August 2014 Dallas Divorce News Newsletter

Michelle May O'Neil, a Dallas divorce attorney and Shareholder at Godwin Lewis PC, publishes a monthly newsletter.  Here is the August 2014 edition.

 August 2014 Dallas Divorce News Newsletter

New Rules Sneak Up on Lawyers

Here at O’Neil & Attorneys (Dallas Texas Family Lawyers), we try to keep our blog readers as well as those from Facebook and Twitter abreast of new laws that are going on. Did you know some BIG new rules snuck up on us effective January 1st? The Texas Supreme Court released new amendments to the Texas Rules of Civil Procedure effective January 1st . These rules will greatly impact civil and family lawyers alike. A couple of the changes we know about already – mandatory e-filing (here’s a list of counties that have mandatory e-filing now) and searchable pdf format – we’ve known that was coming. But, here’s a couple of rules that took me by surprise:

  • Service by e-mail: Holy cow! Now, when you e-file a document, if your opposing counsel(s) are signed up to receive e-service, you can serve them through the provider. That’s not that huge – we’ve had this ability for some time, just few signed up for it. But NOW, you can legally serve a lawyer through e-mail outside of the e-filing service provider!!! To me, this creates many potentialities for problems. Sometimes e-mail isn’t reliable. Sometimes e-mail goes to spam filters and is therefore not seen. But, alas, we have now officially moved into the electronic age!   
  • Service by fax no longer extends the deadline: How many lawyers are going to get caught with late discovery (and waived objections) by this rule? Not you, if you are reading my blog! The new rules amend Rule 4 and Rule 21a to remove the provision that added 3 days to deadline when the service is by fax. The 3-day extension only applies now when service is accomplished by old-fashioned snail mail. (Who sends stuff by snail mail anymore? Maybe only people who are trying to be sneaky?)
  • Commercial Delivery Services are now accepted: For the first time, the procedure rules acknowledge the existence of commercial delivery services like behemoths FedEx and UPS, and actually permit service via one of those services. This probably includes local courier services, since they are “commercial” if they charge you.
  • Completion of service: Service by mail has always been completed when depositing the document with the USPS. Now, the mailbox rule has been extended to commercial delivery services – service is completed when delivered to a commercial delivery service. Faxes remain delivered upon receipt by the opposing fax machine, unless it’s after 5:00 p.m. Electronic service is completed upon delivery of the e-mail to the serving party’s service provider.  A document electronically filed is timely if filed by midnight, and filings on weekends and holidays are deemed filed on the next business day.
  • Electronic signatures: Signing a pleading can now be done electronically with either an image of the signature of by typing a “/s/” followed by the lawyer’s name. Example: /s/ Michelle May O’Neil. 
  • Signature blocks: Now signature blocks must contain the email address of the lawyer.
  • Sensitive data redacted: New rule 21c requires redaction of “sensitive data” unless the information is required by statute. This includes: social security numbers, drivers license numbers, passport numbers, tax ID numbers, bank account numbers, credit card numbers, or a minor’s name and DOB. So, this new rule will prohibit family lawyers from including names of minors in captions and pleadings.

If you want to read the new rules for yourself, be my guest: Texas Supreme Court’s New Civil Rules of Procedure effective January 1st.

Texas Supreme Court to Decide Whether Pets Have Sentimental Value

This Monday this Texas Supreme Court will hear oral argument in Strickland v. Medlen, a suit for damages brought by pet owners against a Fort Worth animal shelter employee who mistakenly euthanized their six-year-old mixed breed dog, Avery. The highest Court in our state is now tasked with deciding whether Avery’s owners can sue for the sentimental value of their beloved family pet or merely for the replacement value of the mixed-breed animal (which is nominal).

Traditionally, Texas law has treated pets the same way it treats other personal property, limiting damages to market value. In this case, the Fort Worth Court of Appeals deviated from this approach, stating: “Sentimental damages may now be recovered for the loss or destruction of all types of personal property,” the appeals court ruled. “Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet.” Now it is up to the Texas Supreme Court to decide whether the Fort Worth Court’s approach will stand.

This ruling could have wide-reaching implications to litigation across Texas, including family law cases. With pets being an integral part of many families, Texas divorce lawyers have long struggled with how to handle pet custody in a legal system that defines them as mere property. While the pending Supreme Court case will not set precedent for pet possession schedules, a ruling upholding sentimental value could pave the way for new arguments on valuation and property division in divorces where pets are an issue.

We have been following this case since the Fort Worth Court of Appeals issued its opinion early this spring. Read Michelle May O’Neil’s previous blog on this subject: Doggie Damages Possible in Divorce? Stay tuned for an update on oral argument.

Photo courtesy of stuffpoint.com
 

Modern Marital Monogamy

A new book argues that if the institution of marriage is to endure, it must evolve with the times.

With infidelity now seeming less like a deadly plague and more like a relatively mild form of cancer—we all know someone who has suffered from it, even if we haven’t experienced it ourselves—does it still make sense for monogamy to constitute the basis for marriage? Or should couples figure out creative ways to expand the boundaries of their relationships, acknowledging that they might want to continue to be life partners even if one or both needs the occasional night off? This is the argument of Pamela Haag’s new book, Marriage Confidential: The Post-Romantic Age of Workhorse Wives, Royal Children, Undersexed Spouses, and Rebel Couples Who Are Rewriting the Rules, in which “affair-tolerant” couples aren’t a regressive throwback—they’re the benchmark of a new kind of modernity. Its abundance of gimmicky catchphrases aside, this book asks serious questions about whether we have come to expect too much from contemporary marriage: a partner who is simultaneously an emotional and intellectual “soul mate,” a monogamous provider of sexual thrills, and a best friend to see us through our creaky final decades. If marriage has a hard time living up to these burdens—and a divorce rate holding steady at 50 percent suggests just how hard it is—maybe we ought to be thinking about ways to transform it.

Haag notes that marriage has undergone a dramatic transformation from the “traditional” partnerships of the nineteenth century, when marriage was “a social institution and an obligation,” to the “romantic” marriages of the twentieth century, when the practice of choosing a partner for reasons of love rather than practicality first became widespread. Now, she argues, we are moving into a “post-romantic age.”

