We Have Closed

As they say, “All good things must come to an end…”  This is also true of law firms.

Effective August 30, 2013, The Law Offices of Bobby L. Warren, PLLC has ceased taking on new clients and is in the process of winding up its business.  All current clients’ cases are being finalized or are being referred to another attorney.

I have greatly enjoyed my time practicing family law, but a new opportunity was presented to me that was simply too good to pass up.

I appreciated the opportunity to represent numerous people from all walks of life.  If you are seeking an attorney to assist you with a family law matter, I recommend Janice Berg.  Her contact information is:

Law Office of Janice L. Berg
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
713-993-9100

http://www.janiceberglaw.com/

Thank you for your referrals, your business, and, most importantly, your trust.

More Kids Raised by Single Fathers

An article in yesterday’s Houston Chronicle contained the results of a Pew Research Center study that would surprise many people: 8 percent of all American households with minor children now have single fathers raising those children.  That is an all-time high and a surprising number when you consider that only 1 percent of such households had a single father raising children in the 1960′s.

This new information simply bolsters what I have been telling clients for years now – the old days where courts are heavily biased in favor of mothers raising children are over.  Courts have long been prohibited by law from using gender as a factor in deciding which parent determines the residence of their children.  This, however, did not stop judges from disproportionately placing children with their mothers.

So what has changed?  A substantial shift in traditional gender roles has occurred over the last several decades.  In many two parent households, both parents are working.  In a growing number of American households, the mother is the primary income earner, with the father working fewer hours or acting substantially as a “stay at home parent.”

Texas family court judges have long sought to keep children in divorces and child custody disputes in a situation that closely resembles the status quo.  In other words, judges want to keep the amount of change in a child’s life to a minimum.  Therefore, if a child’s mother is working outside of the home for 50+ hours per week and the child’s father works primarily at home, where he has been the primary caretaker of that child, the father is likely in a stronger position to argue that the child should primarily live with him.

The key for any divorce attorney or child custody attorney is to identify those factors which weighs in favor of the client being the primary caretaker for their children and to collect evidence which supports that position.  As I have repeatedly emphasized to my clients, that is a much more successful strategy than attempting to point out the weaknesses of the other parent.

Preparing for a Texas Divorce Consultation

Are you getting ready to speak with an attorney regarding a divorce in Texas?  Often, I find that potential clients who come into my office are unsure of how to prepare for such a consultation or even what questions to ask in a consultation.  A little bit of preparation goes a long way in helping you to determine if the attorney sitting across the table is the right one for you.

Scheduling the Divorce Consultation

For our purposes, let’s assume you have found one or more attorneys you wish to meet with regarding filing for divorce in Houston or a surrounding county.  When you call the attorney’s office, you may speak with a staff member or the attorney themselves.  This often depends on the practice in that particular office or the availability of the attorney at that moment.  If you happen to reach the attorney during your phone call, keep in mind that they are usually very busy at that time.  While most attorneys are happy to answer basic questions about themselves during that call, it is best to reserve questions about your case or Texas divorce law in general for your consultation.

Also, keep in mind that attorneys generally keep normal business hours.  For most law offices in Houston, it is normal to maintain business hours Monday through Friday from around 8:00am to 5:00pm.  If you also happen to work normal business hours, be prepared to either take some time off from your job to visit with the attorney or try to schedule a consultation during your lunch hour.  I often meet with clients during their lunch time, as many of my clients work in the Galleria area of Houston, which is where my office is located.

Also, you may want to ask about directions to the office, as well as information about parking.  For example, is there a parking garage attached to the office building?  Is the parking free, or is there a fee?  How much should you expect to pay for parking, and should you bring cash for parking instead of relying on the garage attendant accepting credit cards?  All of this may sound basic, but it will assist you in making the appointment move as smoothly as possible.  For example, our office building has a parking garage attached to the back of the building, and the parking is free.

Finally, you will need to know whether the attorney charges for a consultation or whether it will be free.  Sometimes, it will depend on the purpose of the consultation.

