Agriculture + Mental Health Awareness Month

You may know that May is Mental Health Awareness Month.  Because this is such an important issue, especially for those of us involved in agriculture, I wanted to share a podcast interview I did with Adrienne DeSutter.

Adrienne’s background makes her perfect for this conversation.  Not only does she have a counseling degree, but she is also a farm wife who has spoken extensively about mental health and agriculture.  She joined me to talk about why this is such an issue for our industry, and some tips for taking care of yourself.  I’m a believer that the best defense is a good offense, so I am hopeful that our conversation can give folks some ideas of steps to take to help handle stress, anxiety, and depression before a crisis arises.

To hear our conversation (audio only), click here.

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Military Disability Cannot Be Divided by Texas Divorce Court

Under federal law, a court may not treat military disability benefits as community property for purposes of property distribution in a Texas divorce case. A husband recently challenged the property distribution in his divorce decree, arguing the court had improperly divided a portion of his military disability benefits.

Trial Court Divides Husband’s Military Retirement Benefits

The wife petitioned for divorce and sought a majority of the community assets.  The court granted the divorce on grounds of insupportability and adultery.  The decree gave the wife 55% of the husband’s disposable military retired pay, attorney’s fees, and conditional appellate attorney’s fees. The husband appealed.

The husband contended the 55% of his disposable military retired pay awarded to the wife erroneously included disability payments. The wife, however, argued the award did not include disability benefits and the decree had specifically awarded him his “VA Disability and Social Security Disability benefits” as separate property.

The language in the decree awarded the wife “[f]ifty-five percent [of the husband’s] disposable military retired pay . . .including any accrued unpaid bonuses, disability plan or benefits. . .” The award to the husband used the same language.  Both sections also referenced the domestic relations order. “Disposable retired pay” was defined in the domestic relations order to have the same meaning as given in the Uniformed Services Former Spouses’ Protection Act. Pursuant to that Act, “disposable retired pay” may be considered community property.  Military disability pay and any amounts of retired pay that are waived for disability benefits are excluded from the definition of “disposable retired pay.”

Appellate Court Finds Trial Court Did Not Divide Husband’s Disability Payments

The trial court ruled it could not divide the disability income. The decree awarded the husband the VA disability and Social Security Disability benefits as separate property.  The appeals court found the definition of disposable retired pay excluded military disability pay.  Based on all of these facts, the appeals court found the trial court did not award the wife any of the husband’s disability payments.

The husband also challenged the awards of trial attorney’s fees and conditional appellate attorney’s fees. The appeals court found there was insufficient evidence supporting the awards of attorney’s fees.

To receive an award of attorney’s fees, a party must show the fees were reasonable and necessary.  There must be sufficient evidence of the reasonableness of the rate and the hours worked. Although there was evidence presented, it did not provide sufficient detail to support a finding of the reasonableness of the fees.

Appellate Court Reverses Trial Court’s Award of Attorney’s Fees to Wife

To receive an award of conditional appellate attorney’s fees, the party must present opinion testimony regarding the services reasonably believed to be needed to defend an appeal as well as a reasonable hourly rate.  The appeals court noted there was no evidence addressing appellate attorney’s fees.

The appeals court therefore reversed the trial court’s awards of attorney’s fees and remanded for the trial court to redetermine the fees. The appeals court otherwise affirmed the divorce decree.

Are Military Benefits at Issue in Your Divorce? Call McClure Law Group Today

Retirement and disability benefits can complicate a divorce. A skilled Texas divorce attorney can help you get a fair property division.  Call 214.692.8200 to schedule a consultation to discuss your case with McClure Law Group.

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Its Memorial Day: Thank a Vet

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here. Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

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Texas Supreme Court Holds That A Beneficiary May Not Accept Any Benefit From A Will And Then Later Challenging The Will

In In the Estate of Johnson, a child of the decedent accepted over $143,000 from the decedent’s estate and then decided to challenge the will due to mental capacity and undue influence. No. 20-0424, 2021 Tex. LEXIS 426 (Tex. May 28, 2021). The trial court ruled that the child could not accept a benefit under the will and then challenge the will and dismissed the child’s claim. The court of appeals reversed, holding that the child did not receive anything that the child would not also receive if there was no will, and therefore, she was not inconsistent and was not estopped from bringing her will contest. The court held that the executor “failed to satisfy her burden, as the Will’s proponent, by failing to demonstrate that [MacNerland] accepted greater benefits than those to which she was entitled under the Will or intestacy laws.” Id. The Texas Supreme Court accepted the will proponent’s petition for review and reversed the court of appeals.