In a series of chapters examining monogamy alternatives that range from asexuality to open marriage, the only real target of her scorn is the serial monogamist, who’s “always convinced that he’s in love with the next girlfriend … and that it will be different for them, in this marriage, this time around.” If he’d stop chasing this fantasy of romantic love, she reasons, he could maintain an intimate partnership with his wife—even if only for the sake of their kids—while enjoying a discreet dalliance now and then. In this vision of marriage, the happiest couples might well be the “infidelity tolerators”: those who can accept a one-night stand or three as long as the marital bond is the primary relationship.

The problem isn’t only that “infidelity tolerance” is a slippery slope: One day, you’re quietly overlooking a suspicious text on your husband’s phone, the next you’re fielding questions from the news media about his love child. It’s also that this “post-romantic” view of marriage isn’t entirely convincing. Granted, it’s impossible to know what goes on within the privacy of other people’s marriages. But, while they may be getting rarer and rarer, we all know couples who seem to be happily, enduringly married: the elderly couple who hold hands in the street, or the assisted-living resident whom I once heard proudly brag that she and her husband had had sex every day of their marriage. “What is a mystery to me,” Haag confesses, “and a thing of beguiling beauty, is the genuinely sexually contented long-term marriage—a monogamous dam lovingly constructed to manage the wayward lusts of nature.” Unfortunately, it’s the one phenomenon of contemporary married life that she chose not to investigate. But the fact that it still exists suggests that the old rules might have some value yet.

Excerpted from Ruth Franklin’s (at The New Republic) article “Can (This) Marriage Be Saved?


 

Sexting is Considered Being Unfaithful, But Not Grounds for Divorce, Say Legal Experts

New York Democratic Rep. Anthony Weiner's scandalous online dalliances with a string of women – including a porn star he coached to lie – not only places him in hot water with his congressional colleagues, but his history of sexting and phone sex could at least be a contributing factor in a divorce proceeding, if not the primary reason itself, legal experts say.

While most states have a "no-fault" divorce policy -- meaning that a person wanting a divorce does not have to establish fault – legal experts say they’re seeing an increase in social media issues cited in divorce cases.

If Huma Abedin, Weiner's wife and top political aide to Secretary of State Hillary Clinton, were to give the sexting lawmaker the heave-ho, legal experts say it would certainly help her case.

Silvana D. Raso, a New Jersey divorce attorney, says that “most courts will recognize this as a form of being unfaithful through an outside romantic relationship, ” adding that, “most people do set forth why they are getting a divorce and can use this as the reason.”

“Even communications on social media that start out ‘innocently’ and never culminate in a physical relationship can have devastating impacts on a marriage as is evident in the Anthony Weiner case,” she said. “I often deal with spouses who are looking to divorce because the other spouse did not ‘cheat' in the traditional sense but was involved in an emotional affair via social media.”

“This is a prime example of an emotional affair -- an emotional connection established with someone they may never meet -- for example online -- without consummating the relationship, can be seen as being unfaithful,” Raso said.

New York attorney Jonna M. Spilbor agrees. "Sexting, while not technically adultery, is cheating. But she says in New York divorce proceedings cheating "hits you in the heart, more than it hits you in the wallet."

"In other words, divorcing your cheating spouse doesn’t get you a bigger piece of the marital pie. The only way a cheating spouse might get the short end of the stick, when splitting up the marital estate, is if he or she cheated so badly that the non-cheating spouse was completely emotionally scarred and couldn’t live a normal life thereafter. And in this day and age, when cheating is as prevalent as breathing, it simply won’t matter much to a judge."

Attorney Stephen Haller, who represented disgraced former New Jersey Gov. James E. McGreevey in his divorce, has a slightly different take saying, “there’s no specific grounds anywhere that I know of where sexting is listed as grounds for divorce.”

But he does say that text messages and sending racy pictures can be used as evidence constituting irreconcilable differences, but not necessarily adultery.

“Going after other women is irrefutable evidence that constitutes a cause of action -- in this case irreconcilable differences,” Haller said.

Proving adultery is more complicated. Haller says it requires proof that a physical relationship took place at specific times, and that the cheating spouse and the lover were "inclined" to participate in sexual relations.

Haller says Abedin may be less inclined to say the “sexting” was the primary reason for divorce because then the “other woman/women,” legally known as the “co-respondent” would have to be contacted and involved.

Weiner said he repeatedly apologized to Abedin, who was not present at the press conference. He claims that prior to him coming clean publicly, his wife was already aware of some of his indiscretions with other women, although he said that he did not have a physical relationship with any of the women and has never had sex outside his marriage.

Weiner also said he has "no intention of splitting up" with Abedin, but said that she was "not happy" about his actions. 

If his wife does decide to kick him to the curb, the sexting incident could give her powerful evidence for her case.

By Meg Baker, FoxNews.com. Published June 07, 2011

Where We Stand as the Legislature Ends

Posted by Michelle May O'Neil on May 31, 2011

This Legislative Action Update was posted the Texas Family Law Foundation site yesterday by Gary Nickelson.

The 2011 Regular Session of the Texas Legislature expired at midnight May 30th. Whew! That was a lot of work by a lot of people.

It’s great that 10 of the 11 bills of the Family Law Section of the State Bar of Texas have passed both houses. Of those, 6 have already been signed into law by Governor Rick Perry. Here are those bills and their effective dates:

  • HB 841 - State agency name updated to DFPS - effective immediately
  • HB 905 - Admissibility of child hearsay - effective September 1, 2011
  • HB 906 - Indigent client appeals in SAPCRs - effective September 1, 2011
  • HB 1404 - Military deployments and kids - effective September 1, 2011
  • SB 785 - Mistaken paternity - effective May 12, 2011
  • SB 820 - Possession of very young kids - effective September 1, 2011

Regarding the other four bills, the Governor has until midnight June 19th to sign, veto or allow to them to go into effect without his signature. Those bills and their effective dates - if they become law - are:

  • HB 901 - Spousal maintenance update - effective September 1, 2011
  • HB 908 - Remedy for fraud on the community - effective September 1, 2011
  • SB 789 - Extended protective orders - effective September 1, 2011
  • SB 819 - Dating/family violence protective orders - effective September 1, 2011

We regret losing HB 910, which allows single people to use gestational agreements. We made headway again, but we’re just not there - yet.

