Lewisville Family Law Blog

Legal Strategies That Could Help Bill and Camille Cosby

  • 20
  • November
    2014

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We don't always know when it is going to hit the fan, but it sure seems to be hitting Bill Cosby's fan right now. I suppose it could happen to anyone. But if you're rich and famous, it can hit fast and make a big mess. So, whether you have engaged in inappropriate behavior or not, for many it's simply best to be prepared with a well thought-out plan to protect those around you.cosby1.jpg

Here are a couple of strategies (in Texas, anyway) to consider if you fear that someday somebody will make a run at your sizeable estate:

1. Make your estate scarce by creating a fictitious entity, such as a Family Limited Partnership or Family Trust Agreement. By creating this "alter" entity, you legally remove assets from your own name and title them into the fictitious entity. Now, don't let the term "fictitious" alarm you or make you think this move is improper or illegal. It's not-and I would imagine that Dr. Cosby has something like this set up for him and his family. When you create one of these entities, all assets of the marital estate are placed into the ownership of the entity. In other words, when you buy a car, a house, a diamond necklace, or whatever fine item that makes you happy, it is bought and titled into the name of the entity. Theoretically, you could essentially have nothing titled in your own name, and everything you own (or not own) titled in the name of the entity.

2. Have a Pre- or Post-Nuptial Agreement that favors your spouse with the assets of the marital estate. A Pre- or Post-Nuptial Agreement allows you to pass or transfer the character of the assets of the marital estate to become separate property of the other spouse. Of course, you will need to have a lot of trust in your spouse to defer possible control over your assets. And in the event you get a divorce, you might already have given your spouse all of your assets, leaving the marital estate with very little to divide between the husband and wife and you with no separate property of your own. I wonder if Mrs. Cosby is feeling this love right about now. . . .

These are only two ways (out of many) to consider protecting your assets, and every couple has its unique set of circumstances. If you are a target, then seek out a lawyer who can help you create a customized plan to give you that buffer from a potentially litigious public. If you wait too late, then . . . well, you'll be too late. This philosophy also applies if you're trying to (legally) avoid estate taxes upon your death.

I hope Bill Cosby is innocent, on a personal note. The Cosby Show from the 1980s still brings back great memories for me, as well as watching Fat Albert on Saturday mornings in the late 1970s. But you've got to feel for his wife and daughters who have to go through this as well.cos2.jpg

Standard Possession and Expanded Standard Possession - The Difference

  • 19
  • November
    2014

Thumbnail image for johndenke_SMALL1.jpgParents of children will often request the standard possession schedule for visitation with their children when putting orders in place concerning them. The typical understanding of standard possession that parents have is from Friday at 6:00 p.m. to Sunday at 6:00 p.m. on the first, third, and fifth weekends of the month in addition to 6:00 p.m. to 8:00 p.m. on Thursday. However, there is an alternate visitation schedule which follows the standard schedule but gives more time to the visiting parent.

Most parents I have consulted with over the years are not aware of the expanded possession schedule. The schedule essentially provides for earlier pickups and later drop-offs of the children to allow for extra time for the visiting parent. It is usually at the election of the visiting parent to elect this schedule, but it also has to be in the best interests of the children for the court to order it.

Under the expanded standard possession schedule, visitation on Friday begins at the time school is dismissed, not 6:00 p.m. Also, weekend visitation ends at the time school resumes on Monday after the weekend, not Sunday at 6:00 p.m. This can allow for not only more time with the children, but an ease to the transfer of possession between parents whereby the parents are picking up and returning the children to school rather than to each other's residences.

Another variation of the expanded standard possession schedule is the Thursday overnight. So, instead of having Thursday from 6:00 p.m. to 8:00 p.m., a parent's visitation would be from Thursday after school is dismissed until Friday when school resumes. This essentially gives a parent an extra day with the children on their designated weekends when they would pick up on Thursday after school, drop off Friday when school begins, and then pick up when school is dismissed on that Friday for their weekend.