The Supreme Court held that the contestant first had the burden to prove that he or she had a sufficient interest in the estate. Once the contestant meets that burden, the burden shifts to the will’s proponent to provide evidence of an affirmative defense to preclude the contestant from proceeding with his or her claim. An affirmative defense that the will’s proponent can raise is the acceptance-of-benefits doctrine. The Court describes that defense as follows:

The acceptance-of-benefits doctrine bars a party from contesting the validity of a will while enjoying its benefits. It arises out of equity’s aversion to a claimant who seeks to exploit irreconcilable positions. Equity does not permit the beneficiary of a will to grasp benefits under the will with one hand while attempting to nullify it with the other. A contestant may rebut the doctrine’s applicability by showing that she did not accept the benefit through the will. The law does not deprive a contestant of standing when she otherwise has a present legal right to the benefit. That is, if the contestant is otherwise presently entitled to the accepted benefit, then her acceptance of it is not inconsistent with suing to set aside the will. For example, a contestant who accepts a bank account payable to the contestant upon the decedent’s death or as an assertion of her interest in a community estate does not act inconsistently with a will contest because she does so through means other than the will. In such a case, there is no inconsistent position justifying estoppel because the contestant does not seek to nullify the will while she simultaneously enjoys its benefits.

Id. The Court then rejected the theory that “a will contestant may presently accept benefits under the will based on a hypothetical claim to greater benefits should a court declare it invalid.” Id. The Court stated:

We rejected the idea more than sixty years ago in Wright v. Wright. As we explained in that case, the test for determining whether a contestant’s acceptance of benefits estops her from bringing a will contest “does not depend upon the value of the benefits,” “[n]or is it to be determined by comparing them with what the statutes of descent and distribution would afford the beneficiary in the absence of a will.” Rather, the doctrine asks whether the contestant has an existing legal entitlement to these benefits other than under the will. If there is no existing entitlement save for the testator’s bequest, then the contestant’s acceptance of it is inconsistent with a claim that the will is invalid.

Id. The Court also stated that this bright-line test would not harm a beneficiary that accepts a benefit without sufficient knowledge of the facts:

MacNerland argues that an opportunistic executor could offensively deny a would-be will contestant’s claim by partially distributing the estate to an unwitting beneficiary to avoid a will contest. The doctrine sufficiently accounts for this concern, however, by requiring that a beneficiary voluntarily accept the benefit. If a beneficiary or devisee lacks knowledge of some material fact at the time of acceptance, she may take steps to reject the benefit. MacNerland did not attempt to return the mutual fund account to the estate or assert in this case that her acceptance of the account was involuntary.

Id. The Court, thus, reversed the court of appeals and affirmed the trial court’s dismissal of the suit.

Interesting Note: This case highlights the danger that an estate beneficiary has when offered assets from the estate. If the beneficiary has any notion that he or she may want to contest the will, the beneficiary should not accept the asset. Otherwise, the beneficiary will face an acceptance-of-the-benefits defense by the will’s proponent. There are exceptions to the defense, primarily when the beneficiary accepts the asset without knowing material facts and the beneficiary later attempts to return the asset. There may be other defenses as well, such as duress. In any event, the acceptance-of-the-benefits defense only precludes a beneficiary from challenging the will, the beneficiary can still sue the executor for breaching duties and/or seeking to remove the executor.

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Stories of Recovery: The solution

Editor’s note: TLAP offers confidential assistance for lawyers, law students, and judges with substance use or mental health issues. Call or text TLAP at 1-800-343-8527 (TLAP) or find more information at tlaphelps.org.

My story starts in high school where I was introduced to drugs and alcohol. Where it went off the rails was the fall of my college freshman year. I went to a party with someone I just met where I was publicly sexually assaulted. I didn’t tell anyone and instead fell into a deep pit of drugs, alcohol, and an eating disorder. These self-destructive behaviors were easy solutions to push away my anxiety, fears, and self-loathing. At this point, I was blackout drinking most weekends. After graduation it got worse. At this point, my drug use was a daily struggle. Cocaine got me out of bed and kept me skinny. I had surrounded myself with a group of people where this was acceptable behavior until I started law school and met someone with a similar past. She showed me that there was another way. I started attending AA with her because I knew I couldn’t keep living this way. I knew I needed to stop drugs, but alcohol was harder for me to see the problem. I have learned that is part of my disease. Since that time, I have been successful in keeping drugs at bay, but I, like many young lawyers, thought the binge drinking happy hours were just a way of life. In 2006, I woke up in the ER with alcohol poisoning and that shook me. For the next 10 years, I kept my drinking to holidays or special occasions, but still over indulged every time. But I couldn’t have a drinking problem because I wasn’t drinking daily—so I thought.