The Texas Family Law Foundation will continue to report to Texas Family Lawyers on the legislative session, as long as there are bills alive down in Austin.
 

 

Is Facebook Fueling Divorces?

Facebook is providing extra evidence that litigants can use in their Texas divorce lawsuits.  Dallas Texas divorce lawyers are using facebook and other forms of social media as evidence in divorce suits every day. See the interview by Doug Currin with KCENTV in Waco of me about this issue:

Part 1 of the interview:

 

Part 2 of the interview:

 

See the videos on the KCENTV website also.

Thanks to Doug Currin for the opportunity!

 

How Texas divorce fraud is like powdered milk

Posted by Michelle May O'Neil on May 11, 2011

 

Today, the Texas Legislature passed House Bill 908, which provides a remedy for wronged spouses when fraud has been committed against the community estate in a divorce.  The law, if signed by the Governor, would allow a Texas divorce attorney to request the judge to account for the fraudulently missing property as if it still existed in the marital estate in conducting a just and right division of property.  The word used in the statute is to “reconstitute” the marital estate with the missing property.  When I think of the word “reconstituted” I think of powdered milk.  Did you ever have to drink reconstituted powdered milk? 

 

So, if the missing funds result in the estate being deficient in sufficient assets to award a just division to the wronged spouse, then the judge can award a money judgment to the wronged spouse with future payments as compensation.

 

One example where this might come to play… think of a situation where Husband has a girlfriend during the marriage and buys the girlfriend a $50,000 car in her name, as a gift, using cash from the marital estate.  Wife finds out and filed for divorce.  Wife wants to account for the car in the division of property.  So, the judge “reconstitutes” the marital estate with the missing $50,000, then awards the Wife a judgment as part of the property division with a monthly payment plan.

 

Another example, Husband and Wife are married, then Husband gets a large bonus from his employer.  Instead of putting the bonus in the joint account, Husband deposits the bonus into his mother’s bank account. Wife sues for divorce and alleges a fraudulent transfer to the mother.  The judge can agree and include the missing funds in the division of the marital estate.

Social Media and Divorce Interview

I was fortunate to be interviewed yesterday by Doug Currin of KCEN-TV out of Waco, Texas.  We discussed the growing trend of using social media in divorce litigation.  I told him of several instances where we've used social media. 

One involved a man who tried to misrepresent his income for child support purposes.  We used his Linked-In profile to show his employment history. 

Another situation involved a "dad" who tried to sue for custody but had not been active in the child's life before the suit.  We used his MySpace profile to show the absence of entries or information about his child to show his lack of interest.  Instead, his MySpace profile focused on getting dates with women.  Priorities!

I told Doug of another situation where we used a computer forensic expert to find hidden documents in the family computer showing undisclosed bank accounts of the marriage.

Text messaging is becoming the way people communicate these days.  In divorce litigation, sometimes getting text messages in a useable format for a court hearing can be challenging.  I told Doug of using the iPhone's screen shot capabilities for capturing images of text messages off the screen.  We also discussed sending a cell phone to a computer forensic expert for analysis.

In giving advice to people regarding social media, I reminded Doug that people should be careful of what you post in the public media.  The picture of you partying today may be the evidence in your custody case tomorrow. 

Also people need to be aware of the legal restrictions on accessing a computer that you don't have permission to access.  For example, a Wife suspects foul play by Husband, so she gets up in the middle of the night and gets on Husband's business computer.  She doesn't know the password, so she guesses at possible passwords until she lucks on to the right one.  On his computer, she discovers emails talking about an affair with a co-worker and documents showing a hidden bank account where he pays for his trist.  She is computer savy so she installs spyware on his computer that will send her emails about what he's doing on the computer.  Big Billboard -- None of this is legal.  There is a guy in Austin who is being prosecuted for doing this type of thing.  It is a violation of the law to access a computer that you don't have permission to be on.  It is a violation of the law to access a person's email that you don't have permission to be on.  It is a violation of the law to install spyware on a person's computer that intercepts electronic transmissions that you don't have permission to see.

The best plan is to have an expert in computer forenics help do an investigation.  Don't try to be your own investigator!

The interview should air in mid-May.  Thanks Doug!

Mistaken Paternity Bill Passes Texas Legislature

Senate Bill 785, relating to the termination of the parent-child relationship and the duty to pay child support in circumstances involving mistaken paternity, has passed both houses of the Legislature and was sent to the Governor for signature today. The vote was unanimous in passing the bill. Rep. Harold Dutton (D-Houston) recognized early on that technological changes required a serious reconsideration of public policy in paternity situations.

The bill provides a limited remedy for a man whose paternity regarding a child has been previously established, but who later discovers a reason to doubt the truth of his paternity, to raise a challenge in court.  A man in that situation will have one-year after he discovers the doubts as to paternity to file the challenge in the court that determined the paternity.  After filing his challenge, he can request DNA testing be conducted.  If the DNA test results exclude him as the father, the court must terminate his rights to the child as well as any obligation to pay child support. The law does not allow the man to challege the payment of child support while he thought he was the father -- what's done is done, according to the new law.

For fathers who currently have a reasonable doubt as to their paternity, the law allows one year from the effective date of the law, September 1, 2011 to September 1, 2012, to raise challenges.

Here's the text of Senate Bill 785.

Valentines Day After Divorce

 What’s just around the corner, sticky sweet and has Hallmark written all over it? If you guessed Valentine’s Day, you are correct. Even for those of us who don’t buy into the massive consumerism of this holiday can be guilty of getting caught up in the hype. After all, what girl doesn’t love hearts and flowers? Can we get a shout out for milk chocolates in a red satin box? We wouldn’t be human if these symbols of ‘amore’ didn’t pull at our heartstrings even a little bit.

But what do you do if you’re not exactly in a celebratory mood? What else is there besides hiding under your sheets and hibernating until the 15th? The goal is to not get bitter and turn into a Valentine’s Day scrooge. This is easier said than done, for sure. Sometimes ignorance breeds contempt so let’s get to know this little winter holiday a bit better.

THE HISTORY OF LOVE

Valentine’s Day originated as a pagan celebration 800 years before ‘St. Valentine’ even came into the picture. The Romans would hold a ceremony in mid-February commemorating young men's rites of passage to the God Lupercus. This celebration featured a lottery in which young men would draw the names of women from a box. The woman whose name was picked became their sexual companion for the year.

