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Reasons to Get Along With Ex-Spouse

1. MONEY! If you have become intimately familiar with the billable hour and retainers then you know what I am talking about. Reading billing statements showing entries for lawyer time for discussing who gets “this” or “that” is painful. Clients find themselves asking “I have to pay a thousand dollar bill from my attorney because my ex-spouse’s attorney called her five times to negotiate the china cabinet?” How does that make sense? If spouses are able discuss what assets and debts go with whom, then they will save money. It goes without saying that the attorney’s fees factor can grow exponentially when there are parenting issues.

2. It’s better for the kids. I’m just a family law attorney, but how can children learn to resolve conflict if their parents can’t agree on a pick up time or child support? They may learn how to build walls, ahem, I mean boundaries, but they will not learn how to resolve conflict. I find that those children then exhibit the same behaivor against their parents as their parents exhibited towards the other during the divorce. Talk about backfiring.

3. It will prevent future litigation. When kids are involved, it’s not always over when the divorce is granted. Many issues can arise in the future as the needs of the family change. It is very common for financial and emotional needs to change. For example, a teenager may need more time with the other parent during a certain time of his or her life and if his or her parents don’t get along, all out war will erupt when the child asks to be interviewed by the court.

4. Defamation is tough to prove. If an ex-spouse is prone to blast the other in the community, it’s difficult to tame the loud mouth and courts are not always willing to use their power to get involved.

5. The finale – You will see your child more. Getting along with your ex-spouse means you can squeeze an extra day into your ski vacation or switch a weekend here or there. It could also mean you get more communication about the child’s schoolwork, extra curriculars, a bad breakup and so on.

The Subpoena Power

There are two types of subpoenas that can command two types of actions. Trial subpoenas command appearance at a trial or hearing and discovery subpoenas command appearance to give testimony for the purpose of discovery of evidence. Either way, the subpoena can also ask for production of documents or tangible items for trial, a hearing or discovery.

The subpoena power can reach beyond the parties in a lawsuit. It can also compel non-parties or entities to comply. Although there are some limits, generally speaking, someone can be compelled to testify or produce documents in a case that they are not directly involved in. For example, Denise Richards could have been subpoenaed in Charlie Sheen’s criminal assault case for his alleged attack on Brooke Mueller. In his suit against Kim Kardashian, Chris Humphries (her 72 day husband) subpoenaed Kanye West (her boyfriend) to appear and give testimony at a deposition, purportedly to show she didn’t intend to marry Chris for legitimate reasons.

Oftentimes, the only way to obtain admissible evidence in a case and prepare for trial is to seek information from third parties using a subpoena. Bank records, computer files, corporate books and records, report cards, medical records, phone records and so forth are good examples. Note: Facebook and other social media sites are protected by federal law from the subpoena power.

Failing to comply with a subpoena could result in contempt charges. The statute allows for a court to assess fines or require the non-appearing party to be confined. Texas Rule of Civil Procedure 176.8.

Court Refuses to Admit Facebook Pictures

A Webb County District Court refused to admit a mother’s provocative Facebook pictures in a termination case. The County Attorney attempted to introduce Facebook pictures and posts by asking the mother if she in fact had posted provocative pictures of herself. When the mother said no, the attorney sought to use the pictures to show the jury that the mother was a liar and to impeach her character. I’m sure the shock factor of a mother of six posing for nasty pictures for the public to see was only a small bonus.

The mother, whose Facebook pictures and comments were too inappropriate for repeating here, argued that they should be excluded for two reasons. One, because she recanted her testimony that she hadn’t posted provocative pictures, and two, because they were more prejudicial that probative.

The Appellate Court agreed with her first point because the record showed the jury already knew she was liar and the introduction of more evidence that she lied about whether or not she posts provocative pictures of Facebook would be redundant. The Court then cited the proposition that exclusion of evidence that is cumulative is harmless.

I’m not saying there is much of a lesson in this case except that there are situations where Facebook pictures are inadmissible. The mother in this case was accused of many disturbing acts including trying to set her house on fire with her children in it. I don’t think the Facebook pictures were the center of the County’s case.

