Appellate Lawyers Todd Smith of Austin and Jody Sanders of Fort Worth interviewed O’Neil Wysocki Senior Shareholder Michelle O’Neil about her family law appellate practice for their Texas Appellate Law Podcast. Check out the full interview here:
Appellate Lawyers Todd Smith of Austin and Jody Sanders of Fort Worth interviewed O’Neil Wysocki Senior Shareholder Michelle O’Neil about her family law appellate practice for their Texas Appellate Law Podcast. Check out the full interview here:
The United States Supreme Court has moved a giant leap forward in LGBTQ+ rights with the latest opinion in Bostock v. Clayton County, Georgia. To say this is a HUGE deal is an understatement. In 2015, when the Court solidified same-sex marriage, that right only applied to a smaller subset of people who wanted to marry a person of the same sex. This opinion, however, applied to a much more broad group because pretty much everyone has a job. So, saying that a person cannot be fired for their sexual orientation, gender identity, or gender expression, helps many, many people.
The central dispute in the cases (grouped together as Bostock v. Clayton County, Georgia) is over whether the term “sex” in Title VII (the federal anti-discrimination law that applies to workforces of 15 people or more) includes sexual orientation and gender identity. The law doesn’t mention “sexual orientation” or “gender identity” at all, but Justice Gorsuch, speaking on behalf of the 6 justice majority, said that doesn’t matter. He concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex” and the Court found that the word sex includes sexual orientation, gender identification, and gender expression. This is the first major case on transgender rights. Prior to the decision, it was legal in more than half of the states (including Texas) to discriminate against a person for being gay, bisexual, or transgender. Now, workplace protections extend to millions of people across the nation. This was the first case decided by the Court on LGBTQ+ rights since the retirement in 2018 of Justice Anthony Kennedy, who wrote for the majority in all four of the Court’s prior gay rights decisions.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Kavanaugh filed a dissenting opinion. Noteworthy, he stated public support for gay rights, but disagreed that the correct solution to the case was through the judicial branch. Instead, he felt that Congress should modify the law as Congress sees fit instead of the Court addressing the issue.
“…it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
Justice Alito filed a lengthy and extensive dissent, reviewing every law with language similar to the Civil Rights Act that will be affected by the decision. Alito, with Justice Thomas joining, believed that the law should be interpreted based solely on the specific words in the law (which do not say “sexual orientation”) and based on the meaning the law had at the time it was enacted in 1964. The common understanding of sex discrimination in 1964, Justice Alito wrote, was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, he wrote, it could pass a new law. Alito’s dissent provides a lengthy summary of the other laws with similar language that could be effected by the majority opinion.
The Bostock decision could have reverberations way beyond employment discrimination law. Other areas of federal law also prohibit discrimination based on sex — the Fair Housing Act prohibits it in housing; the Equal Pay Act prohibits it in your paycheck; Title IX prohibits it in education; the Equal Protection Clause of the Constitution prohibits it in government actions. Taking today’s ruling where it inevitably will lead means that each of these areas of law (and every other that applies to sex discrimination) should eventually prohibit discrimination against LGBTQ people as well. We’re not there yet, as future cases will have to decide these matters. But, based on today’s rulings, LGBTQ people should get more and more protections against discrimination in the near future.
As to our area of family law, I think the Bostock case means that judges in parenting disputes should not be able to base their decision on the parent’s sexual orientation, gender identity, or gender expression. In other words, a judge cannot deny a parent custody or restrict his or her access because of the parent’s sexual orientation. A judge cannot deny a parent a relationship with his or her children because of being transgender. A judge cannot use whether a parent dresses masculine or feminine as a basis for critique of parenting roles. This brings forward the roles of LGBTQ+ parents in the family law context from Obergefell and Pavan.
Oyez is my favorite website for all things Supreme Court. Here is their link to Bostock.
SCOTUSblog has many articles of commentary about the decision as well as a link to the briefing by the parties and amici.