Talk about ‘luck of the draw”! Yikes. During the 5th century, the Romans transformed this ceremony into a celebration honoring St. Valentine who was actually a bishop. Emperor Claudius had outlawed marriage because he thought married men made poor soldiers. St. Valentine, being a romantic and a good Christian would secretly marry lovers despite Claudius’ edict. This resulted in the imprisonment, stoning, beheading and ultimate demise of St. Valentine. It seems that unlike Cher, Claudius didn’t believe in life after love.

ISN’T IT ROMANTIC? NOT!

Lara Cox’s seven-year marriage had been over for only three months and it was her first V-day flying solo. On the big red holiday she found herself in the living room eating ice cream with her two old boyfriends, Ben and Jerry. Half way through watching ‘The Way We Were’, the tenant she took in to help out with the mortgage payments breathlessly bursts out of her room in sexy lingerie and asks Lara if she could “…please attach her garters in the back? Thanks.”

Lara says, “I thought I was going to wither away with shame, which is crazy because I never made a big deal about Valentine’s Day when I was married! All of a sudden it was like the world was shouting at me ‘you’re all alone Lara!’ Maybe that was really my mother’s voice, but either way I was so surprised at how strongly it affected me.” Where’s Hubble when you need him?

Raquel Carrington had been divorced for a year and on her first single Valentine’s Day in five years she decided to take a hot bath, order in and watch a movie. Sounds great, except… “It didn’t exactly go the way I’d planned,” she says. “I got home from work and for some reason there was no hot water, so my bath was out. Then the Chinese take-out I ordered was contaminated and I ended up in the emergency room at three in the morning with food poisoning.”

These V-Day gone south scenarios are enough to make even the most secure of us jump off the deep end. So what happens when it’s Valentine’s Day and you’re putting the key in the door to ‘crazy’ and about to turn the lock? Believe it or not, there are choices other than cursing happy couples, wallowing in self-pity or ripping up your kid’s Hannah Montana Valentines and using them to stoke the fire.

 

Deborah Kelly-Dubois, a clinical psychologist in New York City says that, ”Love is about feeling good and living in the moment. Having expectations, especially for the holidays and celebrations are hard to avoid. Try your best to put aside what you think this day should be about, or what it was about for you in the past and recreate it for who you are today.”

YA GOTTA HAVE HEART

Volunteering makes us feel good and more often than not, we get back so much more than we give, especially when it’s done from a genuine place. With the major holiday season over it’s a lot more challenging for soup kitchens, shelters and all kinds of charitable organizations to acquire volunteers.

“It’s like there’s a major slow down after Christmas,” says Craig Austin a volunteer for Project Angel Food, Los Angeles. “People are in the spirit of the holiday and then they get back to their lives in mid January. We are inundated with volunteers right before Christmas and then ‘poof’ a lot of people disappear in the New Year.”

Volunteering is a great way to get out of your head and into your heart. When you give your time to others who are less fortunate than you it’s a wonderful reminder to be grateful for all the abundance you have in your life.

PARTY ON

Get that pink-feathered boa out of the back of your closet and celebrate your life by throwing a shindig with a theme. The party shouldn’t be an “Anti-Valentine’s Day Celebration” since you want to concentrate on abundance and positive attitudes not lack and negativity. Invite all single people and tell each person to bring a platonic member of the opposite sex. This way there’s no concern while straining across the room to see if the hottie in the green sweater is wearing a wedding ring.

It’s a fantastic excuse to make red Jell-o shots, put out some decadent chocolates and fun candy hearts. Be cheeky and serve only red drinks or have a kissing booth! You can go as over the top or as mellow as your mood. Make it a time to get to know new people, make friends and turn the whole ‘Valentine’s Day = Romance’ formula upside down.

Linda Dearborne of Encino, Calif., said, “I went to a party like this about three years ago right after a break up. I didn’t meet any guys, but I did meet a woman who became one of my closest friends and confidantes. She was also going through a separation and we bonded and had so much fun checking out the single guys! It was the first truly great time I had after my husband and I split up. Today (my friend and) I throw this kind of party annually and it’s become a kind of tradition. As long as we’re both unattached we figure we might as well celebrate it!”

MAY I HAVE THIS DANCE?

Have you always wanted to learn to Tango? How about trying out the Samba or Belly Dancing? Take yourself and a girlfriend to a dance class of the seductive variety. Dance is a great way to revive your body and get reconnected to your sensuality. Maybe you’ll uncover a passion you never knew you had?

Maria Torres of Broadway Dance Center in New York City says, “ The Latin dances and especially the Tango are filed with seduction and romance. It’s all about connecting to your partner and having a great time! It’s fun to see all these people who in the beginning of class are so nervous about how the look, and are all concerned about whether or not they are they doing it right. Even the most nervous students by the end of the two hours are smiling and laughing. A few of the beginners even stick with it and become really good! It’s a fun hobby and a fantastic way to meet and relate with people. The best part is you don’t even have to say a word!”

 

Other Valentine’s Day Alternative Ideas:

1. Treat yourself to a massage.

2. See a fun movie with the kids.

3. Write a gratitude letter on pretty stationary to a special girlfriend and actually send it in the mail! '

4. Go hear some live music.

5. Buy yourself some flowers - you deserve them!


Resource:

Shari Albert, Divorce360.com

 

Think Before You Snoop: Michigan Man Faces 5 Years in Prison for Reading Wife's E-mail

A Michigan man, Leon Walker, 33, faces up to 5 years in prison for reading his wife's e-mail on a shared computer in their home.  Walker, who discovered his wife was having an affair by accessing her e-mail, now faces a felony for misuse of the computer under a Michigan state statute typically used to prosecute crimes like identity theft or stealing trade secrets.   Walker says the computer he used was a family computer that he routinely used and that his wife kept all of her passwords in a book next to it. Walker claims he accessed the account for the protection of his children because he man with whom his wife was having an affair has a history of domestic violence and may pose a danger to his children.