Preparing for the Divorce Consultation

Many attorneys will ask you to complete one or more forms before you arrive for the consultation.  This assists the attorney in maximizing the amount of time the attorney has with you to answer your questions and tell you about the process of obtaining a divorce in Texas.  You may also be asked to bring a number of documents with you.  Such documents may include the following:

  • Income tax returns for you and your spouse for the last two years
  • Paycheck stubs for you and your spouse for the last three pay periods
  • If you have been served with a divorce petition, a copy of all paperwork served on you
  • If you have received an e-mail or letter from your spouse’s attorney, a copy of that correspondence

In addition, the attorney needs to know what your goals for the divorce may be.  That can be a difficult question to answer, particularly because you may be unsure of what you may be entitled to under Texas law.  Don’t worry about the legal terms involved – focus more on the practical result.  Instead of coming into the consultation saying, “I want full custody of my child.”, you may instead want to advise the attorney, “I want to ensure that my child stays with me most of the time, with the other parent getting time on occasional weekends.”  That second statement tells the attorney much more than the first statement, for reasons explained in this prior blog post about “full custody”.  If need be, take notes about your goals before the consultation and bring those notes with you.

Finally, if you have specific questions you want to ask the attorney, write those down as soon as you think of them.  Please be mindful of the amount of time you have scheduled with the attorney, whether only a half-hour or an entire hour.  Make the best use of your time and stick to questions that you really need answered right away.

During the Divorce Consultation

In addition to ensuring that you bring all of your documents and notes as described above, ensure you give yourself enough time to get to the attorneys office.  An attorney’s time is valuable, as is your time.  You should expect your attorney to be ready to meet with you at the time you scheduled for your consultation.  At the same time, the attorney is going to expect you to be ready to meet with him or her once the time for the appointment has arrived.  If you are concerned that you may have difficulty finding the building, give yourself even more time to arrive and find the office.

Once you arrive, and sit down with the attorney, you will have an opportunity to ask questions about your case, about the attorney, and about the divorce process.  Obviously, potential clients often ask attorneys about their experience, or about their practice.  If you live in or near a major metropolitan area, you can often find attorneys who practice exclusively in the area of family law (which includes divorce and child custody).  It is important to know what percentage of time an attorney spends on cases similar to yours.  Retaining an attorney with 30 or 40 years of experience does little good if less than 10% of that attorney’s practice is focused on family law.  You want someone who has assisted numerous clients with issues similar to yours.

Also, you need to know how familiar the attorney is with the judges in the county in which you intend to file.  Better yet, if you have been served with a divorce petition and know which court you’re in, find out how often that attorney has practiced in front of that judge.  Judges in family law cases are given wide discretion as to how they may rule on many issues, including determining the residence of a child , possession schedules, and marital property division.  An experienced divorce attorney will be familiar with the judge and their basic philosophy about these issues.

Finally, and most importantly, you must determine for yourself how comfortable you are with the attorney and whether you can trust that attorney with your case.  If you have little to no confidence in that attorney’s judgment and ability, you will not be able to take full advantage of what that attorney may have to offer.  Even if you have the best divorce attorney in the entire city, that attorney’s skills matter little if you’re not willing to accept or trust their advice.

After the Divorce Consultation

At the end of the consultation, an attorney may offer to provide you with a draft of a fee agreement to review and sign.  It is never a good idea to hire an attorney for the first time without some form of written fee agreement describing the financial arrangement.  You want to ensure you know what you will be charged for the attorney’s time and how it will be billed.  Most attorneys today bill their time on an hourly basis in six-minute (one-tenth of an hour) increments.  Fewer still may bill in fifteen minute (one quarter of an hour) increments.  Make sure you understand how you will be charged for phone calls and e-mails under such a system.  If you’re not careful, you may incur substantial fees by repeatedly calling and e-mailing your attorney every day.  Most attorneys are happy to suggest ways to keep your fees low, such as ensuring you write down your questions and concerns and then only calling or e-mailing the attorney once you have a number of those questions ready.

Also be prepared to pay a retainer (sometimes also called an “advanced fee”).  This retainer or fee is kept in the attorney’s trust account and is not earned by the attorney until they perform work on your case and issue an invoice for payment of services and expenses incurred.  If the retainer is exhausted, you will likely need to pay an additional retainer.  Some firms even require you to replenish the retainer with each invoice (also known as an “evergreen retainer”).  Ensure you understand your financial obligations before signing any fee agreements.

