Author: redheadedlaw

Community Property and Separation – The Surprising Truth

Written by redheadedlaw on July 22, 2023. Posted in Community Property, Divorce, Separation.

The word “separation” is commonly heard prior to divorce proceedings. Couples may separate physically and emotionally with the intent of either working out their problems or not, but in legal terms, the definition is surprisingly simple. To be separated is to live apart from your spouse while married. What this actually means in real life with regard to income and property can be very surprising.

Separation and Community Property

Couples separate for many reasons in addition to having marital problems. It may be done for religious reasons, or to maintain health and other insurance benefits. However, a fact that is commonly overlooked is separation does not “stop the clock” on the accumulation of community property. Texas is a community property state, and generally speaking, so long as a couple remains married the rules of community property still apply.

Even though this is a straightforward concept, here are a few examples from actual case law that may further illustrate the point.

Example #1 – The Bonus

A couple was experiencing marital difficulties, and the female (who was the primary breadwinner) decided that their multiple attempts at reconciliation had failed. She decided to separate before year-end, when she expected a large performance bonus from her job. In early November, she moved to an apartment with the intention to file for divorce early the next year. She received her bonus in mid-December, and it was immediately contested by the husband, who claimed he was owed half. Even though they had been living apart and handling their own finances, the Court ruled for the husband because they were still married.

Example #2 – Income from Real Estate

Another couple acquired a duplex near a university early in their marriage. At the time, the husband was able to qualify for the loan individually, so he did and the property was recorded in his name. Both spouses worked on the property together and paid for repairs and maintenance out of whatever funds they had. It became a very successful, long-term rental, but the marriage soured and after several months of strife, the husband moved into one of the units. He became the on-site manager for the tenant, handled all issues, and also began receiving all rental payments in a separate account. The wife contested his belief that he was entitled to all rental income, even though they had been separated and he had taken over all property management. Again, the Court awarded the wife half of all rent money received solely by the husband.

Example #3 – Half the Assets

This is a more extreme example. It happened in South Africa, but had it occurred in Texas the end result likely would have been no different. In late June, a story was published describing a couple from South Africa. Married in 1980, the husband went to work in mining and transport. Times were difficult, and after coming home from work one day in 1998, he found his wife had left to seek work in another city. They lived apart for the next 22 years, working but never engaging each other. By the time the husband retired in 2020, he had acquired some assets and a pension from his employer, and in retirement, decided it was time to end the marriage. The wife countersued for half of his assets (including those earned during their 22 years apart), and because they were still married, she won.

One more caveat – remaining married to someone you have little contact with can lead to IRS problems, as they consider both parties responsible for any tax issues. If this marital limbo were to go on for years, one spouse could be liable for the taxes and penalties of the other.

Nine (Thousand) Degrees of Separation

Even though this last case occurred 9,000 miles across the Atlantic, it carries an important lesson. In Texas and elsewhere, you remain married until the day you are not. In the eyes of the law, this means each spouse is still acquiring community property and still earning joint income. If you are contemplating the idea of any kind of marital separation, there are ways to mitigate this impact, such as with a post-nuptial agreement. If you have any questions on separation or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Up In The Heir The Risk Of Dying Without A WIll

Up in the Heir – The Risks of Dying without a Will

Written by redheadedlaw on May 14, 2023. Posted in Death, Real Estate, Wills.

There are some decisions most of us are OK delegating. What happens to your assets upon death is not one of those casual concerns. Chances are, everyone reading this has strong opinions about who will receive their hard-earned money and property. Unfortunately, your opinions won’t matter if you die without a Will – a situation known as “intestate” in the legal profession.

A Surprisingly Common Situation

According to a recent Caring.com study, as many as two-thirds of Americans do not have a Will. Actually, that’s not quite accurate – if you don’t have your own Will, the state where you live already has one “written” for you. And you probably won’t like it.

For example, the accounts of anyone dying intestate are often frozen, since after the owner’s death only a court can legally authorize transactions in the name of the deceased (by appointing an executor). To be appointed as an executor in Texas, one must follow these procedures (assuming there is a valid, written Will naming an Independent Executor, properly executed):

File an application for probate of the Will in the appropriate jurisdiction with the appropriate forms and pay the appropriate fees.
If the original Will is not available (but a copy or handwritten will is being probated), obtain and report the names and addresses of everyone who might be considered a potential heir.
Use local media to publish the Notice of Creditors – this notifies creditors that the clock is running if they have claims.
File an inventory and appraisement of the assets of the Estate on date of death.
Notify all beneficiaries named in the Will in writing that you are petitioning the Court to be executor.
Attend the court hearing in person or via teleconference (court and county dependent) where your application to serve as executor will be determined. If the Will has been properly prepared and executed, you are not otherwise disqualified from serving, and it is not contested, appointment of the executor is the norm.