While Walker’s motivations may have been noble and while the parties may have shared the computer, this case will come down to whether or not Walker’s actions meet the statutory elements of the crime.  The parties were married when the alleged crime occurred, but accessing someone else’s e-mail without their permission can still constitute a violation of privacy.  How Walker obtained the password is the key to this case – did his wife give him permission at some point during the marriage to use her password or access her e-mails, even implicitly? Does leaving the book of passwords by the laptop constitute such permission? Or did Walker access her e-mail by unauthorized means (hacking, etc)?  

Situations like Leon Walker’s are common in divorce cases.  Tensions are high and so are suspicions.  The urge to snoop can be almost irresistible.  In Texas divorce cases, these matters typically fall under the Texas wiretapping statute, which differs from the Michigan statute used by prosecutors in Leon Walker’s case. Under Texas Penal Code 16.02, the unlawful interception of someone else’s wire, oral, or electronic communications is a second degree felony. Under this statute, Walker’s actions would likely not rise to a criminal violation since he accessed the e-mail on a family computer and his Wife left a password book in a common area in the home they share together. Walker’s wife would have had no reasonable expectation of privacy due to her lack of measures to protect the privacy of her Gmail, thus no crime by Walker depending on the facts.

Keep Leon Walker and the wire tapping statute in mind next time you decide to snoop on your spouse’s e-mail account, facebook page, or password protected cell phone.  Also, keep this in mind if you have information you would rather keep private from your spouse.  If you are thinking about filing for divorce, believe that your spouse may be or if you are doing something that you do not want your spouse to find out about (like having an affair), protect your private information by changing all passwords and security questions.  Otherwise, if you have given your spouse access to your accounts or passwords, your incriminating e-mails, texts, or pictures could end up as evidence at trial. 

You do not surrender your right to privacy when you get married. While the statutes may differ, this is true in Michigan and in Texas.  As Leon Walker’s story illustrates in a divorce, preserving your own privacy and respecting the legal limits of your soon-to-be ex’s privacy is paramount.  Even if Leon Walker is acquitted, he has to defend against a potential felony on top of the emotional and financial turmoil of divorce and discovering his wife’s infidelity.  As for Leon Walker’s now ex-wife Carla, she could have prevented this whole debacle and possibly kept her cheating ways a secret by changing her passwords or at least not leaving them written down in a book by the computer. 
 

DIY Divorce - New App Available for iPhone

One of the most important parts of getting a divorce is dividing up the assets and debts between the spouses. Estate Divider is the latest iPhone app from Divorceapps.com that gives spouses a DIY tool to help themselves and reduce the costs of lawyers, mediators, and litigation. The app allows a spouse to:

  • Input the values for the various assets and liabilities of the marital estate;
  • Assign specific assets and liabilities to “Spouse A” or “Spouse B” (such as a house or car) or allocate asset value between “Spouse A” and “Spouse B” (such as a bank account);
  • Input an overall desired division of the estate between “Spouse A” and “Spouse B”;
  • Calculate the amount of money needed to accomplish the desired split, express the amount of money needed to accomplish the split in terms of either a cash payment from the spouse with the higher initial allocation, or alimony, or a mix of both;
  • If any of the equalizing payment is allocated to alimony, determine the post tax equivalent of the alimony to be received by payee and the post tax cost of the alimony to be paid by the paying spouse;
  • Calculate any overall tax advantage to either spouse by structuring the part or all of the equalizing payment as alimony;
  • Email the desired settlement and outcome of the property division.

Estate Divider app is available on iTunes for $9.99.

Estate Divider is the latest creation of Dallas family law specialist Michelle May O’Neil and Fort Worth forensic CPA Bryan Rice. The two formed their company Divorceapps.com in 2010 to provide DIY solutions that save divorcing spouses money on the costs of getting a divorce. Their first app, Divorce Cost & Prep, released in May on iTunes illustrates the hidden costs of divorce such as the cost of maintaining two homes, added transportation costs for the children, and cost of parking at a lawyers office. Divorce Cost & Prep also helps a spouse put together all of the documents that a lawyer might need to process the divorce, again saving the client money.

O’Neil and Rice developed the idea for the apps as a way to help clients save money in their divorces. “There are many people that want or need a divorce that cannot afford the high costs of litigation,” says O’Neil. “Our apps provide those people with the ability to help themselves and save on the money it might otherwise cost to pay a lawyer to do these things for them.” 

Divorceapps.com uses Brainwash Inc. to develop their iPhone apps, the foremost developer of iPhone apps in the DFW Metroplex.

Michelle May O’Neil specializes in family law in Dallas, Texas with the firm O’Neil Anderson. She is the co-author of All About Texas Law and Kids, published in 2010 by Texas Lawyer Press. As a step-mother to her husband’s 10-year old son, she relates to many of her clients with blended families. Bryan C. Rice is a forensic CPA in Fort Worth who focuses his practice on assisting attorneys and divorcing spouses with the financial aspects of litigation.

CNN features Divorce App for iPhone

CNN Headline News featured the Divorce Cost & Prep iPhone App created by Dallas Divorce Lawyer Michelle May O'Neil and Fort Worth CPA Bryan Rice.  The story originally ran on CBS11 in Dallas on Wednesday night, but by Friday The Morning Express with Robin Meade Show on CNN HLN picked up the story and it spread throughout the US and the world. See below image from the Robin Meade Show facebook page:

 

Divorce, There's Now an App For That!

Our DivorceApp -- Divorce Cost & Prep -- for the iPhone was featured on CBS 11 news last night.  In an article entitled Divorce, There's Now An App For That, Carol Cavazos points out that there's over 100,000 iPhone apps and our's is the first for divorce.  Here's the full article from their website and the video link:

Divorce, There's Now An App For That

There are more than more than 100,000 iPhone apps by some social media estimates. There are apps for math, mood check and moron tests. But what about one for a marriage that's over.

Now there's even an app for that. It's called Divorce Cost and Prep.  It's the brain child of Dallas Attorney Michelle O'Neill and Fort Worth CPA Bryan Rice.
 
"The apps we're coming out with are really meant for the person going through the divorce in terms of helping them understand the costs and understanding the types of documents that are needed" explains Rice.
 
Rice, a $300 an hour CPA, knows the costs associated with divorce. He's created a list of possible expenses for what will soon become two, separate households. He's even listed things you wouldn't think of like parking expenses. "What if your attorney's downtown and you have to pay $10 every time you have to go see him," Rice said.
 