In 2017 I divorced, and instead of dealing with all of those emotions, I yet again looked to alcohol. I would swear it off and then start the cycle again. In May 2020, I went to a friend’s for a glass of wine. I must have said, “just one glass” ten times before we polished off four bottles. I woke up the next morning with no memory of how I got home, knowing full well I drove. That was it. I made a call to a fellow attorney I knew who was in recovery. He listened to me and took me to a meeting. I credit him for saving my life by answering that call.

What I have learned is that alcoholics come in all variations. Just because I didn’t drink daily, didn’t mean my drinking wasn’t a serious problem. What I have found in LCL is a place where we can discuss our struggles and the solutions. It isn’t only a 12-step meeting so the topics can be more varied and include other struggles that we may face. I just celebrated a year of sobriety. What I expected was to stop my merry-go-round of drinking. What I have gained is a new perspective on life, a support system, an amazing group of friends, and finally a real understanding of how all of these self-destructive behaviors are rooted in the same place. But most importantly I was given the solution. The relief I have found in participating in recovery and working the steps have given me the peace and serenity I had been missing most of my life.

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Does the Supreme Court’s Bostock Decision Allow Employers, Religious or Secular, to Discriminate Against Bisexual Employees?

According to the plaintiffs in U.S. Pastor Council et al. v. Equal Employment Opportunity Commission, et al., No. 4:18-cv-00824-O, In the United States District Court, Northern District of Texas, Fort Worth Division, who filed a motion for summary judgment on this issue last week, the answer should be yes.

In U.S. Pastor, the plaintiffs contend that Bostock’s interpretation of Title VII does not prohibit discrimination against bisexual employees (as opposed to homosexual or transgender employees specifically referenced in Bostock)as long as the employer regards bisexual behavior or orientation as equally unacceptable in a man or woman.  In support of their argument, the plaintiffs cite the following language from Bostock:

Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the trait in a man, Title VII stands silent. 

Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1740 (2020).  Setting aside any personal beliefs or opinions regarding the Supreme Court’s decision, the plaintiffs’ argument appears misplaced based on Bostock’s logic. More specifically, the quote relied on by plaintiffs is cherry-picked from the opinion and omits the related logic which immediately follows:

But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex.  Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.  

Id.  As the Court explained further:

An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender.  Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.

Id. at 1742-43.  Stated differently, it certainly appears the Court addressed and rejected the very argument the U.S. Pastor plaintiffs make.

Additionally, in their summary judgment motion, the U.S. Pastor plaintiffs contend that “Bostock did not hold that an employer violates Title VII whenever it discriminates on account of ‘sexual orientation,’” but this argument also appears to be contradicted by Bostock’s logic:

When we apply the simple test to Mr. Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman—we don’t just change  his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.

While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability.

Id. at 1747-48.  Simply put, bisexuality, like homosexuality and transgender status, is by definition a form of sexual orientation.  And, according to Bostock, when an employer discriminates against an individual based on other types of sexual orientation, the action amounts to discrimination “based in part on that individual’s sex.”  Id. at 1743.  

In summary, and based on the reasoning in Bostock, the U.S. Pastor plaintiffs’ argument would create a difference without a distinction if the sexual orientation categories of homosexuality and transgender status are “inextricably bound up with sex” and therefore protected under Title VII, but the sexual orientation category of bisexuality is not.  Such a position would contravene Bostock’s reminder that, “[a]s enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.”  Id. at 1747.

It will certainly be interesting to see how the district court approaches such an argument.

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The Texas Winter Storm And Power Outages Killed Hundreds More People Than The State Says

BuzzFeed News has published an analysis on the catastrophic failure of Texas’ power grid in February that killed hundreds more than the state has acknowledged. FN co-founder Majed Nachawati comments.

“It’s astounding and it is disturbing, and our job is to make sure we hold the [power] generators, who we believe primarily responsible, accountable for the untimely deaths of these 80 deceased victims,” Nachawati said. “Those people being mothers, fathers, children, aunts, uncles, brothers, sisters.”

Read the full article here.