Not a Slam-Dunk

Assuming the Court appoints the applicant as the Executor, the county clerk (or a similarly named official) will issue Letters of Administration giving the named person the authority to transact for the deceased. Keep in mind, more than one person can petition the court, although this is not usually done if the Will is properly prepared and names an Executor. Even in a modestly sized family it’s easy to imagine how this could become contentious, although contesting a valid, written Will naming an Independent Executor is rare. The entire process, from the time of appointment of the Independent Executor until the final documents are prepared and any funds disbursed, takes approximately 6-8 months in Texas.

One Size Does Not Fit All

If there is no Will or the Will has not been properly prepared, state procedures for intestacy were created. Although the state has the best of intentions, intestacy procedures will not likely address all family situations. This procedure, called an Administration of the Estate, may require some or all of the following:

Texas law requires an accounting of community versus personal property.
Siblings of the deceased are not likely to inherit anything unless they are sole survivors.
Children of the deceased are unlikely to inherit anything if there is a living spouse and that spouse is their parent.
Step-children of the deceased are also not likely to inherit anything unless they are not the children of the spouse; if not the children of the spouse, they may be awarded an interest in the assets of the Estate, including any real estate. If you are the surviving spouse, you could potentially own the house you live in with your step-children!
Custody of any minor children may be up the court to decide (they would appoint a guardian for the children and a conservator to oversee related assets). This may be decided by a family court if there is a dispute over whether a biological parent or a step-parent would have custody.
If both parents pass simultaneously the Court may appoint a state agency as child guardian, such as CPS, if there is no relative willing to step in.
There is generally no way for the Court to direct part of the estate to charities.
The Court will divide an estate equally among children (even if one or more is special needs), if they are the sole survivors and there is no surviving spouse or other pertinent relatives.
The Court will not create trusts so minor children won’t blow all the money when they turn 18.

You get the idea. There are also rather complicated rules concerning the disposition of assets depending on the type (community or personal) of property, the decedent’s marital status before death, and whether the children are from the most recent marriage.

Some Good News

The problems with intestacy are significant, but there is some good news. Certain accounts and property can pass automatically to a surviving spouse depending on information recorded at the time of purchase or account opening. Some of the items below are NOT probate assets and the Court will not have jurisdiction over them unless there is no beneficiary named on the accounts:

Non-probate: Retirement accounts (via beneficiary designation)
Non-probate: Life insurance proceeds (via beneficiary designation)
Non-probate: Funds such as Merrill Lynch, Fidelity, IRA’s, etc. (via beneficiary designation)
Probate (unless a joint account or a POD has been signed): Savings and other bank accounts
Probate: Real estate (by type of ownership)
Probate: Other physical property (like vehicles – by type of ownership)

These types of assets can pass to heirs outside of probate as long as ownership is joint and/or the beneficiary(s) are listed with account custodians. But if there is no will, isn’t there a good chance beneficiary and account ownership information aren’t current either?

Take the Time Now

Some decisions in life should not be left to chance. Parents have strong opinions on what should happen to their assets in passing. Also, emotions can run high during such a transition, and no wants to create a family fight if it can be easily avoided. To be certain your wishes are executed swiftly and with the least expense of money and energy, have a will prepared and check all accounts and other property for current ownership information. If you have any questions on wills or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Couples Considering Divorce Should Avoid Social Media

Written by redheadedlaw on March 18, 2023. Posted in Divorce, Social Media.

Here’s a non-surprise – most unhappy couples look to their partner’s social media accounts for evidence of wrongdoing. There have even been studies showing Facebook had a hand in up to two-thirds of American divorces! If there were an intersection where drivers had a two out of three chance of crashing, all would detour around it. Today, many family law practitioners agree that social media can become a huge wedge that breaks couples apart. Let’s examine how this can happen and why it may be wise to avoid social media during times of spousal contention.

It’s Simple Math

Many will agree that there is no better brainless way to spend an hour (or three, or seven) after a hectic day than browsing Instagram or watching TikTok. But what is commonly overlooked is the question of time – every hour spent staring at a phone is one less hour you can spend building relationships with your spouse, family, and friends. Worse, it can’t be said that, whoops, I don’t know where the time went. A choice was made, and choices reflect personal priorities. If you don’t value your marriage, then why should your partner?