Mediation is an alternative dispute resolution process that has become a requirement in most family law cases. A mediator is a neutral third-party who helps facilitate the settlement negotiations between the parties. Generally, one party and that party’s attorney stay in one room; the other party and that party’s attorney stay in another room; and the mediator goes between the rooms. The parties can conclude the mediation with a Mediated Settlement Agreement (“MSA”). This is an irrevocable settlement agreement that is filed with the court. Either party can seek a final judgment on the MSA and have a decree or final order entered.
Mediation most often occurs toward the end of a case. The parties may have been through one or more hearings; conducted extensive discovery; attended depositions; and were probably set for final trial. Can mediation occur prior to even filing a divorce petition? In October 2019, the Texas Supreme Court held in Highsmith v. Highsmith that a Mediated Settlement Agreement can be executed prior to the filing of petition for divorce. 587 S.W.3d 771 (Tex. 2019). The Texas legislature has stated: “It is the policy of this state to encourage the peaceable resolution of disputes . . . including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” Tex. Civ. Prac. & Rem. Code § 154.002. Pre-litigation mediation gives parties the opportunity to settle their issues even before filing their case with the court.
Mediation requires the willingness of two parties to submit themselves to the mediation process. To mediate before filing a divorce, both parties need to be onboard with attending mediation. This is not always easy at the start of a divorce. Emotions are high; there may be hurt feelings; and trust may be broken. One or both parties may also already have an attorney. If a party does have an attorney, the attorney can coordinate scheduling mediation. Case law does establish a third-party mediator must mediate in order to obtain a Mediated Settlement Agreement. You cannot obtain an MSA from the parties simply sitting down and writing out their agreement together. The parties must go through the mediation process with a mediator. The mediation can be scheduled for a half-day (4 hours); full day (8 hours); or sometimes by the hour depending on the mediator. If neither party is choosing to use an attorney, you can hire a family law mediator on your own.
As with any divorce, it is important that the parties have a clear idea of their finances such as: 1) what accounts are community property?; 2) what assets are separate property?; 3) what debts are owed?; and 4) what personal property exists? A general inventory of assets and liabilities with corresponding account numbers will help ensure no property is overlooked during the division. The parties should also have an initial wish-list of the property division. The more information you have gathered prior to mediation, the more productive the mediation time will be.
Mediation is a series of movements. Party A starts with a position. Party B starts with a position. Sometimes the positions are close, and sometimes they’re not. The mediator helps the parties move off their starting positions and closer to an agreed upon settlement. Mediation, at its core, is a voluntary process though. The voluntariness and willingness of the parties to participate in dispute resolution is the key to a mediation’s success. This is especially true in pre-litigation mediation. Pre-litigation mediation asks parties to mediate before a legal case has even been filed with the court. Parties will most often attend pre-litigation mediation when they are close to settlement on their own but need some assistance finalizing details. Parties may also attend pre-litigation mediation when their estate is not complex or when they just don’t have the funds for a complex litigation. Parties can also attend mediation even when they’re nowhere close to an agreement, as long as both parties are willing to submit to the mediation process.
When you reach a settlement and have a signed Mediated Settlement Agreement, your next step is to file for divorce. Again, if a party has an attorney, the attorney will handle the filing of the petition for divorce. The other party can sign a Waiver of Service meaning service of the petition is not necessary. A Final Decree of Divorce must then be drafted based on the Mediated Settlement Agreement. A judge will sign the decree once signed by all parties and filed with the court. It is important to remember that once an MSA is signed, you cannot wake up with buyer’s remorse the next day and revoke your agreement. The agreement in a signed MSA is the agreement on which the court will enter judgment.
Mediation is a powerful tool in the divorce process. Under the right circumstances, pre-litigation can be successful and save you time, money, and help you reach resolution in your divorce.
You’ve been in quarantine with your spouse for six weeks, and you’re seriously considering filing for divorce. One question to consider prior to filing is: “What is my plan?” That question may seem almost unanswerable right now. Six weeks ago, we all had plans which were then derailed by COVID-19. Within a matter of days, children were home from schools; spouses were confined to the home; and divorced parents had to adjust possession schedules. The past weeks with your spouse may have further strained an already difficult relationship. Before rushing to file for divorce, consider the following:
Generally, when you file for divorce, you ask the court to allow one spouse to stay in the marital residence and order the other spouse to move out. This is done at a temporary orders hearing. In order for your spouse to move out, however, the financial resources have to be available to support a second home like an apartment or rental house. As many as 78% of families live paycheck to paycheck. This can make it difficult to support two households, especially if one spouse lost a job in the past six weeks. Consider the financial logistics prior to filing for divorce. You may also need to consider alternatives to two separate and independent households such as moving in with relatives.
