When a potential new client comes to me to discuss a divorce, they usually have a laundry list of items that their spouse did “wrong” that lead to them to want to file for divorce. Most are frustrated when I tell them that the Texas Family Code only recognizes six reasons to grant a divorce for fault grounds, which are the following:
- Conviction of a Felony
- Abandonment for one year or more
- Living Apart without cohabitation for at least three years
- Confinement in a Mental Hospital
You will notice that narcissism, emotionally unavailable, nagging, carrying the mental load, workaholic, and disproportionate share of the household labor are not included on that list. So what does that mean for those that want to seek a divorce but none of the “fault” grounds apply?
Texas permits you to file for divorce on “no fault” grounds. This means that you cite irreconcilable differences as the reason for your divorce. When the Judge finally grants your divorce, neither party will hold any blame for the break-up of the marriage (even though you might feel your spouse is 100% to blame). This is the most common type of divorce in Texas. It typically is also the fastest way to get a divorce in Texas, since you are not required to prove anything to be granted a no-fault divorce. You simply have to file a Petition for Divorce with the Court.
On the other hand, if one of the above-listed items applies to your situation and you want to claim the other party is at fault for the end of your marriage, this process will likely take longer to reach a resolution. If you file for a fault divorce in Texas, you are required to prove that your spouse is at fault for the end of your marriage for the reason you asserted. Fault grounds 3-6 do not apply to the majority if the divorce cases that I have seen. The most commonly referenced fault-based divorces involve cruelty and adultery, but do those words mean what we think they do under the law?
Adultery is defined as the voluntary sexual intercourse of a married person with another person who is not the spouse. This means that if you ask the Court to grant a divorce because your spouse has committed adultery, you have to prove they had a sexual relationship with another person. You will notice that “emotional affairs” or “dating” are not included in the definition. Proof of adultery can come in the form of communications, social media, photos, or anything else that helps prove your case, but the proof must establish that adultery was committed during the marriage (which includes after separation).
Cruelty is defined as conduct that renders the couple’s living together insupportable (unendurable, insufferable, and intolerable). This can mean physical abuse, verbal or emotional abuse, or any other conduct that rises above mere disagreements or trifling matters. Like all other fault grounds, the spouse claiming cruelty as the basis for the divorce has to prove that cruelty was committed. This can again be through actual evidence, like a police report documenting physical violence, or circumstantial evidence, like communications, photos, records, etc.
At the end of the day, determining whether to request a no-fault or fault divorce in Texas is a discussion you should have with an experienced family law attorney. Contact us today to schedule a consult!
By now I’m sure you’ve known someone that has gotten a divorce that talks about dividing up property with their ex-spouse, and some might have even expressed frustration that their ex-spouse “took everything they had.” Divorce is an emotional process, which is sometimes further fueled by the fact that your spouse is entitled to “your stuff.” But why is that so?
Texas is a community property state. Community property is defined as property acquired by either spouse during marriage. So whether your husband went out and bought a boat or your wife went out and bought a designer purse, if it was purchased during marriage, it is considered community property (with a few exceptions, which we will get to). This means that that boat and designer purse are also your property, even though your spouse purchased it. In fact, the Court PRESUMES that all of your property is community property until you prove otherwise.
Separate property, which is property that you will keep 100% in the divorce, is any (1) property you owned before marriage, (2) property you acquire at any time by gift, devise, or descent, and (3) recovery for personal injuries sustained by you at any time. Let’s break that down a little.
First, if you purchased or acquired the property prior to marriage, it’s your separate property. You will have to prove to the Court that the purchase or acquisition was made prior to marriage, which is why keeping records is important. Things get a little fuzzy if you begin to use this separate property with your spouse once you get married. For example, if you put a down payment on a home that you purchased before marriage, but you and your new spouse end up living in the home once you get married, paying the mortgage out of community funds, and make improvements on the home while you are married, this makes the issue a little more convoluted. An experienced family law attorney can walk you through your rights in the property.
Second, if you receive any property as a gift, devise (someone left it to you in their will), or descent (you received it because someone passed away without a will and you are their heir), this is also your separate property. You will still have to prove to the Court that you did, in fact, receive the property via gift, devise, or descent. Devise and descent are a little easier to prove because often there are probate proceedings regarding the property in the Court records. A gift might be a little trickier to prove, as most of the time people don’t keep official records of their gift-giving. This might require calling the gift-giver as a witness to prove their intention that it was a gift.
Last, if you have filed a personal injury lawsuit, most of the recovery award would be considered separate property for your injuries. There are exceptions to this, like damages for “loss of consortium” which relates to your spouse. This issue is best discussed with an experienced family law attorney if it applies to you.
Now that you understand the ins and outs of community and separate property, you’re probably wondering how the Court will divide that property in a divorce proceeding. Well, first, if you have proven to the Court that a piece of property is your separate property, the Court will confirm it as your separate property and award it 100% to you. Then, the court will divide all community property in “a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Texas Family Code Section 7.001. What does just and right mean? It means the Court can take into consideration whether to divide the property equally or unequally based on the claims of the parties. If a party presents a valid reason for an unequal division of property, the Court might give more property rights to one spouse than the other. This is a discussion you should have with your attorney to determine if you have a valid claim for a larger share of the community property in a divorce.
Working with an experienced family law attorney can help you understand your property rights in your divorce. Reach out to us today to schedule a consult!Read More
You just spent months going through the divorce process to divide all of your assets and debts. Whether this took you months or years, you’re probably exhausted. But are you done? Let’s make sure. This guide will assist you in ensuring that all of the property awarded to you in the divorce is taken care of.
1. First, is Property Awarded to you retitled just to you?
While you were married, it’s likely that a lot of the marital property was in both your and your ex-spouse’s names. Once you are divorced, you will want to ensure that the property awarded to you is solely in your name.
- For real property (houses and land), a Special Warranty Deed can be signed by your ex-spouse to transfer their portion of the home to you – something needs to be filed in the property records to effectuate this transfer and remove your ex
- For motor vehicles, your ex can sign the Certificate of Title to you, if it is owned outright, or a Power of Attorney to Transfer Motor Vehicle can be signed by your ex-spouse to transfer their portion of the motor vehicle to you.
- For financial accounts, take the Divorce Decree to the financial institutions to remove your ex’s name. They may have specific paperwork that your ex needs to sign as well. Provide that to your ex to ensure he or she is removed as an owner and as a signer on all accounts awarded to you.
- For personal property, (household items, furniture, and the other “stuff” that you were awarded), the Divorce Decree is sufficient to show others that the property is yours. It is key to get these items into your actual physical possession quickly post divorce to make sure they are not “lost”, “stolen”, “sold”, or otherwise disposed of.
- For debts, reading this guide might be too little too late to transfer a debt OUT of your name. That debt is likely a contract between you and the financial institution loaning the funds. A divorce decree can only do so much to interfere in that relationship between you and a financial institution who was not involved in the divorce process. However, if your ex-spouse was ordered to pay a family debt, but your name is on that debt, the only way to ensure the debt might not be your liability if your ex-spouse fails to make payment is to have the Court order the debt to be refinanced in your ex-spouses name. If this was not done, you might be on the hook to make payment (or have your credit affected) if your ex-spouse fails to make payment. If this has become an issue for you, our office can assist you with an Enforcement action to enforce the provisions of the Final Decree requiring your spouse to make payment and recoup any money you had to pay because of their failure to pay.
2. Second, ensure that a Qualified Domestic Relations Order (QDRO) was submitted for required retirement account transfers.
If a retirement account was divided in your divorce, it is very likely that you need a QDRO to divide the retirement account. Most financial institutions that manage these accounts have specific forms to use to separate these accounts upon a divorce. Not only does this form need to be prepared correctly according to your decree, it is a separate court order that needs to be signed by the Judge and issued to the plan administrator. The plan administrator will then roll the separate portion into a separate account, and the owner of the separate account can then decide whether to leave the funds with the administrator, roll the funds into another qualifying account, or withdraw the funds. We recommend you work with a financial advisor in making this decision, as it is very likely that you will be responsible for taxes and/or penalties if you cash out any portion of your qualified retirement funds.
3. Third, Review (and change) your Beneficiary Designations.
This is an easy way to make sure the bulk of your assets are distributed as you wish upon your death. Many assets transfer directly to your selected beneficiary (and outside of your estate) depending on a beneficiary designation, payable on death, or even joint ownership with rights of survivorship. This is one very important reason to check these beneficiary designations post-divorce is to ensure your ex is not your listed beneficiary, or worse, still a joint owner of any accounts.
Examples of property with beneficiary designations are your retirement accounts, life insurance, annuities, and transfer on death designations on bank accounts. Updating your beneficiary designations to ensure the proper people receive these types of property upon your death is important to ensure your ex-spouse does not mistakenly receive your life insurance proceeds because of a failure to remove him or her as your beneficiary.
*keep in mind that your Decree may require you to maintain life insurance or another asset in a specific manner to cover life insurance or property division details. Please review your Decree to ensure changing your benefits or designations does not run afoul of your specific requirements.
4. Fourth, check on your estate plan.
Do you have a Will, Powers of Attorney, HIPAA releases, a Trust, or Guardianship designation? If so, once you are divorced you should review these. You may need to update these documents to remove your ex-spouse as a beneficiary and as an executor, trustee, or agent.. If you have decided you need to revisit your estate plan, reach out to our office to set up a consultation to discuss revising your estate plan!
5. Last, ensure that you have changed passwords and removed your ex-spouse from all accounts awarded to you.
Chances are while you were married your ex-spouse had login information to most of your accounts. Upon divorce, you will want to make sure to change any passwords they might know to make sure they no longer have access to your accounts. This includes bank accounts, social media, and subscription services like Netflix, Hulu, and Amazon. It is also key to make sure that your accounts are not synching in any manner – think Google Drive, cloud services, iPhone backup, etc. Nothing says divorce like a surprise Facebook status you didn’t know you wrote!
The family law and estate planning attorneys at Hanshaw Kennedy Hafen, LLP are here to assist with any problems you are having related to divorce or estate planning. Give us a call today to schedule a consultation!Read More
The top 5 things to consider and be ready to discuss at your initial divorce consultation. When thinking about post divorce goals, the following information will assist your potential lawyer advise you.
1. Budget Summary
To know what things will look like during the divorce process and to prepare for life post divorce, it will be helpful to plan what your needs may be and how you intend to meet those needs. Are you going to continue to live in the marital house? How much is the mortgage? Monthly bills and upkeep? Do you need to look at apartments? Look for roommates? Think about how much you spend on auto expenses (gas, insurance, tolls, parking); cell phone; Internet; utilities; credit cards and other debts (including student loans). Will you have expenses for kids? Private school, daycare, extracurricular activities, clothing, grooming, medical expenses? Find a good budget worksheet and fill it in to the best of your ability ahead of the consultation.
This should also include an overview of your income and expected income from any sources. if you have a pay stub, bring that as well. If you have a copy of your spouse’s pay stub, a copy of that may also be helpful to your attorney.
2. List of Assets and Liabilities
To the extent you can access information regarding your assets and debts, that information is helpful to your attorney. If there are bills due monthly, any you can plan to push out over time, any you can pay off with assets you already have? You can work with your attorney on the best short and long term plan in dealing with assets and liabilities.
3. Timeline of Relevant Facts of Marriage
It is very helpful for your attorney if you have a list of facts including the date and location of marriage; any moves throughout your marriage; when children were born or adopted or otherwise brought into your home – and their names; any incidents of counseling, healthcare issues that may be relevant, issues with children that may be relevant; and instances of any family violence, verbal abuse, financial abuse, emotional abuse, physical abuse, and sexual abuse during your marriage, as well as any affairs or other issues you think may come up (that can be used in your favor and those that may be used against you).
4. Any Legal Documents
If you have a prenuptial agreement or post marital agreement, please bring that to your initial consultation.
If any documents have been filed in the divorce case or in any cases regarding the children, including any police reports, CPS reports, etc., take those to your consultation.
If you have been served with any documents in the divorce, bring those to your attorney as they may trigger deadlines that the attorney needs to work under.