Pre-Nup Agreement Invalidated in Dallas as Involuntary

The 5th District Court of Appeals in Dallas upheld a trial court’s finding that a pre-marital agreement was invalid and awarded the wife $1.39 million on July 3, 2012. Moore v. Moore, 2012 Tex. App. LEXIS 5290 (Tex. App. Dallas July 3, 2012).

There are many lessons to be learned from the Moore case. For example, don’t say you need a pre-nup because you have a lot of “loans, liens and lawsuits” as Mr. Moore did in this case when in reality he was a millionaire. Also, make sure both parties are represented by good counsel.

In Texas, a pre-nup is not enforceable if the party against whom enforcement is requested proves that he or she did not sign the agreement voluntarily. Tex. Fam. Code § 4.006(a)(1).

The following 4 factors are considered when determining voluntariness in entering a pre-nup: 1. whether a party has had the advice of counsel; 2. misrepresentations made in procuring the agreement; 3. the amount of information provided; and, 4. whether information has been withheld. The court may also hear evidence as to fraud.

That being said, claiming you didn’t know what you were signing when you signed it isn’t enough to invalidate a contract in Texas. In fact, Texas law presumes that a party to a contract knows what he signed, the meaning of what he signed and can comprehend its legal effect. There are a number of exceptions to this principle as demonstrated in the Moore case. Each case is different and there are no bright line rules.

The evidence uncovered at the trial court level in Moore showed the wife signed the pre-nup a few hours before the wedding, that she had been incorrectly informed that it was reviewed and approved by her attorney, that it did not disclose husband’s assets and that it had generally been withheld from her until the morning of her walk down the isle. All of these facts influenced the court in finding that the wife did not sign the pre-nup voluntarily.

According to the Dallas Court, “voluntary” means “an action that is taken intentionally or by the free exercise of one’s will.” While the wife freely signed her name to the pre-nup, it wasn’t enough to make the agreement enforceable in this case with these specific facts. Therefore, the pre-nup was invalidated and the Moore assets were divided up according to “just and right” principles. For more information on “Just and Right“, please follow the link.

5 Factors Affecting Child Support

Child support in Texas is generally calculated by applying a percentage to your net resources. For information on calculating child support, see my blog, Child Support Guidelines in Texas. The following five factors may further affect the calculation:

1. The child’s medical needs;
2. A party’s responsibility for other children as managing or possessory conservator;
3. Each party’s period of possession of or access to the child;
4. Travel costs for exercising possession of and access to the child;
5. Necessary child care expenses to stay employed.

These are merely factors to consider. Every case and court is different.

Child Support Guidelines in Texas

The following table represents the guidelines for child support in Texas. These guidelines are presumed to be reasonable and in the best interest of the child; however, there are other case-specific factors that may reduce or enlarge one’s child support obligation.

An oversimplified example of calculating child support using this table is as follows:

If Ex-Husband, who earns $5,000 a month in monthly net resources has only one child with his Ex-Wife, his child support would be 20% of his net resources or $1,000 per month.

If Ex-Husband has more than one child; one with his Ex-Wife and one with his current wife with whom he lives, his child support would be 17.5% of his monthly net resources or $875 per month.

For information on what is considered “net resources,” please refer to my blog Net Resources and Child Support.

Back Child Support Laws in Texas

The legal term for back child support in Texas is “retroactive child support.” There are two situations in which retroactive child support is available: in situations where the obligor (the person who pays the support) has never been ordered to pay support and in situations where they have. This blog will address the former situation.

One thing to keep in mind when addressing retroactive child support issues is that a court does not have to award it. It is purely discretionary and may depend upon the facts in the bigger picture of the case.

According to the statute, the court shall consider the net resources of the obligor during the relevant time period and whether:(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;(2) the obligor had knowledge of his paternity or probable paternity;(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family; and (4) the obligor has provided actual support or other necessaries before the filing of the action.” Tex. Fam. Code 154.131.

Here are some key points about retroactive child support:

How much can be awarded? The answer depends upon the obligor’s net resources during the time period claimed. For more information on calculating child support and net resources, please refer to my blog Net Resources and Child Support.

How many months and years can be awarded? There is a presumption that retroactive child support for the prior four years is reasonable and in the best interest of the child. Support for additional years can be awarded with evidence that the obligor: “(1) knew or should have known that the obligor was the father of the child for whom support is sought; and (2) sought to avoid the establishment of a support obligation to the child.” Tex. Fam. Code 154.131(d).

