Custody of Your Pet in a Divorce

May 8, 2008

Many couples, because of age or by choice do not have children- at least the two legged type.  For many couples, their beloved pets are considered their “children”. 

This is why when divorce comes along, parties can feel just as much anxiety, concern and apprehension as they would in a divorce proceeding involving a child.  However, the courts handle pets much differently than children and so some thought into the issues of  “custody” of Rover, Fluffy or Polly is needed.

Here are some basic issues to consider in a Texas divorce involving pets:

  • No matter how much you may feel that your pet is a member of the family, Texas courts consider animals as property only.
  • As property, the community property rules apply to your pet.  Therefore your pet is subject to being given to either you or your spouse.  The only exception is if you can prove that your pet is your separate property.  Generally you can only prove this if you (1) owned your pet prior to being married (bills of sale, vet bills dated prior to marriage etc. may be helpful here); (2) your pet was given to you as a gift during the marriage (hard to prove); and (3) your pet was willed or bequeathed to you (such as a long lived parrot willed to you by your aunt);
  • If you have a valuable pet (such as a horse, purebreds, or show animals) it will considered as a valuable asset.  If the parties cannot agree to the custody of the valuable pet, the judge could order that the animal be sold and the proceeds divided according to what the judge thinks is fair.  This “King Solomon” type of solution may be to neither party’s desire.

Although your pet is legally considered property, you may want to consider using a “best interest of the animal” standard in trying to negotiate with your spouse.  This may mean that you should be willing to give up your pet if it is your pet’s best interest.

  • Talk with your spouse about the pet to see if you can work out an agreement.  This is usually will be better than going to court and have a judge (who may not be an animal lover and has little patience for such “quibbling”) ruling in a way neither of you want;
  • If you do have minor children (human), who have formed an attachement with the pet, consider letting the pet go to the parent who has primary custody of the children;
  • If there are more than one pet, consider not dividing them between the spouses.  Pets, even of different species, often form packs.  Breaking the pack can cause depression and anxiety for the animals;
  • You can work a custody arrangment for visitiation just like done with children.  However, many judges will not take the time to make such a ruling.  You have to do this by agreement and have your attorney draft it up so it is legally binding.

If you absolutely cannot work our custody of your pet with your soon to be ex-spouse you will have to fight over Rover in court.  Here are some tips to keep in mind:

  1. Be sure to tell your lawyer early on in the case how important your pet is to you.  Your lawyer may not understand that this is a priorty for you unless you tell him or her.
  2. You should be prepared to show the court that you are the person best able to take care of your pet.  Some ways of doing this may include-
  • show you have more time to play with your pet;
  • show you are in better health or habit to exercise your pet;
  • show you have been the one to groom it, take it to the vet, etc.  You may even have your vet testify about your ability to take care of the pet;
  • show you have more space for your pet (particularly if it is a large animal that needs space to run).

Also, you need to find out early from your attorney how they feel about your passion for your animal.  Some lawyers will not want to deal with your special issues.  Try to find an attorney who is both sympatheic to your special attachment and yet practially minded about how to resolve the issues for both your interest, and your pets best interest.

 

 

  


Female Lawyers Get Divorced More Than Male Lawyers

April 14, 2008

A researcher has found that young female lawyers and other women professionals have slightly higher divorce rates than their male counterparts.

Law professor Robin Fretwell Wilson of Washington & Lee University is the author of the study. She says her study indicates that “women can’t have it all because there is a social stigma to having or being a stay-at-home spouse.”

Wilson spoke with the Wall Street Journal about her findings, based on her analysis of 100,000 young professionals in business, law and medicine. She found that 10 percent of women with law degrees were divorced, compared to 7 percent of male lawyers.

Wilson’s study, which will be released next week, also found that female professionals are up to three times more likely to remain unmarried than men.

Economist Sylvia Ann Hewlett, who conducted research on high-achieving women in 2001, theorizes that highly educated women have higher divorce rates than their male counterparts because they are attracted to successful men, and can’t give these men the care and support they need.

Hewlett has this advice for well-educated, high-earning women: Look for a husband who is particularly loving and supportive.

Source:  “Women Lawyers Have Higher Divorce Rates, Need Loving Husbands, Researcher Says” by Debra Cassens Weiss, published in the ABA Journal Weekly Newsletter.


Rebutting the Community Property Presumption

February 6, 2008

Often times a party in a divorce wishes to have the court affirm the separate nature of a particular piece of property.  They must therefore overcome the presumption set up by the Texas Family Code that all property in a marriage is of a community nature.