Finally, if you need additional time to consider whether to hire the attorney, make sure you have the attorney’s business card.  Also, make notes to yourself during the consultation or immediately after the consultation to ensure you recall your impressions of that specific attorney as well as pertinent information about their fees, experience and practice.  That will come in handy later when you’re ready to pick an attorney.

Will Dwight Howard Save on Child Support If He Signs With The Houston Rockets?

It’s not every day that you see a sports headline on a family law blog.  For those of you who are not basketball fans, Dwight Howard is one of the top basketball players in the National Basketball Association (NBA).  While he played last season for the Los Angeles Lakers, he is now an unrestricted free agent and is currently being courted by a number of NBA teams, including the Houston Rockets.

Yesterday, a local Houston rapper by the name of “Slim Thug” sent, among others, the following message to Dwight Howard on Twitter:

The “20%” remark is a reference to the fact that the child support guidelines in Texas require a child support obligor (the person paying child support) to pay 20% of their monthly net resources in child support for one child.  The percentage goes up by 5% for each child thereafter, up to 6 children.

As strange of a method of recruiting a basketball player as it may seem, I immediately realized that “Slim Thug” makes a dangerous attorney.  While it sounds great, unfortunately for Dwight Howard, he’s absolutely incorrect.

I’m not entirely sure where Dwight Howard’s children live, but if he’s paying child support, the children don’t live with him.  The reason that is important is because in most states, if not all, jurisdiction to set child support is typically determined by the residency of the children.  Unless the children are also moving to Texas to be closer with Dwight Howard, his decision to come play basketball for the Houston Rockets will have little to no impact on how his child support is calculated.

The lesson?  If you want to know how your child support will be affected by a move to Texas, talk to an attorney licensed in Texas.  Don’t rely on guys who call themselves “Slim Thug” on Twitter.

Impact of U.S. Supreme Court Gay Marriage Cases on Texas Family Law

On Wednesday, the Supreme Court of the United States issued a number of slip opinions.  Two of these opinions concerned various laws which impacted gay marriage.  What impact do each of these cases have on family law in Texas?

One, Hollingsworth v. Perry, resolved the question of whether a private organization had standing to defend California’s Proposition 8, which defined marriage as being between one man and one woman.  In Hollingsworth, various California government officials were named as defendants in a lawsuit filed by a gay couple seeking to have Proposition 8 declared to be in violation of the United States Constitution.  The named officials declined to defend the litigation.  A private group in favor of Proposition 8 decided to step in and defend the law in the place of the named officials.  Ultimately, the Supreme Court of the United States decided that the private group did not have standing to defend the law, so the case was remanded to the trial court to proceed without the defense of the private group.

The other, United States v. Windsor, was concerned with whether a woman legally married to another woman was entitled to claim exemptions on federal taxes applied to inheritance that are available to those married to spouses of a different gender.  Under the federal Defense of Marriage Act (DOMA), marriage is defined for the purpose of federal law as being between one man and one woman.  This definition had the result of disallowing gay couples legally married in states recognizing such marriages from being allowed to claim a variety of benefits under federal law otherwise granted to married couples of different genders.  Ultimately, the Supreme Court of the United States ruled that DOMA violated the Equal Protection clause of the Fifth Amendment to the United States Constitution because it treated people legally married to someone of the same gender differently from those legally married to someone of a different gender.

For our purposes today, the only question I wish to address is the impact this could have on Texas law.  The short answer is that it will have no direct impact on Texas law in the short term, but may have some impact on those residing in Texas who have entered into legal same-sex marriages in other states.

First, let’s dispel any myths about these rulings.  Hollingsworth did not directly touch upon the question of whether a state can outlaw gay marriage.  The Supreme Court of the United States has long had the policy of attempting the resolve cases before it on procedural grounds first, if possible, before approaching substantive issues.  In this case, it had to first determine whether the private group defending Proposition 8 had standing to defend the law.  Once the Court determined that there was no standing, the remaining questions are left unanswered under the rationale that the case should not be before them to begin with.  Therefore, while the trial court ruling that Proposition 8 is unconstitutional will likely be the final result in Hollingworth, that ruling has no impact on the law in Texas which prohibits recognition of same-sex marriages.