The app has been available in the iTunes store for just three weeks and has only attracted about a dozen buyers. App users like Victoria Huyge think someone would use it if it was applicable.  At $4.99, it also would cost a fraction of a CPA.

Rice says they'll have two more divorce related apps out soon. One is a property divider, the other is a child custody calendar.

Here's the video link:  http://cbs11tv.com/video/?id=54327@ktvt.dayport.com

Divorce Apps now available for the iPhone!

Divorce Apps for iPhoneDallas, Texas -- Michelle May O'Neil of Dallas' divorce boutique firm O'Neil Anderson announces the release of Divorce Cost & Prep -- the first in a planned line of divorce-related apps for the iPhone by her newly formed company DivorceApps.com.  She and her business partner, forensic CPA Bryan C. Rice, saw a niche in the iPhone app industry that was not being met.  "When I got my iPhone, I couldn't believe how many games were available, but so few apps for divorces," said Rice.  "Michelle and I teamed up to develop some apps that would be beneficial for our clients to use." 

Divorce Cost & Prep serves two purposes.  First, a person contemplating divorce can assess the hidden and direct costs of divorce, such as the cost of providing two houses, two wardrobes for the children, or transportation costs for exchanging the children between houses.  Second, the app gives divorce clients a list of information and documents to gather for their lawyer to assist preparation of their divorce.  O'Neil wanted to provide an app that would make a client's life easier and her own as well.  "Many times clients want to know what documents they can gather for their lawyer, so this will give an easy way for clients to gather everything I will need for their case," says O'Neil. 

Divorce Cost & Prep is available on iTunes for $4.99.

The pair have more apps in the works.  Bear Cahill of BrainwashInc.com assisted with the development of the divorce apps for the iPhone.

No Alienation of Affection Claims In Texas

Recently there has been quite a bit of media exposure over alienation of affection claims arising out of a North Carolina Court.  Under the case in North Carolina, the mistress who was allegedly responsible for breaking up a 30 year marriage was sued by her lover's ex-wife and awarded $9M in damages!  North Carolina is one of seven states to recognize alienation of affection claims, in which spouses can sue third parties that they allege interfered in their marriages.   Texas, however, does not recognize alienation of affection claims in divorce cases

Although Texas doesn't recognize alienation of affection claims, fault in the break up of the marriage can play a role in dividing the community estate.  For example, adultery is commonly a factor judges consider when making the just and right division of the community estate. 

For a more in depth look at the facts behind the $9M award, click here.

Valentine's Day Tips from Dallas Divorce Lawyer

How not to get divorced -- that type of advice is strange coming from a Dallas Divorce Lawyer.  But, really I'd love nothing more than to be out of business and into some other line of work, all because people stayed married.  Marriage is a great thing if you are with the right person.  Unfortunately, divorce is necessary in many circumstances.  But, I seriously doubt that anyone enters marriage with the idea that they want to get divorced.  So, for those out there trying to hold it together, here's some advice:

"February 15 is one of the busiest days in a divorce lawyer's calendar," says Dan Couvrette, CEO & Publisher of Divorce Magazine and www.DivorceMagazine.com. "Maybe some of these tips will help improve our readers' current relationships to the point where they're willing to try to work things out -- or perhaps the tips will help ensure that their future relationships will be happy and fulfilling."

1. Make time to connect lovingly with your spouse every day.

A couple can significantly improve their chances of marital success by devoting as little as 15 minutes a day exclusively to each other. For instance, choose to go to bed a little earlier and wake up a little earlier, and spend the extra time in bed cuddling, making love, and reaffirming your love for each other. Take time every day to have meaningful conversations with each other; to listen with the same intensity as when you were dating; to touch, hug, and show affection; to tell each other how you feel about your marriage; and to talk about your goals for the marriage and your lives.

2. Compliment your spouse regularly -- both in private and in front of others.

Even if your partner seems embarrassed or shrugs it off at first, the glow from sincere praise lasts a long time.

3. Love your spouse in the way he/she wants to be loved.
 

We often make the mistake of assuming that the things that touch our hearts the most deeply will affect our partner in the same way. For instance, you may think red roses are the perfect Valentine's Day gift, but to your spouse, they represent a waste of money and an allergy attack. If you don't already know, find out what your spouse yearns for, and then deliver it with love -- and no comments about how "stupid" it is to want a cordless drill/a picnic on the living room floor/a tuna casserole, etc. Remember: the best gift is something your spouse wants -- not merely something you want him/her to have.

4. Take care of your appearance.
 

Look your best for your spouse: he/she deserves it. Lose the ratty sweat pants or frayed sweater he/she hates so much; you can find other comfortable clothing that aren't a complete turn-off for your partner. This also means taking care of your health .

5. Remain faithful.

Dr. Finnegan Alford-Cooper studied 576 couples who had been married for 50 years or more; she released her findings in a book entitled For Keeps: Marriages that Last a Lifetime. In her study, she found that 95% of the spouses agreed that fidelity was essential to a successful marriage, and 94% agreed or strongly agreed that marriage is a long-term commitment to one person. And these "lifers" weren't making the best of a bad lot: a whopping 90% of the couples she surveyed said that they were happily married after 50+ years.

6. Do things together.

Another common factor of long-term happy marriages is that the spouses regularly do things together that they find fun and exciting. Whether that's ballroom dancing, bowling, playing cards, SCUBA diving, or skiing, participate in at least one activity that you both enjoy every week. If you have kids, make sure at least half of these activities are for you and your spouse only.

7. Spend time apart.
 

You take a pottery course while your spouse plays hockey; you play bridge and your partner collects stamps. You don't have to love everything your partner loves, but you do have to allow him/her the freedom to pursue cherished hobbies. An added bonus is that separate interests can generate interest between you.

8. Be friends with your partner.

According to John Gottman -- a psychology professor who claims his research will predict with 91% accuracy whether a couple will stay together -- the key to marital happiness and success is friendship. Some of the most important aspects of this type of friendship are knowing each other intimately, demonstrating affection and respect for each other on a daily basis, and genuinely enjoying each other's company. Gottman based his findings on 25 years of marital research, which he presented in his book The Seven Principles for Making Marriage Work.