What if the obligor has been paying, just not under a court order? According the statute, the court must consider evidence of support actually paid. For example, prior support would be paying for medical bills, helping with clothing, food and summer camps or money spent while the child was in possession of the obligor. The presence of some evidence showing prior support paid does not mean the obligor is entitled to a credit. It is up to the court to determine if he or she is entitled to an offset. For example, the Appellate Court in Amarillo upheld a judgment that did not give the obligor a credit for support paid because there were facts to support its finding that the money paid was to further an affair with the child’s mother, not to support the needs of the child.

How long can someone wait to file for retroactive support? Four years after the child’s 18th birthday is the deadline to file a petition seeking retroactive child support. That is a long time to wonder if you could be charged with retroactive support. Theoretically, an argument could be made that 18 years of retroactive support should be awarded if the facts fit the law. There are many judgments that have awarded 18 years of retroactive support and have been upheld on appeal.

Despite the uncertainty of how much retroactive child support, if any, can be awarded, the law is such that its advisable not to rely on its availability and not to trust that just because you have avoided child support thus far, that you can avoid it forever.

Using Social Media as Evidence in a Divorce – What you can and can’t do.

Spouse is cheating, doing drugs, being a bad parent and Facebook can prove it right? All you need is for your lawyer to show the judge. Right?

There are 845 million monthly active users of Facebook and each profile has 40 potential entries of personal information. It goes without saying that a party’s activity on social media sites could be a lightning rod in a family law matter. Case in point: Anthony Weiner’s pictures on Twitter could have affected a would-be divorce brought by his pregnant wife.

Unlike financial records, where information reflecting detailed transaction activity over decades can be discovered via a subpoena, social media and networking sites are protected by federal law from forced disclosure.

Federal law prohibits electronic communication services from disclosing “contents of a communication while in electronic storage by that service” and prohibits remote computing services from disclosing “the contents of any communication which is carried or maintained on that service.” 18 USC § 2702.

Courts have interpreted the meaning of “electronic communication services” and “remote computing services” to include Facebook, Myspace, Twitter and Linkedln as well as email providers such as Gmail, Yahoo and Hotmail. Therefore, you can subpoena the records until you are blue in the face, but they are not required to produce anything more than basic information. Even if it were possible, it would be the most expensive route because many of these companies are out of state and a subpoena wouldn’t be considered until the lawsuit is domesticated.

Fear not, there may be another way.

A court in Connecticut recently and quite boldly ordered divorcing parties to exchange Facebook and dating site login and passwords. Although Texas doesn’t have any reported cases involving this kind of exchange, it is within the realm of possibility considering applicable discovery rules.

A party in a Texas lawsuit is entitled to discovery of non-privileged information that is relevant to the subject matter of the case. Even if the information would not be admissible at trial, it may be discovered if it appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. § 192.3(a). For more information on discovery, refer to my blog: Finding Hidden Assets in a Divorce.

In the divorce or custody context, this means information relating to fault in the marriage, parenting, child support and everything in between could lead to the discovery of admissible evidence. Content on Myspace or Facebook depicting you behaving like a single person is likely to lead to admissible evidence that you committed adultery. Match.com or eHarmony is a little more obvious. A statement regarding drug use is likely to lead to admissible evidence that you do not have a stable home environment for your children. Therefore, a strong argument can be made that content on social media sites are relevant and in fact valuable in proving your case.

“If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Eric Schmidt, CEO of Google 2001-2011.

The best way to discover social media activity is to request it through discovery from the party who controls the account. As you can imagine, your spouse may object and do whatever is necessary to prevent the disclosure of the so-called “private” posts and communications. The privacy argument has been heavily debated but ultimately, the argument is weak in light of how slight the expectation of privacy is on these sites.

There are no bright line rules or tests in Texas that will guarantee you can force disclosure or prevent it. The argument to force disclosure is strengthened by the connection it has to subject matter in the case. It is weakened if there are other means to get the information or if it is out of scope, unduly burdensome or not likely to lead to the discovery of admissible evidence.

Facebook has made it somewhat easier to discover this information by allowing users to download a copy of all their facebook data online. Myspace will allow the production of data with the consent of the account holder. As it gets easier to produce the information, courts may be more inclined to order its production.

