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.  


County Clerk Scams Quickie Divorce

January 17, 2008

There are so many “get-divorced-quick” scams out there that it has become common place for people to shell out their money for bogus or at least dubious “divorce services”.  Now it appears that even the trusted clerks are in on the scamming. 

A Miami-Dade County employee was arrested Tuesday for running a quickie divorce scheme out of the clerk’s office, the county’s Office of the Inspector General said.

Olga L. Avila, 46, is accused of promising to provide unrepresented litigants with a fast divorce for $670 cash. In the course of the scheme, Avila, who worked as a courtroom clerk, allegedly falsified and fraudulently notarized documents, and used her access and friends at the Miami-Dade courts to expedite the divorce proceedings.

Of the $670, she used $364 to pay the required filing fee and kept the remainder.

According to OIG, judges ordered the final dissolution of marriages, unknowingly relying on falsely sworn pleadings. Some of the parties, believing they were divorced, entered into new marriages. So far, the OIG investigation has uncovered four couples who obtained divorces through Avila.

Avila has been terminated from her employment, and charged with a total of 52 felony counts.

OIG said the investigation is continuing and that additional arrests are expected.

The lesson to be learned: hire a licensed family law attorney to help you with your divorce.

Source: South Florida Business Journal Business Journal


Suit to Shirk Child Support Flops

November 13, 2007

An appellate panel has upheld the dismissal of a lawsuit filed on behalf of a man who claimed that Michigan’s paternity law violates the equal protection clause. The lawsuit, filed by the National Center for Men, argued that men involved in unintended pregnancies should have the option to decline financial responsibility for the child. Courts have previously ruled that any possible inequities experienced by men in such circumstances are outweighed by the interests of the child.

Source: Ap, USA Today


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


Harris County to Build a New Family Law Center In Downtown Houston

November 7, 2007

Harris County voters yesterday approved a $70 million dollar bond to construct a new family law center for Harris County, Texas. The facility will be located in the downtown Houston court complex.

The bond issue passed by a very narrow margin. 50.6% for and 49.4% against.

According to Family District Judge Bonnie Hellums, the building might be open in January 2011.
The new building will be built on the block north of the present one. It will require razing the “Coffee Pot” building which Harris County vacated, and also the teardown of the Lomas & Nettleston parking garage.

The building will be a “one stop shop” for most all family law services. Currently many of the services are spread across downtown. The building will house Family Law Intake, Children’s Protective Services, the Domestic Relations Office, the Attorney General, and the Houston Bar Association’s Volunteer Lawyer Program.

There will be rooms for children to give videotaped testimony via closed circuited television

With one floor left as a shell, the building should be adequate for the county’s family law needs for 15-20 years, Judge Hellums said. She noted the huge caseload carried by the Harris County Family District Courts and predicted it will only increase.

The volatile nature of many family law cases is reflected in safety plans for the new building. Today, to pursue a complaint, Houston area domestic violence victims must go to several agencies in different offices, often by bus, Judge Hellums said. The new building will have offices for assistant district attorneys, law enforcement officers, doctors and the Houston Area Women’s Center.

When protective orders are being argued and negotiated, there will be separate rooms for the litigants, which should reduce tensions. There will be rooms for supervised visitation and monitoring exchanges between custodial and non-custodial parents. Judges will have secure parking in a level below the building reported Judge Hellums.

The New Harris County Family Law Center will also have a drug lab. Litigants suspected of abusing drugs-an issue in many cases- are currently sent to a lab three blocks away. To avoid the drug test, some litigants claim to get lost and arrive shaved (to avoid giving hair follicle samples). This possibility will be eliminated.

Judge Hellums is particularly interested in ensuring there is a designated Family Drug Court, which she currently presides over.

For more information about the new Harris County Family Law Center, go to http://www.hcfamiliesfirst.org/

Sources: Houston Chronicle; Hearsay (Harris County District Clerk Publication).