But assume the relationship has deteriorated sufficiently for both sides to be considering divorce. How should social media be handled to avoid issues later? Here are a few thoughts to consider:

Don’t delete your accounts – this makes people look extremely guilty of something. Besides, the internet never forgets, and there is always a way for online content to be reconstructed. In court, this could also be viewed as “spoilation” of evidence. And, in Texas, it is a criminal act to delete social media, email, or text accounts in anticipation of litigation.
Do change your passwords (this is a sound periodic practice even in the best of times). Be sure your privacy settings are set to the highest levels, and be very leery of getting tagged in photos by others. In a court of law, you can be depicted by the company you keep.
Never, ever discuss your spouse or your case, and do not under any circumstances vent online. Everything posted is in the public domain and could be used in court. And since attorneys and judges are human, do not give them any reason to portray you as cruel, vindictive, or worse, by disparaging them.
Search the internet about yourself using the major search engines. Find out what “it” knows and what information is currently associated with you. While eliminating undesirable references is probably impossible, at least you can brief your lawyer so he/she is not blindsided later.
Be extremely cautious in posting photos or videos. These establish an unassailable record of your whereabouts, habits, and friends. You can’t claim poverty if you’re seen on the balcony of an expensive hotel suite in Bermuda. You can’t claim you’ve never met a particular person if they are sitting in your lap. And there is also the unknown – Alex Murdaugh never imagined that a video containing his voice would probably determine his fate.
Last but certainly not least, do not seek revenge. This includes posting intimate photos, now commonly referred to as “revenge porn.” This is generally illegal and can lead to job loss, significant fines, and sometimes jail time. Also (even though this should be obvious), do not post intimate (or even friendly) images of yourself. Proof of adultery can negate the possibility of support, negatively impact the distribution of assets, and turn people (and your kids) against you.

Is It Worth the Risk?

While it is possible to continue posting to social media, you can see there are numerous minefields that must be avoided. You can ask yourself if a specific post would be embarrassing (or worse) if produced in court, but sometimes even the most innocuous photo might undermine your position. There is an increasing consensus in the legal community (based on our experience) that social media should be avoided once a relationship turns sour. In fact, we advise our clients to completely avoid social media while the case is pending. If you have questions about using social media or any other family law matters, please feel free to schedule an in-person or online appointment.

Can Your Children Choose To Live WIth You

Can Your Children Decide To Live With You?

Written by redheadedlaw on January 21, 2023. Posted in Child Custody, Divorce.

Perhaps the toughest part of a contentious divorce is how it impacts kids, particularly teenagers. The proceedings can be lengthy and divisive, and may expose younger family members to situations they had no idea existed. In Texas, there is well-established precedent for thoughtfully addressing where children of divorced parents will ultimately live. Today we will explain how this process plays out and the reasoning behind it.

Can’t Buy Me Love

About ten years ago, the Texas Family Code was changed with regard to children “choosing” a parent in a divorce. The previous statute allowed kids 12 and older to submit their preference in writing to the court. Sounds like a sensible idea, but in practice what often happened was each parent got their kids to choose them, leading to a stalemate that caused the proceedings to be further drawn out. The new statute eliminates the issues with the statement by allowing the kids to speak directly to the judge and express their wishes (upon request of a parent). For children under 12, this “interview” is at the discretion of the court.

This change in the statute eliminated one problem, but was also intended to help solve another. When selecting a parent to live with, there is nothing stopping kids from going with the one who:

Buys them the most toys, and/or
Has the most lenient parenting style

The Custody Decision

In Texas, custody is known as conservatorship. The parent who receives child support (and decides where the child lives) is called a primary conservator. To decide who will become primary conservator, the court considers:

What has been happening before? Has the child primarily lived with one parent? If so, why is a change needed? This is the first and most important thing the judge looks at
Needs (physical, emotional and health)
Living situations of each parent
Financial situation of each parent (but not who is the richest or has the best job)
The health of the parents
Family history (abuse, negligence, etc.)
The current relationship between the parents (such as whether they co-parent well or if one obstructs the other with children’s issues)

Judges interview the child in chambers, sometimes with a court employee also present, and, upon request, a court reporter. Attorneys and parents are not present, as the interview is intended to be private to protect the child and also to allow the child to speak freely. Judges have been around, and they do not typically ask, “Which parent do you want to live with?” Instead, they usually have a conversation with the child about the child’s living experiences at each household. “If you play sports, tell me about that” for example. In getting the child to talk and open up, the judge can begin to see what is happening at each household. These interviews take place usually after a full trial or hearing and the judge using the information in addition to what he or she has already heard. The judge will then rule based on what is best for the child in a given situation. The court will consider the evidence, including the opinions of therapists or counselors, teachers, friends, neighbors, other family members to name a few.