9. The Terms of Endearment.

Top Los Angeles divorce attorney Stacy D. Phillips says flowers, candy, cards, and gifts are all wonderful tokens of love on Valentine's Day, but if you really want your romance to last, you must practice some marriage-saving steps. She advises couples to spell out the basics of their relationship in a yearly contract -- or at least to clarify them. "Most disputes that break up marriages are over sex and money," she says. "Don't let surprises lead to trouble. Marriage is like any other contract: its terms and conditions must be reviewed and updated. Right before an anniversary is a perfect time, and Valentine's Day reminds you to be flexible and that you have to give to receive."

10. Say "I love you" every day.

This is especially important when you're not feeling the sensation of love; at these times, you have to actively generate it. Saying those three little words, and performing loving gestures, will warm both your and your spouse's hearts.
 

Hat tip to Divorce Magazine for the idea for this article

This article is featured on avvo.comValentine's Day Tips

Dallas Divorce Lawyers featured in local media

O'Neil Anderson has been featured in Dallas Morning News' Neighbor's Go publication.  See the story here:  The May Firm Expands to Become O'Neil Anderson.

What You Say on Facebook Can (& Will) Be Used Against You!

What You Post on Facebook Can Harm your Dallas Divorce case!

According to www.insidefacebook.com, Facebook is growing in every age/gender demographic, with the fastest growing segment: Women over 55, up 175.3% in the last 120 days (as of February 2, 2009).  Read the post here.  While the fastest growing age group by total users is still 26-34, the number of women over 55 on Facebook grew by an astounding 175.3% since the end of September. Their male counterparts, however, weren’t able to keep up – growing by only 137.8%. The number of women over 55 on Facebook almost double the number of men over 55 on Facebook today.

 

That being said, people can't resist what they post on Facebook.  Consider this article from CBS News about the effects of what some people have posted:

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.

"Social networking sites are just another way that people say things or do things that come back and haunt them," said Phil Malone, director of the cyberlaw clinic at Harvard Law School's Berkman Center for Internet & Society. "The things that people say online or leave online are pretty permanent."

The pictures, when shown at sentencing, not only embarrass defendants but also can make it harder for them to convince a judge that they're remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)

Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name. But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.

"It's not possible to do it in every case," said Darryl Perlin, a senior prosecutor in Santa Barbara County, Calif. "But certain cases, it does become relevant."

Perlin said he was willing to recommend probation for Lara Buys for a 2006 drunken driving crash that killed her passenger — until he thought to check her MySpace page while preparing for sentencing.

The page featured photos of Buys — taken after the crash but before sentencing — holding a glass of wine as well as joking comments about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.

"Pending sentencing, you should be going to (Alcoholics Anonymous), you should be in therapy, you should be in a program to learn to deal with drinking and driving," Perlin said. "She was doing nothing other than having a good old time."

Santa Barbara defense lawyer Steve Balash said the day he met his client Jessica Binkerd, a recent college graduate charged with a fatal drunken driving crash, he asked if she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light.

But she didn't remove the page. And right before Binkerd was sentenced in January 2007, the attorney said he was "blindsided" by a presentencing report from prosecutors that featured photos posted on MySpace after the crash.

One showed Binkerd holding a beer bottle. Others had her wearing a shirt advertising tequila and a belt bearing plastic shot glasses.

Binkerd wasn't doing anything illegal, but Balash said the photos hurt her anyway. She was given more than five years in prison, though the sentence was later shortened for unrelated reasons.

"When you take those pictures like that, it's a hell of an impact," he said.
 

Custody Suit Over Pet Gets Expensive

Pet Custody Dispute Leads to Mounting Legal Bills

Legal bills in a custody dispute involving a couple’s pet dog have topped $40,000, according to media reports. The mounting attorneys’ fees come after a landmark decision by a Pennsylvania appellate court that held a trial judge should have weighed the subjective value of the pug in determining custody and compensation for the couple. An attorney for one of the parties conceded that the protracted dispute could be a slippery slope for the legal community. Martha Neil, American Bar Association Journal 07/30/2009
 

Divorce Affects Long-Term Health

Divorce Linked to Chronic Illness, Study Finds

The toll of divorce on a spouse’s health may be more than emotional, a new study has concluded. According to the study, published in the Journal of Health and Social Behavior, persons who were divorced reported more chronic health problems than those who remained married or were never married. Data for the national study were gathered from nearly 9,000 men and women in their 50s and early 60s.

While this does not mean that people should stay married at all costs, it does show that marital history is an important indicator of health, and that the newly single need to be especially vigilant about stress management and exercise, even if they remarry.

The health benefits of marriage, documented by a wealth of research, appear to stem from several factors. Married people tend to be better off financially and can share in a spouse’s employer health benefits. And wives, in particular, act as gatekeepers for a husband’s health, scheduling appointments and noticing changes that may signal a health problem. Spouses can offer logistical support, like taking care of children while a partner exercises or shuttling a partner to and from the doctor’s office.

Over all, men and women who had experienced divorce or the death of a spouse reported about 20 percent more chronic health problems like heart disease, diabetes and cancer, compared with those who had been continuously married. Previously married people were also more likely to have mobility problems, like difficulty climbing stairs or walking a meaningful distance.

While remarrying led to some improvement in health, the study showed that most married people who became single never fully recovered from the physical declines associated with marital loss. Compared with those who had been continuously married, people in second marriages had 12 percent more chronic health problems and 19 percent more mobility problems. A second marriage did appear to heal emotional wounds: remarried people had only slightly more depressive symptoms than those continuously married.