Even before COVID-19, many spouses chose to remain in one residence until the divorce finalized. Now, spouses are having to remain in one residence due to financial constraints; needing to sell the residence; or needing to give a spouse time to find a new job. There are many reasons why spouses choose to remain in one house until the divorce is finalized. As long as you and your spouse are able to cohabitate without endangering yourself or your children, and as long as a court has not ordered otherwise, there is no rule that says you can’t remain in the same residence.
The child support amount that can be ordered will be affected if the paying spouse is currently unemployed. The amount of child support ordered is a mathematical calculation set forth in the Texas Family Code. If the person ordered to pay child support is receiving unemployment benefits, the child support will be set based on the unemployment benefit amount. This is most likely less child support than if child support were calculated based on the paying spouse’s prior salary. Once child support is ordered in a final order, it generally cannot be changed for three years or until the new child support amount differs by $100 or 20%. Changing child support requires a modification, however, which is a new litigation with its own set of expenses. Analyze whether your spouse is going to have a new job in a few months. This may impact your decision of when to file for divorce.
Everyone’s retirement account took a major hit the past two months. An account that was worth $100,000 may now only be worth $60,000. Other stock and mutual fund accounts may be valued significantly less too. An account that was worth $100,000 may now only be worth $60,000. Other stock and mutual fund accounts may be valued significantly less too. The court will make a just and right division based on all the community property. The court can only divide the property that exists though. It cannot take into account that the community estate may have been worth $40,000 more in February 2020.
Another consideration is that most counties have Standing Orders that go into place when a divorce is filed. One standing order is that you cannot take money from retirement accounts without the agreement of the other spouse or an order of the court. Keep in mind that unless your spouse agrees to withdraw retirement account funds, you may not be able to access those funds once the divorce is filed until there is a hearing on the issue.
Despite all the considerations, the highest priority is the safety of you and your children. If you are in a domestic abuse situation, you can always call the National Domestic Violence Hotline at 1-800-799-SAFE (7223). Don’t let the logistics of a divorce prevent you from getting out of a violent relationship. There are many variables when considering divorce, and you want to be prepared before making a decision.
In Texas, if your child is under the age of three, there is no presumed possession schedule that is in the child’s best interest. The standard possession order set forth in the Texas Family Code that is often discussed is the presumed possession schedule once a child is three-years-old or older. What does that mean for you as the parent?
If the parents agree on the possession schedule, the Court will most likely approve and adopt the proposed schedule as an order of the Court citing that the order is in your child best interest. If you and the other parent (or party to the lawsuit) do not agree on the possession schedule, then you will appear in court in front of a Judge with each party proposing a preferred possession schedule. It’s critical to be able to articulate to the other party as well as the Court the possession schedule that you believe is in your child’s best interest and why. You know the child best. Assuming the Judge will order a schedule that you agree with can be a costly mistake. The judge may simply check the box marked “Standard Possession Order” even if your child is under the age of three.
If a weekend from Friday to Monday is too long, then suggest the length of time that would be appropriate. A custom possession schedule may be best if you are breastfeeding. A parent’s work schedule due to working nights, traveling for work, and/or varying work days are additional reasons to propose a custom possession schedule. Other reasons could include special medical needs of the child or distance between the residences of the parties.
If you are opposed to the other parent having the child overnights, then we recommend proposing more frequent visits that are not overnight. Possession schedules are subject to change and modification. So, the best schedule for your young tender-aged child is a schedule that gradually changes based on the needs of your child. The graduated schedule could change based on the child’s age, number of periods of possession exercised, milestone, and/or other term or condition. In absence of an agreement, if a court case is pending a possession schedule for your child will be determined at a temporary orders’ hearing or final trial. Be proactive in determining the possession schedule that you believe is in your child’s best interest.