Children except in unusual cases, do NOT testify. In fact, it is considered very risky to request that the child testify because most judges are so adamantly against it and will admonish the lawyer who asks for it.

Children Cannot Be Trained for Court

Parents should never “groom” their kids for court, or allow them to be used as pawns. Judges will not take kindly to such activities, and because of their time on the bench, they will see it immediately. In fact, it is a standard admonition never to discuss a case with a child. Children should typically be told, “Both your parents love you. We are trying to do what is best for you. The decision will be made by adults.”

Never coerce or pressure (or worse, bribe) your kids to use against the other – it will backfire. And many judges don’t even want kids directly involved in custody decisions due to the anxiety and stress that is unavoidable. If you have any questions on conservatorship or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

New Child Support Payment Options in Texas

Written by redheadedlaw on October 31, 2022. Posted in Child Support, Online Payment.

It is safe to say that it is in the best interest of Texas (and likely all states) to make it easier as possible for parents to comply with the terms of a divorce. No one is served by complexity or bureaucracy, and this certainly applies to anyone making court-ordered child support payments. Given the recent growth in ways to transfer money (along with the enthusiastic public acceptance of these applications), governments across the country are getting on board. The Attorney General of Texas recently announced additional electronic methods for parents to fulfill their child support obligations. Today, we will summarize these new changes.

The More Options, the Better

Generally speaking, having more options for parents to make their child support payments (on time and in the correct amount) is very desirable from the perspective of the state. The Federal Government has passed legislation requiring states to use formulas for setting child support. The idea is not just to provide for basic needs, but to maintain the child’s living standards. There are no attempts in this calculation to punish either parent for two main reasons. First, no one is served by having one or the other parent living in poverty, and second, such a situation could not help but cause distress for the child.

New Electronic Payment Options

In Texas, parents may now use Venmo, PayPal, Apple Pay and Google Pay to make their monthly child support payments through the state’s Smart e-Pay system. To use this system, the following information is needed:

First and Last Name
Social Security Number
Address (for first-time registrants)
10-Digit case Number and/or Cause Number
Valid Email Address

Using Smart e-Pay, child support payments can be made online, over the phone, or at a kiosk (use this link to view kiosk locations in Southeast Texas). While there may be fees applicable to these transactions, they are secure and a record is maintained of all transactions for each payer. This detail can be useful if any questions or disagreements arise about timing, receipt, or payment amounts. The MoneyGram service can also be used to pay child support obligations – check here to view process times and fees for this service.

Questions?

For questions on using these services, please feel free to review the website for the Attorney General of Texas, or call 855-853-8286. As you know, one of our goals at the Essex Law Firm is to be sure our clients (and prospective clients) understand what to expect during divorce proceedings. If you have any questions on child support or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Preparing for the End of your Marriage!

Written by redheadedlaw on September 24, 2022. Posted in Child Custody, Death, Divorce, Finances, Probate, Wills.

Are you contemplating a divorce, or do you think your spouse is? Here at The Essex Law Firm, I tell my clients, even if you are in the happiest of marriages, all marriages, sadly, end, and they end in one of two ways: death or divorce. Most people realize they need to have Wills. Even if you do not see divorce or imminent death of your spouse in your immediate future, you should approach preparation for the end of your marriage in the same way. You will encounter much less stress and financial hardship if you PREPARE AHEAD OF TIME by assembling the documents below and keeping them in a safe place. You should also remember to update them at least once a year.

After practicing law for over 35 years, we know what needs to occur to minimize your stress and to get the most successful outcome for you. The following is a comprehensive list of what you will need to have on hand in either divorce or probate (and you can download a simplified checklist to help you keep track):