Tara Parker-Pope, The New York Times 08/03/2009
Read Article: The New York Times
 

A Little Divorce Humor To 15 Fifteen Funniest Quotes About Divorce

15. “Ah yes, divorce…from the Latin word meaning to rip out a man’s genitals through his wallet.” - Robin Williams

14. “The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” - Johnny Carson

13. “The only time my wife and I had a simultaneous orgasm was when the judge signed the divorce papers.” - Woody Allen


12. “I’m an excellent housekeeper. Every time I get a divorce, I keep the house.” - Zsa Zsa Gabor

11. “To get over my divorce, I got a prescription to live at the Playboy mansion for a while.” - James Caan

 

10. “I’d marry again if I found a man who had $15 million and would sign over half of it to me before the marriage and guarantee he’d be dead in a year.” - Bette Davis

9. “She cried - and the judge wiped her tears with my checkbook.” - Tommy Manville

8. “I can’t get divorced because I’m a Catholic. Catholics don’t get divorced. They stay together through anger and hatred and festering misery, just like God intended.” - Lenny Clarke

7. “I look a divorce this way: it’s better to have loved and lost, then to live with that bitch for the rest of my life.” - Steve McGrew

6. “Marriage isn’t all that it’s cracked up to be. Let me tell you, honestly. Marriage is probably the chief cause of divorce.” - Larry Gelbart

 

5. “Divorce sucks. Let me tell you, after five years of marriage, it is devastating to have the person with the good credit move out.” - Rich Vos

4. “Workaholicism is such a tough addiction to get over. I had to divorce my wife because she was an enabler.” - Dave Mordal

3. “What happened? Satan was busy?” - Sam Kinison on finding out his wife had hired lawyer Marvin Mitchelson to represent her in her divorce case against him.

2. “I can’t take his genius any more.” - Rita Hayworth on why she divorced Orson Welles

1. “You know why divorces are so expensive? Because they’re worth it.” - Willie Nelson
 

The 15 Funniest Quotes About Divorce
Darndivorce.com <-- I love this site!

Thank you to Whip It Out Comedy for their hilarious collection of divorce quotes.

Facebook and Google Get Judge in Trouble

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.
 

US Supremes Say Judges Must Recuse in Donors' Cases

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."

Pilots Hatch Divorce Scam and Get Caught

Nine Continental pilots have been accused of hatching a divorce scam to take money out of their pension retirement plans. Continental alleges the pilots and their spouses got paper-only divorces while continuing to live together and concealing the change in their marital status from their children and friends. Once a state court approved the divorces, the pilots signed court-issued documents giving their new ex-spouses all rights to a pilots-only pension plan, worth up to $900,000 per individual participant. Then, the spouses presented the paperwork to the Continental pension plan administrator with a request for a lump-sum distribution.

Such pre-retirement payments to former spouses are allowed under the federal law that governs employer-sponsored retirement saving and investing plans that grow tax-free.

But Continental alleges that after getting the money, the couples remarried. It calls the divorces “subterfuges or sham transactions.”  Continental filed a lawsuit against the nine pilots and their spouses to recover the money lost in the scam. Continental suggested in the lawsuit that the pilots — seven men and two women — were afraid of losing major chunks of their pensions because of the financial difficulties the airline industry experienced in 2005. Around that time, Delta Air Lines, United Airlines and US Airways filed for bankruptcy protection, reneged on their pension promises and handed over the plans to a federal administrator to make good on a portion of the pension obligations.

The Pension Benefit Guaranty Corp.’s maximum guarantee is paid in periodic annuity payments instead of lump sums and is far less than a typical airline pilot pension. This year, for a 65-year-old person, the maximum is $54,000.

The Houston Chronicle reported the story this week. And, Good Morning America ran the story this morning as well.

In the GMA story, one of the female pilots accused of the scam insisted that her divorce was real and her reconciliation was real and none of the public's business.  A lawyer for one of the pilots speculated that the pilots would not have been able to hatch such a "complicated scheme" because they weren't lawyers.  (Lawyer snobbery?) 

But, the Chronicle story refers to a request by United Airllines in 1999 about some of its workers that got divorced in an alleged sham.  In that instance, 21 United maintenance workers in Indianapolis were accused of defrauding the retirement plan by following steps laid out in a pamphlet called the Retirement Liberation Handbook, which gave instructions on how to use divorce to acquire benefits prior to retirement.

This story illustrates the desperation some people fees in this difficult time.  Even though the Dallas area has fared better than other areas of the country, people get divorced for various reasons.  During my career as a Dallas Divorce Lawyer, I been aware of the occasional situation where the parties had other motives for a divorce than simply irreconcilable differences.  In each situation, the "sham" divorce backfired on the party that was trying to get away with something.  It just doesn't pay to be dishonest.

Termination of Parental Rights for Attempted Murder

Senate Bill 1838 was signed into law by Governor Perry yesterday.  The new law authorizes the court to order termination of the parent-child relationship if the court finds clear and convincing evidence that the parent has been convicted of a criminal attempt to the murder or criminal solicitation to murder the other parent of the child.

Under current law, the Family Code does not address the issue of parental rights when one parent commits the crime of criminal solicitation of murder against the child's other parent. 

The new law amends Texas Family Code Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP. It authorizes the court to order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has been convicted of, attempted murder or solicitation of murder Under sectiosn 15.01 and 15.03 of the Texas Penal Code, or under similar laws of other states, countries or the military law.  

This law is effective September 1, 2009.

Divorce Litigant Sues His Lawyer

A party in a complicated divorce proceeding has filed a lawsuit claiming his former counsel promised him a favorable outcome because of a “special relationship” with the presiding judge. The attorney and law firm named in the suit vehemently deny that any member of the firm made such a declaration at any time. The divorce involved significant property division issues, according to an attorney for the firm named in the suit.  See the full article at Texas Lawyer (shout out to John Council who wrote the article). 

Bascially, what happened according to the lawsuit (according to the client) -- the lawyer told the client that he had a special relationship with the Judge and therefore could affect the outcome of the case.  There was also a receiver appointed to sell a marital asset, and (again, according to the client), the lawyer said he had a relationship with the receiver and could obtain a favorable outcome from the receiver.  Then, all went badly for the client.  The receiver didn't do what the client wanted and somehow the Judge gave some informal opinion negative to the client, so the client agreed to an outcome that he didn't want.  So, the client blames the lawyer and files a lawsuit.

First, and very obviously, this is a one sided story.  The ethical rules require that lawyers cannot imply they have a special relationship with anyone in a manner that would influence the outcome of the case.  Further, a lawyer cannot guarantee a client a favorable or certain oucome.  IF the lawyer did either of those things, then the lawyer could be in big trouble.  But, again, that's a pretty big IF.  I'd think that the client who filed the lawsuit is going to have to have some corroborating proof of his allegations, beyond just his word that the lawyer made those statements.

This is Dallas divorce law drama unfolding.  It will be interesting to see how it turns out.