Unfortunately, it doesn’t appear that there is a solution to discovering deleted posts so it’s worth hitting the print button on posts you foresee being useful down the road. In situations where crucial information may have been deleted by the user, it may be possible to have a forensic exam of the party’s hard drive.

As always, the analysis will turn on the specific facts of each case and court. Check back for more information as case law in Texas develops.

Finding Hidden Assets in a Divorce

In order to effect a just and right distribution of the martial assets, it necessarily follows that the first step is to find all the assets and debts. A divorce lawsuit has the same tools any other commercial lawsuit would have when it comes to finding assets belonging to your spouse or to the community.

There are four basic tools to finding assets: inventories, written discovery, oral discovery and third party discovery.

Each party typically discloses assets and liabilities in an inventory which commonly initiates the exchange of financial information. Inventories list common assets such as real estate, securities, an other interests as well as debts such as mortgages, credit cards and personal loans. They are typically filled out by each party under oath and then exchanged between the parties or their attorneys.

Written discovery is a useful tool for seeking more detailed information regarding assets and debts. Written discovery is comprised of interrogatory requests, production requests, requests for admission and requests for disclosure.

Interrogatories are questions asked of opposing parties that require answers under oath. For example a common interrogatory is, “Please list each and every bank account in which you or your spouse owns an interest.” The responding party is obligated to disclose each bank account in response to this question.

Requests for production often seek corresponding documents to interrogatory responses. For example, a common request for production is, “Please produce bank statements for the preceding 3 years from each account your claim separate property is held.” Requests for production can also include a request for inspection, which could be used to inspect a hard drive or books and records.

Requests for admissions are questions that would typically require a yes or no answer. Although not as popular as other requests, they can be valuable in narrowing the issues. An example of a request for admission is, “Admit or deny that the account ending in 123 is comprised of separate property funds belonging to wife.”

A request for disclosure is a standard set of requests that seek information regarding parties with knowledge of relevant facts, the amount in controversy as well as identification of experts among other essential issues in every lawsuit.

In deserving situations, phones and computers could be required to be produced to conduct forensic discovery on the hard drive. Electronic discovery is expensive as is any other situation in which an expert is needed to analyze data. In more and more situations, the expense is justified.

Discovery is permitted from third parties just as it is from parties in the case and is especially valuable if a party is not forthcoming in the discovery process. For example, the power of subpoena can require a bank, employer, partnership or any entity or person with information pertaining to the debts and assets in a case to produce documents or sit for a deposition.

Oral discovery a/k/a deposition discovery can be used to elicit testimony from a party or any other person or entity that may have information pertaining to the proceedings. A deposition is similar to the questioning one might have at trial except that it is typically performed in an attorney’s office, in front of a court reporter and or videographer. The testimony is still under oath the same as if it was in front of the court and can be used as evidence at trial. A deposition could be used in situations where interrogatories are not sufficient for determining the factual complexities of the issues. For example, if a spouse has a complicated partnership interest and more information is needed to explain partnership documents, a party can take the partner’s deposition to resolve the complexities.

Child Support Caps for the Wealthy – UPDATED

For those who’s net monthly resources are $8,550 or more, you may be able to enjoy a cap on child support. The term “net resources” is a complicated legal term that generally amounts to all resources less certain deductions such as federal taxes and social security but not 401(k) contributions. There are of course various exceptions not discussed here.

The cap or more specifically, the “presumptinve amount” of child support, was $7,500 until 2013 when it was changed to $8,550. It essentially means the obligor’s child support will be based upon the first $8,550 of monthly net resources. For example, if you have one child living in one household, child support will be 20% of the first $8,550 in monthly net resources. In other words, if the obligor earns a million dollars per year, child support would not be 20% of a million dollars but rather 20% of the first $8,550.

Millionaires and billionaires, don’t get too excited. The presumptive amount is not an absolute. The court may order additional child support over the presumptive amount if it would be in the best interest of the child. Being presumptive in nature means it can be overcome with evidence that the child has needs for a nanny, travel, tutor, bodyguard and so on. The best interests of the child may not be only served with food and shelter. In any case, determining the best interest of the child is a highly subjective standard and can be difficult to prove and disprove.