Financial Statements
Provided when obtaining a mortgage, loan, or other credit. These will establish a client’s income, net worth, and profit/cash flow from one or more businesses.
Tax Returns
Try to provide at least two years of returns if possible, including all schedules like W-2s, 1099s, K-1s, along with any corporate returns. Other years may be required later.
Paycheck Stubs
Provide the last 6 months. These will show bonuses, retirement, and pension contributions along with year-to-date totals.
Bank Account Information
Provide at least the last 2 years of statements. Bank statements are essential to establishing a financial picture of the client, and also should correspond to deposits reflected on paycheck stubs.
Brokerage Statements
Provide at least the last 2 years of statements. You will need copies of all brokerage statements showing accounts held individually, jointly, in trust, or through a corporation. Statements for other years may be required later.
Loan Applications
All mortgages, second mortgages, HELOCs, credit cards, etc., along with any pending loans must be disclosed. These should line up with the financial statements and it can also complete the cash flow picture of a client.
Business Ownership Records
Ownership and operating agreements, trusts, and the like must be disclosed for the court to render an accurate judgment.
Computer Records
Hacking your spouse’s computer (or installing spyware) is a crime, but if you have electronic evidence that may help your case, AND YOU DID NOT OBTAIN IT ILLEGALLY, please be sure to bring it. If you have a question about legality, please discuss it with us first before providing it.
Stock Options
These can be extremely valuable but are often not exercisable until some point in the future, so bring everything you have and this information can be requested from opposing counsel early in the process.
Pension, Profit Sharing, and Deferred Compensation Plans (401k)
Provide the last 2 years of statements. More may be required if you acquired the plan prior to your marriage.
Credit Card Statements
Provide the last 2 years of statements. Purchases can be hidden in credit card history that might be for someone outside of the marriage.
Other Debts
To divide assets accurately all debts need to be considered.
Insurance
There are many different kinds of insurance, some with cash value (whole life insurance) and others (like homeowners) which can include appraisals of property or valuables.
Real Estate
We will need all real estate deeds, tax bills, lease information, and any additional (passive or active) interests in property.
Personal Property
A list of items (preferably listed by room) that you currently own and whether the item was acquired before or after the marriage. For autos and boats, provide a copy of your insurance card showing VIN numbers, etc.
Wills and Other Legal Agreements
These includes powers of attorney, which can be problematic and must be disclosed.
Memberships
Country club memberships (for example) are assets that need to be included.
Lawsuits or Judgments
These include any bankruptcies or prior divorces.
Charitable Contributions
It’s likely the tax returns will also contain this information.
Medical Records
If either spouse has a disability, these are useful in justifying reduced income or lengthy unemployment.
Phone Records
It’s often important to establish a timeline and these records can help.
Safe Deposit Boxes or In-Home Safes
An inventory of the contents can prevent problems later.
Tapes, Photos or Other Typed/Written Communication
If you have any questions on this topic please ask us prior to or during your first consultation.
Calendars
These can also help jog memories and establish timelines.
Intellectual Property
Not as common, but some people receive periodic royalties for intellectual property.
Fault
If you have documentation that helps determine fault in the divorce, this is obviously important to provide.

For Determining Child Custody

Proof of Primary Caregiver
You will need to provide proof as to who is the primary caregiver.
Proof of Stability and Continuity
Courts usually are receptive to the idea of continuity in a child’s life so anything establishing involvement in community activities is helpful.
Parental Preference
Provide any evidence reflecting where the children want to live.
Character of Other Adults
The character of any other adults in the children’s lives should be documented.
Report Cards
These often include teacher’s notes which can be useful.
Drawings
Children often express issues through their drawings and writings.
Abuse
Any evidence of abuse between any family members should be provided.
Homemaker
It is also important to gather any documents showing who (often the primary caregiver) has been “staying at home” to care for the children.

Be Prepared

To make this process as smooth as possible and reduce the inevitable stress and financial hardship, assembling these documents ahead of time is essential. If you have any questions or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Summarized Checklist

We created for you a summarized checklist that you can download to print and use, to help you gather your documents together.

Download Checklist

The Surprising Truth about Same Sex Marriage in Texas

Written by redheadedlaw on June 25, 2022. Posted in Marriage, Pride.

Given the ongoing national debate over same-sex marriage, one might assume it is a complex legal topic that is still evolving. Believe it or not, it is not only a done deal – it has been settled for seven years. Same-sex marriage has been legal in Texas (and the other 49 states) since the Obergefell v. Hodges decision by the Supreme Court in 2015. You can imagine the reaction – huge pent-up demand for this privilege was immediately unleashed. In the three months following the decision, 2,500 same-sex couples were married in Texas, with many more since. As there is not a great deal of summary information on this topic (outside of dry legal journals), we will do our best today to answer a few of the most common questions.