     “Clear and Convincing Evidence” must be presented to rebut the community property presumption.  (TFC 3.003).  see McKinley v. McKinley 496 SW2d 540, 543 (Tex. 1973).  The standard requires that “a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”  Stavinoha v. Stanivoha, 126 SW3d 604.  To prevail in court, a party generally must produce not only testimony, but also documentary evidence of the separate nature of community property.  See Boyd v. Boyd, 131 SW3d 605. 

     The evidence to rebut the community property presumption should establish the time and manner it was acquired.  This is known as the “inception of title”.  The evidence should also any mutations that may have happened to the property during the marriage.  This is known as “tracing”.  In tracing, small gaps in establishing a property’s nature through time will not necessarily prevent a party from proving the separate nature. See Faram v. Gervitz-Faram 895 SW2d 839.  In that case, evidence was found to be sufficient to establish the separate nature even though the records on the investment account were incomplete.  The party must show enough evidence to convince the trier of fact to form a firm belief or conviction of the separate nature.


Professional Organizers Can Help In Texas Divorce Cases

January 24, 2008

One of the most dreaded aspects of divorce from a client’s point of view may be in completing the inventory and appraisement.

The “I&A” is a sworn statement of all the assets and liabilities owned by the community estate or either party to a suit.  The filing of an inventory by each party prior to trial is mandatory in Galveston and Harris counties, (where the author practices family law) and likely in most other counties in Texas.   The  I&A is the blueprint upon which the property division of a divorce is built .  It is also the basis of any detailed mediation or negotiations in which property is an issue- the parties will use the inventories to divide the property.  The document is a complete listing of not only the property, but what the parties think the value of the property is.  It is also an impeachable document in any adversarial hearing. 

For these reasons, the Inventory and Appraisement is one of the most important pieces of documentary evidence in any divorce- even those with only minor property disputes.  The parties must therefore put a lot of careful attention and detail in the inventory.  Obtaining account numbers, charge balances and other financial information for the inventory is difficult enough.  But for most people, the most intimidating parts of the inventory preparation is trying to catalogue all the “stuff” accumulated over a five, ten, or thirty year marriage. 

Most inventories do not require detailing anything with a value of less than a certain dollar amount (it is assumed the parties will divide such property themselves because the cost of litigating over these items is more than the items themselves are worth).  However, particularly in medium to high net worth families, there can be considerable assets spread throughout a home, in curio cabinets, in attics and in storage units.  Most people do not have a good idea of everything they own, let alone a detailed list and estimated value that is required to prepare an inventory. Some clients are so intimidated by the large task of cataloguing their valuables, that they give up the items in the divorce simply because they don’t have the time or energy to do all the necessary work.

Luckily, help is available through the National Association of Professional Organizers.  According the their website at www.napo.net, “A professional organizer enhances the lives of clients by designing systems and processes using organizing principles and by transferring organizing skills. A professional organizer also educates the public on organizing solutions and the resulting benefits. NAPO (pronounced NAY-poh) currently has close to 4,000 members throughout the U.S. and in 8 other countries.”   A search of their member database revealed 21 NAPO members in the Houston area.

I recently met one NAPO member, Judson Crowder.   Judson, after 9 years working in Hollywood organizing the packing, storage, and retrieval of set pieces (most notably with the show “Everybody Loves Raymond”) has returned to Houston to start his own his service company: Restorganize, LLC. (www.restorganize.com)  As part of his services, he organizes and inventories all items in a home or storage unit.  If you require your items to be put in a certain place for easy access, Judson will do that.  But more importantly for the divorce case, Judson creates a catalogue binder which details all the specifics of your individual pieces of property.  The binder includes a color digital picture, category of the item, and any other details needed. 

Such a catalogue binder could be an invaluable part of a divorce inventory or otherwise used as evidence for trial or mediation.  In a snapshot it allows the judge, mediator or party to see what is being argued over. 

Naturally, such services are not warranted in all cases.  The costs of this service (which can range between $50 to $100 per hour or more and take one or more full days depending on the volume and location) must be weighed against the value of the items to be inventoried.  However, Judson’s and other professional organizers’ services can take the drudgery out of this part of the discovery process in a Texas Divorce.   In medium or high asset cases, such services may be the difference in achieving a fair division of the property.  


Video Game Helps Children Deal With Divorce

November 13, 2007

children-and-divorce-aba.jpgWhen Jasmin Watson talks about her divorce, she sounds tired and a little frustrated. Mostly, though, she’s concerned about how her children—ages 9, 11 and 12—are holding up. They’re doing better, she says, thanks in part to a package that arrived in the mail from her attorney.