Any other lawsuits that involve you, your spouse, and/or your children should be brought to the attention of your attorney early.
If you or anyone else has a trust in place or are the beneficiary or trustee of a trust, bring a copy to your attorney.
If you own any businesses, individually or with your spouse, or if your spouse owns any business interest, bring all legal documents regarding those businesses so the attorney can assess accordingly.
5. Bring a List of Questions
If you are at a divorce consultation, it may be emotional and overwhelming. List your questions and concerns ahead of the consultation and bring those with you to ensure your questions are addressed by your attorney. Include questions about likely outcomes; the divorce process; and costs/billing.
Other important questions address how to communicate with your attorney – is email best, scheduling phone calls? How frequently? How quickly will the attorney typically respond? And how are you billed for emails and calls?
Ask about local rules of the court and standing orders (if any). Ask about timelines for the divorce process. Ask whether you will need experts or other witnesses, the costs of those, and the strategy and timeline for hiring experts.
I highly recommend each adult resident in Texas have at least a simple will and probably an estate plan. It is imperative to review your plan at every major life event for you, family members, and anyone named in the estate planning documents.
1. You do not have an estate plan or Will
If you do not have an estate plan or Will, or you created your own that has not been reviewed by an attorney, you need to meet with an attorney. It is significantly more costly to administer an estate without a Will than with a Will, in Texas.
Just as important is to ensure you have financial planning and healthcare planning documents in place in case of an emergency or healthcare issue.
Talk to your local estate planning lawyer to make sure you and your family are covered in case of an emergency.
2. You were recently married – Congrats!!
If you were married for the first time, or this is a subsequent marriage, it is imperative to check your Will and your post death planning to make sure you and your spouse are covered. You cannot will away your new spouse’s share of community property without specific written permission from your spouse in a prenuptial agreement or post marital agreement. Failing to protect your spouse’s rights in your estate may lead to expensive litigation.
If this is a subsequent marriage or if you have children from a different relationship, it is key to talk to an estate planning attorney to decrease the likelihood of future litigation within your family.
3. You were recently divorced
If you were recently divorced – or divorced at all since your prior look at estate planning, it is time to look again. This really could be an entire section of its own. We have an article with more in depth information regarding dealing with property, assets and liabilities during a divorce that can be found here.
1. Make sure all of the loose ends are tied at the end of your divorce. (Property is adequately transferred, titles are transferred, designated beneficiaries are changed, etc.).
2. Look at your existing estate plan and think about all the places that list your spouse – executor (to manage your estate), beneficiary (to receive your estate), trustee (to manage the estate for the benefit of another – maybe a minor child), etc. You likely want to change most or all of these. Consider adding successor or back up people to manage your estate and to make decisions for you if you become unable to do so.
4. You had or adopted a child
This will change the outlook of your estate plan. You want to make sure your child or children are cared for after your death. This becomes more important if your kids are minors. It becomes more difficult with blended families. In any situation, having a child or adopting a child is a great reason to review your estate plan.
Something people fail to consider is when people named as guardian in their estate planning documents has children. This is a big deal and to be considered. If I want my single sister to take my 2 kids if something happens to me and my husband, I can include that in my estate planning documents. If, then, my sister adopts infant twins, is she capable and ready to take on the responsibility of my 2 kids? Definitely worth thinking about.
5. Something happened to someone in your family or someone named in your estate plan
In our estate planning documents, we name executors to manage our estates; we name beneficiaries to inherit our assets; and we name agents to take care of our needs if we become incapacitated. If such an executor, trustee, agent, etc. marries, divorces, has children, goes to college, goes through bankruptcy, moves, or has any other major life events, it is time to review your estate planning documents to make sure all such documents still fit your needs.Read More
- Most Possession Schedules Permit (and Courts Encourage) Agreements to Modify the Holiday Visitation. While the specific language in your order controls, check out your order to see if this applies to your case. Most possession schedules permit you to exercise ANY periods of possession by mutual agreement. Do you hate that one parent gets the entire Thanksgiving break? Try working with the other parent to divide up that week to establish Thanksgiving times for each parent that benefits the child most. Maybe switch days and offer some make up time. With visitation, really anything goes as long as it is good for your family and agreed by the parents.With that being said, ALWAYS ALWAYS ALWAYS get those agreements that change your written possession schedule IN WRITING (text or email is fine). Also understand that you are relying on the other person’s word to keep these agreements. If one parent decides to renege on the agreement at the last minute, you are unfortunately stuck with following the possession schedule in the child custody order, as the written court order is the order that is enforceable. Of course, if you have questions or need advice, contact your local family law attorney.
- A Typical Holiday Possession Schedule Alternates Each Major School Break (regardless of virtual, face to face, or other schooling options). Pursuant to the Standard Possession Order, the holiday possession schedule typically follows the below schedule:
Custodial Parent Years Non-Custodial Parent Years Spring Break Odd Spring Break Even Thanksgiving Even Thanksgiving Odd First Half of Christmas Odd First Half of Christmas Even Second Half of Christmas Even Second Half of Christmas Odd
Per the Standard Possession Order, the Christmas or winter holiday is broken down into the First Half of Christmas, which begins when the child is released from school for Christmas and ends at noon on December 28, and the Second Half of Christmas, which begins at noon on December 28 and ends on the Sunday prior to the child returning to school. Mother’s Day and Father’s Day are also included to give the respective parents time with the children on those days. Many orders also include terms for birthdays of the children. The Standard Possession Order entitles the parent in possession for Spring Break and Thanksgiving possession as beginning the Friday beginning the break and ending the Sunday following the break, for almost 9 full days for each such holiday. Any other Holidays that you want to include and delineate specific possession times have to be specifically requested before the Judge or agreed upon between the parties. If those holidays are not included in your order, you are able and encouraged to try to work between the parents to written agreements regarding those additional holidays.
- If Your Holiday Possession Schedule is Not Working, You Can File a Modification. Do you think your current holiday possession schedule is not in the best interest of the child? Have the circumstances in your family or the other parent’s family materially and substantially changed since the prior order was entered, which you believe warrants a change in your possession schedule? If you answered yes to both of these questions, you are entitled to file a Petition to Modify Parent-Child Relationship to address any issues that affect the children. The best way to determine whether filing a Modification is your correct next step is to contact a family law attorney with experience in these matters. The family lawyers at Hanshaw Kennedy Hafen are working and ready to take your call.
- If the Other Parent Refuses to Follow the Holiday Possession Schedule, You can File an Enforcement. Are you having difficulty getting the other parent to properly follow the possession schedule? Do they refuse to do what is required of them under your Child Custody Order? If so, you are entitled to file a Motion for Enforcement, which asks the Court to order the other parent to follow the Custody Order and can include penalty for the parent refusing to follow the Order (this could be monetary fines, jail time, make up time, etc.). The best way to determine whether filing an Enforcement is your correct next step is to contact a family law attorney with experience in these matters. The family lawyers at Hanshaw Kennedy Hafen are working and ready to take your call.
- THE FAMILY LAWYERS AT HANSHAW KENNEDY HAFEN ARE OFFERING FREE CONSULTATIONS THROUGH THE HOLIDAY SEASON! Are you experiencing any of the difficulties described above with your co-parent? As their holiday gift to you, the family law attorneys at Hanshaw Kennedy Hafen, LLP are offering FREE consultations through January 1, 2021. Give us a call to determine the best way to protect your children’s best interest and deal with a difficult co-parent. We offer in-person, virtual, or over-the-phone consultations, and we are able to initiate your case ASAP even in light of COVID-19.*
*The Family Lawyers at Hanshaw Kennedy Hafen, LLP are able to advise on issues related to COVID-19 and visitation with the children. Pursuant to the Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement that arises from the pandemic. The original published school schedule still controls, and possession and access shall not be affected by the school’s closure that arises from the pandemic. The full Emergency Order can be found by clicking HERERead More
Summertime – every family lawyer’s favorite time of year. As the baseball players are out there fielding balls, we are out there fielding calls (groans permitted).
“He gets how much time?”
“What do you mean I didn’t designate in time?”
“So, I don’t get Thursday nights anymore?”
“This is not fair!”
“This is not good for the kids!”
And, the best of all: “How can I change it?”
Before entering in to arguments with the other parent, take a look at your divorce paperwork. It is a road map to your child’s time with you. It should, clearly and cleanly, set out what time your child gets to enjoy with each parent. Make sure to keep educated and always speak with an attorney in the event of disagreement or misunderstanding with the other parent.
For parents working under a standard possession schedule and who live within 100 miles of the other parent, the following is a snapshot of the summer time schedule. Always be sure to consult with an attorney with questions as to your specific orders:
Extended period of possession for the non-primary parent
– Thirty days, to be elected by April 1 of that year. This period of time can be divided in to two periods of possession with each period being no less than 7 days long.
– If you do not timely elect, your period of possession starts July 1 and ends on July 31.
Weekends and Thursdays for the non-primary parent
– Each weekend commencing at 6 pm on the 1st, 3rd, and 5th Friday and ending at 6pm on the Sunday.
– Thursday periods of possession go away during the summer.
“Stolen weekends” for the primary parent
– The primary parent may visit with the children during one weekend in the 30 day period allotted to the non-primary parent, regardless of whether that is broken up in to two periods of time or exercised in one lump. The primary parent must choose this weekend by April 15.
– Additionally, the primary parent may “steal” one of the non-primary parent’s normal weekend periods of possession – effectively giving the primary parent possession of the child for up to 21 days in a row. The primary parent must elect this period of time by April 15 or, failing that, must give 14 days notice of the election.
Remember, your child’s needs will rarely fit neatly in to the possession schedule. Football camps, stay away camps, grandparent visits, theater camps, and many other activities will not always square away with your schedule. Your possession schedule is – typically – just there in the event you cannot agree with the other parent. You should do your best to work with one another to meet your child’s needs, not your own. Where that cannot and does not happen, reach out to the family law attorneys at Hanshaw Kennedy Hafen for trusted and reliable legal advice.
“I missed you. What did you do? Was mommy nice to you? Who was there? Were they nice to you? Oh, I missed you so much!”
If you are saying any of the above things to your children after they come home from their other parent’s house, then stop. Any good parent should know not to involve children in adult discussions or to disparage the other parent in front of the children. The “your dad didn’t pay for hockey so you cannot do it,” “your dad left me and you for someone else” comments should, clearly, all be off the table for discussion with or around the children. But, all too often, our innocuous questions and comments are interpreted by children in a negative way. While we, as parents, may have every intention on asking these things for good reasons, a child’s ears do not always hear it that way. So, be wary of the listener’s ears.
Broken down below are the things you say and how your child might actually “hear” it:
|What you said||What your child heard you saying|
|I missed you!||When I am with my other parent I am hurting your feelings by being away. That makes me feel conflicted about enjoying my time with my other parent.|
|What did you do? Who was there? Where did you go?||When I come back I have to be able to relay to you everything I did and read your expression as to whether that was a good thing or a bad thing. That makes me feel like I am tattle telling on my other parent, or that I have to lie about what I did.|
|Was mommy nice to you?||Mommy is always nice to me – but now you have asked I am wondering if she really was.|
|Oh, I missed you such a lot!||Now I am really worried that when I go to my other parent’s house you are sad and lonely. That makes me anxious about leaving you.|
So, the next time your child returns home from their other parent’s home, try another tactic:
For those good days: “Hey, buddy, how’s it going? It’s good to see you looking so well! Let’s head home and get some dinner.”
For those not so good days: “Hey, buddy, how’s it going? How about we get you home, eat some food, and hang out?”
And, for those terrible days where the separation from the other parent seems inconsolable: “Hey, buddy. It looks like you’re feeling sad right now. I love you and so does [daddy/mommy]. But how about we head back to the house, grab some food, and you can tell me whatever you feel like telling me.”
There is no one size fits all solution to speaking to any child, regardless of their family situation. That said, all parents – especially divorced and separated one – always need to be wary the listener’s ears. Their minds and hearts are more tender than ours and we need to protect them.Read More
That’s right, folks. The Texas Attorney General has increased their ability to go after delinquent child support obligors: by denying vehicle registration for offenders.