The Logistics of Same-Sex Marriage are Identical

There are no shortcuts for same-sex couples to wed in Texas (sorry!), but neither are there extra hurdles to jump through. Here are the three steps to follow for a legal (same-sex or heterosexual) Texas marriage:

Apply for a license at a county clerk’s office
Complete a sworn application establishing each is legally eligible to enter into a marital relationship
After a 72-hour waiting period, any couple can be married by a judge or authorized religious official

Of course, there’s always some fine print – these caveats apply to all marriages in Texas:

Neither party can be currently married
Anyone younger than 18 needs an authorizing court order
Marriage between relatives is limited (no marriage between first cousins or closer by blood, nor can family members marry a current or former step-parent or step-child)

And as a result of the Supreme Court decision, it is unlawful for any authorized official to refuse to perform the marriage ceremony between two eligible parties due to race, religion, national origin, or sexual orientation. In addition, any lawful marriage performed in another state (or country) is also valid in Texas.

Surprise #2 – There are Tax Benefits to Legal Same-Sex Marriage

We know that marriage is all about the lovey-dovey stuff, but after the rice is swept up and the gifts are opened/returned, there are also positive financial ramifications! Many of these federally sponsored benefits are now available to same-sex married couples, including:

Filing joint income tax returns
Estate and gift tax exemptions
Creating family partnerships (to divide business income)
Veteran’s benefits (health, death pensions, loan guarantees, etc.)
Social Security benefits

Legal marriage also establishes the presumption of joint ownership of mutually acquired property, and strengthens the rights of both parties with regard to their children.

Surprise #3 – Same-Sex Couples are Now Eligible for Group Benefits

Prior to the 2015 Supreme Court decision, some states denied same-sex couples the right to marry, and as a result, employers were able to withhold group spousal benefits, such as health insurance. Now, employers must extend any group benefits to any legally married spouse, regardless of sex. This includes the post-employment continuation of health coverage commonly known as COBRA.

Grinch Alert – Employers can decide not to offer group health to any spouse (booo!), but they cannot pick a particular group of spouses (like those of the same sex) to exclude.

And there is far more to group benefits than just health insurance. Any ERISA-covered pension plan must provide qualified joint and survivor annuities when an employee is legally married. Other retirement accounts (like 401(k)s) must provide similar options or facilitate the transfer of the account balance to the surviving spouse upon the death of the other. Same-sex married couples are also covered by the Family and Medical Leave Act. The rules covering workers’ compensation now also apply to same-sex married couples.

A Few (Cautionary) Knowledge Bombs

As you can see, there has been tremendous change in Texas (and across the nation) with regard to same-sex marriage since 2015. The net result is to place same-sex couples on (nearly) equal footing with their heterosexual counterparts. While not quite a Grinch Alert, we do have several words of caution. In my experience, issues regarding same-sex marriage are much more likely to be litigated in Texas. I believe this is because opinions on this topic are more polarized here, and also because not all Texas courts are as experienced with same-sex marriage as others.

One more recommendation – as soon as a same-sex couple decides to become parents, please strongly consider seeking legal advice (particularly if you are not the parent giving birth). Resolving custody disagreements between same-sex parents is a rapidly growing area of the law in Texas and elsewhere. Unfortunately, we have seen many parents lose all rights to a child during court proceedings without the correct legal safeguards in place. And of course, in the unhappy event your union is suffering and divorce is being contemplated, it is also advisable to have legal representation.

Equal Protection Under the Law

With same-sex marriage officially the law of the land, individuals of all sexes are now protected if they choose to follow their hearts. The leveling of the marriage playing field will undoubtedly result in more same-sex unions, and (hopefully) more happy families. If you have any questions or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Avoid The Minefield and Save The Village

Avoid the Minefields and Save the Village

Written by redheadedlaw on May 6, 2022. Posted in Divorce, Weaponized Incompetence.

If you walk into a bookstore and find the section about repairing marital relationships, most of the titles will be directed at the female partner. Why is this? After decades of experience practicing family law, my belief is either partner is fully capable of taking constructive action during turbulent times. Today, I will present some observations into the male thought process – behaviors that I have witnessed many times during my career. No one gets married expecting the happiness to end, but as we know, all too frequently, that’s precisely what happens. With any luck, sharing my experiences as an interested third party will help some couples get back on a healthy marriage track.

The Anchor of Divorce

The weeks and months preceding and following a divorce can be a terrible time for many reasons, some more obvious than others. But consider this – if your partner threw an anchor at you and you caught it, what happens? Everything in your life changes because you are struggling to handle this enormous weight that wasn’t there previously. Your marriage may be ending, but that’s not the only impact. Males suddenly find themselves living in a strange social limbo, not able to seek out many former friends and acquaintances because (in their words) they were “our” friends. For those considered “safe,” there is the problem of how to answer questions. Often (because they are men), honest communication is extremely painful, so they close up and avoid nearly everyone. Work suffers, too – someone this unhappy and introverted can’t possibly perform their professional responsibilities at the same level. Even areas where there might be instinctual expertise (like being a father) can become problematic, as formerly natural manners and activities are re-analyzed and second-guessed. And no, the vast majority of men in this position don’t even consider dating, given how overwhelming and foreign everything else in their world has become.