Inside was a video game called Earthquake in Zip­land, a research-based video game designed to help school-age children cope with divorce. Family lawyer Lee Rosen, whose firm is handling Watson’s divorce, discovered the game’s Web site last fall while surfing the Internet for resources to help clients of his Raleigh, N.C.-based firm. After playing the game with his own kids, he ordered three dozen or so to give out to clients.

“We used to hand out books, but if you hand a kid a book, they know what you’re up to,” says Rosen, whose three offices handle about 700 divorces a year. “With a video game, it’s something to play with and it engages kids, especially boys.”

And what he’s hearing back from his clients is that the game is working. “There’s just not anything like it that facilitates conversations,” Rosen says. Watson says she’s noticed a change since her kids started playing the game, especially with her youngest. “She asks questions now. I don’t know if that’s just because of the game, but they all definitely got into it—they thought it was challenging, and my kids love a challenge.”

In the game, a superhero named Moose must repair his country after an earthquake has caused upheaval and chaos. As kids play through, they must perform certain tasks, including writing in an online journal, to keep moving to higher levels. Using the earthquake as a metaphor for their life, children learn that “even a superhero can’t put everything together exactly the way it was before,” says Hank Shrier, who directs marketing for the game’s makers, Jerusalem-based Zipland Inter­active. (Click here to see clips of the game.)

The Rosen Law Firm was one of the first firms to order the game, says Zipland president and family therapist Chaya Harash. She hopes more will follow, especially based on the warm reception she received from both lawyers and judges when she presented the game at the Association of Family and Conciliation Courts conference in Washington, D.C., this past summer.

But Rosen says the game wasn’t an instant hit with the 11 other lawyers in his firm. “We basically handed it out to them and said, ‘You can give these to people if you’d like to,’ but largely they did nothing with them.” When Rosen demonstrated the game at a staff meeting, though, it clicked.

Rosen says the game doesn’t just help clients; it creates good will for the firm, too. “Clients are used to lawyers taking their money, but they’re not used to getting something, and when you give them a gift that also benefits their children, that’s something exponentially more powerful.”

That’s certainly reflected in Watson’s reaction when she received the game. “I was like, ‘Me? You thought of me?’ ” she recalls. “It made me feel like I wasn’t just another person—[that my lawyer] thought of me out of all those clients. It made me feel a little more important.”

Source: ABA Journal


Representing the Substance Abuse Client In A Texas Family Law Case

November 1, 2007

If your client is suffering from a substance abuse problem in a Texas family law case, the best way to address the issues are to hit them head on.  It is likely that all your client’s conduct prior to the hearing will be brought to light by the opposing side.  It is therefore best to cushion the impact linked to the substance abuse by bringing them out yourself through your client.  You want the judge to hear the story first through your own client instead of through the opposing side.

The theme of your case should be that your client is taking responsibility and taking control of his or her life.  By breaking the bad news to the court about your client first, you are supporting this theme.  Hopefully your client has already seeking treatment by attending a substance abuse facility, a recovery group or therapy.  The best strategy is the use of all of these.

Before temporary orders, you should work with the substance abuse client in determining what his or her goals are.  You must keep these goals realistic in light of the fact that your client is already behind the proverbial eight ball because of the substance abuse.  For example, your client should realize that he or she is not likely to get primary conservatorship until he or she has been in sustained remission of his or her addictions and is availing themselves of substance abuse services.  However, you should not persuade your client to roll over and die either.  Careful requests on temporary orders will help your client position themselves for a final order hearing where several months have passed and much work has been put into treating their substance abuse issues.  These requests include:

  • Request the preservation of joint decision-making rights and duties;
  • Ask for extra time, over and above a Standard Possession Order;
  • Obtain orders that require the primary parent to keep the other parent in the loop as to school events, sports schedules, and appointments.  Require the other parent to include your client as to contact on any information sheets regarding the child, not simply the school or daycare emergency contact card;
  • Consider asking the court to appoint an amicus attorney to represent the interest of the child if you believe the child wants to have more contact with your client than the other parent will agree to provide.  Tex. Fam. Code 107.021.  The amicus attorney may be more responsive to the evidence that the parent with the substance abuse problem is seeking treatment and making significant changes in their behavior, lifestyle, and more specifically, in their interactions with the child;
  • Consider filing a motion for the judge to confer with the child pursuant to Tex. Fam. Code 153.009(b).  (Source: “Use It and Lose It- Substance Abuse Issues in Divorce by Lynn Kaiman).

“You Make Me Sick!”: Unhappy Marriages Can Lead To Poor Health

October 17, 2007

A bad marriage can lead to poor health.  According to researchers, marital discord and bad relationships can increase your risk for heart disease. 

Research scientists said on Monday that stress, an acknowledged contributor or health problems is a byproduct of troubled relationships.