Not all parents can exercise the expanded standard visitation schedule, so it is important to review the nuances of it with your attorney before agreeing to it or asking for it to be granted by the court. Typically, if a parent has been involved with the children and will be living within a close distance of the children and the parent with primary conservatorship, the court will likely grant the expanded schedule upon election so long as it can be shown that it is in the best interests of the children.

Pets and Divorce-Who Gets the Dog? (Part Two)

  • 17
  • November
    2014

Thumbnail image for jimsmall.jpgIn my last blog, I discussed how pets are dealt with in divorce. In this blog, I will discuss how the law deals with pets and their "rights".

Companion animals are increasingly being afforded protection under the law. In 2011, because pets were becoming targets in domestic violence cases, The Texas Legislature amended the law to prohibit a person named in a protective order to take possession of an animal. Further, in 2013, the Texas Penal Code was amended to specify what the possession of a pet, assistance animal, or companion animal means.pets-16.jpg

Also in 2013, the Amended "Dallas County Standing Order Regarding Children, Pets, Property, and Conduct of the Parties" includes the following provision:

"PROTECTION OF FAMILY PETS OR COMPANION ANIMALS. Both parties are ORDERED to refrain from harming, threatening, interfering with the care, custody, or control of a pet or companion animal, that is protected by this order or by a member of the family or household of a person protected by this order".

Unfortunately, pets have become targets in domestic violence cases. These laws and orders mean that a person subject to a protective order that harms a pet can go to jail.

Furthering the move toward animals having "rights" under the law instead of just being personal property, in August of this year the Oregon Supreme Court in "State v. Nix" the court held that animals -- namely, 20 goats and horses, found starving among the bodies of others that hadn't made it, on the defendant Arnold Nix's farm -- can each be considered individual "victims" under the law.

Although the court acknowledged the current legal status of animals as property, it recognized that individual animals have legal interests that are incompatible with being classified as property. Hopefully, other courts and lawmakers will also recognize these interests.

Companion animals are finally gaining some rights, thanks in large part to the Animal Defense Fund. Please do right by your pets.

I will end this blog with one of my favorite quotes. It is from President Woodrow Wilson. I have it on a picture in my office. It reads:

"If a dog will not come to you after having looked you in the face, you should go home and examine your conscience".images-65.jpeg

Grandparents' Rights - Can I file?

  • 11
  • November
    2014

johndenke_SMALL1.jpgSometimes in child custody matters, the grandparents of a child may seek to have rights established to the child either in place of the parents or to supplement the parents' time with the child. In these cases, the grandparents of the child will likely need to consider filing suit for conservatorship or possession and access of the child. The rules behind whether a grandparent can file for these types of relief can be rigid and burdensome.

In order for a grandparent to file suit for conservatorship of their grandchild, they must first satisfy the standing requirements of the Texas Family Code. Standing is essentially the right to bring suit for conservatorship of a child. The general standing provided under the family code does not give standing to grandparents specifically, but rather gives alternate ways in which they might achieve it.

One way is if the grandparent has had actual care, control and possession of the child for at least six months ending not less than 90 days before suit was filed. Another way is if the child's parents are deceased and the grandparent is filing for custody. If a grandparent cannot satisfy these requirements, there is additional standing for grandparents laid out further in the family code.

A grandparent can file suit for custody if there is proof that giving them custody is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development. In addition, a grandparent can intervene in a pending custody suit involving the child if there has been substantial past contact between them and the child and giving the parents custody would significantly impair the child's health or emotional development. These can be difficult burdens to overcome, and are very fact intensive based on the circumstances of a particular case.

Even if a grandparent cannot seek custody under these prior mentioned statutes, they might still be able to seek possession or access to the child. To seek possession or access to a grandchild, a grandparent must show denial of possession or access to the child would significantly impair the child's health and well-being. They would also need to show that they are a parent of a parent of the child who has been incarcerated for three months preceding filing, is incompetent, is deceased, or does not have court ordered possession or access to the child.