One consequence of COVID-19 is that many people have lost their jobs. According to the Texas Workforce Commission, over 1 million Texans have filed for unemployment. If you’ve lost your job or are on reduced hours, where does that leave your child support obligation? The short answer is you still owe the full amount ordered each month.
You don’t have the same income so why do you have to pay the same child support? Because a court order is a court order. Thankfully, the Texas Legislators anticipated that a parent’s income would fluctuate before a child turned 18 and codified the grounds for modification. One ground to modify child support under Texas Family Code § 156.401 is when the circumstances of the child or a person affected by the order have materially and substantially changed. Losing your job or receiving significantly less income is generally a material and substantial change.
The first step is you need to notify the obligee (the person receiving the child support). Most final orders have a notification requirement that the obligor (the person paying child support) must notify the court and the obligee via U.S. certified mail, return receipt requested, of any termination of employment. This notice must be given no later than seven days after the termination of employment. If you’ve started a new job already, the notice should also provide the name and address of your current employer. The purpose of providing address information is because most people have a wage withholding order in place. You must notify the obligee so he or she knows where to send a new wage withholding order for child support.
The second step is you need to file a new suit to modify child support. Unless you file a suit to modify, the court will have not be able change your child support amount. If your child support is modified, the court can make the decrease retroactive to the earlier of the time you served the obligee with citation or the obligee made an appearance in the modification.
Third, pay what you can. Arrearages accrue for any amount less than the full amount owed. If you owe $500 a month, are fully up to date on prior child support, and only pay $250, you will accrue an arrearage of $250. If you pay only $250 the next month, your arrearage will then equal $500. Having an arrearage of $500 is definitely better than having an arrearage of $1000 though. This is especially true because interest accrues on the past due child support at a rate of 6% per year. Another reason to pay what you can is because a judge will see that you are trying to follow the order. Child support is for the benefit of the child and any amount you can pay to support your child is better than nothing.
If you’ve lost your job and can’t make your child support payment, you are not alone. Take the proper steps to address your child support obligation and don’t just ignore it. Getting ahead of the child support issue now will help you in the long run.
Most of the country is under a lockdown due to the Coronavirus pandemic. A lot of people are out of work, barely making ends meet, and are struggling to collect unemployment. There was a great relief when the President announced that every tax-paying citizen would receive a stimulus check in this time of crisis. However, with that sigh of relief, some of us also received potentially heartbreaking news – we may not receive a stimulus check at all.
If you or your spouse are currently behind on child support, your stimulus check could be affected. Whereas the CARES Act suspends certain debts – such as student loans or back taxes – it does not currently apply to delinquent child support payments. Since the check amount is based on your most recent tax filing, if you filed jointly with a spouse that owes child support, you may receive a reduced amount from the stimulus, or no check at all.
Even if you filed for injured spouse relief when you filed your tax return, you may still find that your stimulus check is garnished or reduced dramatically. Typically, the IRS works with the Office of Child Support Enforcement. The amount garnished or withheld because of back child support, the money will get intercepted by the appropriate collecting office and be distributed to the custodial parent, the one that is owed child support. The time it takes for this money to arrive will vary, depending on that state’s collecting office.
If you are behind on child support payments, and are out of work due to the pandemic, your unemployment checks could also be affected. If you claim unemployment and there is a child support order in place, you can have support payments withheld from your unemployment check. A few states have limited the amount to 50% of each check, so that people who owe child support can still collect their unemployment money. Other states may garnish wages differently for back child support amounts.
If you are having trouble paying your child support, get a request on file with the court that issued the child support order seeking time to catch up based on your situation. Delaying taking action will only make matters worse!
In the context of a custody case, drug tests are court-ordered to protect the safety and well-being of the child or children the subject of the suit. The need or requirement for drug testing doesn’t change just because there is a pandemic. Yes, you or someone you know can currently submit to a drug test even though there are stay-at-home orders in effect.