As for Windsor, the impact is a bit more direct for some Texans.  The fact that Texas does not recognize same-sex marriage does not prevent the federal government from recognizing such marriages for limited purposes.  Also, many states that permit same-sex marriages do allow out-of-state residents to marry in their state.  Therefore, there are a number of same-sex couples in Texas, who married in other states, who now have the following rights they were previously denied under DOMA:

  • One of the most sweeping impacts will be on same-sex couples where one or both of the spouses are members of the Untied States Armed Forces.  Despite the lifting of the “don’t ask, don’t tell” policy, the Pentagon was otherwise prevented from extending many benefits to same-sex couples in the military due to DOMA.  Now, those couples will receive many, if not all, of the benefits that spouses of different genders now enjoy, including health care benefits, access to military bases (which include base exchanges), increased housing allowances and survivor benefits.
  • Same-sex couples in Texas and elsewhere who are legally married may now file their federal income taxes jointly as marred.  This could provide substantial cost savings on tax bills, especially if one spouse earns a substantially greater salary than the other spouse.
  • Under the federal Employee Retirement Income Security Act (ERISA), employers will now be able to offer health care and other regulated benefits to the non-employee same-gender spouse of an employee with the same beneficial tax treatment that is now extended to spouses of different genders.
  • Same-sex spouses will now qualify to receive Social Security survivor benefits.
  • Same-sex spouses will now be recognized for immigration purposes, opening the door to allow the issuance of fiancee visas and a path to permanent residence and citizenship for those same-sex spouses of United States citizens.

The list could go on for some time, although I believe the above changes to be the most impactful for same-sex couples in Texas and elsewhere.

Texas Child Support Cap To Be Raised September 1, 2013

When calculating the amount of child support that a parent must pay in a Texas child custody case, a Court is generally limited in the amount of a parent’s income that may be considered in the calculation without evidence that the child requires additional support.  Prior to 2007, the Court could only consider up to $6,000 of the parent’s “net resources” (calculated by deducting from gross monthly income certain amounts for income taxes, payroll taxes and the child’s health insurance premiums).

With the passage of legislation in 2007, Texas Courts are now allowed to consider up to $7,500 of a parent’s net resources in calculating child support.  Also, a system was put into place which would allow for the automatic readjustment of the cap every six years based on the rate of inflation.  The first such adjustment is due this year.

I recently received notice that the Texas Office of the Attorney General will be publishing an increate of the cap on net resources from $7,500 to $8,550, effective as of September 1, 2013.  For those receiving child support from someone whose net resources are at least $8,550, this could mean the possibility of seeking an increase in child support in excess of $200 per month.

Top 10 Texas Child Custody Myths

It’s shocking how much misinformation is floating around among those looking for help with their Texas child custody cases.  The scary part about it is that I get calls to my Houston office with the same “myths” being repeated over and over.  Obviously, it’s coming from somewhere, and I often find out from those that call my office that they get their information from the Internet.  In an effort to combat some of these myths, I thought I’d share some of the more prominent ones.

10)  The Court will prohibit my spouse from seeing our children because they smoke marijuana (or drink heavily, use pain medications, etc.)

That’s probably not true.  Courts are extremely reluctant to keep children entirely away from their parents, and a few mistakes in life usually aren’t enough to convince a court to take such a drastic step.  At best, the Court will likely issue an injunction prohibiting any party (you or your spouse) from using any substances for which they do not have a prescription within a certain period of time before periods of possession of the children are to begin, and for the duration of that period of possession.  The Court might even order a party to seek professional help for the substance abuse.

If, however, there is a history of the child being placed in danger due to the substance abuse, the Court might go so far as ordering supervised visits until the parent is cleaned up.  That, however, is a fairly drastic step for the Court to take.

9)  The Court will not award me custody of my children because I don’t work and my spouse makes substantially more money than I do.

Actually, if anything, the circumstances leading to that disparity in earning power might actually work in your favor.  Too often we hear from people who are stay at home moms or dads, while the other parent works.  This results in the stay at home parent becoming entirely dependent on their spouse for income.  In the event of a divorce, however, the Court’s primary concern regarding the children will be ensuring that they remain in a nurturing and supportive environment, preferably one that closely resembles what they have been accustomed to.  That usually means that the stay at home parent will be in the best position to provide that environment because they have been filling that role already.