Losing Your Best Friend

For a married man, his spouse is always his best friend and vice versa. If a marriage is to be (and remain) successful, it has to be this way. As couples separate and begin the slow descent into divorce proceedings, the man loses his best friend and generally has no adequate replacement. Women seem to rebound faster in this situation and often have one or more people who can assume the best friend role. Men don’t, possibly due in large part to being men and therefore lacking skill in the ability to communicate personal feelings. One of the most valuable acts a man can do before and after a divorce is seek out a men’s group. All churches have them, and these groups meet in the evening after work hours. For many, these groups become the man’s new best friend and can shed light not only on poor behaviors contributing to current problems but how to self-correct.

It’s What Happened that Matters

One statement that I’ve heard husbands say over and over again is, “that’s not what I meant to have happen.” Maybe so, but the problem is it did happen, and now one must be accountable. What someone tries to do does have some value, but how it turns out is what matters. If it turns out badly with hurt feelings and worse, the damage must be acknowledged. For example, we talked about social interactions earlier. Most husbands will freely admit that their wives are totally in control of all aspects of their joint social lives. They will also admit that they follow the wife’s lead in running the house, planning activities, arranging vacations, etc. For the men reading today, please believe that while women might assume these responsibilities willingly, it is a burden. As time goes on, this burden can become weaponized. Wives can begin seeing this lack of engagement as disinterest and feel neglected and unvalued. Men, there is more to marriage than just showing up. Sometimes you have to grab the baton and lead the parade. An equal 50/50 split is not necessarily the answer, but appreciation and some participation will go a long way toward reestablishing the feel of “we’re in this together.”

When Is It Too Late?

In the words of the famous philosopher and performer Lenny Kravitz, it ain’t over ‘till it’s over. Husbands are often hindered by their inability to communicate in a timely, effective, and empathetic manner, but recognizing these issues can help them demonstrate the sincerity they feel in their hearts. Many times, in my experience, this can be a breakthrough for couples in crisis. If you have any questions or want more information, please feel free to contact The Essex Firm for an in-person or virtual consultation.

Don’t Fight over Fluffy – Pets and Divorce

Written by redheadedlaw on March 28, 2022. Posted in Divorce, Pets.

Divorce is tough on everyone. Disruption to routines and lifestyles is inevitable even in the best of circumstances, and this is not limited to adults and kids. Even the family pet feels the change. Considering all of the life-changing decisions that have to be made or negotiated, it’s not surprising that couples in the midst of these proceedings can lose track of Fluffy. For some background, you may wish to review our 2014 blog post on pets and divorce titled, “Who Gets Fido?” The COVID pandemic has resulted in more people isolating and purchasing pets, which increases the number of divorce proceedings involving animals. As such, we wanted to provide a current review of the situation.

Pets = Property

It doesn’t matter if you dress your cat in the finest fashions like those fabulous felines we see on TV, pets are still considered property by the vast majority of U.S. courts (including Texas). And according to a 2021 survey by the American Pet Products Association, 70% of U.S. households own pets. Based on these numbers, who keeps the pet can’t help but become a common discussion among divorcing couples. If there is no agreement between the spouses on who will keep Fluffy, the courts will be forced to decide what is just and right. To do this, they will first seek answers to a series of questions, including:

Was the pet brought into the marriage by one spouse, or was it acquired during the marriage?
Was the pet a gift to one of the spouses prior to or during the marriage?
Was the pet a gift to one (or more) of the children, and where will the children be residing post-divorce?

If the pet was acquired during the marriage and the answer to the other two questions above is no, the pet will likely be considered community property, similar to that new bedroom set purchased a few years back. As such, Fluffy would be lumped in with the other property determined by a court to be owned equally. In this scenario, one can see the potential for emotions to run hot.

Other Determining Factors

If there is no agreement among the spouses and the court will likely deem the pet community property, what other factors will be reviewed? Here are some additional common considerations:

Has one of the spouses left the family home without taking or claiming the pet?
Has one of the spouses ever harmed or mistreated the pet?
Has one or more of the children developed a special attachment to the pet? (This often occurs with special needs children.)
Has one of the spouses stated that they will be selling or giving the pet away?

