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.

 

 

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.

New Harris County Family Law Center on Ballot

On November 6, proposition 5 will be a bond issue on the Harris County Ballot.

The $70 million bond would be for ethe construction of a new, comprehensive Family Services Center. Today, Harris County families must have their family law matters taken care of in an overcroweded and outdated (shagadelic seventies) building in downtown Houston where 22 famil law judges, associate judges and masters manage the fastest grwowing and most complex docket in the county.

The proposed Family Services Center would provide Harris County families with a safe environment where family law and similar services would be provided. The new building would include not only vastly improved and updated famil law courts, bu also facilities fo rthe many support services needed by county residents.

For more information on Proposition 5, visit the Harris County Families First Web site, www.hcfamiliesfirst.org.

 Source: Houston Bar Bulletin.

Tax Case: If You Fail To File IRS Form, You Will Not Get Child Deduction

In many Texas divorces and Texas Suits Affecting the Parent-Child Relationship, an agreement is made between the parties regarding whom will have the right to claim a child as a dependent for tax deduction purposes.  To make this agreement enforceable, the parties should execute an IRS form 8332.  This form allocates the tax dependency in one or more years regardless of who would normally be able to take the deduction. 

A recent U.S. Tax Court case shows that failure to file this IRS form may mean the IRS will deny the deduction.

In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn’t attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child credit was also denied because it is premised on being entitled to the dependent deduction for the child). The Tax Court concluded that the attachment of a Post-It note referencing the initial (1995) Form 8332 didn’t satisfy the statutory requirement of attaching a valid written declaration.

The taxpayer’s former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, “Although we are sympathetic with [taxpayer’s] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith. ”

Source:  Family Law Taxation

Texas House Bill 180- “Covenant Marriage”

House Bill 180 by Rep. Bill Zedler (Arlington), the “covenant marriage” bill, is scheduled for debate by the full House of Representatives on Tuesday, April 24th.

The bill is extremely poorly drafted and does not address numerous issues that must be addressed to successfully implement a new kind of marriage.  The bill is opposed by Family Law Section of the State Bar of Texas because it is so poorly drafted.  Your author is also opposed because it is clearly bad policy (as outlined in my other blog).

Please call your Texas House member’s office Monday or before noon on Tuesday. Ask for the aide who works on family law issues, specify the bill and state your views.

Click here to find out who represents you and their contact information.

Life Insurance As a Marital Asset In a Texas Divorce

Are insurance policies generally characterized as separate or community in a Texas divorce?

Texas follows the inception of title rule in classifying the proceeds from a life insurance policy. Ownership is established by the source of funds for the initial premium. If that premium was paid before marriage or with funds clearly traceable to separate property, the policy remains separate property even though some or all subsequent premiums are paid with community funds. This means that the full value of the life insurance proceeds will be includable in the deceased spouse’s gross estate for federal estate tax purposes. The surviving spouse, if not named beneficiary, has not claim to any of the proceeds. However, the community estate has an equitable claim for reimbursement in the enhanced value of the policy attributable to payment of premiums with community funds.

Ordinary value and term life insurance with guaranteed renewable and guaranteed convertible features are covered by this rule. The insured can convert the term policy to an ordinary value policy at any time. Furthermore, the insured needs no proof of insurability to renew the policy.

For example, in Estate of Cavenaugh v. Commissioner, the insured’s policy was considered an option contract, and the future payments related back to the initial acquisition of the contract. The court applied the time of acquisition rule stating that the insured’s subsequent actions could to convert the character of the property.

First Premium From Community Funds
If the initial premium was paid out of community funds, the life insurance policy is a community asset. One-half the insurance proceeds are includable in the deceased spouse’s gross estate for federal estate tax purposes. If a third person is named beneficiary of a community owned life insurance policy, this action may be challenged by the surviving spouse under the rules governing lifetime transfers. If naming the other person is found to be a fraud on the surviving spouse, the spouse will be awarded one-half the death benefits and the named beneficiary will be entitled to receive the deceased spouse’s one-half interest in the proceeds.

Note, however, that there is no basis for asserting an equitable claim for reimbursement in the policy’s enhanced value if the spouse is unsuccessful in a “fraud on the spouse” challenge, because community funds were expended on a community asset. An equitable claim for reimbursement arises only if financial contributions from one estate enhance the value of another estate (i.e., community funds enhance separate property or vice versa). Contrast this result if the spouse had paid the first premium on the policy with funds from an inheritance. This would result in the policy being separate property, and as such the community estate would have an equitable claim for reimbursement in the enhanced value of the policy attributable to the payment of premiums with community funds.

