Trial Ledger

“When a case involves documents, it is critical to begin organizing the documents immediately upon receipt.  It is more efficient to touch the documents only once.  As a practical matter, this means that all discovery items are marked and filed immediately upon receipt.  They should be organized in a way that they are easily retrievable by counsel and any assistant who will work on the file.  Having a clear desk doesn’t mean you are organized either- anymore than having everything digitized means you are organized.  Clumping all documents in a file with a client’s name- either physically or electronically will not help you put your fingers on the document when you need it.

A proper trial ledger will follow the entire trial preparation and, ultimately, will be the reference for the actual trial.  It will serve as a checklist for the attorney to collect what is needed for any type of trial that may grow out of a family law case.  Because they are standard documents needed in any dissolution, custody, or financial case, a generic trail ledger with expansion space for specific evidence that may be necessary for a particular matter, should suffice.”

Texas Frozen Embryo Case of Roman v. Roman Finally Over

On thing can be said for Augusta Roman, she certainly fought her legal case until the bitter end.  

In a Harris County, Texas divorce, she wanted to be awarded frozen embryos she had created with her husband when they were still together.  Augusta wanted to implant the embryos and become pregnant even though her now ex-husband, Randy protested and said that although he might want children some day with someone else, he did not want to create children with a woman who obviously hated him.  And so Augusta and Randy waged a legal battle both in the judicial courts and in the court of public opinion for over two years, through all the levels of court in Texas, right up to the U.S. Supreme Court.

Earlier this year, the U.S. Supreme Court had ruled that it will not overturn the Texas Court of Appeals decision that denied custody to Augusta.  But in April, Augusta filed a Petition for Rehearing and additional briefs to the Court.  Yesterday, May 12, 2008, the U.S. Supreme Court handed down it’s final, absolute, and unappealable order.  It denied the rehearing.  Augusta Roman could not have the embryos.  Unless the donors agree otherwise, the embryos will be destroyed. 

The case drew national attention because it pitted several controversial legal issues against each other.  Do a handful of flash frozen cells have a “right to life”?  Does a man who donated his genetic material for the specific purpose of creating a traditional family have a right not to be forced into creating children out of wedlock with a woman who hates him.  Does a woman have an absolute right to bear biological children that is superior to the man’s right not to bear biological children?  Despite these titlating issues however, the Texas Court of Appeals denied custody to Augusta based on boring, dry contract law.  Apparently, the parties had a signed agreement with the fertility clinic that in the event of divorce, the embryos would be destroyed.  The Court said this contract controlled the case and it did not have to look at any other issues to decide.  In not accepting the case, the U.S. Supreme Court is basically saying that the Texas Court got it right.

A week ago, prior to this final hearing, the author of this blog spoke with Becky Reitz, the attorney for Augusta about the case.  She realized the long chances her client had on her last ditch effort, but she said that her client could not morally end this case unless all legal options had been exhausted.  I asked her about what the final disposition of the embryos might be.   I pointed out that if the parties agreed, there are other options other than simply destroying them- such as donating them to medical research.  She did not know if her client and Randy could come to an agreement on what to do with the embryos.  

Today I received an email from Randy Roman, the obvious tone of which was of great relief.  He thanked me for keeping track of the case through my blog and he wanted the word to get out about the ruling.  I replied back to him that just last week I had received a phone call from a man who read my blog and was facing similar fact as him.

Roman v. Roman is now finally over and forever on the legal books.  How it will be used as precident in future cases is limited only by the imaginations of the lawyers. 

Now that this is over, I hope Randy and Augusta can find peace.

 

 

Custody of Your Pet in a Divorce

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.

 

 

  

Texas Frozen Embyo Case Update: Wife To Try Last Desperate Legal Gambit

 

The ex-wife in the highly publicized Texas Frozen Embryo Custody case of Roman v. Roman was “devastated” upon hearing the news that the U.S. Supreme Court denied her the right to legal custody of several frozen embryos she had created with her ex-husband prior to their divorce.  Augusta Roman, 46, has said that the embryos are her last chance to become pregnant.   Her ex-husband, Randy Roman asserts that he does not want to create any children with her after their long and bitter divorce. 

Augusta Roman’s local attorney, Becky Reitz, said her client was devastated by the refusal of the Texas and U.S. supreme courts to hear her case.

“She just bawled,” Reitz said. “She cried her eyes out.”

Randy Roman’s attorney, Greg Enos was characteristically understated and said his client was “pleased” with the news and that Mr. Roman was “hopeful that this long ordeal is over”.

It looks however that Randy Roman will have to endure more before the case is finally over.  Augusta has pledged that she is going to exhaust every legal remedy- no matter how long the odds or how much it costs. 

“I told her the only thing we can do is file a motion for reconsideration and it will cost $1,000 just for the printing. She goes, ‘I don’t care”, said Becky Reitz.

Augusta Roman’s last legal option is to motion the U.S. Supreme Court to reconsider it’s decision.   The long shot motion is a final desperate gambit.  The U.S. Supreme Court almost never grants such motions, and such motions usually argue that something new has happened since the Court considered the case. 

If the U.S. Supreme Court denies the motion, Augusta Roman will be out of legal options.  If that happens, the embryos will never be implanted.  The embryos will remain frozen under a protective order until the end of the case.  After all legal remedies are exhausted, the embryos will likely be destroyed by the fertility clinic unless the parties agree to have them disposed of differently.