Currently, the Texas Attorney General may already do the following for nonpayment of child support, administratively (without notice or the ability of the alleged offender to defend himself or herself):
- Garnish wages
- Garnish tax returns
- Impose liens against bank accounts, real estate, and other property owned by the obligor
- Suspend driver’s license and professional licenses
Beginning in December 2016, obligor’s who owe more than 6 months of back child support will be subject to denial of registration on their vehicle, in a new attempt to compel compliance with child support orders. Those who are more than 6 months behind on support with registration due in December or thereafter, will be notified of their status by letter approximately three months prior to the due date on their registration renewal.
Those who are flagged to have their registration denied will not be able to have their vehicle registered until they enter a payment plan with the Attorney General. There will be a direct number for those individuals to call to set up such payments, and that information may be listed on the registration letter.
Many who were against this legislation are worried that this will cause problems for those who are truly unable to pay their full support and arrearages, but who need their vehicles to make a living and attempt to pay the support in amounts that they can afford. Additional concerns are already being tossed around about the additional fees that obligors will have to pay to participate in and comply with this program.
And then there is the concern that I know many other family law attorneys have, but may be too politically correct to say – the Office of the Attorney General Child Support Division’s calculations and running totals for child support payments, delinquencies, and arrearages are not always correct (Gasp!). While the system is a good one with a noble and well-meaning goal, errors do occur. These errors already cost obligors much time to correct, and many times they will need to get an attorney involved to fix major problems. In the past year, I have had to get involved in cases to release a wrongfully garnished tax return; stop the garnishing of wages that were being delivered to a biological mother whose rights were terminated prior to the withholding; and correct numerous amounts of total back child support calculations.
Take note that if you owe more than 6 months of child support as your arrearage total, you need to be on a payment plan with the Attorney General as soon as possible, or you may be subject to having your vehicle registration denied beginning in December.
Contact us to speak to an experienced family law attorney and to know your rights regarding this new law, and the enforcement and payment of child support.Read More
In Texas, and across the country, adultery remains one of the main causes of divorce. The Texas legislature has narrowly defined adultery and even more narrowly defined the application of adultery in a divorce proceeding.
Texas Courts have defined adultery as “voluntary sexual intercourse of a married person with one not the spouse.” In re Marriage of C.A.S. 405 S.W.3d 373, 383. This means that there must be sexual contact, even just one time. This also means that “emotional affairs” do not rise to the level of adultery as a ground for divorce. Keep in mind that there is no legal separation in Texas, you are married until you are formally divorced, so post separation sexual intercourse with someone other than your spouse is legal adultery.
Still, many courts in Collin, Denton and Dallas Counties view adultery as a symptom or outlet showing from an underlying problem in the marriage. This means, that they are not given the weight in court that a cheated spouse may feel an affair deserves. I mean, your spouse broke his or her promise to you – at the very least you may feel the court should view this as a breach of contract, right?! Well, the court does have some power to right the wrong caused by an affair, but it tends to only come up in select cases.
What Can Proving Adultery Get in Court:
- Property Division: You may receive a greater share of the community assets in your property division. This is the most common way the Courts compensate a cheated spouse. In general, Courts have a lot of leeway in deciding a “just and right division of the estate.” This means they can consider fault in the breakup of the marriage to determine whether one party should receive more or less of the community estate.
- In addition, if you can prove that community funds and assets were spent on a paramour, you may be able to have a greater claim to additional assets and funds in a property division. An experienced family law attorney can explain this in more detail if this sounds like your situation.
- Spousal Maintenance – if you already qualify for spousal maintenance for another reason, your spousal maintenance award may be increased if your spouse’s affair is shown to be the fault for the breakup of the marriage.
If you have minor children, CUSTODY OF YOUR CHILDREN WILL NOT DEPEND ON ADULTERY. Custody, including conservatorship (Decision-making), visitation, child support, etc. will only be decided on the best interest of the children. Adultery will only be considered in child custody determinations if you can prove that the situation rises to a level that influences the best interest of the child (i.e. the paramour is a felon, uses drugs, or otherwise negatively involved in the child’s life).
Proving Adultery: pictures and videos are not required, but they can be used. You can also use circumstantial evidence such as phone records, social media records, receipts for purchases for the paramour, etc.
When you find out about an affair, it is normal to be angry and hurt, but is it really best to air your dirty laundry in a public forum (where your neighbors, bosses, and kids could find out)? Will going “public” in your divorce papers or in the courtroom really change the outcome of the divorce?
It is best to discuss the pros and cons of filing for divorce on the grounds of adultery with a knowledgeable, local family law attorney. The Frisco family law attorneys at Hanshaw Kennedy, LLP have experience dealing with the delicate issues of adultery and can help minimize the additional turmoil an affair may bring into the divorce process while focusing on the goals of the divorce and your post-divorce life.
If you are considering a divorce, I am sure you have considered the cost to hire an attorney, and at least briefly considered handling your divorce yourself. While you may save some money up front, there can be huge costs to handling your own divorce.
1.You could miss out on property: In a divorce, you are dividing your entire estate. If you do not adequately account for the property in your estate, you do not understand the intricacies of community property, or you just do not understand the law, you could be missing out on large sums in the property division. For example, if you believe that funds earned by one spouse and saved by one spouse belong to that spouse, you would miss out on a portion of those funds. Alternatively, you may offer to give up part of an asset that is really your separate property
2.You miss out on child support or Overpay: Generally, child support is calculated based on the guidelines in the Texas Family Code. However, if you do not adequately account for deductions for health insurance premiums, you may be overpaying child support. Alternatively, if you calculate the average income for the past 3 years, when the last year is much higher and more indicative of future income, you and your children could miss out on hundreds per month in collected child support.
3.Your order may not be accepted by the Court: If the Court deems that any of your order is not fair and equitable or in the best interest of the children, the Court can refuse to accept your agreed order. This happens regularly when the parties agree to $0 for child support. Many courts do not consider this to be in the best interest of the child in mostAn experienced family law attorney can help you properly word your order so it will be accepted by the Court.
4.Your order may not be enforceable. Even worse than the order not being accepted is having in unenforceable order. Generally, when one party does not follow the court ordered divorce decree (fails to pay child support, fails to deliver property as part of the property division, etc.), the court can hold that party in contempt of court and force compliance or even order jail time in some instances. If an order is not written properly, a Judge cannot enforce it. You would need to spend money to have it clarified and redone, properly before you can have it enforced. In the long run, this is generally more costly than having it done properly the first time.
5.You may miss out on spousal maintenance: Many of us are aware that Texas is a “no alimony state.” While the Texas Family Code does not provide for alimony like some other states, there are provisions for spousal maintenance, which acts like alimony to assist a spouse in certain cases. A knowledgeable attorney will help you determine whether you may qualify for this type of support.
6.Added Bonuses: Experienced family law attorneys can give you objective advice and provide strategic advantages in your case whether you are negotiating, going to mediation, or preparing for a highly contested trial. Family law cases can be highly emotional, and it is vital to have a grounded attorney advise you through this difficult
In addition, the attorneys at Hanshaw Kennedy, LLP have experience devising creative support, visitation, custody, and property division agreements within divorce decrees that are specific to individual families and are written in an enforceable manner.
Our attorneys at Hanshaw Kennedy, LLP have experience in Collin, Dallas, and Denton county courts; we have worked with local mediators, and we have relationships with many local attorneys and other resources. Our specialized knowledge could save you money, get you more money, and ensure that you are properly protected in your divorce. We can come up with creative solutions that fit for your family in mediation or informal settlement and we can advise you on what battles are most important in your case. Importantly, our attorneys can give you a cost-benefit analysis at different stages of your divorce process. If you are considering a do-it-yourself divorce, you should truly consider what you may be leaving on the table.Read More
You are single: if you are single and an adult, with no children, your estate will go to your closest biological family member according to Texas law. If you would rather your estate go to young nieces and nephews, friends, etc. you will need a Will to designate the distribution of your property. In addition, your family members may be at odds in making necessary medical and care decisions for you, should you become incapacitated. You should have a durable power of attorney, healthcare power of attorney, and possibly a designation of guardian to ease this process. These documents will ensure that your wishes are adhered to and that your family will not spend time, money, or emotional energy fighting battles over your care. In addition, you may wish to appoint a person to dispose of your remains, or to choose how your remains are disposed, if you do not think your parents will agree with one another on this issue.
You are married: if you are married without a premarital agreement or a partition and exchange agreement, you have community property. If this is a first marriage, and there are no children, all of your property will go to your spouse, including any items that you wish would go to your parents, siblings, nieces and nephews, etc. The only way to dictate how your property is distributed upon your death is with a Will.
You have children: if you have minor children and are married to the children’s other parent, you should name someone to be a guardian and care for your children if something is to happen to you and your spouse. Also, you will want to include a contingent trust in your Will so funds will not be held for your children if you want them to use funds now, and so funds will not be fully disbursed at age 18, if you intend for funds to be overseen for a longer period.
You have grandchildren: if you want to take care of your grandchildren, you will want to have a Will to specify what you are gifting to each grandchild. Special steps need to be taken for minors.
You want to leave a gift to a minor child: if you want to leave a gift to a minor child, you will want to have a simple trust in your Will to allow an adult or institution of your choosing to make financial decisions for the beneficiary. Without a trust in place, the funds will either be held by the financial institution until the beneficiary reaches the age of 18 years, when there will be a full distribution at age 18; or someone will need to apply to be appointed as a custodian or guardian of the estate of the minor. In these circumstance, there will generally still be a full distribution to the child upon reaching 18 years. If you would like to protect the funds for college or until such time as the minor child reaches an age that you deem is more appropriate for such a distribution, you will need a Will with a trust for minor children.
You have a blended family: If you have children from a prior relationship and are now married to a spouse that is not the biological or adopted parent of one or more of your children, you probably need an estate plan, regardless of whether your children are adults or minors. Without an appropriate estate plan in place, you are setting up your children and your spouse to be at odds regarding the distribution of your estate. You may leave your spouse at a disadvantage or you may be leaving assets to a minor or adult child that you intend to take care of your spouse. You will need an experienced estate planning attorney to assist you in setting up your estate plan to accomplish the goals of your family.
You are in a long term relationship, but not formally married: If you intend your significant other to inherit from you or to be able to make medical decisions for you if you become incapacitated, you need an estate plan. If you specifically do not want your significant other to inherit from you or act as your spouse, you also need an explicit estate plan in place. Your significant other may claim that you had an informal, or common law, marriage, which may go against your desires. Our experienced attorneys can assist you in setting up a proper estate plan to protect you, your assets, and your loved ones.
Estate planning is for everyone. In Texas, it is generally less costly to have an estate plan and to probate a properly prepared Will than to attempt to go through the probate courts for administration and distribution of your estate without a Will. Collin County, Denton County, and Dallas County all have very reasonable filing fees that are not based on the size of your estate. Estate plans limit fights between family members and loved ones and ensure your wishes are followed.
Contact the Frisco Family Law Attorneys at Hanshaw Kennedy, LLP to discuss your estate planning needs.
- This is based on Texas law and meant to apply to those who reside in Texas.
When deciding to consult a divorce attorney, many still have emotions running high. Your consultation with an attorney will be limited in time (generally 30 minutes- 1 hour). With that in mind, you will need to try to narrow the issues to discuss at this meeting to get the most information about the divorce process, the possible solutions, and the spectrum of strategies available toward a resolution.
- If you have been served or otherwise delivered papers from your ex, bring all papers with you
- Timeline of events in your relationship
- Prior or current orders involving children of this marriage or previous relationships
- Pre or Post Marital Agreements
- Income documentation for you (and your spouse, if possible): tax returns, pay stubs, etc.
- Assets overview (balances for bank accounts, retirement accounts, pensions, investments, etc.)
- Information regarding land and homes you own (mortgage amounts, values, etc.)
- Information on valuable items in your home (collectibles, etc.)