As can be seen from above, the burdens put upon grandparents to be able to come into court and ask for custody or possession of their grandchild can be difficult to overcome. The family code has attempted to give some rights to grandparents when it comes to their grandchildren, but it must be remembered that the courts typically see the appointment of the child's parents to be in the best interests of the child. This makes it particularly cumbersome for a grandparent to overcome this burden when asking for custody or possession of their grandchild.Thumbnail image for gp2righrts.jpg

How do I Change Lawyers If I Already Have One?

  • 10
  • November
    2014

ted ogilvie_SMALL.jpgChoosing the right lawyer is a hard process to begin with, but if you need to make a change, here are a few steps to take to hopefully ease the transition.

First, I would recommend asking for a brief, face to face meeting‎ with your current lawyer. I think most lawyers will usually schedule a short conference, often at no charge, if our client is in such distress or if the representation isn't meeting their expectations. Don't be afraid to just come right out and tell your lawyer your concerns. It could be your lawyer isn't aware of your feelings; it could be she doesn't care about your feelings; or it could be she feels the same way about the situation.

Next, ask your current lawyer for a referral. It could be that she still wants your case to succeed, so she may give an excellent referral to a practitioner perfectly suited for you and your case. Certainly the advice should help point you in the right direction.searchatt.jpg

On the other hand, her response may be cold and fruitless. This will likely clue you in that the transition may be more difficult than you thought it might be. This bugs me when lawyers do not try to lessen the stressful load as much as possible during the case. Clients rely on their lawyers to walk them through the procedures and open doors for clients as the relationship unfolds. If the current lawyer has already checked out, you've certainly validated the need to make the change-and fast! If you still need a referral, then I would recommend you reading a previous post on this Blog by William F. Neal, titled Five questions to ponder when trying to find the RIGHT lawyer to hire for a Family Law Matter.

After that, ask your current lawyer to compile your file into an electronic file. It shouldn't be that difficult, in today's glorious info-tech age, to put your entire file onto a disc or flash drive in a just a couple of days. This will allow you to easily transport all your documents to your new lawyer.

After you have your file, ask for a refund‎, if any funds are left in retainer. By the way, your attorney in Texas cannot hold your file for payment of your bill. I've seen this happen before, but your right to your file is well-settled.

‎As you interview for a new lawyer, be honest about your previous experience. Remember, your goal is not to have to change again. So discuss with your potential counsel the things that bugged you about your last lawyer. Again, I would refer you to Neal's post Five questions to ponder when trying to find the RIGHT lawyer to hire for a Family Law Matter.

Lastly, I would encourage you to act quickly during this process so that deadlines and traction aren't lost because of your delay. Be diligent in your search and hiring of your new lawyer. And good luck!googsearchatt.jpg

Community Property - What is it?

  • 04
  • November
    2014

Thumbnail image for johndenke_SMALL1.jpgIn Texas, the property acquired by spouses during their marriage is presumed to be community property. You may ask what is community property. Well, community property is that property which is owned by the spouses in a marriage in an undivided one-half interest. This property is subject to division by the court in a divorce in a "just and right" manner.

It is important to determine what property between the spouses is community property during a divorce. This will help in determining what assets go to each spouse in a divorce, whether by agreement or through court division. There can also be separate property interests, for the property that only one spouse can lay a claim to during a divorce.

Community property is typically those amounts earned by a spouse during the marriage through their wages and income. Thus, money earned from working a particular job, including direct pay and money that goes into a retirement fund are community property. In addition, income such as dividends and interest are community property, even if those amounts were earned from separate property of one of the spouses.

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Property acquired by gift or inheritance are the receiving spouse's separate property, which the other spouse would not have claim to. In addition, damages for personal injury for things like bodily injury are separate property too. It is important to remember that income from separate property is commonly community property, such as rents, dividends, and interest. The parties will need to show what amount is separate and what amount is community in order to establish their rights and claims to these mixed types of property.