 

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5 Important Facts for Offshore Workers Who Live in Florida

Many Florida residents work offshore. If you are among them, it is important to make sure you have a clear understanding of your legal rights—especially when you get injured on the job. Here are five important facts for offshore workers from Florida maritime injury lawyer David P. Willis: Fact #1: Most Offshore Workers are Entitled to “No-Fault” Benefits When They Get Injured on the Job There are two primary laws that protect offshore workers: (i) the Jones Act and (ii) the Outer Continental Shelf Lands Act (OCSLA). Both of these laws entitle offshore workers to “no-fault” benefits when they get injured on the job. The right to “no-fault” benefits means that you can file a claim regardless of how you got injured. Whether your employer is responsible, a coworker made a mistake or you accidentally caused your own injury, you should talk to a Florida maritime injury lawyer about filing a claim under the Jones Act or the OCSLA. Fact #2: Many Offshore Workers Can Seek Additional Compensation for Fault In addition to “no-fault” benefits, many offshore workers can seek fault-based compensation as well. The Jones Act allows offshore workers to sue their employers for even “slight” negligence, and offshore workers will often have fault-based claims against other companies as well. For example, if you got injured on a rig, platform or vessel, the owner of the rig, platform or vessel may be liable. Or, if you got injured by a defective tool or piece of equipment, the manufacturer may [...]

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What Kind of Lawyer Should I hire for My Texas Divorce?

Are you in need of a divorce but worried that you can’t afford it? Or, are you worried that a divorce that was recently filed against you will cost too much for you to respond to? Do you know what the costs of a divorce are, where they can be reduced, and whether or not you even need to hire an attorney? These are all valid questions to have when you are just starting your divorce journey. However, the best time to ask questions and receive answers is before you need those answers. 

Learning the answers as soon as you can and avoiding mistakes down the line is what I would recommend to you or any other person who is going through a divorce. Nobody wants to have to deal with the stresses and difficulties of a divorce. Even those people who are anticipating a relatively quick in easy divorce don’t know what their case could look like by the end. We like to think that we can adapt to changes in our case and adjust based on the additional factors that become present but the reality is that it is better to have a plan that is adaptable and does not have a plan at all. 

This rule applies even more strongly when you are extremely budget-conscious. That’s not to say that any of us could afford to go into a divorce with no cares at all as far as how much the case will cost. I have never met a person who went through a divorce who told me that their only wish was that the case could have cost more money. Everyone would rather save money in a divorce than spend it. The key to this discussion is being able to identify those areas of the case where you can potentially save money rather than spend it unnecessarily. This is what I would like to help you identify today. Where is it possible for you to save money in a divorce case and what can you do to help avoid spending unnecessarily. 

Do you need to get a divorce? 

This is probably the most obvious question to ask yourself about a divorce but is one that many people do not. For most of us, getting a divorce is not a foregone conclusion. I think that if you and your spouse are willing to put in the effort then you can choose to avoid getting a divorce. It takes concerted effort and enjoyed cause to do so, however. This means that you should identify as quickly as you can whether or not your spouse is on board with attempting counseling or at least discussions about whatever problems in your marriage R leading you towards considering a divorce. 

A good place to start on this subject is to identify whether or not your spouse even agrees with you that there are problems in the marriage. If your spouse will not even concede that there are problems in the marriage that need to be worked on then you may not be able to save the marriage. In that case, you should begin to prepare for a divorce. On the other hand, if your spouse acknowledges that there are problems in the marriage then the next thing you should figure out is whether or not he or she is even willing to work on them. Again, many people consider problems in the marriage to be a foregone conclusion that divorce must be the next option. If your spouse is this mindset then you may not have a choice when it comes to getting a divorce. 

Otherwise, you should engage in conversation with your spouse, possibly with the assistance of a therapist or counselor, to work your way through these problems. Longstanding difficulties in a marriage do not resolve themselves on their own. Rather, they take concerted and intentional effort to be able to remedy them. You and your spouse know yourselves better than anybody else. As such, if you don’t believe that you have the necessary communication tools to be able to work your way through these problems then enlisting the help of an experienced marriage counselor or therapist may be what is best. 

Without a doubt, trying to avoid a divorce is much easier before the case is filed. But there is nothing in the rulebook that says you can’t pause a divorce after it the case is filed but I can tell you that it is much easier to attempt a reconciliation before the case starts. Once the case gets goings and an emotional switch is turned on that makes it very difficult to turn off. As a result, working out problems in your marriage before you file for divorce is the best time to do so. 

If you need a divorce, do you need an attorney? 