- Notes about problems in your marriage (regarding both spouses)
Remember, your consultation with your attorney is generally confidential in nature. (See the forthcoming article on confidentiality and attorney-client privilege in family law). You need to be open with your attorney about issues that may come up in your divorce. Your attorney can only advise you based on information you provide to him or her, so be honest during your consultation.
You should also bring a list of questions, to ensure you do not forget anything. Again, this is a stressful and emotional time, so you may also want to take notes on what the attorney is telling you.
Be sure the attorney answers your questions; describes the divorce process in a way you can understand; discusses the pros and cons of your case, as well as possible outcomes (temporary and final); discusses retainer fees and billing practices.
You do not need to have all of your evidence available at the initial consultation. You can discuss those items and produce them as needed at a later time (emails, text messages, photographs, etc.).
If this is an emergency situation, due to family violence or a spouse secreting the children, please bring necessary evidence showing the abuse or abduction issues, as your attorney will need to work quickly to protect you and your children. Please let someone know that this is an issue when scheduling your consultation, so the attorney is prepared to address those issues and begin work immediately, if needed.
Some cases are time sensitive or require special attention. Please seek the advise of a local family law attorney to determine your best strategy. The compassion, knowledge, and experience of the Hanshaw Kennedy family law attorneys will help you navigate this process.Read More
Holidays are generally a time love and family; however, this time can be very stressful and difficult, especially with children living between two homes.
There are some things parents can do to ease this process and hopefully create more peace for the parents and the kids around the holidays.
First, determine whether or not you have orders in place that dictate the holiday possession schedule.
Whether or not you currently have such orders in place, it is best to talk to the other parent or caregiver to discuss plans for the children for the holidays. If you are able to reach agreements for visitation and/or travel that works for your family, that is an ideal situation.
Most Court ordered Possession Schedules are written to allow the parents/conservators to reach agreements on visitation that deviate from the possession schedule set forth in your order to better fit into your family’s plans. Keep in mind that some parents/conservators are required by prior court order to communicate through a certain method or with a third party present. Do not violate your court orders.
Many times parents can work together to continue to celebrate holidays as they have done in the past – or create new traditions as a different family dynamic (i.e. Christmas Eve with one parent and Christmas Day with the other parent).
If you do have Orders in place, read them before meeting with the other parent. Be prepared to follow the orders if you are unable to reach a workable solution. If your current orders are unworkable, long term, you should seek advice of an experienced family law attorney who may be able to help you modify your orders to a more workable solution.
If you do not have orders in place, it is even more crucial to work with the other parent regarding holiday plans. It may be your first holiday to celebrate separately, and you may want to enlist the help of a mental health professional to assist you and the children with the transition in tradition. If you are not able to reach a solution, you need to contact an attorney immediately to try to resolve these issues before the holidays. Don’t wait until it is too late!
If you are traveling out of town –
And have current orders in place: check your orders for any requirements you may have to inform the other parent if you plan to travel out of town, out of state, or out of the country. Many orders require notice and/or consent before you can travel with your children. Make sure you are aware of these and comply with the terms of your orders.
And do not have Orders in place, but have filed a case (divorce, modification, paternity), local Standing Orders may be in place that restrict you from taking the children out of the state while a case is pending. If this is an issue, bring this to the attention of your attorney immediately. Your attorney can try to work with the other parent to allow you to continue with your plans, uninterrupted. Be aware that different counties have Standing Orders, and they may differ on this issue. Be sure you are in compliance.
In general, it is a good idea to let the other parent know of your travel arrangements with the children, even if there is no case pending or your current orders do not require it. You would want the same courtesy.
If you are acting under the Texas Family Code Standard Possession Order, your standard holiday visitation should be as follows:
Thanksgiving: Parent A has possession beginning after school on the day school is released for the holiday (even if this is the Friday before Thanksgiving), and ending at 6:00 p.m. on the Sunday following Thanksgiving.
Christmas: Parent B has possession beginning at the time school is released for the holiday, and ending at noon on December 28. Parent A has possession beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after the holiday.
Be sure to look at your child’s school calendar or the calendar for the public school your child would be zoned, to determine the actual days applied in your case. If you have any questions regarding your possession rights, contact an experienced family law attorney to help you interpret your orders.Read More
What is the job of the Office of the Attorney General Child Support Division?
Attorneys with the office of the OAG can assist with establishing paternity, finding missing parents, establishing child support, and enforcing the collection of unpaid child support. Most important to remember is that the OAG attorney does not represent either parent or conservator of the child or children; this means the OAG does not represent the party who requests services. The OAG only represents the State of Texas. This means that cases with children on TANF (Temporary Assistance to Needy Families, CHIP, and Medicaid) will be prioritized.
Those parents or conservators using TANF or Medicaid for their children are required to apply for OAG child support services. This does not mean the OAG will take the case, will work on the case, and it still means that the OAG does not represent the parent or conservator.
Differences between OAG and Private Attorney
In a case involving the OAG, the OAG can take any action their office sees fit as far as case strategy and reaching agreements. The parents can either hire private attorneys or represent themselves in these matters.
Another big difference is that private attorneys generally have the capability to move your case along more quickly than the OAG. The OAG is bogged down with cases and they focus on those with TANF or Medicaid. If you are not one of those families, and in some cases, if you are one of those families, a private attorney can get child support established more quickly than the OAG.
Custody and Visitation
Federal regulations prohibit the OAG to use child support funding on issues of custody or visitation. While there is limited separate funding available to assist a small portion of conservators with custody and visitation issues, this is not the norm (see www.txaccess.orgfor more information). What this means is that if your case requires visitation or conservatorship to be established (through paternity actions), enforced, or modified, and you request services from the OAG, you will either need a private attorney on the other matters, or you will be representing yourself on the matters of custody and visitation. A private attorney can assist you in combining cases, as allowed by the law, in order to be more time and cost effective.
Even in the few cases where the OAG can assist in custody and visitation, the OAG is still representing the State of Texas and the best interest of the child, not either party/parent.
In general, a private, experienced family law attorney can better use your time and can represent your interests in a way that is consistent with your desires. A private attorney is more suited to represent you and get results in accordance with your requests. You should always consult with a local experienced family law attorney before taking action in your case.Read More
In Texas, most people are aware that there is no legal separation that parties can enter into prior to the divorce proceeding. However, a court can issue temporary orders that address interim issues and put into place enforceable and legally binding rules of play between the parties during the divorce proceeding. There is a requirement that the divorce action needs to be filed and pending in order for the Court to enter any form of temporary orders.
Temporary Orders can be entered by the Court after a hearing in front of the Judge or by agreement of the parties. If a hearing is held on temporary orders, the hearing is generally very short in nature and only addresses issues of immediate concern. You will need to work with your local, experienced family law attorney to determine the best course of action in proceeding with temporary orders in your county. The family law attorneys at Hanshaw Kennedy, LLP are familiar with the rules of practice and the time limitations imposed by Collin County, Denton County, and Dallas County courts for temporary orders hearings.
At a temporary orders hearing, a Judge can issue rulings regarding the use and possession of all items of property owned by the parties. This means that the Judge can allow one party to remain in the residence and require another party to leave the residence, or even the sale of the residence. The Judge will generally order that each party will have the exclusive use and possession of his or her own motor vehicle. Judges can also enter orders that a party pay temporary support to another party to a case. While there are strict regulations on spousal maintenance in Texas, it is much more common to have temporary support ordered between the parties during the pendency of a case.
The Judge can also issue restraining orders during this hearing, restraining either party or both parties from any number of actions (i.e. contacting the other party, entering the other party’s motor vehicle, etc.). Collin County,Dallas County, and Denton County courts also all have standing orders in place. These are restraining orders that apply to both parties from the time the lawsuit is filed until further order of the Court or entry of the Final Decree of Divorce. Most items in the restraining orders are to maintain the status quo and protect both parties’ rights and property. All of these courts include orders that neither party can destroy, transfer, or otherwise harm the property in the estate. This protects the property until there is a final determination on the property division at the conclusion of the divorce proceeding.
Judges may also issue temporary orders regarding any minor child or children involved in the case. Child support, visitation issues, and other issues regarding custody and decision-making for the children can be addressed at the temporary orders hearing. Judges may also order a social study looking into the homes and circumstances of the parties and the children to determine primary custody and/or visitation (to be addressed in a later blog), mediation, counseling and/or psychological evaluations for the parties, and drug testing, among other things.
If, at any time during the pendency of the temporary orders, the parties decide to reconcile, they are encouraged to do so. They can dismiss or nonsuit the divorce proceeding as if it were never filed. If the case continues until a divorce is final, the temporary orders will generally terminate at the time of the Final Decree of Divorce, and the new rules will begin with that Decree.
If you have any questions regarding temporary orders or standing orders in your county or in your case, please contact your local, experienced family law attorney.Read More
PRESS RELEASE (COLLIN COUNTY, TX) A business dispute ended (this week) when a Collin County judge sanctioned Altesse Healthcare Solutions, Inc., nearly $900,000 for defying a court order and basically looting a company it purchased and then gave back to the original owners.
Collin Kennedy of Hanshaw Kennedy, LLP said that this rare “death penalty sanction” from State District Judge Scott Becker effectively ended the lawsuit his clients filed against Altesse. Mr. Kennedy’s clients, Allen and Becky Wilson, sold their healthcare business to Altesse in June 2014 for $800,000 and agreed to seller-finance the deal. When the first payment was due, instead of paying the Wilsons, Altesse sued the Wilsons in federal court claiming the sale of the business was fraudulently induced. In December 2014, the Wilsons sued Altesse in state court and sought and received a Temporary Restraining requiring Altesse to turn back over control of the business to the Wilsons and to prevent Altesse from causing further damage to the business.
“Altesse blatantly disregarded the TRO and instead diverted the assets of the business to another entity it controlled,” said Mr. Kennedy, the lead counsel for the Wilsons. His co-counsel was David Wortham. “The Court said it simply could not turn a blind eye to the intentional disobedience of a court order due to the dangerous precedent it would set.”
Shawna Boudreaux, also a Defendant and sole owner of Altesse, admitted under cross-examination from Mr. Kennedy that she did not comply with any of the restrictions in the Court’s order. Ms. Boudreaux and her counsel, Dan Martens, instead argued that Altesse’s violations of the Court’s order were justified and that the order was improper. Mr. Kennedy and Mr. Wortham countered that there was a mechanism in place to challenge the efficacy of the TRO at the time the Court signed the TRO and that Altesse and Ms. Boudreaux did not properly pursue that remedy.
“In Texas, ‘death penalty’ sanctions are extremely rare because they can dispense with the need for a trial,” said Mr. Kennedy. Texas Courts of Appeal have consistently held that death penalty sanctions should only be imposed in exceptional cases when they are clearly justified and when it is apparent that no lesser sanctions would promote compliance with the rules. “Obviously, the Court viewed Altesse’s transgressions in the same way we did,” said Mr. Kennedy.
The case is Wilson v. Altesse Healthcare Solutions, Inc., and Shawna Boudreaux, Cause No. 219-04978-2014, in the 219th Judicial District Court of Collin County.
Hanshaw Kennedy, LLP is a multi-practice law firm serving North Texas and surrounding areas. Our attorneys handle a broad range of civil litigation, business law, catastrophic injury, and family law related cases for clients throughout the Dallas-Fort Worth Metroplex and the State of Texas.Read More
Mr. Hafen’s client, a hard-working small business owner, hired Mr. Hafen in a proverbial David v. Goliath case. In an extremely contentious case, Mr. Hafen got won a favorable jury verdict on behalf of the Client. After the Defendant appealed, Mr. Hafen successfully briefed and argued the client’s case in front of the Court of Appeals. Subsequently, The Court of Appeals issued a favorable opinion and rendered a judgment in favor of Mr. Hafen’s client.Read More
COLLIN KENNEDY GETS INVOLVED IN THE AFTERMATH OF TWO MURDERS (OF ALL THINGS) AND ACHIEVES JUSTICE IN THE MOST UNUSUAL OF CIRCUMSTANCES.