In a study of 9,011 British civil servants, most of them married, those with the worst close relationships were 34 percent more likely to have heart attacks or other heart trouble during 12 years of follow-up than those with good relationships. That included partners, close relatives and friends.

The study, in Monday’s Archives of Internal Medicine, follows previous research that has linked health problems with being single and having few close relationships. In the new study, researchers focused more on the quality of marriage and other important relationships.

”What we add here is that, ‘OK, being married is in general good, but be careful about the kind of person you have married.’ The quality of the relationship matters,” said lead author Roberto De Vogli, a researcher with University College in London.

Source:  AP, N.Y. Times Link to Article


Doctors and Divorce

October 5, 2007

Marriages can be stressful for anyone.  But doctors face an unusual amount of work related stress including long hours, demanding patients, stressful working conditions, social demands, and perhaps unrealistic expectations about how work and family life could be balanced.

Despite the added pressures, there are no reliable statistics to suggest that rates of divorce among physicians differ from any other profession.  This is probably a testament to the fact that most physicians are extraordinary individuals with strong commitments to both work and family. 

Despite this, doctors face the same divorce rate as everyone else- somewhere in the 49% to 50% range.  Interestingly though, among physicians there seems to be a great disparity of divorce rates based on sex and practice specialty.

 According to one US study, psychiatrists have the highest rate of divorce, with surgeons as the next most likely to divorce. 

A 2003 study by Dr. Gail Robinson of the Toronto General Hospital into stresses faced by women doctors found that “rates of successful suicide and divorce are much higher” than the general public.

Dr. Wayne Sotile, a clinical psychologist who treats physicians in Winston-Salem, NC says his clinical experience bears this out. 

“The burnout and divorce rate for women MDs is higher”, says Dr. Sotile.  He also notes that the most angry and disgruntled group he encounters are young men married to physicians.  He states that tensions felt by both parties about the gender role reversals creates difficulty in the marriages.

Interestingly, it appears that doctors married to other doctors have a much lower incidence of divorce.  A 2002 study found that they have a relatively low divorce rate of 11%.  This may be because each spouse understands the demands of being a physician. 

Yet, despite these variances, physicians overall are involved in divorce cases at least as much as the general populace.  However, the complexity of their divorce cases is usually much higher than people in other professions.  This is because of the need to value creative or complex businesses that physicians often create for their practices,  the need to assess the community interest in complex portfolios, and the need to have tailored solutions in divorce decrees. 

Because of these added complexities, physicians or spouses of physicians should consult with divorce attorneys who are experienced in dealing with divorces in which at least one of the parties are a doctor.   If your case is in the Houston/Galveston area, the author’s law firm, The Palmer Law Firm is experienced in dealing with these types of divorce. 

  


Adultry Caught By Toll Booth Evidence aka (Cheaters Pay A Heavy Toll)

August 15, 2007

Here is a new way to catch a cheating spouse: toll booth records. 

According to the Associated Press, electronic toll collection systems are emerging as a powerful means of proving infidelity.  Agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces.  Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.

Texas is not among the states that use “EZ Pass” system, but attorneys can try to subpoena the records of the Texas Department of Transportation to the Electronic toll collection records (Texas E-Pass) kept by the department.

Source:  “Toll Records Trip Up Philanderers” by Chris Newmarker, published at Yahoo! News.


Goodwill As Property In a Texas Divorce

May 4, 2007

Goodwill is the intangible, but valuable good reputation that a business builds up over the years. In a Texas divorce in which one of the community assets is a business or partnership, the value of the business goodwill should be considered as an asset that deserves consideration in the property division in the Texas divorce.

Goodwill in Texas is only considered an “asset” if it can be separated from a particular person. If the business is a solo practice such as the professional business of a doctor, lawyer or accountant, the goodwill must exist separate from the individual. Nail v. Nail, 486 SW2d 761.
In situations such as a law practice, the court will not recognize the existence of goodwill unless the person asserting the goodwill presents some evidence that it exists apart from the professional. Hirsh v. Hirsh 770 SW2d 924.
Texas courts have held that where one person does not do all the work themselves, a business could have goodwill apart from the person. Finch v. Finch 825 S.W. 2d 218.
Goodwill that exists separate and apart from a professional’s personal skills, ability and and reputation is divisible on divorce. Rathmell v. Morrison, 732 SW2d 6.
An attorney trying to prove the existence of business goodwill in a Texas divorce has a difficult task, and will likely have to rely on the expert opinion of a professional business appraiser. And in most instances, there is no practical way to divide goodwill. Seeking an offset from other property is the viable solution. If no such property exists, a money judgement and.or lien against the some tangible asset may be the only other alternative.


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