Texas Frozen Embryo Case of Roman v. Roman On CNN’s Anderson Cooper

November 2, 2007

Follows is the transcript from last nights CNN news show: Anderson Cooper.  In it, Augusta Roman, who has used up all her appeals in Texas indicates that her attorney is working on a brief to take the case to the U.S. Supreme Court.  From politics, let’s turn to a story that is certainly going to have you talking tonight. Divorce cases are often bitter and brutal. And they certainly get worse when there’s a child caught in the middle. But there’s one battle that is not over a boy or a girl. It’s over frozen embryos and just who they belong to. CNN’s Gary Tuchman has our report tonight. (BEGIN VIDEOTAPE) GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): They are from very different countries and cultures, but Augusta and Randy Roman hit it off quickly when they met in Texas. AUGUSTA ROMAN, FORMER WIFE OF RANDY ROMAN: We wanted to get married and have kids. So, we didn’t really have a long, what you call it… TUCHMAN (on camera): Courtship. A. ROMAN: Courtship. So, we talked about it, and we wanted to get married and start a family. RANDY ROMAN, FORMER HUSBAND OF AUGUSTA ROMAN: She was the woman that — that I married for life, and she was the woman that I wanted to have a family with. TUCHMAN: They had fertility issues and ultimately began in vitro fertilization treatment. Thirteen eggs were retrieved from Augusta’s ovaries. Six were fertilized with Randy’s sperm. The night before they were ready to implant the eggs: A. ROMAN: I got ready for bed. And he just came out of the office and said he has something that’s been on his mind that he wants to talk about. TUCHMAN: Augusta’s husband told her he didn’t want to go through with it. R. ROMAN: I just felt that something wasn’t right and the marriage wasn’t in harmony. A. ROMAN: I was pretty shocked. TUCHMAN: The couple went through marriage counseling, but, ultimately, they got divorced. However, Augusta, who is now 47, still wanted to try to have a baby from the three embryos that survived the freezing process. A. ROMAN: I want my children. Those are fetuses. They’re my children. They’re not just embryos out there. TUCHMAN: Randy Roman says he’s an evangelical Christian, but: R. ROMAN: Not everybody in the Christian community, or in the evangelical Christian community, believes that life begins at conception. And I’m one of those who does not believe that life begins at conception. TUCHMAN: Greg Enos is his attorney. GREG ENOS, ATTORNEY FOR RANDY ROMAN: He doesn’t want to have a child with a person who feels so negatively about him. He — and he wants to have a child in a nuclear family. TUCHMAN: So, in a most unusual divorce case, the Romans are fighting over their embryos. You will be amazed how far that fight has gone. We will tell you when we come back. (END VIDEOTAPE) (COMMERCIAL BREAK) O’BRIEN: Like many couples, Augusta and Randy Roman wanted to start a family. And their attempts at childbirth lead them to in vitro fertilization treatment. But then the marriage fell apart. She hoped to create a family with the embryos, but he doesn’t want to. CNN’s Gary Tuchman continues his report, showing us just how far both are willing to take this fight. (BEGIN VIDEOTAPE) TUCHMAN (voice-over): Both Augusta and Randy Roman had signed a form, agreeing to have the clinic discard the embryos in the event of a divorce. A. ROMAN: I wasn’t paying attention. I was signing a bunch of forms, trying to get to have babies. That was the only thing on my mind, trying to have babies. REBECCA REITZ, ATTORNEY FOR AUGUSTA ROMAN: My heart just breaks for her. TUCHMAN: Rebecca Reitz is Augusta’s attorney. REITZ: I know that — that society should — should err on the side of protecting life, and — and not destroying life. TUCHMAN: A Texas trial court ruled in favor of Augusta, but then an appellate court ruled in favor of Randy. The Texas Supreme Court decided not to hear the case. Now Augusta’s attorney is preparing briefs for the U.S. Supreme Court. The embryos remain frozen at this clinic. Anti-abortion groups support Augusta. CLARK FORSYTHE, AMERICANS UNITED FOR LIFE: The best-interests- of-the-child standard should be applied here to protect them, without regard to the individual will of either parent. TUCHMAN: One prominent bioethicist disagrees with that. DR. ARTHUR CAPLAN, DIRECTOR, UNIVERSITY OF PENNSYLVANIA CENTER FOR BIOETHICS: He is involved in the creation of the embryos, as well as her. And you don’t want to put people in a position where they’re being asked to reproduce against their will with someone they don’t want to. TUCHMAN: Randy Roman says his ex-wife has made this very difficult and painful. R. ROMAN: She hates my guts, but she wants my sperm. A. ROMAN: I don’t hate him. I feel — I think he has a problem. And I do pray for him. TUCHMAN: She also prays that the U.S. Supreme Court take the case and rules in her favor. It’s her last legal chance. Gary Tuchman, CNN, Webster, Texas. (END VIDEOTAPE) O’BRIEN: OK. So, you have seen the story. Now to the legal issues that are at the center of this battle. For example, is there any difference between the legal rights of an embryo that’s inside the womb and one that’s outside the womb? We will take a look at that just ahead. *** Now back to that bitter custody battle we have been talking about, a divorced couple fighting over frozen embryos. Is this case going to go all the way to the Supreme Court? We are going to check in with law professor Jonathan Turley right after this short break. (COMMERCIAL BREAK) O’BRIEN: In