There are testing facilities that are still open, practicing social distancing and taking other precautions as they continue to operate. Consult with an attorney to see if you reside in a county that has an emergency order in place that might prevent testing. Most likely, the emergency order does not prohibit an individual from submitting to a test. You or your attorney can contact a drug-testing facility to ensure they can administer the test that you want, confirm the cost of the test, as well as the expected turnaround time for the results.
If there is not a court order for drug testing, there is still the option to request an individual (or for you) to voluntarily submit to a test.
If you suspect substance abuse is an issue, be sure to address it. Even if you are not able to require an individual get tested right away, keep in mind that different tests can detect substances for longer periods of time. In other words, just because a urinalysis test may not detect usage, a nail or hair test may have a different result. The frequency and amount of usage may also be a factor in whether a test comes back positive for a particular substance.
Yes, I know we are all still worried about homeschooling, homecooking, and home cleaning while we are social-distancing and staying at home to avoid the Covid corona virus. However, April 15th is an important day for primary parents if you are operating under the Texas Standard Possession Schedule. In Texas April 15th is a deadline for primary conservators to designate their summer weekend possession time with the children.
In a Texas Standard Possession Order, the non-primary parent is awarded the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession. The primary parent in turn gets to pick one weekend, which occurs during the non-primary parent’s 30 day extended summer possession, to have the children. This election must be made in writing by April 15th or the primary parent loses the ability to have a weekend period of possession during the other parent’s 30 day extended summer possession.
Additionally, the primary parent gets to pick one of the 1st, 3rd, and 5th weekends during the summer months which would have been the non-primary parent’s weekend, to have possession of the children. The primary parent must elect in writing by April 15th or no later than fourteen days prior to the elected 1st, 3rd, and 5th summer weekend. This weekend period of possession cannot occur during the 30 day extended summer possession of the non-primary parent.
So, even though you can barely see to tomorrow right now, it is important to go ahead and designate your summer periods so you don’t lose them. Go ahead and get out your order and make sure you send that email with your dates by the end of the day on April 15th.
We are all social-distancing from each other and trying to stay home. We are home schooling, cooking at home, and watching Tiger King. Mostly we are just trying to co-exist in our own homes today. We aren’t thinking of what to do about summer, are we?
Well April 1st signals the day when parents under the Texas Standard Possession Schedule should start thinking about summertime. Even now, when the summertime seems so far away and we most likely will not be able to go much of anywhere out of the house much less on vacation for any period of time this summer, you still need to think about designating your summer period of possession.
April 1st is the deadline for the non-primary parent to designate your intended 30 days of extended summer possession is April 1st. The designation has to be in writing (email is fine). These 30 days can only be exercised in two periods of possession and each period of possession must be at least seven consecutive days. Additionally, a parent’s extended summer possession can begin once school is dismissed and must end at least seven days before school resumes at the end of the summer.
The Texas Standard Possession Order awards a non-primary parent the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession in the summer. The primary parent in turn gets to pick one of the 1st, 3rd, and 5th weekends, which would have been the non-primary parent’s weekend, to have possession of the children as well as one weekend during the non-primary parent’s 30 days of extended summer possession.
What happens if you miss the April 1st deadline? Should you not designate any extended summer possession dates by April 1st, generally the standard order provides the non-primary parent will automatically be entitled to July 1 – 31st that summer.
A question that is frequently asked is “can I use a weekend of summer possession in addition to my extended summer possession to make my time with the children 32 days?” The answer is yes, you can. However, keep in mind that the primary parent has until April 15th each year to designate a weekend period of possession that will occur during your regular 1st, 3rd, and 5th weekend as well as a weekend during your extended summer possession.
Another question that is often asked is, “Does the primary conservator have the ability to disagree with the dates that I have designated for my periods of summer possession and require that I select different dates?” No, the other parent doesn’t get to tell you to pick different dates (unless the dates designated improperly include Mother’s Day/Father’s Day weekend). It doesn’t work that way. The non-primary parent gets to designate first. Keep in mind that the primary conservator can select 1 weekend during this 30-day period to exercise his or her extended summer possession as discussed above. Therefore, regardless of whether you are the primary or non-primary conservator, you should always wait until after the April 1 and April 15 designation deadlines to plan those summer vacations to make sure each parent has designated their periods.