where their campaign donors have an interest. "In Texas, we need to take some time and scratch our heads and ask, 'Do we have sufficient safeguards to keep these situations from happening,' " Duncan said. "We've attempted to address some of those kinds of abuses, but if it is enough, I don't know."
I recently came across a blog written by an Alabama divorce attorney that covers one of the questions our firm is asked a lot: You look so nice, but can you be "mean"? Typically people come into our office looking not only for a way to move on with their lives, but also for some sort of revenge. The style of your lawyer will greatly influence to what extent this is possible and appropriate.
Divorce lawyers generally fit into one of three categories: (1) the lamb; (2) the bulldog; and (3) the fox. The lamb is the type of lawyer who takes a reactive instead of a proactive approach to case management. The lamb avoids confrontation with his or her client and opposing counsel at all costs, and often at a disadvantage to the client. In short, the lamb's laissez-faire mentality hinders client advancement and often results in an inequitable resolution of the case.
Directly opposite the lamb is the bulldog. The bulldog seeks out confrontation (often on frivolous issues) at all costs and is typically the first personality type that comes to mind when clients think of a "mean" lawyer. Although the bulldog's aggression is no doubt appropriate in some instances, it also poses an obstacle in the road towards favorable resolution. The bulldog's aggressive approach can end up costing the client both in terms of property and custody matters but also in unnecessary attorneys fees.
Finally, we have the fox. The fox sees the forest through the trees and is cunning enough to know when aggression is appropriate and when it is not. Unlike the lamb, the fox is not afraid of confrontation; and unlike the bulldog, the fox knows that fair out of court settlement are always preferred to litigation. The fox is assertive when appropriate and aware of the consequences of its actions.
Do yourself a favor when searching for a divorce attorney and hire yourself a fox (our Dallas divorce firm has three of them). You'll be far better off in the long run than you would with a bulldog.
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