So, how exactly is the stay at home parent supposed to support those children?  Well, for one, that’s what child support payments are for.  Obviously, most child support payments aren’t sufficient to cover all expenses, so the stay at home parent will likely need to find some work.  The fact, however, that one parent has been the primary caregiver for the children during the marriage, however, is a major factor for most Courts determining who should be the primary caregiver in a child custody dispute in Texas.

8)  The other parent of my children doesn’t work, so the Court isn’t going to award any child support.

That’s dead wrong.  How is this unemployed parent making ends meet?  Obviously they find ways to eat, keep a roof over their head and provide for other basic needs, right?  The Court is going to require them to find some means of doing the same for their children.  The child support may not be all that much – maybe $200 or $300 per month – but the Court will generally not allow a parent to simply shirk any financial responsibility for their children.

7)  Since the other parent of my children hasn’t shown up to exercise their possession in over a year, I don’t have let them take my child with them if they suddenly show up to exercise possession in our court order.

Wrong again.  Unless and until you obtain a modification of the child custody order you have in place, you are required to follow that order.  Unless the court order provides explicit conditions that require the other parent to exercise possession in order to continue to receive rights to periods of possession (the vast majority of orders do not contact such provisions), a parent can technically choose when and if they wish to exercise possession as they wish, so long as the court’s order gives them the right to that possession.

Therefore, it’s always a good idea to be proactive in the event a parent simply stops showing up.  Seek a reduction in their possession immediately to avoid the sudden shock of a child being forced to spend an entire weekend alone with a parent they haven’t seen in over a year and might not even really remember.  Waiting until the parent shows up on your doorstep one day is far too late to seek a change in the court orders.

6) The Court will likely just award us custody split exactly evenly.

Probably not.  Most Courts hold firm to the concept that a child needs one place they call home.  This is especially true of school aged children.  Courts will often award possession to one party based on a standard possession order or something similar (for a better description of what constitutes a standard possession order, click here to view a calendar issued by the Office of the Attorney General).

Splitting possession time of children (for example, one week on, one week off) generally causes too much chaos in a child’s routines and has a greater likelihood of contributing to behavioral problems and academic problems.  If you believe that the standard possession order isn’t quite in the child’s best interest, you’re better off making gradual changes to that standard order rather than starting from scratch.

5)  I don’t need child support from him (or her).  If my spouse and I agree, there’s no need for payment of child support.

It really depends on which court you’re in, but I wouldn’t bet on it.  Remember that the child support isn’t for you.  It’s for your child.  If you really don’t need the money, put it into a college savings account for your child so they have something to help with tuition and books when they go to college.  Or, you might want to consider putting it into a savings account as a sort of “rainy day fund”.  You may not need the money now, but who can say that will be the case in the future?

4)  When my child turns 12, they get to decide with whom they want to live.

Not quite.  While it is true that a Court is required to take into account the wishes of a child aged 12 or older in determining which parent primarily takes care of the child, it is not the sole factor.  In fact, the Court is actually allowed take into account the wishes of a child aged less than 12 years, but is not required to do so.  Just because a 12 year old or teenager believes that living with their mother (or father) is better for them doesn’t necessarily make it so.  The Court still has the obligation to review other evidence and make a decision based on all relevant factors.

Generally, the judge will sit down with the child in chambers (sometimes with or sometimes without the attorneys present) and will talk with the child about their present situation, how everything is going with school, friends and extracurricular activities.  They will ask the child about how they like living with each parent and which one they most want to live with (and why).  At the end, the judge may use the conversation more to determine other issues than simply the child’s wishes.

3)  The Court is going to give me custody if I can just tell them how bad the other parent is.

There’s an old saying down at the courthouse that goes something like this: “10′s don’t marry 2′s.”  In other words, people who are perfectly well adjusted, have sound judgment and are in the best position to raise kids don’t go off and marry the scum of the earth.  Your strategy to denigrate the other parent and tell the Court just how bad they are might reflect on you as well as the parent of your child.  It may be tempting to use the opportunity to trash and embarrass the other parent, but it’s rarely a wise strategy.