custody cases, courts usually decide by what’s — looking at what is for the best interest of the child. But what if there is a custody case, but no child? What if the fight is over frozen embryos? That’s what is unfolding in Texas between a divorced couple. Randy Roman doesn’t want the embryos implanted. His ex-wife, whose name is Augusta Roman, is hoping that she can use the embryos and have children. A Texas appeals court ruled in his favor, because the two signed a contract saying that those embryos would be discarded upon divorce. Now she’s asking the U.S. Supreme Court to step in. Lots to talk about tonight. Joining us is Jonathan Turley. He, of course, is a constitutional law expert at George Washington University. Jonathan, nice to see you, as always. JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON UNIVERSITY: Thanks, Soledad. O’BRIEN: The Texas Supreme Court refused to hear the case. What do you think the chances are that, in fact, the United States Supreme Court will hear this case? TURLEY: I would bet against it. I have got to tell you, I don’t think that the United States Supreme Court wants any part of this case. It’s very, very complex, in the sense that it has constitutional elements, contractual elements. But, at the end of the day, the Supreme Court generally leaves these things to the states. And I’m willing to bet you that a majority of the justices would agree with the court of appeals on the case. O’BRIEN: At the same time, you have some outstanding issues. She’s older. These embryos can remain frozen until they make a decision. But there’s sort of a clock ticking here in the background. Will that play any role? TURLEY: Well, all of this goes into the mix. I mean, the trial court actually found that, even if the embryos were implanted, she would have only about a 10 percent likelihood of actually bringing a child to full term. O’BRIEN: Because she’s 47 years old. TURLEY: That’s right. But, still, this is still the potentiality of something that she wants very, very much. And that’s what makes this all very, very tragic. And, so, you have this tension between a case — within a case in which you have got constitutional questions which are looming, the Roe v. Wade, you know, right-to-choose/right-to-life questions. But then you also have a sort of purely contractual question of, these are two people that entered a contract and said, we’re going to do something under these conditions. And one of those conditions was that we would not use the eggs unless both of us agreed. O’BRIEN: And it was clear. There was a form that was signed. She said, you know — she’s not saying she didn’t sign the form. The way she describes it, well, you know, there are lots of forms. And I just signed them because I wanted to go ahead and get — you know, get going with having these babies. Will that have any standing in a court? TURLEY: Not really. I mean, I can understand what she’s talking about. Many of us sign things, particularly when we’re distracted or we’re thinking about other matters. But we are held accountable to those. And this was a very important contract. This was dealing with fertilized eggs, the potentiality of being implanted. And I’m afraid the courts will use that lack of judgment or concentration against her. The — the terrible thing for many people, Soledad, is that these eggs are treated as property. They are just part of the estate. And what the court said originally, the trial court, was, this is a community property state. It’s part of community property. I’m going to give it to — give it to her, and she can use these eggs. But the court of appeals said, wrong, that this is subject to a contract. And the court also noted that there’s a strong public policy against requiring people to have children. O’BRIEN: Anti-abortion organizations are supporting Augusta in this. And she says — this is what she said in interview with the Associated Press — “If I was pregnant with these embryos, no one should come and say to me, abort them. There’s no difference,” she says, “between embryos inside the womb and outside the womb. I’m already pregnant.” Is she already pregnant, in the eyes of a court? TURLEY: No, not in the eyes of the court and not legally. She may view that morally… O’BRIEN: And not technically either. TURLEY: Yes, or technically. But she may believe that, morally, that — that that’s true, that this is the potentiality of life. You know, President Bush is opposed to destroying even stem cells under the same theory. But, legally, that’s not the case. And to make this argument to the Supreme Court is going to really buck the trend. Right now, conservatives are trying to take inches away from Roe v. Wade. This would be a moon shot. This would be asking justices to say that a fertilized egg is itself life that deserves full protection that you would give a full-term baby. That’s just not going to happen. And it hasn’t happened. The notable thing, Soledad, is that the courts have been almost uniform — in fact, I think they have been entirely uniform — in ruling against people trying to force an ex-spouse or ex-partner to relinquish control of these — these eggs, that the courts have said, you really cannot force someone to have a child. You have a right to procreate, but there’s a flip side. You have a right not to procreate, unless they signed a contract waiving that right, their right, to you. O’BRIEN: Jonathan Turley is a constitutional law expert with G.W. University. Nice to see you, Jonathan. Thanks so much.


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