Assuming that you have put sufficient thought into the matter and have determined that a divorce is necessary for you and your family the next question that you should ask yourself is whether or not you need to have an attorney representing you. This isn’t quite a $1,000,000 question but it Is important nonetheless. Attorneys tend to be the largest expenditure during a divorce. That doesn’t mean that your attorney will not be worth every penny you pay him or her but the fact is that you need to be prepared for paying the costs of having a lawyer. 

That is unless you don’t need an attorney to represent you in your divorce. This may seem like a surprising thing to read on the blog of a family law attorney but I believe that not every person going through a divorce needs to hire a lawyer. The Texas family code does not require you to have a lawyer to get divorced. Although I will say that lawyers can be beneficial in any type of divorce there are divorce cases that are not as reliant on having attorneys to produce good outcomes for both parties. The key to this discussion is being able to determine whether or not your divorce is the type of case that will benefit most significantly from having a lawyer. 

First and foremost, if your divorce does not involve children then you may not need an attorney. As a parent of three little kids myself, I would be misleading you if I didn’t say that children were the most important part of any divorce that I have ever worked on. Almost universally, parents spend their time concerning themselves with their children over any other subject in a divorce. As a result, this should show you that no matter what else is going on in your case if you have kids then they will be the focus of your ongoing divorce. If you do not have kids then the ability to not have an attorney in your case goes up. 

The other reason why you may not have to hire an attorney for your divorce is if you have no children and no significant property interests involved in your case. Although I would never say that property issues in a divorce are as important as issues dealing with children the fact is that some of you reading this blog post may have high net worth’s, complicated Estates, small businesses that you operate in many other considerations that may cause you to require the assistance of an attorney to complete your divorce. Even if you are a skilled business person there is no substitute for having an experienced family law attorney by her side to help guide and protect you when your assets are most vulnerable such as in a divorce. 

Even if you don’t have a significant property interest in your divorce and you have no children you still may want to hire an attorney. You have to consider whether or not you have the time and the desire to provide almost single-minded intensity towards completing your divorce. For instance, do you have a job it takes up a fair bit of your time, hobbies, interests, or other family matters that may take you away from being able to devote the necessary time to complete your divorce? One thing an attorney will do for you is ensuring that your case moves along the timeline and completes itself sooner rather than later. Not having an attorney to represent you means a greater likelihood that your case is delayed indefinitely. 

Did you shop around for an attorney? 

Once you determine that you do need an attorney for your divorce the next logical question you should be asking yourself is who do you hire? With so many options in Southeast Texas to choose from I understand how it could become overwhelming regarding deciding on a lawyer to represent you. With that said, I would like to spend some time discussing how you can minimize your overall costs right off the bat when it comes to hiring a divorce attorney. 

Any experienced real estate investor will tell you that the true money you make the best money you make in the entire process of owning real estate is at the purchase of the property. If you can get a deal on a piece of land, a home, or a commercial building then you start ahead of the game. I like to think of hiring an attorney in the same way. You can worry all day and all night about how much the attorney will cost you once you have hired him or her but if you can find the right attorney for you and your budget during the interview process that will save you more money than nickel and diming yourself during the divorce. 

As I mentioned a moment ago, you must be able to interview as many attorneys as you feel comfortable with before actually hiring one. It may be that the attorney around the corner from you is the right attorney for you. However, simply hiring a lawyer based on their website, their proximity to you or any other factor is not necessarily going to put you in the best position. Rather, I would recommend taking the time and personally interviewing at least three attorneys before making up your mind on which one to hire. 

This is where we get to talk about things like value in hiring an attorney, pier dollars and cents in hiring an attorney but also things like hourly rates of what your attorney will charge you. You can talk to an attorney and figure out how much experience he or she has in handling divorce cases. I would never recommend you hire an attorney who is less expensive but has no experience in divorces. Like any other product or service that we buy you typically get what you pay for. As such, hiring an attorney who is less expensive but has never tried a divorce case before is not a recipe for success. 

The other factor that you should be considering when interviewing attorneys is what they charge and how they charge it. The vast majority of family law attorneys charge clients an upfront retainer or down payment to retain their services and then bill you subsequently for work done on your case. The Law Office of Bryan Fagan is very transparent and clear about how our pricing, fees, and collection of payment works. We also have an entire staff here at our office who is devoted to explaining these issues and working with you throughout your case to make sure your questions are answered and issues are addressed. 

The other issue that you can consider is hiring an attorney based on a limited scope agreement. This refers to the idea of hiring an attorney based on only utilizing the lawyer for a limited period, for example, you could hire an attorney only to represent you in mediation or a specific hearing. You could also hire an attorney just to review paperwork and draft documents for you at the end of your case. 