It’s better to emphasize the qualities and circumstances that place you in a better position to take care of the children.  Sure, you can mention the foibles of the other parent, but you have to be tactful on how you do it.  It is imperative to always approach it from the perspective that you’re only looking out for the best interests of the children.  It pains you to raise such a delicate subject, and you dearly care for the other parent, but the issues must be raised in order to protect the children.  If you can take that approach when dealing with negative aspects of the other parent (but only after emphasizing your positives), the Court will give your concerns greater weight.

2)  The Court will surely order that the other parent not take my children around anyone they are dating.

As cliche as it sounds, this is the 21st century.  Courts see and hear things every day that would make your head spin.  The idea that someone ending a relationship  or marriage that produced children will find themselves dating again, sooner or later, is a common reality.  In fact, those parents may very well find themselves getting married (again).  If they do, your children will end up living with that step-parent at some point.  Do you really want the first time they meet this person to be at the wedding?

Courts will take some precautions.  It’s not unheard of for a Court to order parents not to allow someone with whom they are in a dating relationship to spend the night when the children are home.  That, however, is about the extent that Courts will go without further evidence that the new boyfriend or girlfriend is bad news.  Moreover, that “bad news” needs to be more than some misdemeanor they were convicted of 10 years ago.  Each Court is going to consider the best interests of the children on a case-by-case basis, but my general assessment is based on years of direct experience with my own cases as well as watching many more at the courthouse.

Also, keep in mind that there is another saying down at the courthouse (Judges love sayings): “What’s good for the goose is good for the gander.”  If you’re going to ask for some substantial impediment to your ex dating again, would you be comfortable enduring that same impediment?  If not, don’t even think about asking for such restrictions, because if you succeed, you might find yourself under the same conditions.

1)  Winning is the most important thing.

No, it’s not.  The best interests of your children are the paramount concern of the Court, and it should be yours too.  Before you can truly internalize that philosophy, you must be honest with yourself.  Do you, in fact, work very long hours and work and travel frequently, making it difficult for you to be the primary caregiver of your children?  Admitting that the other parent is in a better position to take care of your children on a regular basis doesn’t make you a bad parent or a bad person in general.  In fact, it means you’re putting your children’s interests before your own.

That being said, you should never hesitate to protect your rights.  Even if you cannot be the primary caregiver of your children, you do need an attorney who will be able to successfully navigate the process of a Texas child custody dispute and obtain for you the best possible result that protects your children’s interests as well.

Why did the Court Award Temporary Support to Your Spouse?

All too often, when I get calls from potential clients seeking a divorce, they refer to their assets in personal terms.

“That’s my car.  I purchased it with my money.”

Of course, after having a bit of a discussion with the potential client, they soon learn that when it comes to marital property laws in Texas, there is rarely such a thing as “your car” or “your money”.  Instead, once you’re married, nearly everything you acquire belongs to the community estate.  That community estate belongs to both you and your spouse.  While you may have a right to manage your earnings how you wish, you do not have a sole property right to them.

So when one person is the primary income earner for a household, they often find themselves paying for some of their spouse’s expenses while their divorce is pending.  Sometimes they may even find that the court has ordered them to make cash payments to the other spouse for certain expenses, including attorney’s fees.

Without such provisions, stay at home moms (or dads) would find themselves unable to afford to file for divorce or obtain legal representation if their spouse decided to file for divorce.  Sure, they would receive part of the community property at the end of the process when the marital estate is divided, but that doesn’t help them while the divorce is proceeding.  Instead, this provides the spouse who otherwise would have little to no access to community funds an opportunity to make ends meet and to hire an attorney.

There is, of course, a limit to this.  Courts in Texas have found that spouses are only entitled to enough temporary spousal support to meet their reasonable necessary expenses.  It is not intended to maintain a particular lifestyle, no matter how accustomed to it they have become.  It’s also irrelevant if the other spouse could afford to maintain that high level lifestyle.  The court is going to look at all sources of income (including child support) available to the spouse seeking support, as well as the reasonable necessary expenses.  If there is a shortfall, the court should only order the payment of an amount to make up the difference – nothing more, nothing less.