The characterization of property as separate or community can affect a spouse's ultimate award of a sizeable amount of property of the marital estate. For this reason, it is important that a spouse considering a divorce seek the counsel of a knowledgeable attorney in property characterization. Obtaining the proper characterization of property can be the difference between whether a particular asset goes to one spouse or is split between the spouses in a divorce.

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Security is in the Details

  • 03
  • November
    2014

Thumbnail image for ted ogilvie_SMALL.jpgFinancial security (or lack thereof) is at the core of most divorces. Sometimes it flat-out causes the divorce; sometimes it mildly contributes. Sometimes it settles a case; sometimes it's the reason why it doesn't!

Wherever the security issue falls, it's imperative to have the advice and knowledge of a financial professional to help guide you through rough times so the outcome of your divorce has the best chance of success for security.FINANCIAL3.jpg

Here's what I mean: Suppose a lengthy marriage of a couple of decades turns sour; Wife has been a stay-at-home domestic diva who worked diligently in the home, the community, church, school, you name it; Husband‎ has a evergreen career that has proved lucrative to him, and the family has enjoyed an upscale benefit and lifestyle.

Of course, even though Husband makes good money and can afford to make payments on nice things (i.e., big house, luxury cars, expensive vacations, country club dues, first class tickets, you get the idea), those things are so nice and comfortable, not to mention expected. It's what everybody in the family has grown accustom to as the norm.

Now the couple cannot stay together anymore, and they must divide the household and adjust to more independent lifestyles that don't include the benefit of having the other person in that new lifestyle.

The Courts are prone to take such a scenario and simply divide each item fifty/fifty to each party. That is often the simplest approach, but could prove inadequate for one or both people. Generally, Wife's current needs over the next three to five years require more liquidity to use for daily living, while Husband has a fantastic monthly income that allows him to save a substantial amount throughout each year after paying for his daily living expenses.

Wife must also consider a retirement ‎portfolio that she may not be able to fund anymore; she will likely only have what was awarded to her by the Court. Husband, on the other hand, can afford to continue contributing and growing his portfolio after the divorce is finalized.

A qualified financial professional, such as a Certified Divorce Financial Professional, can help parties recognize and formulate better property divisions to give the weaker party (financially speaking) a leg up in the final distribution. This should give this party a more secure future, whether for short-term or for retirement, or ‎both, while at the same time leaving Husband as intact with his career as possible.

I see this done all the time in collaborative divorce cases, as well as in those cases where the parties seek mutually beneficial resolutions in mediation and other alternative dispute resolution cases.

If financial security is important to you, I recommend involving such a professional in your case. You simply cannot afford to do it on your own or just shoot from the hip. Security is important to your success‎, so let a professional sweat the details.FINANCIAL4.jpg

Pets and Divorce-Who Gets the Dog? (Part One)

  • 31
  • October
    2014

jimsmall.jpgWe pet lovers would all agree that our pets are family members. In divorce cases, divorcing couples are increasingly battling each other in the legal system for the right to keep the family cat or dog.  How do Courts handle pets in a divorce?

According to the Animal League Defense Fund (ALDF):

"Although animals are considered property in the eyes of the law at this time, some courts are beginning to recognize that one's relationship with this particular form of property known as the family cat, dog, bird, etc., is much different from one's relationship with other forms of property such as your couch, your watch or your coffee pot."

In Texas, pets are considered to be personal property subject to division by the Court in a divorce.  The exception is if the pet in question is the "separate" property of the party-meaning that the pet was acquired prior to the marriage by the party, or the party inherited the pet or received it as a gift.Thumbnail image for Thumbnail image for Unknown-189080.jpg

This issue has arisen in several cases I have been involved with.  At trial, it has been my experience that  if the Court determines that the pet is community property subject to division, the Judge may consider the following factors, much like the best interest test in custody cases:

Which party primarily takes care of the pet's daily needs such as feeding,walking, grooming, and general care?

Which party is the pet primarily "attached" to?

Who takes the pet to the vet?

In the case of a dog, which party is responsible for training?

Going forward, which party is better able to financially care for the pet?