You can talk to an attorney about whether or not they will be willing to represent you in this manner. Some attorneys are unwilling to engage in limited scope relationships. Other attorneys, like those with the Law Office of Bryan Fagan, are very flexible and willing to work with you based on your needs and budget to accommodate you and do what is necessary to ensure the success of your case. 

This could be a great way for you to be able to get the most bang for your buck but also protect yourself and your family during a divorce. I’m not recommending that everyone try and engage in these types of limited scope arrangements but for some families, they may work well. 

Work your hardest to settle your case in mediation 

Finally, any cost-conscious or budget-conscious person who finds themselves in a divorce scenario should especially consider going to great lengths to avoid protracted litigation. Generally speaking, the longer your case takes to complete the more expensive it will be. However, there are methods to shorten your case and ensure that you reached a just final result. 

The most effective means to lessen the financial costs of a divorce and generally shorten the time length of a divorce is to work hard regarding negotiation throughout the case. Taking every opportunity 2 attempts a settlement of your case is probably the most direct way to limit costs throughout the divorce itself. Keep in mind that every time you have to call your attorney, respond to an email or go to court with your lawyer means that the lawyer will have to charge you for having done work on your case. However, if you do most of the negotiation with your spouse yourself and maintain a good relationship you can certainly limit costs. 

Finally, attending mediation and taking that process seriously is a great way to avoid the possibility of a trial. Mediation allows both sides and an experienced family law mediator to work together to see if settlements are possible in various areas of your case. From my experience, divorce mediations are effective had settled the vast majority of cases. Coming into mediation prepared and willing to negotiate is a great mindset to have. 

That’s not to say that every divorce can and should be settled. You may find yourself in a situation where you have to go to trial for various reasons. However, most of the time divorce cases can be settled in mediation or even before mediation. Sometimes all it takes is being willed to set aside your pride and instead work towards resolutions that are best for all parties involved. Work with your attorney throughout the case to identify those areas where you are willing to negotiate and which areas you are not. This will help you to prepare for mediation as early as possible. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn how your family’s circumstances may be impacted by the filing of a divorce or child custody case. 

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Top 10 Unusual Divorce Gifts for Your Divorcing Friend (or You!)

When it comes to getting a divorce, what you do to prepare for the case is almost as important as what you do during the case itself. While you may find that there are aspects to a divorce that she ultimately experiences that were unpredictable I can tell you that making sure that you are prepared for a case is as important as many of the things you do once the case has already begun. With that said, I would like to share with you some of my thoughts on how to adequately prepare for your divorce from the perspective of additional items that you may purchase to make the divorce easier for you or for anyone you know who is going through a divorce. 

For starters, one thing that I would point out is that your divorce may be quite a bit different than your friend or neighbor’s case. This doesn’t mean that their perspective is for that you cannot rely upon what that person has to tell you about their experiences or what you are likely to experience. All it means is that you need to be who you ask about divorce and be aware that their circumstances may differ somewhat from your own. 

Gift #1: a yellow legal pad

This may seem like a redundant gift but I can tell you that it is important on levels you may not understand. Yes, a yellow legal pad is not something that is expensive and is not something rare. But as a practicing attorney, I can tell you that I’ve gotten more use out of a yellow legal pad than just about any other piece of office supplies, fancy equipment, or anything else but I have been able to utilize my years as an attorney. The fact is that the legal pad is ubiquitous with practicing law just as an orange ball is in playing basketball. I can’t imagine an attorney practicing law without one. 

As such, I think it is important for someone considering a divorce or child custody case to be familiar with this type of supply as well. The fact is that I would not bother going through with the divorce or child custody case unless you are prepared. Prepared means having a plan and goals for your divorce or child custody case. I can see you wandering into a family law case but you will never wander out of a family law case with your goals intact unless you have a plan to accomplish those goals. It may sound overly simplistic but the best way I can conceive of imagining goals and developing a plan to reach those goals is on a yellow legal pad. 

Gift #2: a subscription to Uber eats, Uber, or any other side hustle business 

When I recommend a subscription to one of these services it is not to be able to utilize their products. Rather, it will be to be able to use these services to be able to land a second job or side hustle. Divorce in child custody cases can be expensive and I think it is worthwhile for you to be able to have multiple streams of income during a case. The second stream of income does not have to be fancy or a long-term job for you. Rather, you need only have something temporary which can suit your schedule as the needs may change over time. 