Sometimes even a veteran lawyer sees a case unlike he has ever seen. This happened twice to Mr. Kennedy in 2014.
In a probate proceeding in Ellis County, Mr. Kennedy represented a client who had been acquitted of murdering her spouse. While she was incarcerated and waiting for her criminal trial, the adult children of her deceased spouse obtained an injunction preventing the client from inheriting substantial life insurance proceeds and other investments from their dad. Mr. Kennedy entered the case and immediately filed a Motion to Dissolve the Injunction. On the day of the hearing, the case settled and Mr. Kennedy’s client received a huge settlement.
Similarly, Mr. Kennedy was hired by a client in Harris County who was in jail charged with murdering his wife. There were many questions surrounding the facts related to the murder charge, but the Client needed Mr. Kennedy’s help because a civil court had awarded an injunction in favor of the children, effectively preventing the client from having access to all of his substantial estate. Mr. Kennedy filed a Motion to Dissolve the Injunction. Yet again, on the day of the hearing, the opposition capitulated and Mr. Kennedy was able to achieve a favorable settlement for the client.Read More
Hanshaw Kennedy, LLP is proud to announce that attorney Charles M. Gearing has been elected Secretary of the Dallas Association of Young Lawyers (“DAYL”) for 2015 by the organization’s 2,400+ voting members across the DFW Metroplex and North Texas. Charlie, as he is known to his clients and colleagues, will serve as a member of the organization’s five-member executive board for the next five years, rotating into President in 2019. During this time, Charlie will work to provide educational, networking, and personal improvement programming to DAYL’s 3,300+ total members.
Charlie presented his plans for the organization during his campaign, which stretched over much of the Fall of 2014. “We had a conversation about building DAYL into an even greater resource for Dallas’ young lawyers and for the community,” Charlie recalls. “DAYL is going to help our members with mental health issues that specifically affect young attorneys. We need to lead our members into even greater pro bono service and service to the community. Young lawyers and new graduates also face steep challenges in a tight job market, so our focus on helping young lawyers get jobs will only grow over the next five years.”
Charlie has a considerable record of service to DAYL. Thus far, Charlie’s work includes programming on young lawyer mental health and wellness issues, service with the organization’s Animal Welfare and Aid to the Homeless committees, and collaboration with other DAYL leaders to launch a new DAYL website in early 2015. Charlie previously received DAYL’s Pro Bono Service Award in 2013, was a member of DAYL’s Leadership Class in 2013, and served as a member of the DAYL’s Board of Directors in 2014.Read More
Charles Gearing and John Hafen have been named to the Texas Rising Stars list as one of the top up-and-coming attorneys in Texas for 2015. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection for this respected list is made by the research team at Super Lawyers. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. For more information about Super Lawyers, go to superlawyers.com.
The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 Super Lawyers was acquired by Thomson Reuters the world’s leading source of intelligent information for business and professionals.Read More
In 2014, Ms. Rose had much success in overcoming final protective orders entered with the Court. In one case, she was able to advocate for the dismissal of an entire protective order involving children, and her client’s visitation with the children was fully reinstated. In another, she was able to achieve a substantial decrease in duration of a protective order, from two years to one year (to end one month after the hearing on the modification).
While Sarah has successfully challenged final protective orders, it is always best to have competent and experienced local counsel defend you in the initial trial proceeding to avoid the improper protective order from the beginning. If a protective order has already been ordered and you believe it was not proper, please contact Mrs. Rose to advise you on your options.Read More
Collin Kennedy Co-Authored “A Cup Of Coffee With 10 Of The Top Personal Injury Attorneys In The United States” with Randy Van Ittersum. The book is currently featured in Amazon’s Top 100 list. Collin also has been featured on “The Business Leaders Spotlight” and “Rodney Anderson Show” – Both of these can be downloaded on the firm’s new ITunes Podcast Channel
Hanshaw Kennedy is proud to announce they have been retained to represent Mercedes Benz, USA for all of their Texas litigation. Mr. Kennedy is acting as lead counsel for the firm in all of these matters.
In a probate proceeding, Mr. Kennedy represented a client accused of murdering her spouse. While she was incarcerated, the adult children of her deceased spouse obtained an injunction preventing the client from inheriting substantial life insurance proceeds and other investments from their dad. Mr. Kennedy entered the case and immediately filed a Motion to Dissolve the Injunction. On the day of the hearing, the case settled and Mr. Kennedy’s client received in excess of $900,000 in cash and other assets.Read More
In Texas, guardianship is a process where a court appoints a person or an organization to care for the physical and/or financial needs of a minor child or incapacitated adult. This is generally an onerous process because the rights of the person who needs a guardian (Ward) are being removed and given to another person or organization.
There are two types of guardianships: guardian of the person and guardian of the estate. A guardian of the person makes decisions for the Ward’s well-being and daily care. A guardian of the estate cares for the Ward’s property and financial well-being. Not every Proposed Ward requires both types of guardians, and those who do require both may have the same person or different people named in each capacity.
There are a few circumstances where guardianships are more common:
- Minor child who does not have parents with legal rights or the ability to make decisions on the child’s behalf.
- Disabled adult, especially those just turning 18 years old. Parents of a disabled minor should consult with an experienced guardianship attorney before the child reaches the age of 18 years. At 18 years, the child is legally considered an adult, and he is presumed, by law, to be able to make his own decisions. To protect that disabled adult, the parents or caregivers should have a plan in place to continue caring for the child’s well-being and financial security into his adulthood.
- Elderly (without a comprehensive estate plan). Those who lose capacity through Alzheimer’s, dementia, and other diseases and disorders that cause the adult who was once able to care for herself to continue to do so.
Anyone who knows the person with the incapacity can bring the case to court. It will generally take an Ad Litem attorney and at least one doctor (unless it is the case of a minor child) to determine whether the proposed ward is actually incapable of caring for his or her well-being and/or finances. As stated, this is a relatively high burden, due to the high stakes involved in removing any rights of the proposed ward.
Most people can avoid the need for a guardianship by having a proper estate plan in place. An estate plan will allow you to choose people to make certain decisions for you if you should become incapacitated. A comprehensive estate plan may also include a designation of a guardian to care for you if you become incapacitated.
If you are interested in consulting with a local, experienced attorney regarding the appropriate estate plan for your needs, please contact our office. If you know of someone who is incapacitated and in need of a guardian, please contact our office for a consultation.Read More
Texas Paternity Registry: Dads Preemptively Asserting Rights
In Texas, if a woman has your child, your rights in regard to that child are only maintained in one of the following ways:
- You are married to the mother at the time of the conception or the birth of the child. See the specific requirements in Texas Family Code Section 160.204;
- Your name is on the birth certificate of the child;
- You and the mother sign an Acknowledgment of Paternity;
- You have completed a Notice of Intent to Claim Paternity with the State Paternity Registry; or
- The mother maintains custody of the child and you (or she) file a Paternity suit.
Why is it important to assert and protect your rights?
Texas law allows for the rights of a biological father to be terminated without genetic testing to determine parentage, without the father present at any court hearing, and without any notice to the biological father if he has not accomplished one of the above methods to establish those rights. After a father’s rights are terminated, he will not have standing to request visitation or any other rights regarding that child.
When to Register
Any time you believe a woman may be pregnant with your child, and you want to have the right to be notified before your rights are terminated, you should register with the Texas Paternity Registry before the child is born, but no later than 31 days after the birth of the child. It is the public policy of the State of Texas to allow adoptions of newborns to happen quickly and easily. Unless you take the necessary steps to protect your rights, your rights can be terminated and the adoption proceedings can be completed very quickly in Texas. If you are registered with the Texas Paternity Registry, you can preserve your rights. If the mother of the child begins the adoption process, and you have filed with the Texas Paternity Registry, the Court will likely still require genetic testing unless an agreement is reached. A court case to resolve the issues of custody, child support, and visitation will ensue, but registering, and maintaining updated contact information with the Texas Paternity Registry will ensure that your rights will not be terminated without notice to you.
Effects of Registering
Registering with the Texas Paternity Registry is just asserting your belief that you are or may be the father of a potential child, and that you wish to preserve your rights as the father of that child. Registration DOES NOT initiate any legal proceedings to obtain any custody or visitation rights for the child. In order to begin to gain the right to anything other than notice of the possible future adoption and/or termination proceedings, (e.g., visitation, decision-making rights, etc.) you will need to consult an experienced family law attorney and discuss your options and rights in regard to a Paternity case or a Suit Affecting the Parent-Child Relationship.
Additionally, if the mother of the child wants the father to pay child support, she can request assistance from theOffice of the Attorney General or a local family law attorney who will begin that legal proceeding. If you are registered on the Texas Paternity Registry, you will likely be a part of that lawsuit. If you are the father, you may be ordered to pay child support, including prenatal and delivery expenses of the mother. This is also the process that will get you visitation and decision-making rights regarding the child.
However, if the mother begins the adoption process, or attempts to have your rights terminated, you will be notified and have a chance to defend yourself if you do not want those rights terminated. Once those rights are terminated, it is nearly impossible to have them reinstated.
How to Register
Go to http://www.dshs.state.tx.us/vs/patreg and complete the form. You can also contact the Texas Paternity Registry for additional information:
Texas Paternity Registry
Vital Statistics Unit – 1966
Texas Department of State Health Services
P.O. Box 149347
Austin, Texas 78714-9347
Toll Free #: (888) 963-7111 Ext. 7782
Fax: (512) 458-7164
As always, please contact your local, experienced family law attorney before making any decisions regarding filing with the Texas Paternity Registry.Read More
In March, DAYL hosted an important discussion downtown inspired by a January 2014 CNN.com article entitled “Why Are So Many Lawyers Killing Themselves?” Young lawyers in DFW and around the country are especially prone to depression, addiction, and suicidal thoughts. Dr. Carlos Davis, Ph.D., a former president of the Dallas Psychological Association and a therapist in private practice in Dallas, offered some insight into why young lawyers are especially susceptible to these problems:
1. Pessimistic explanatory style: lawyers are trained to prepare for the worst on behalf of their clients. We tend to think and speak in permanent and pervasive terms about risk and trouble ahead. Our vigilance for our clients can spill over into our personal lives and mindsets.
2. High stress: Young lawyers deal with demands from many sources in their careers: the list starts with partners, clients, and student loan lenders. We can also meet these demands with unhealthy perceptions about our available resources (financial and otherwise). Think of the times when you or a colleague has said that “I HAVE to win this hearing/argument/case, or else…(insert gloom-and-doom phrase here about student loans, career prospects, or life itself).” The point at which we perceive our demands to exceed our available resources is the point at which hopelessness, fatalistic thinking, or the search for coping mechanisms (e.g. alcohol and drugs) begins.
3. Adversarial profession: we are in the stressful business of winning and losing, whether it’s a motion, negotiation, or case. Results matter, and they are often judged on an all-or-nothing basis.
4. Hedonic adaptation (ever-rising expectations): Lawyers and non-lawyers share a tendency to get used to good things. Hefty paychecks, fancy new offices, cars, suits, and living arrangements can accompany a law degree and career. These things, however, can lose their luster as our expectations continue to rise. We can become insatiable in our pursuit of success, creating an unhealthy feeling that we never reach a point of success.
Perhaps most importantly, Dr. Davis also offered invaluable advice to young lawyers about how to deal with or avoid these problems altogether:
1. Exploratory conversations: We all have instrumental conversations, which involve solving problems, as a part of our jobs. Supplement these conversations with exploratory conversations—conversations where you risk vulnerability, explore your experiences, and have someone (family or a close friend) listen to you empathically.
2. Define success and go easy on yourself: instead of pursuing ever-rising status and greatness, think in more realistic terms. For instance, pursue a feeling that you have given “a good effort at a worthwhile cause.” Find satisfaction in your effort, not the results you achieve for clients. Don’t necessarily lower your expectations, but perhaps frame them more realistically.