I have seen Judges award the pet to one party or the other.  I have also seen Judges order possession schedules for the pet, or in cases where children are involved, order that the pet go with the child.  If a pet is involved in your divorce, let's all hope that you will put your pet's best interest before your own, and come up with an agreement that maximizes the benefit to the pet and not just to you.

In my next blog, I will discuss more about pets and the law, as well as what the Texas Legislature and some local courts have done to protect pets.Unknown-177777.jpg

 

Extracurricular Activities - wandering the Family Law desert without a legal compass

  • 30
  • October
    2014

Thumbnail image for Thumbnail image for Thumbnail image for wfneal_SMALL.jpgSoccer. Baseball. Basketball. Karate. Scouting. Piano. Football. Any of these (plus more) sound familiar to you as activities you (and your child) want to participate in as an extracurricular activity? Who, as a parent, doesn't want their child to have these experiences growing up? They teach teamwork, goal setting, develop hand-eye coordination, engage the child in social interaction, provide physical exercise, help to introduce and grow childhood friendships - all totally worthy and necessary components of child raising and development. Non-divorced parents put their heads together and select the activities that they can afford and fit with the child's and the parent's schedule - they make it work. Certainly a divorce shouldn't get in the way of letting their child "just be a kid" - but it does. And worse, for all the thousands of pages in the Texas Family Code addressing every legal aspect of the parent child relationship between divorcing and divorced couples - there isn't one word devoted to extracurricular activities. Not one! So, how does little Johnny stay with his little league baseball team after Mom and Dad divorce? All a Court can do under our present system is to look at and balance the following factors in refereeing the dispute:images-63.jpeg

1. Age of the child. Most of the disputes over involvement in extracurricular activities occur when the child is between 6 and 12. Once Little Johnny gets to middle school he is going to have whittled down what he likes and is good at in terms of these activities. Plus, activities offered through the child's school are going to take control and the child is going to be more vocal about what he or she wants to do. The problem is more present with the child is between the ages of 6-12 when most of the offered activities are being provided through volunteer associations or private instructors. The problem lessens immensely when the child gets to middle school and high school - but still impacts divorced families trying to accommodate the child's involvement and their own new family schedule and traditions.

2. Possession Schedule. How is the divorcing or divorced parents sharing possession of the child? Is it a traditional Texas Possession Schedule where one parent has the child on Thursdays during the school year then on certain weekends? Are the parents following an equal split of time with the children like a week on week off schedule? Is there some variation of those two schedules? The problems always arise when addressing activities that don't have any deference to "possession schedules" and practices and games during a season fall across both parents' possession times. If Mom signs little Johnny up for soccer in August for the fall season - what's Dad going to do on Thursday when it is his time with little Johnny? Watch him from the stands for an hour or two or be able to take him home and spend one on one time with him. The more equal the time the parents have the more difficult resolution of this problem becomes.

3. Distance the parents live from each other. If the parents live a long distance from each other, then these problems get exacerbated. Traffic, travel times, school dismissals all impact significantly the ability of a parent to get little Johnny to his basketball practices on weekdays as well as to his clarinet lessons. Sometimes it just is practically impossible to coordinate the child's extracurricular activity with the possession time a parent has with the child.

4. Costs. Who pays for activity? If one parent is paying child support and little Johnny is in Select Leagues or the sport is an expensive one, then money will get in the way for sure. In the free enterprise world we live in the parent that is expending hundreds or thousands of dollars on a child's activities certainly should be allowed to control the type and involvement of their child in an activity, right? Should the other parent be required to contribute to this activity that they didn't originally agree to have their child join? If the post divorce economic reality of a parent results in little Johnny dropping out of his martial arts classes, how do you tell him he can't go any longer without throwing your ex under the bus?