Having a flexible side hustle where you can work when you need to in as often as you wish will suit you well both for a changing job landscape which you may be experiencing in your primary job and also in the changing world of your divorce for the child custody case. Having a second stream of income is a terrific way for you to be able to plan for your divorce or child custody case and to bear in mind the changing nature of your life if your budget were to change due to a change in income or the loss of a spouse. Sign yourself or a friend up for these services and watch your income increase as a result. 

Gift #3: a pair of walking or running shoes 

While it may seem like your entire calendar is full after the beginning of a family law case the fact is you can always make time for what is important to you. Spending time with your family is important. Being able to spend sufficient time on your work is important. Need I remind you that your health is also important. Being able to exercise consistently is critical to your ability to not only succeed in your divorce or child custody case but to succeed in your life after your case has come to a close. 

It is not difficult to perform research to show that attorneys themselves are among the most unhealthy people based on careers in our country. The stressful nature of our work, the responsibilities that it entails as well as our own lives impacting our work schedules all lead to my belief that the legal field encourages bad behavior and unhealthy decisions. 

If you can buy yourself a pair of good walking shoes then you could avoid many of these problems. Exercising even on a mild or moderate level increases the productions of hormones that are proven to increase good feelings in your mind and help you to get over stressful or negative periods that you may be experiencing in your life. Something as simple as a trip to the sporting goods store can cause you to save money on things like therapy or mental health treatment. This isn’t to say that there is not a place for mental health treatment from her professional but many times exercise can substitute in many cases. 

Gift #4: a cookbook and a nice casserole dish

Cooking for yourself helps you save money and is healthier for you. This is a truism that we all know. Yet, how often do we find ourselves unprepared for dinner each night after work, school, or any other activity? The unpreparedness leads us to rationalize a trip through the drive-thru or a quick stop at your local restaurant. All in all, it is apparent that eating out not only is convenient but oftentimes tastier than making a home-cooked meal. However, that doesn’t mean that simple planning cannot prevent you from needing to resort to eating out more often than you would like. 

That is why I say buying a cookbook or simply having a schedule for cooking can make your life a lot better during your divorce and getting into your post-divorce life. In the immediate sense, it saves you money. As we have already talked about it will also help you to eat better and consume fewer calories on average. The main thing that gets in between most of us in eating better in my opinion is planning. If you prepared your meals in advance or had a plan on what to cook each night you would be less likely to eat out in my opinion. that is where a cookbook can be helpful. If you are excited about eating out of your cookbook for Matt will bring about a lesser need to resort to stopping for the drive-through. I’m not saying to never eat out but simply eating in can save you time and money a lot of times. 

A point that I make to my wife all the time is that by the time we go out to a restaurant or sit in the drive-through we could have prepared a meal at home that cost less money in less time. True, the meal may not have tasted as good but in some situations, it is OK to sacrifice taste for something that is better for you and helps out with your pocketbook. Consider the different options out there as far as cookbooks and you can do a great thing for yourself or a friend by purchasing one. This may not be the first gift that comes to mind for a person going through a divorce but I can tell you that it can and will be very helpful. 

Gift #5: a new watch 

If you’re anything like me, then you may have noticed that being on time is a lot easier when everyone is meeting digitally rather than in person. Rather than having to drive and meet up at a location when all you have to do is click a link in your email, you can get to a meeting much easier. With in-person meetups becoming more normal as the pandemic begins to wane you may find yourself in a position where you are unaccustomed to the routine and preparation that is involved with actually attending meetings in events in person. 

If the event is a dinner at your mother’s house then being 10 minutes late probably isn’t that big of a deal. However, if your event is mediation or a court date then being 10 minutes late can be an extremely big deal. To emphasize the importance of time in punctuality I think the gift of a watch would be a subtle reminder that in a post-pandemic age we all need to be cognizant of schedules and staying on time. It may take a little bit of effort but a fashionable new watch could be the check some people need to get back on track with their schedules. 

Gift #6: a gift card to a music subscription service 

Divorces are stressful. You probably didn’t need to go to a family law attorney’s blog to figure that out. With that said, music can go a long way towards helping you relieve stress or productively process your feelings. Since we’re all spending a great deal of time on the computer these days I can think of no better gift for the music fan than to be able to utilize a subscription service to access new music and generally unwind after a difficult day. 

You may even find new musical interests during the pandemic or during your divorce that lead to a lifelong love affair. Imagine discovering a new musical artist during your divorce and then being able to see him or her life in concert after the pandemic comes to an end. This is entirely possible in the subscription you purchased for yourself or another person could be the key to that happening in real life. 