3. Pursue the two pillars of healthy self-esteem: Seek two feelings—1) feeling competent to meet life’s challenges and 2) feeling loved and accepted for who you are. One shortcut to these feelings is to stop basing your self-esteem only on the latest winning case or raise. These values lead to chronic dissatisfaction.Read More
Collin Kennedy was recently a featured guest on the Business Leader Spotlight radio show “Legal Issues”. Collin outlined some of the issues clients need to better understand related to Personal Injury legal matters and interacting with insurrance companies related to personal injury matters.
Enjoy the Archived Audio Interview online or the transcribed version that follows.
Welcome to the Business Leader Spotlight Show
R: I want to welcome everyone to the Business Leader Spotlight Show; this is Randy Van Ittersum, your host for today.
R: Today we have with us Collin Kennedy, a leading personal injury attorney in the Dallas area of Texas. He is here today to talk to us about some of the legal issues that you can encounter in a personal injury case. Collin, welcome to the show.
C: Thanks Randy. Thanks for having me.
R: Collin, tell us a little bit about yourself and your law firm.
C: Randy, I’ve been practicing law for about 15 years. I started my firm with my business partner here about 10 years ago and we have three big practice areas and I kind of head the personal injury section. We also do commercial litigation and we have three lawyers that do exclusively family law. But I got into personal injury because I enjoyed when I got out of law school, I was a prosecutor actually down in Houston and enjoyed representing victims and that’s essentially what I do as a personal injury attorney. So I kind of enjoy the relationship that I develop with many of my clients and the investigation of the case and then ultimately bringing it to a positive result for the client.
R: Very good and tell us why should somebody hire a personal injury attorney?
C: You know Randy I don’t think it’s necessary 100% of the time but most of the time it is and here’s why. When someone is injured, it is a very personal event for them. I think that you know in many instances it turns their life upside down. That’s the perspective they bring. The insurance company on the other hand is a business and it’s strictly a business decision for them on how they handle the claim and so that naturally creates kind of an adversarial relationship and I think when you are in a adversarial relationship you must know that the insurance companies are going to have attorneys advising their adjustors every step of the way and if it ultimately becomes a lawsuit than obviously they’re going to have lawyers handling the case and so I just think it’s smart and only fair that the injured party is represented by counsel as well.
R: Tell us, you bring up the fact that there is an adversarial position between the injured party and the insurance company. Could you provide some additional insights into that area?
C: Sure, this is the perfect example. I got a letter this morning from one of the largest insurance companies in the world about one of my cases and if you don’t think it’s just a business decision for them just listen to some of the language. Now they already know that I represent my client, here’s how they address the letter “To Whom It May Concern” ok that’s red flag number one. This is not personal to them at all. This is simply, basically a formula on their spreadsheet on how they’re going to evaluate the case. Now in this case my client is about to get his leg amputated in a hospital in Texas and the insurance company has no knowledge of anything and they’re demanding that he immediately give them a recorded statement and unless he cooperates they’re not going to adjust the claim so that is a perfect illustration of why this is an adversarial relationship. Again they’re trying to dot their I’s and cross their T’s and simply just input data into I envision a giant spreadsheet and then I understand that’s the way it actually works and it spits out a number either they cover the claim or they don’t and if they do it’s a number between 0 and whatever the limits of the policy are. But you know it’s “to whom it may concern” and I think that’s a little bit offensive in situations like this when you take into account what my client is going through and how they are demanding that he hop on the phone with them and give them a recorded statement. Well he’s got other fish to fry right now.
R: Very good insight. I think that said it all. I agree with you. Tell us now, you’ve been around now for 15 years working in this area. Has the complexity of navigating a personal injury claim become harder for the injured party than it has in the past?
C: I think there’s two things that, I would say yes, particularly in Texas and in a lot of the other what I call conservative jurisdictions in the United States and Texas would certainly fall under that category. It’s just a function of the law has evolved in such a way that it protects insurance companies more so than it has in the past. Texas went through it about ten years ago, the Texas Legislature changed personal injury law dramatically and it tilted in favor of the insurance companies and so that’s definitely made it more complex because you better have a good factual case if you’re going to file a lawsuit in Texas in almost every one of our jurisdictions and the same rings true for as I said many of the other, what I would could call the more conservative jurisdictions in the United States. and so that’s part of it, the other part is and this I think we’ll talk about this later in the call but liens and subrogations, those are two concepts that I think have made personal injury claims more complex simply because the laws evolved in those two areas too. What I mean by lien and subrogation. If one of my clients goes and gets treated by a hospital as a result of the accident and he or she does not have insurance, then the hospital is gonna file a lien and you cannot resolve your personal injury claim with the third party insurance carrier unless that lien is resolved in fact in many states it’s criminal to do so and the attorneys can get in trouble as well. If funds are received from the insurance company and disbursed to the client without resolving the lien then there’s all kinds of problems and the same goes for what I call kind of a general concept of subrogation and that simply means if my client does have health insurance, his health insurance company at the end of the day is gonna want to be reimbursed every penny they paid for the provision of care to that injured party and so the attorney, an important role that an attorney plays that clients don’t necessarily see on the front end, is that we negotiate those things and so that really has nothing to do with the underlying facts of the case but it’s a very important component of the case, none the less. So I would call the hospital and I would say look my client’s trying to settle this case for X amount of dollars. Here’s what he’s got in terms of future medical expenses and most of the time the hospitals will negotiate with you for a fraction of what their total bill is and the same goes for the health insurance carriers for the clients too so, so kind of summarizing up that point, Randy, is that the law has become I think more favorable in most places to insurance companies and then we’ve got to deal with these liens and subrogation issues and so that can make it a lot more complex than the client might have understood before they walked in the door.
R: Well it certainly will and your insights in that area I think are very helpful to our listening audience. I don’t think a lot of them even begin to think that there is going to be another party that has to be paid out at the end of when they collect their money.
R: So, tell us, what are some of the hidden landmines that you see in a personal injury case? You know somebody gets hurt and obviously you know they’re reacting to adjusters contacting them just you know the immediate situation. What are some of the things that they might do that actually is hurting their case unbeknownst to them.
C: I think if it’s a serious case an adjustor is going to expect to hear from an attorney on behalf of the injured party and so when an adjustor doesn’t hear from an attorney naturally there’s going to be some element of the adjustor taking advantage of that situation. That’s just human nature. They know that they’re dealing probably with someone that’s unsophisticated at least in terms of dealing with a personal injury claim and so in terms of hidden landmines the adjustors are going to try to elicit information from the injured party that shifts responsibility, from their insured to the injured party and it may be subtly the way they word a question, that the injured party is having a conversation with the adjustor and doesn’t really realize the importance of a particular word in the question. Those conversations are a lot of times recorded and you can’t really go back and change it after it happens. So, that’s why I think in answering your question earlier most of the time you really need to have an attorney so that you avoid that type of landmine. And again, not to ___ the point, but one of the big landmines are liens and subrogation issues too because again the unsophisticated client who hasn’t been in this situation before may overlook those things and it can just cause lots of problems down the road, so those are two of the big things.
R: So, what I hear you saying is in spite of what we see on TV, where people talk about how friendly we are to settle your claim and everything. Is the adjustor really your friend and your advocate?
C: You know Randy, I don’t mean to disparage insurance adjustors too much and I would say there is a distinction. If you are filing a claim against your own insurance policy, so you get into a fender bender, maybe the other party doesn’t have insurance. I have found that first party insurance adjustors are typically more friendly and reasonable. However, in the personal injury world most of the times I’m dealing with a third party insurance adjustor. That means I’m dealing with somebody else’s insurance company. The person at fault and they’re not bad people. They’re simply doing their job but no, they’re not your friends. I mean, they’re judged by their company on how efficiently they can adjust a claim and frankly what does that mean? It means and I hate to sound like such a skeptic but just having been in this business for long enough to know, it means that they need to try to pay as little as they can on each claim. I mean, that’s really the name of the game for them. So no, to answer your question directly, they’re not your friend; they’re certainly not your advocate. I mean, they are an advocate for their insured. I mean that’s obviously the way that dynamic works. So not bad people and I’ve certainly had some good experiences with even third party adjustors but circling back to the letter I read excerpts from this morning, I don’t think that adjustor is going to be one that is going to be our friend and advocate.
R: That’s true. Tell us, in managing our clients expectations, you know, what’s the most frequent problem that you encounter?
C: Speed of the resolution of the case. I can unequivocally say that’s it. As much as I try to set their expectations about that early on, it’s just very difficult to keep a client from becoming very frustrated. So, speed of the resolution. What am I talking about? The wheels of justice are slow and you know dealing with an insurance company on the front end of a claim before you even file suit can make you wanna kinda pull your teeth out. I write a letter, they won’t let me email it to them. and it has to be, Some companies won’t even except faxes and if they do it usually doesn’t actually hit the adjustors desk until several days after you fax it, it’s just dealing with giant bureaucracies and so couple weeks later I’ll get a response letter and you can see how that really makes the case drag along and then once you file suit not only are you at the mercy of the insurance company but you’re at the mercy of the courts. That’s just everywhere, not just Texas, but everywhere. It’s very difficult to get a case to trial in a reasonable amount of time. I think I pretty much will tell my clients, that if you can get to trial in 1 ½ or 2 years from the day you’re meeting with me for the first time, well then we’ve done something. But the problem with that is and I completely understand my client’s perspective is, they’ve been hurt, they’ve got medical bills to pay, collection letters they’re receiving everyday because they can’t pay the bills, yet there’s a dispute that has to be ultimately resolved between the insurance company and the injured party and that just takes a long time. So it’s frustrating for the attorneys, and it’s certainly frustrating for the clients and it can be something that can create a rift between the attorney and client if that expectation isn’t properly managed on the front end.
R: Interesting insight and tell us if somebody came to you for a consultation what’s the process that they can expect to go through?
C: Randy, the last thing I want to have to do is a fire a client. That may sound like a funny thing to say. I mean, clients are typically the ones firing their lawyers but and why I say that is when I go through a consultation with a client I almost never commit to the case at the end of the consultation. There’s just more to the story usually, I need to see medical bills, I need to see billing records, I need to see the police report and most of the time at the initial consultation I’m not going to have all that information. So I’m very frank with the clients and I tell them look I’m going to investigate this for a period of a couple weeks. It’s not going to cost you anything for me to do that but we’ll both be better off if I can have a good look at the underlying facts of the case and what were up against before I commit to it and I can certainly give them better advice and set their expectations at a more appropriate level if I’ve done that. Rather than they walk into my office, they tell me for 10 minutes about their accident and I’m shoving a contract across the table. I just don’t do business that way and I’ve found that it makes it more infrequent that you know six months down the road I have to call and say you know here’s a fact I didn’t know and that kind of changes the name of the game for you and I need to withdrawal. I don’t like doing that and so I think it’s better that I’ll give them a thorough consultation and a thorough investigation before they’ll have to sign on the dotted line. I just think that’s the way you should do business.
R: Very good and you know one of the issues that I’m sure comes up all the time is everybody wants to know the cost of hiring a personal injury attorney. What can they expect to pay and who’s expected to pay for these costs.
C: There’s not a boiler plate answer for that question, Randy. It really depends on the case and the complexity of the case. You know, I would say that if it’s a very black and white case in terms of liability and that is almost never the case but if it is and it looks like that my job is simply going to be to negotiate the best deal for my client and handle the liens and subrogation issues at the end of the dispute and it’s a case that may not have to go to trial, then the standard rate is 33% and the client will typically pay the expenses but we always front them in that situation. So that if I have to pay a stenographer for a deposition or an expert witness fee I’ll do that and take those costs out of the client’s recovery at the end of the case. But I should say that there have been plenty of cases where the rate is even higher than that. I mean it’s all about shifting the risk and you know the greater the risk for the lawyer, I think the more justifiable that the fee be a little bit higher, so sometimes we’ve gone up as high as 40% if there’s a real liability issue and a lot of dollars at stake and I’m gonna have to spend a lot of money out of our pocket on the way to getting a resolution and usually I don’t have any problems with the clients, they understand that you know at the end of the day when they sign a contingency fee agreement, it shifts the risk entirely from them to the lawyer. That is, at the end of the day if they don’t get any money, well there in no worse financial position then they were when they walked in our door but if I spend two years on a case and hundred, several hundreds of hours and tens or hundreds of thousands of dollars and we don’t win or we can’t get a resolution or the case just wasn’t a winner in the first place, then the only loser financially there is the lawyer and so I think the clients understand there’s a shifting of the risk and sometimes it’s appropriate to have one fee and sometimes it’s appropriate to have a higher one.