Policy Acquired After Marriage But While Domiciled In Common Law State
Suppose a life insurance policy is acquired after marriage but while the couple was domiciled in a common law state, and the couple later moves to Texas. In determining the rights to proceeds at divorce, the policy is considered quasi-community property and is community.

Computation of Equitable Claim For Reimbursement
Since the insured on a life insurance policy is not required to pay the premiums, payment of premiums is not considered a discharge of debt. Thus, the use of community funds to pay life insurance premiums is measured by the enhanced value test in relation to the contribution of spousal labor to separate property.

(1) growth of a policy’s investment feature
One way to measure the enhanced value would be to measure the growth of the policy’s investment feature (i.e. the cash value). Problems arise, however when using this approach with non-cash value term insurance policies, or when both separate and community funds have contributed to the growth.

(2) Prorate according to premiums paid.
Another approach would be to prorate the proceeds in proportion to the source of the funds that paid the premiums, (i.e., if 40% of the premiums were paid from community property funds, then the equitable claim for reimbursement added tot eh community property would only be 40% of the growth). However, this proration method has been rejected by the court in McCurdy v. McCurdy, 373 SW 2d 381 (Tex.Civ. App. 1963). In this case, the court chose to apply the inception of title rule due to its inherent simplicity and in order to ensure an equitable distribution. The inception of title rule grants the spouse a right in the proceeds from the date of the policy.

Property IV: Classification of Particular Assets

Now that we have gone through some general classification principals, we can look at some specific applications.

Most questions of “is it yours or is it mine” are simple to figure out. Texas marial property can be classified in most cases simply by applying the meaning of Texas Family Code 3.001. The section states that a spouse’s property consists of : (1) the property owened or claimed by the spouse before the marriage; and (2) the property acquired by the spouse during the marriage by gift, devise, or decent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.

However sometimes classification is a little more complex. What follows are some general principals and likely outcomes of classifing certain property as separate or community. However caution must be used in applying these principals. Certain facts may change how the property is characterized. Remember, as I keep saying in this blog, any person should consult with an attorney prior to making any decisions based on any information obtained in this blog. This blog is for educational (and maybe entertainment) purposes and is NOT LEGAL ADVICE! Ok, enough said. Let’s look at some specific assets begining with the next post..

Case Update: Grandparent Access

A recent Texas Supreme Court case has come down in applying the new Constitutional standard of the seminal case of Troxel v. Grandville530 U.S. 57, 120 S.Ct.2054. We haven’t got to grandparent access yet, so if you are interested, check out the full post at my “blanco” blog by clicking here: Texas Divorce and Family Law Blog.

Don’t Slip On the Temporary Order A”peel”

Chiquita is mad because at her temporary order hearing, her husband received temporary possession of the bowl of bananas she likes to wear on her head. Can she “appeel” the banana decision because she doesn’t like how they were split? Well, if she had the temporary order hearing in front of an associate judge, (the “second banana” judge, if you will..)then she would be able to appeal the associate judge’s ruling if she files the proper motion withing three days of the judge’s rendering. However, if she have the temporary order hearing in front of the sitting, elected judge, then she cannot appeal because the judgement is “interlocutory” (not a final judgement). There is one exception- if the judge appointed a receiver to manage, protect, or dispose of the bowl of bananas, then she could appeal that to a higher court. (TRC 6.507).

Appealing temporary orders however, should not to be confused with a temporary order on appeal.

Hun?!

Temporary orders generally end when the final order is entered (unless the final order specifically says otherwise). However, if you are appealing a final order, the lower court retains jurisdictional power to render temporary orders while the appeal is pending to protect the parties and the property. These interim orders can even contain things that were not in the final order being appealed. These interim temporary orders are fully enforceable, even by contempt. (TFC 6.709(b) and 109/001(b)). That means even though a party is appealing the order, spousal support and child support must still be paid if they are in the interim temporary order.

One trick though. The interim temporary order must be rendered within 30 days after the appeal is perfected, or the court loses it’s jurisdictional power over the case. (In re: Boyd, 34 S.W.3d 708 (Tex.App. –Fort Worth 2000).