5. The courts' approach. Courts are not well equipped to solve these problems. There is no guidance in the Family Code and very little to none in the case law. This is the one area of family law where the Judge hearing the case has total 100% unbridled discretion to do what he or she thinks is "in the best interest of the child". Some judges will get their hands dirty and get intimately involved in trying to solve the problem. Others, as one Judge told a client of mine years ago, will refuse to "become in involved in the minutiae of your lives". Generally, however, courts will use a balancing approach - protect the right of a parent to control their designated periods of time with their child while allowing the child to participate in activities. Courts will assign seasons to a parent in which they get to choose the activity for the child and the other parent will be required to see that the child gets to all practices and games and limiting the number of activities that a parent can sign little Johnny up for per season. Others will set the number of activities per season and let each parent have an equal choice. Some will merely let the chips fall where they may and signing up little Johnny for football leaves the possibility that he will be playing for the Jets football team one Sunday and the Titans football team the next weekend. Most will not render rulings on who pays except for the rule that if you sign them up then you are going to pay.

6. Solutions. With no guiding principles to guide a divorcing or divorced parent in these situations, the common sense approach is simple. Don't sign your child for an activity unless the other parent agrees and is on board. If there is one thing (other than medical and educational decisions) that divorced parents should work the hardest to be on the same page - it is fulfilling the goal of letting their child "be a kid". The parent's convenience needs to take a back seat to the child's "childhood". If this is not possible - and too many times it is not - then paying lawyers to take this before a Judge to do a "replay" on the decision of extracurricular activities is going to be an expensive lesson in how much you are not in control of the situation. My opinion after doing this for a long time is (a) try to work it out with your ex and then (b) be honest and transparent with your child and involve him or her in the decision of what extracurricular activities are going to work under the financial and emotional situation with your divorce. Don't blame the other parent - either directly or indirectly. This will only come back to bite you later. The world is full of harsh realities and - in a perfect world - and 8 year old shouldn't have to be part of the solution to this problem. However, this situation can be turned into an early life lesson for them. In the immortal words of the Rolling Stones - "you can't always get what you want, but if you try sometimes, you might find, you get what you need."Rolling-Stones-4.jpg

Can I be held in contempt?

  • 28
  • October
    2014

Thumbnail image for johndenke_SMALL1.jpgOne of the risks of disobeying a court order can be contempt, which is a finding by the court that a person has not followed an order of the court and an assessment of punishment for it.  Contempt can be brought in a variety of ways, but it in the family law arena, the primary ways it is pursued are for child support, child possession, and property division.

First, the contempt actions of which I have seen the most litigation have to do with child support.  When someone is court ordered to pay child support and does not pay, a contempt action can be brought against that person for nonpayment.  If the person is found to have not paid without a justifiable reason, they can be held in contempt, jailed, fined, and have attorney's fees awarded against them. A court has the authority to find someone in contempt for nonpayment of child support as child support is deemed to be in the best interests of a child, and thus not simply a debt for which a person cannot be jailed.  Needless to say, it is something that should not be taken lightly.

AContempt-court-child-support-divorce-paternity-05.jpgnother way a person can be found in contempt is through denial of court ordered possession of a child to another party.  This is often seen by the court as being as bad as not paying child support or worse, as a parent is allegedly being denied the valuable visitation time they have with their child.  Some people might think that just because a person is not paying child support that they can deny that parent visitation, which is not the case at all.  Child support and child possession are two separate matters in a family law context, and the absence or denial of one does not equate to the same for the other.

Finally, a contempt action can be brought for property division purposes.  With property, you need to keep in mind that a person generally cannot be imprisoned for the failure to pay a debt.  Thus, the remedies available for enforcement of property division are typically fines and attorney's fees, along with mandates to perform obligations under a prior order of the court regarding property.  This is usually seen in the cases of divorce decrees where parties are ordered to transfer property or pay certain debts.

If you are served with a motion for enforcement requesting contempt against you, it is vital that you speak with an attorney immediately as your liberty might be at stake.  Contempt actions can carry sentences of up to six months in jail for each violation of a court order alleged in the petition.  With jail time, fines, and attorney's fees, the punishment that can end of being ordered is probably something that you cannot afford to incur.      

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