It is important, therefore, to hire an attorney who will scrupulously examine financial information statements submitted for hearings on such temporary orders to ensure that the expenses claimed are, in fact, reasonable and necessary.  Without a critical eye, a party might include expenses that are not at all necessary, which could pose a substantial financial burden on the spouse ordered to pay support.  On the other hand, unless a spouse asking for support is careful to put together a financial statement that is reasonable and fair, and includes all necessary expenses, they may find that they do not receive the full amount of support that they need in order to make ends meet.

Do Texas Divorce Decrees Really Include “Morality Clauses”?

While reading the news yesterday morning, I came across an article in the Washington Post about the struggles that a woman in Collin County, Texas was having with her divorce decree:

A judge has ruled that a North Texas lesbian couple can’t live together because of a morality clause in one of the women’s divorce papers.

The clause is common in divorce cases in Texas and other states. It prevents a divorced parent from having a romantic partner spend the night while children are in the home. If the couple marries, they can get out from under the legal provision — but that is not an option for gay couples in Texas, where such marriages aren’t recognized.

In my experience, there is quite a bit confusion over how a morality clause works.  Generally, what we refer to as a “morality clause” is essentially a prohibition placed in a Texas divorce decree which prohibits the parent of a child from allowing another unrelated person with whom they are in a romantic relationship from being in the same household as the child between certain overnight hours, such as from 10:00 a.m. to 6:00 p.m.

Keep in mind that few divorces are decided by judges – most couples in Texas settle their divorces by agreement.  Most morality clauses aren’t imposed upon divorcing couples by Texas judges.  Instead, they are agreed upon by the parties either through informal settlement discussions or through an alternative dispute resolution process, such as mediation.

Why would someone agree to such a clause?  For some couples with young children, there is a concern that a parent who begins to date again may want to have their new significant other spend the night while the children are present, exposing their children to elements of the relationship that the other parent may have concerns about.  Such clauses are less common where children are older at the time of the divorce.  In fact, many couples negotiate an expiration of the “morality clause” once the youngest child reaches a certain age.  The key here is that the parents are working together to determine what is best for their own children, rather than having the restriction imposed upon them by a judge.

Using Social Media in Texas Family Law Cases

I recently wrapped up a long and drawn out motion for enforcement of a child support obligation in which the father was claiming that he suffered from various medical conditions and was limited in his ability to work long hours.

What that father did not know was that I searched his name on Facebook to determine whether he had a Facebook page.  Indeed, he did.  Worse yet (for him at least), substantial portions of that Facebook page were visible to the public, including me.  That meant that I could view what was happening on his Facebook page without the need to request to add him as a friend.

It didn’t end there.  Based on information my client provided me, as well as based on the father’s Facebook posts, I was able to find the Facebook page of his new girlfriend.  Much like the father, the father’s girlfriend left much of her Facebook page visible to the public and I was able to obtain photos of the father and the father’s girlfriend out and about at various clubs and events throughout Houston.

When the father reiterated that he has been told by doctors to take it easy and not work too much, he was shocked when I showed him the photographs and proceeded to ask him questions which would allow me to introduce the photographs into evidence.  Needless to say, the judge was less than pleased with this father who wasn’t being completely honest about his situation.

The lesson here is that social media is continuing to be a powerful tool in all areas of family law litigation, including child support enforcement.  As you are preparing for your divorce, what do you currently have posted on your Facebook page or on your Twitter account that your spouse can see?  What can you do about it?

First, it’s important that you do not delete anything.  Doing so could be considered spoliation of evidence and could be used against you in a trial or hearing.  Instead, the first step is to stop posting to your Facebook account, or at least don’t post anything you wouldn’t want the judge in your case to see.

The next step should be to deactivate your account, particularly if you have already posted things you don’t want a judge to see.  It won’t delete any of the data, and it won’t stop your spouse from requesting that data through the discovery process, but it will at least keep intrepid opposing attorneys from simply stumbling upon your page with a simple Facebook search.  You can always reactivate the Facebook page later when your case is finished.

We may not be able to reverse the pervasiveness of social media today, but when you’re preparing for a divorce, child custody dispute or child support enforcement, at least you can minimize the impact it could possibly have on your case.