R: Very good and so what I hear you saying is, it doesn’t matter what the financial position of the injured party is, whether they’re rich or poor, they have access to the system because there is no direct cost to them initially compared to for example if they wanted to get a divorce.
C: Sure. That’s exactly right. Now, almost all personal injury cases, in fact I’ve never handled one that wasn’t, is a contingency fee arrangement and I’ve had wealthy clients and very poor clients and I would probably entertain the idea of handling a personal injury case on an hourly arrangement if somebody wanted to do that in the right circumstance but I’ve just never had anyone request that to happen, so yes, you’re right, everyone has access to it because it’s one of those situations where the clients just don’t have to pay a dime unless there’s a recovery.
R: And tell us, you know we’re getting to the end of the interview and I do have one last question I’d like to ask you and that is, if somebody were to be looking for a personal injury attorney, what should they look for and how should they go about selecting the right attorney for their situation?
C: Results and I think that applies across many industries but it certainly applies in the legal industry as well. Don’t accept just fluff talk and big promises, dig down deep and ask the lawyer to show you examples of the results they’ve gotten and I think the best predictor of the future is past results, right and I think that certainly applies in the realm of hiring a lawyer too so don’t just take all their blustery marketing legalese that they use, challenge them to show you what their results are and if they can do that and it looks like those are favorable results than you know, consider hiring that attorney.
R: Very good insights. Thank you. Collin, I want to thank you for sharing all your insights with us today. I know our listening audience is going to gain a lot of really good information from it and if you want to learn more about Collin Kennedy you can go to www.hanshawkennedy.com or call 972-731-6500. Again, Collin, thank you very much for your insights.
C: Ok, thanks, Randy.Read More
By now, we should all be sensitive to the evolving groundswell of law which could affect those of us (I’m among the guilty) who text and drive. As lawyers, we are waiting to see where all of the various state legislatures end up drawing the lines and how severe the penalties they will ascribe? Although not illegal in every jurisdiction yet, we know that while we are operating a motor vehicle, we ought not be reading or sending texts. The National Safety Council informs us that texting while driving (“TWD”) causes 1,600,000 accidents per year and that number will likely only continue to swell. Given the volume of accidents caused by TWD, it should come as no surprise that 330,000 people are injured each year and that 11 teens die every day in TWD accidents. Additionally, the National Highway Transportation and Safety Administration reports that TWD makes us twenty-three times more susceptible to crashing. Insurance companies and various safety organizations have done a fairly good job of educating us all on the dangers of TWD. That is, much as the MADD battle cry of the 90’s became “Don’t Drink and Drive,” we have now added “Don’t Text and Drive” to the automobile safety lexicon.
But should the driver who TWD or who reads texts while driving be the only responsible party in the unfortunate event of an accident caused by the driver’s temporary inattention to the road? A recent case out of New Jersey could completely re-shape the jurisprudence on TWD. In Kubert v. Best, et al. and Shannon Colonna, the Superior Court of New Jersey – Appellate Division took up an issue of first impression; whether, as a matter of civil common law, one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.
On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came around a curve, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of traffic. David Kubert attempted to evade the pick-up truck but could not. The front driver’s side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David’s left leg. It shattered Linda’s left leg, resulting in a compound fracture of her femur. Ultimately, both David and Linda each lost a leg as a result of the accident. The Kuberts’ attorney subsequently developed evidence which demonstrated that Kyle Best and his girlfriend, Shannon Colonna, had been texting each other all day long, including at the moment that the accident occurred. Although the Kuberts were able to prove that Best and Colonna were texting at the moment of the accident, it was not proven that Colonna knew that Best was driving while she was sending him texts that day. Without sufficient proof of Colonna’s knowledge of Best’s whereabouts at the time she was texting him, the Kuberts were not able to prevail in their novel legal theory against Colonna. However, the New Jersey court held that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. And with that, the sure-to-be controversial gauntlet has been thrown down and legislatures and courts from other states will likely soon follow with similarly reasoned laws and opinions. Will Texas follow?
Section 545.425 of the Texas Transportation Code provides that it is unlawful for:
- Bus drivers to operate cell phones (handheld or hands-free) while driving
- Novice drivers to operate cell phones (handheld or hands-free) while driving
- All drivers to use hand-held phones and to TWD in school zones
Texas is currently among the most conservative venues in the United States and is likely to lag the rest of the country in doing anything to strengthen the theories of negligence for injured Plaintiffs. And, frankly, I could understand a reluctance to broaden theories of liability in TWD cases. The anti-texting laws fall broadly into a category called “Distracted Driving” laws. But aren’t there many other elements on our Texas roadways that distract us from the road? What about giant billboards designed to seduce our eyes into reading and digesting the billboard’s message? Should advertisers then also be liable if a distracted driver causes an accident because he took his eyes off the road to read a billboard? What about a commercial hot air balloon outfitter? I have gawked at those multi-colored giant dirigibles on many occasions as they hovered overhead while I drove down the road. Surely the operator of those balloons knows their vibrant colors will catch the eye of anyone (including drivers) as they traverse the sky. Is there a difference in a driver’s culpability in an accident if he took his eyes off the road in favor of one distraction (say, a beeping cell phone) over another distraction (a billboard challenging us to consume a 64 ounce steak at a restaurant in Amarillo)?
TWD accidents are unnecessarily injuring and killing thousands of people a year. So I get it. Our human nature motivates us to do something quick and extreme to curb this alarming trend, especially in the name of political expediency. On the other hand, opponents of broader TWD laws argue that the fundamental issue is rather simple. They say whether or not your spouse or your friend knows you’re driving at the time they send you a text, you are not required to respond to them while you are behind the wheel. Furthermore, they argue that if you relent and succumb to the enticing ring/beep on your phone while you are driving, it is your conscious decision alone that recklessly diverts your eyes from the roadway.
In any event, TWD is a lightning rod legal issue right now and there will undoubtedly be other states which adopt the holding of the Kubert court. Accordingly, text senders across the country should proceed with caution. Don’t be the one who sends the wrong message.Read More
Proactive Planning is the Greatest Gift
Who Needs an Estate Plan?
The short answer, everyone. Anyone with any type of property, no matter the size of your estate; anyone with family members they want to protect from the costs and time associated with probate; anyone with minor children; and anyone who wants a certain person, people, organization, etc. to receive some or all of their property upon their death.
Contents of a Simple Estate Plan:
- A Will
- Durable Power of Attorney (for finances and property)
- Medical Power of Attorney
- Advance Directive to Physicians
Purposes of the Will?
1. Protects Minor Children
A Will is the easiest way to transfer guardianship of minor children. You can choose guardians and alternates for your children as well as guardians of the estates of the minor children. A Will can also create a trust to protect the finances of your minor children.
2. Disposition of Your Assets/Property
A Will gives you a way to tell the world how you want your property disposed of or distributed upon your death. You can choose to give your property to family members, friends, charities, etc. An experienced local estate planning attorney can help you ensure your wishes will be followed upon your death.
3. Avoid Probate
In Dallas, Denton, and Collin counties, probate is not as difficult as it may be in other areas around the state or the country. However, probate of an estate without a Will (intestate) is much more costly and difficult than administering an estate with a properly executed Will, written by an experienced estate planning attorney. Furthermore, distribution of your property will follow the rules imposed by Texas Law as interpreted by your local probate Judge instead of executing your individualized wishes.
What is a Durable Power of Attorney?
A Durable Power of Attorney allows you to specify a person or people to make financial decisions for you prior to your death (the Executor of your will would be given many of those powers upon your death).
This document makes someone your legal agent, allowing that agent to sign documents on your behalf and manage your financial affairs. Under the Durable Power of Attorney, your agent or agents must uphold a strict fiduciary duty to you and you can limit or expand the specific powers give to your agent within the durable power of attorney. Also, the durable power of attorney can either become effective immediately upon signing the document, or it can become effective at a later date (i.e. upon your subsequent disability).
You will want to work with your estate planning attorney to determine the most beneficial use of the durable power of attorney in your current situation.
What is an Advance Directive to Physicians?
An Advance Directive states your wishes regarding life sustaining medical intervention in the event you are unable to communicate your wishes to your health care provider. This is an important document in your estate plan because it removes the need for loved ones to make difficult decisions regarding your end of life care.
What is a Medical Power of Attorney?
A Medical Power of Attorney lists agents to make health care decisions for you in the event you are unable to make such decisions on your own. This is different from an Advance Directive because it names people who will need to make health care decisions, instead of simply listing some of your own wishes for the treating health care providers. Not only is this an important document for those planning their estates, but the attorneys at Hanshaw Kennedy, LLP recommend that college students and other young adults consider executing a medical power of attorney designating their parents to make such decisions in case of emergency. Without this and a HIPAA Release, parents may have a difficult time obtaining information from health care facilities and may need court intervention before they can make such decisions on behalf of their adult children.Read More
Enforcement of Child Support
Under current Texas law regarding the enforcement of child support, there is a gaping loophole that allows parties to play games withholding much needed child support without the intended consequences of jail time. In Texas, a person obligated to pay child support (an obligor) can be sentenced to jail time for nonpayment of that child support. Even in Texas, a debtor-friendly state, child support is held to a different standard, and judges here in Collin County, Denton County, and Dallas County send these non-paying obligors to jail regularly – especially repeat offenders.
The typical course of action is this:
1. Person obligated to make child support payments fails to make those payments in part or in full.
2. Person entitled to receive child support payments files an enforcement action in Court, in which he or she asks the judge to enforce the original order and force the obligor to pay current and past child support (and attorney’s fees for having to bring this action), and sets a hearing in front of the judge.
3. The person bringing the enforcement action has to pay for attorney’s fees up front and hopes to be reimbursed for these fees.
This is where things change depending on the particular facts of each case. Sometimes an obligor cannot afford to make the payments. Sometimes an obligor will come to an agreement to pay the back owed child support (arrearages), by setting up a payment plan (including interest). In other cases, the obligor will plead his or her case in front of the judge and ask for lower payments. Texas judges have a range of sanctions to impose on non-paying child support obligors. First, the judge can lower the payments based on a change in the obligor’s circumstances provided that the obligor has properly requested a modification of child support. However, the change in child support is not likely to negate the arrearage that has accrued and on which the enforcement is based. The judge will still likely confirm the arrearages and set up a payment plan for the obligor to pay the back support with interest. A judge may also find the obligor in contempt of court. In doing so, the judge may issue jail time – up to six months per offense of missing a payment. The judge may send the obligor directly to jail or may put the obligor on a suspended commitment, similar to probation, in which the obligor must remain current on his or her account or he or the suspended commitment would be revoked and the obligor would go to jail to serve the remainder of the suspended sentence.
The loophole comes into play when the obligor can afford to make the payments, but has chosen not to do so. In these cases, if the obligor can prove that he or she is current on all payments at the time of the enforcement hearing, the obligor can avoid a finding of contempt. This flaw in the law allows obligors to get behind on payments, and encourages game playing where an obligor will get behind on payments and an obligee will be unable to afford to care for the children; the obligee will then race to the courthouse to file an enforcement action and set a hearing on the enforcement. If the obligor subsequently pays the arrearage prior to the enforcement hearing, the obligee’s initial court filings are almost moot. Ultimately, this process increases the costs to both parties and costs the court valuable time. In an attempt to avoid this game playing, current Texas Family Code section 157.162(e) provides a remedy allowing the judge to order the obligor to pay the obligee’s attorney’s fees, but only if the obligee can show that the obligor was behind in payments at the time of filing the enforcement action and only brought the account current after he or she was served or otherwise notified of the enforcement action.