Behavior also can play a part in any court proceeding. If you are claiming sole ownership of the pet just to hurt or punish your spouse, it is very likely this information will eventually come to light. Judges will not take kindly to such antics. Also, while “stealing” the pet will not technically constitute theft (you can’t steal something you own), it will also paint the spouse in a very poor light and negatively impact the determinations of any court. Please resist the urge to behave badly – in the end it will likely backfire.

What to Do if You Want the Pet

Simply put, you’ll have to fight for Fluffy. Be prepared to show the judge that your children need the pet to cushion the pain of divorce (if you will have custody). If you won’t have custody of the kids but want Fluffy, maybe show the court how the kids are afraid of the animal, are allergic to it, or have been bitten by it previously. Maybe you have been the pet’s primary caregiver during its life, is healthier, or you are better equipped financially to handle the associated expenses. In the case of a larger pet, you might have more space for it to play. As you can see, in the absence of an agreement with your spouse, determining who gets Fluffy can become very contentious (and expensive).

While it is better to work out some mutually beneficial arrangement, you might be surprised to learn that pets can have court-enforced visitation schedules for both spouses, or even shared custody.

Better to Negotiate

Please keep in mind that Texas courts don’t want to determine where a pet should reside. They are far better equipped to divide other traditional property and income than consider all of the emotional impacts of who should be sole pet owner. For this reason, you take a chance in court on this matter. It is much better to negotiate than litigate. If you have any questions or would like more information, please feel free to contact The Essex Firm for an in-person or virtual consultation.

Tracking your Spouse – A Very Slippery Legal Slope

Written by redheadedlaw on February 3, 2022. Posted in Divorce, GPS Tracking, Technology.

Technology can be a wonderful thing, until it’s not. And in the legal profession, I believe most practitioners would agree that technological advances occur far faster than the law’s ability to keep up. The Apple AirTag is one of the more recent examples of how an extremely clever and useful device can be misused. Sure, an AirTag can help find your keys or your wallet, but is it legal to use to track your spouse?

The AirTag Explained

This relatively tiny (1.25 inches across and weighing less than half an ounce) token is basically a transmitter that sends a secure Bluetooth signal. With billions of iPhones and other Apple products in every corner of the world, the signal will be detected and ultimately beamed back (with its location) to its owner. Starting at $29, would-be spies no longer need to shell out hundreds of dollars (and a recurring subscription fee) for a bulky GPS unit that needs to be mounted somewhere in a car and hard-wired to its battery. There are now much more surreptitious options, and the AirTag battery is advertised to last an entire year. The other problem with competing devices (like Tile) – phones must be running the Tile (or other) app to communicate – a much smaller pool that limits its usefulness as a people tracker.

But Won’t the AirTag Announce Its Presence?

If an AirTag is tracking you without your consent or knowledge, it is designed to send an alert to your iPhone under certain conditions (like when you return home or go to work). For non-iPhone users, the AirTag itself is designed to chirp after it has been separated from its owner for three days. There are a few caveats to the anti-tracking security measures built into the AirTag. iPhone users being tracked will not be alerted until they return home (an obvious problem if you don’t want someone to know where you live). Non-iPhone users will not receive an AirTag alert on their phones, and the speaker in these devices can be disabled. Last, and perhaps most alarming, if you are cohabitating with your tracker, the AirTag will probably not give itself away because it will resume communication with the owner when the person being tracked returns home. And someone with physical access to your iPhone can disable the AirTag alert.

The Current AirTag Legal Quandary

In Texas, the short answer to “is it legal to electronically track your spouse” is yes, but in reality, these devices inhabit a gray area of the law. It is definitely legal for the owner of a vehicle to track the whereabouts of his/her property, but consider that some vehicles are jointly owned. In this case, either owner has tracking rights in theory, but during a divorce, this may not matter. If the primary driver is being tracked by the other, a judge may not agree with the “joint ownership” defense and the offender could face a state and/or federal criminal complaint. Also, keep in mind that law enforcement needs to obtain a search warrant prior to tracking someone. If a judge does not agree with the tracking, it is likely that any evidence so gathered will be thrown out. Attorneys also face the possibility of being sanctioned or charged with a state or federal crime if they use material deemed to be illegally obtained.

My Advice – Don’t Do It

In Texas, the use of trackers like AirTags during divorce is currently one of the most discussed and debated topics in family law. The general consensus in the legal community is avoid this practice, and I agree. If you were my client, I would advise you not to track your spouse. If you have any questions or would like more information, please feel free to contact The Essex Firm for an in-person or virtual consultation.