Quotes from an article printed in the Houston Chronicle 

Female Lawyers Get Divorced More Than Male Lawyers

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.

Finale to Texas Embryo Case of Roman vs. Roman

The Texas custody battle over frozen embryos is all but over. 

 You may recall the case of Roman v. Roman which got national attention earlier this year.  On February 4, 2004 after a bitter divorce trial,  Harris County (Houston) Judge Lisa Millard ruled that the embryos that a couple had frozen two years earlier should be awarded to the Nigerian born ex-wife who wanted to have them implanted and brought to term.  The ex-husband, a serious minded man, did not want to be forced to create children with a woman whom he did not love.  The wife, Augusta Roman claimed that because of her age, the embryos where her last chance to bear children.  She promised the ex-husband, Randy Roman that if he accepted the ruling, she would not ask for child support and would agree to let Randy terminate his parental obligations.   Randy was aghast at the thought.  He said that the child support was not the issue and that if any children were born he would meet his obligation to support them and help raise them.  It is not that he didn’t ever want children, he just didn’t want children with THIS woman. 

So Randy filed an appeal to the Texas First District Court of Appeals in Houston.   That court overruled the trial court because at the time the couple froze the embryos, they had each signed a form contract that clearly stated that in the event of the divorce of the couple, the frozen embryos would be destroyed.  Augusta’s claim that she didn’t pay attention to what she was signing did not find any favor with the judges. 

Augusta then filed an appeal with the Texas Supreme Court and at the urging of her attorney, Becky Reitz promptly went on a publicity circuit seeking to garnish public favor for her case.   The softly speaking woman and her piercing attorney made an odd pair on the television, but they interviewed with any media outlet that would have them.  Meanwhile, Randy Roman, a private man by disposition, refused to make a public spectacle of the tragic end of his marriage and instead let his low key attorney, Greg Enos pick a few select media outlets so his side would not be unheard.  Gary Sacks, a father’s right advocate, also voiced Randy’s side with the media. 

In the end, the Texas Supreme Court upheld the appeal court by refusing to hear the case.  It may be that the publicity Augusta and her attorney rutted for actually backfired, and the judges thought it was politically expedient to refuse the case rather than deal with the volatile issues of a “right to life” case (which was how the case was presented in the ex-wife’s brief). 

Determine to see this through to the bitter end, Augusta and her attorney filed an appeal with the U.S. Supreme Court.  After all the media ballyhoo, the Supreme Court has finally ruled.  On March 17, 2008, it denied Augusta Roman’s petition.  In refusing to hear the case (which it is allowed to do), the U.S. Supreme Court has effectively affirmed the ruling of the Texas Supreme Court.  The decision is final and there are no further appeals.

Technically, Augusta has until April 17, 2008 to file a Motion with the U.S. Supreme Cour to reconsider their decision.  She may decide to do this, but the chances of the US Supreme Court suddenly changing its mind and deciding to hear the case are slim to none.  

Therefore with no legal remedies left for Augusta Roman, Randy Roman has won this case once and for all.  And what of the frozen embryos?  Chances are they will linger in limbo for a while before the fertility clinic must finally do something with them.  Their final fate is undecided except that they will never be implanted.

Although we may permit Randy the right to sigh with relief after this long and costly legal war, we must also offer our sympathy to Augusta who no doubt believed in her cause.  Ultimately, as with most all cases that involve family law, there is no clear cut right and wrong.  Practitioners in family law advocate for either side and hope that in the end justice is done- but sometimes, even though we fight with all our power to make sure both sides views are heard by the judges, privately even we can’t be sure of the best outcome.  The only certainty in this field is that these cases always involve tragedy and sadness.  We just have to hope that justice was done and both parties can begin to heal and move on to a better life. 

Family Court Judge Faces Recall Over Rulings

In a story first published in the Sacramentao Bee, a California family court judge is facing a potential recall for allegedly posing danger to children and parents through his rulings from the bench. According to the recall petition, Judge Peter McBrien is purported to have placed children with sexually and physically abusive parents on two occasions in 1989 and 1998. The recall petition, initiated by about two dozen residents, requires the signatures of 20 percent of the voters to be successful.

California, like most other states have their Judges appointed by the governor.  In Texas, our Judges are elected.  This story seems to give evidence that our system here in Texas isn’t as backwards as it may seem.

Report: Divorce Toxic To The Environment

A recent Michigan State University study says the high rate of divorce is bad for the environment.

Although not groundbreaking in it’s conclusion, the report highlights an interesting relationship between social policy and environmental science.  It points out that two divorced households consume more water, energy and physical space than one married household.  Therefore, as divorce rates increase, so does the consumption of valuable resources and an overal degradation of the environment. 

“In the United States alone in 2005, divorced households used 73 billion kilowatt-hours of electricity and 627 billion gallons of water that could have been saved had household size remained the same as that of married households. Thirty-eight million extra rooms were needed with associated costs for heating and lighting,” Michigan State researchers Jianguo “Jack” Liu and Eunice Yu reported.

Liu, though, says environmental policy is more complicated than people often think, and policymakers need to consider divorce in the broader debate on environmental policy.

The report’s authors make an interesting point.  However, the author of this blog would also add that the toxic effects divorce have on the environment and all the other negative effects on society should be balanced against the toxic emotions on individuals and their children may suffer if they live in a loveless or high conflict household without seeking some intervention- up to an including in some instances, divorce.  

Read more about the study at The Huffington Post.

Rebutting the Community Property Presumption

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

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.