In the upcoming legislative session, the Texas Legislature will consider legislation to correct this loophole by removing Texas Family Code sections 157.162(d) and (e), which limit the ability of the court to impose contempt as a sanction. Without these sections, the court would have more discretion to weigh the facts of each case and impose contempt and attorney’s fees in all appropriate situations, even if the account was brought up to date prior to the hearing.
For now, if an obligor can and does make full payment after an enforcement action is filed, the petitioner can still recover attorney’s fees and court costs incurred, however, it is a waste of time for the petitioner and a waste of money for both parties and the Court.
An experienced family law attorney can help you decide your best course of action if your court-ordered child support is not currently being paid in full. The family law attorneys at Hanshaw Kennedy, LLP have experience working with the Office of the Attorney General Child Support Division in Collin County, Denton County, and Dallas County.
Stay tuned to learn about modifying child support.Read More
Facebook: I lose sleep over it
Postings on Social Media like Facebook & Twitter are quickly finding their way into the courtroom
Facebook sometimes keeps me up at nights. And not for the reasons you might think. While I admit that I am prone to browse my Facebook newsfeed every couple of days, and even less frequently post a picture or a thought, I wouldn’t classify myself as a Facebook junkie. No, Facebook (and other social media platforms, for that matter) impairs my slumbering at times because I worry about its effect on my clients’ cases. To otherwise bury my head in the sand and not have angst about the material my clients feel the need to post on their Facebook pages would render me negligent in the care of their legal matter. I learned my lesson the hard way. Let me explain by telling you about a case I once handled.
A cautionary tale:
Not too long ago, Jim called me to report that he had suffered a head injury which resulted in significant impairment of his olfactory sense. That is, he claimed that his injury caused him to lose his sense of smell. I won’t go into the cause of his injury, but suffice it to say someone else’s negligence caused it and liability was never a disputed issue in the case. What most certainly was at issue was the measure of his “damages.” After all, how does one quantify (in dollars) what it means to a person when he can no longer smell?
Think about it. For you coffee lovers, what would your mornings be like without the distinctive smell of your java brewing as you get ready for your day? For movie lovers, can you imagine walking into a movie theater and seeing that bubbling cauldron of buttery popcorn spilling into your carton, but not being able to enjoy the aroma as you consume this favorite treat? Granted, I grew up near the stinky refineries of the Houston Ship Channel, so I can recall times as a child when I regretted that my olfactory nerve hadn’t been mortally severed. But even putting aside the future prospect of not being able to smell the good (and the bad) things in life, there’s a safety component too. What if my client was alone in his house and couldn’t smell the fumes promulgated by a burning stove or an attic fire? Its certainly conceivable that one’s sense of smell could be a life-saver in those unfortunate situations.
But hey, I promised you a story related to Facebook. And by now you’re asking yourself what any of this has to do with Facebook. At the time that I filed my client’s case it was not my general practice to snoop their social media pages to discern information which may be helpful or hurtful to their case. It turns out, however, that it was the practice of opposing counsel (or his paralegal) to wander around the social media pages of his adversaries. And for good reason.
Opposing counsel proceeded with taking Jim’s deposition at my office. With his questions, he drilled down on exactly how Jim’s purported total loss of his sense of smell was affecting his quality of life. In painstaking detail, Jim answered his questions. At the time, there was really not a conclusive medical test which could measure one’s ability to smell. After all, the result of such a test would be largely controlled by the subject’s subjective answers to questions. “Can you smell this? How about this? What does this smell like?” Etc.
In any event, at the conclusion of Jim’s deposition, I was as convinced as ever that he had a compelling story to tell to a jury and that he would receive a substantial damage award at trial. Except…. opposing counsel innocuously sent me a subpoena for my client’s Facebook page history/content one afternoon a couple of months before our trial date.
Curious, I called Jim and asked him if he had a Facebook page. Indeed, he did. After only a few minutes of browsing his page, I knew our case was in trouble. You see, Jim had commented on his page about the wonderful smell of the chocolate chip cookies coming out of his oven the night before. As I sit here now, I can still remember the temporary nausea that engulfed me as I read his comment. You can imagine how quickly that case headed south. Sure, he had also suffered a small fracture and had some medical bills that needed to be paid, but his credibility was shot.
There was no trial and only a very small settlement, which was undoubtedly paid only as a professional courtesy to me. What’s the old adage? “Fool me once, shame on you; fool me twice, shame on me.” I’m confident this won’t ever happen to me again. To be sure, if you hire me, I’m going to ask you for passwords to your social media pages. And if you post something on your pages which undermine your credibility (or mine) or could jeopardize your case, I will badger you until you take it down. I might even fire you.
Sleep is important to me.Read More
State Employees Learn the Hard Way about FOIA Requests; Just ask ex-Arkansas Razorback Football Coach Bobby Petrino
It started as just another Sunday afternoon in the bucolic foothills of the Ozark Mountains for the revered Coach Bobby Petrino. Still basking in the after-glow of his team’s successful 11 win season which culminated in a Cotton Bowl victory, Coach Petrino headed to his on-campus office on his beloved Harley-Davidson. After a team meeting with players and coaches, he mounted his bike again and headed out for a nice ride, not unlike he would frequently take on those pleasant spring afternoons in northwest Arkansas. Sounds innocuous, right? It wasn’t.
As the world now knows, at some point that afternoon, Coach Petrino lost control of his bike on a rural highway and suffered some relatively serious structural injuries (though it could have been much worse) to his back and some cosmetic injuries to his head and face. Given the stature of Coach Petrino in Arkansas, the wreck was briefly a front-page story on ESPN and other national news organizations. But, in essence, it was just another motorcycle accident. Big deal, right? It was page 2 news the next day and back page news the day after.
Then, Coach Petrino, after being discharged from the hospital a few days later, inexplicably stepped in front of a microphone at a press conference called at his behest and uttered the words that have forever changed his life – “well, when I came out of the ditch there was a lady there that had flagged down a car.” Umm, excuse me, Coach, did you say there was a lady there? A lady just happened to be strolling down a country highway and happened upon the aftermath of your crash? And with that, the hounds were unleashed.
Indeed, in a very weak attempt to stay ahead of the storm that was brewing in the Ozarks, Coach Petrino dialed up Arkansas Athletic Director Jeff Long just twenty minutes before his personal security guard leaked to him that the Arkansas State Police was about to publish the official police report in connection with his motorcycle accident. We don’t have a transcript of Petrino’s conversation with Long, but we do know that Petrino told Long that the report was going to reflect that the “lady” to which he vaguely referenced at his self-serving press conference was a passenger named Jessica Dorrell. Say what? Who? Jessica Dorrell, the brand new (she was personally hired by Coach Petrino just 3 days prior to the accident) attractive “assistant” to Coach Petrino. Did I mention that she was engaged to be married in June to another Razorback athletic department employee? On the surface, there would not appear to be a legitimate reason for Ms. Dorrell to be latched on to the back of Coach Petrino’s motorcycle for a joy-ride in Washington County, Ark.
But the “hounds” I mentioned above were not content to rely on the obvious nefarious inferences to be drawn from the tale spun by Coach Petrino. Instead, various individuals and news organizations initiated a FOIA (Freedom of Information Act) request. The FOIA was enacted by Congress in 1966 and adopted by most states, including Arkansas, in 1967. Incidentally, the Texas FOIA is virtually identical to the Arkansas FOIA. In pertinent part, the Arkansas Act provides that the business of public officials must be performed in an open and public manner so that the constituents are properly advised of the performance of public officials and in the processes leading to public policy.
Congress didn’t likely intend for the Act to create a mechanism for a fishing expedition for incriminating or embarrassing records, but, in any event, the general rule is that anyone can request to see the “public records” (which is very broadly defined by the Act) of public employees/officials. Accordingly, an FOIA request can compel a public institution like the University of Arkansas to release all manner of otherwise private information about a university employee.
In fact, there are criminal penalties for a government agency’s failure to properly respond to an FOIA request. In Petrino’s case, the University was forced to parse and produce the phone records from Coach Petrino’s state-issued cellular telephone. After the provision of the records to the public domain, we now know that Coach Petrino authored some 4,000+ text messages to Jessica Dorrell dating back to September 1, 2011. On some days, he sent as many as 70 texts to Ms. Dorrell. There wasn’t a national news organization in America who didn’t report the result of the FOIA request. The irony is palpable given that Coach Petrino, a husband and devoted father of four children, is known to be fiercely private.
Coach Petrino has now confessed his infidelity. And while it was the fateful decision to take Ms. Dorrell for a ride which sparked the ensuing firestorm, it is inarguable that the FOIA request was the proverbial nail in the coffin of the career of Bobby Petrino. Athletic Director Long was left with the Hobbesian choice, on the one hand, of keeping Coach Petrino and absorbing the deserved media criticism and damage to the University’s reputation, or, on the other hand, terminating Coach Petrino for cause and casting the state’s beloved Razorback football program into a state of disarray. Petrino’s reckless and ill-advised conduct has cost him dearly. A lost career, tens of millions of dollars, and, perhaps worst of all, the lost respect of his family.
So, if you are employed by a state or federal government agency or institution, beware of the FOIA and be advised that the emails you send on your work computer or the text messages you send from your employer-provided phone might as well be addressed to Reuters or the Associated Press.
Contact Hanshaw Kennedy, LLP today and we will help you through any of your business or personal legal needs.Read More
Texas Estate Planning…A Few Simple Steps, Will Solve Big Problems
The movie depicts a dysfunctional “nuclear” family coping with loss and change in modern day Hawaii. We are drawn immediately into a “not quite right” suburban setting in the beautiful islands of Hawaii. Aside from the setting, the King family seem normal enough in that they go to work, go to school, play sports and generally try to make their way through life.
George Clooney plays Matt King, a successful businessman and lawyer and a local land mogul whose family roots date all the way back to Hawaiian royalty. King is married and has two daughters who are struggling to cope with a recent accident that rendered their mother in a coma. Matt King is the sole trustee of a family trust that owns a very substantial amount of land on the island of Kaua’i. Because of the Rule of Perpetuities (a virtual nightmare concept for any first year law student, I assure you) the trust must soon be dissolved and King, as the Trustee, has decided to sell the land to a local real estate developer.
What does all of this have to do with estate planning? Everything. The Kings are very wealthy, sure, but that is not the necessitating factor requiring that they have their affairs in order. No, again, they are normal folks, like you and me. And when you see all that they are dealing with, you come to realize that it would be really nice if the “little things” were taken care of in advance. Numerous examples of why you need to do some planning prior to a life-changing event are set out in this fictional account of the very non-fictional inevitability of change and uncertainty in our lives.
King’s wife is in a boating accident. We are told she was a healthy, vibrant and adventurous soul prior to the accident. Now she’s in a coma, hooked up to machines that feed her, help her to breath and monitor her vital signs. One day she’s a mother of 2 and a wife. The next day? She’s still a mother of 2 and a wife. But what happens to her? What happens to her family? How do they cope with this change? Does she have a living will? A medical directive? A power of attorney? Does she want to be removed from life support?
And what happens to the land owned by King’s family for generations? Will it be sold to commercial interests who care nothing for Hawaii or its history? Will all of the relatives who are interested in the sale of the land honor the wishes of the initial grantor of the trust? And what were those wishes?
The movie forces us to examine our own fragility. For, indeed, we will face change in our lives. We may suffer a tragic accident that renders us disabled or a terminal disease that means our time on Earth is finished. And though it is over for us when that happens, what are our loved ones left with? We may want to make their lives easier monetarily. We may want to show them tokens of our affection for them through specific bequests. We may even wish to preserve family land or possessions for our grandchildren and their grandchildren. Regardless, we need to do some planning now. It’s inevitable – change is coming.
The Kings are just like you or me (except they are multi-millionaires!!). They didn’t expect these things to happen. But they happened all the same. Will you be ready when the time comes to make tough decisions? Will your loved ones have to clean up any messes you’ve made or will they get to celebrate your life because you’ve planned ahead. That’s all it is – planning for the future. And it’s a future where we know what will happen: something, anything. Change is certain. Are you ready for it?
Contact Hanshaw Kennedy, LLP today and we will help you through any of your business or personal legal needs.Read More