Gift #7: a comfortable new desk chair 

At the beginning of a divorce, I always recommend to clients that they go on their computer and begin to organize their files and make copies of documents that may be helpful in their divorce case. It is common to request discovery from you’re opposing party in a divorce. Much of these discovery requests are based on financial accounts, investments, and retirement accounts. Therefore, you may have old statements or documents kept on a home computer that you may lose access to at various points in the case. As a result, I would recommend you access these documents when you have time by using your comfortable new desk chair. 

It is completely worth it to organize your documents ahead of your case rather than to do so during the case itself. Not only will it save you time to do it before your case begins but it will likely save you money. Keep in mind that any assistance that you need from support staff or a member of your attorney’s office will end up costing you money. It is better to perform the legwork yourself rather than to rely upon the assistance of your attorney’s office if you can all help it. 

Gift #8: a map to all of the parks in your County

A great way for you to be able to bond with your children and enjoy free time with them at little to no cost involves going through the County parks in your area. I am not telling you that you need to become an avid outdoors person but I am telling you that enjoying time outside with your kids is typically very memorable. If you have concerns about losing your bond with your children why not take this opportunity to develop a new interest with them or to pursue hobbies that you already shared. 

You and your kids can plan to take advantage of the parks in your area based on their ages. Your younger children may enjoy playing at the park or on playground equipment. On the other hand, your older children may want to go on hikes through the forest or at the beach. Why not take advantage of the opportunities you have to spend time with them? You can worry about your case anytime but the time you have with your children will likely be limited. 

Gift #9 and gift number 10: thank you cards and stamps 

My last two gift recommendations are a tandem item. Without a doubt, if you expect to make it out of your divorce case in one piece you will need to rely upon the help of others. This could be your attorney, your family, your friends, or even extended family members. What’s your divorce case comes to an end I would recommend acknowledging the efforts of these folks to help you and your family make it through the difficulties and trials of your case. I’m not telling you that you necessarily have to spend a great deal of time more money on these folks. Simply acknowledging them with a nice thank you card could go a long way. 

You may be surprised at how much simply pointing out the good deeds of another person can be towards helping him or her understands the full impact of their selfless actions. Even if you are just talking about an old friend who heard about your divorce and stopped by to say hello one day that single action may have made a tremendous difference free of both in the short and long terms. This is not to say that these folks went out of their way to be kind to be acknowledged for their kindness, but one good deed deserves another. Take the time to encourage others to continue to be kind and you will find yourself living in a better world before it is all said and done. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations can go a long way towards helping you and your family understand better how your circumstances may change with the filing of a divorce or child custody case. 

Thank you for stopping by our blog today. We have original content going up on our website every day that relates to the world of child custody, divorce, adoption, Community property, and estate planning. we take a great deal of pride and being able to serve our community and hope that you will stop by again and again in the future. 

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The Top 5 Hidden Costs of Divorce.

When trying to plan for a divorce in Texas you may have your eye on the costs and expenses associated with it. This is completely understandable. We all know that it costs money to get divorced whether it be in hiring an attorney, filing your case, spending time in the case away from your work, or trying to settle your case before a trial. Finally, the costs of a trial can ’cause the overall expenses associated with the case to skyrocket dramatically. 

Nobody liked to spend more money on something than they have to with divorce not being an exception to that rule. With that said, I would like to share with you in today’s blog post five of the areas where you may experience hidden costs that may not immediately come to mind when beginning the divorce process. That goes without saying that every divorce is different I would not expect yours to be the exception to that rule, either. However, there are areas of divorce that I have observed in my years as an attorney where costs may be hidden from sight. 

Hidden cost #1: hiring the wrong divorce attorney 

When it comes to getting a divorce in Texas most people will end up hiring a lawyer. You may be determined right now whether or not you need to hire a lawyer. My general advice that I give to people is that if you have children, a significant amount of Community property, or both then you have a greater than average need to hire an attorney to represent you in your divorce.

As with any purchase or investment, the key to understanding what decisions to make and watch decisions to avoid is to find the right product for you. In this case, the product that you are seeking is an attorney in the services legal representation. The ability to select the right attorney for you in your case is probably the most important decision you will make in your entire case and is certainly one that will influence many of the costs associated with having a lawyer. The devil is in the details when it comes to hiring an attorney, however. You will need to work to ensure that your lawyer is not the only experience in representing family law clients but in representing people in your particular situation. 

Fortunately for you, attorneys with the Law Office of Bryan Fagan offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are the best way for you to learn about the details of family law cases and specifically about divorce. There is nothing wrong with bouncing ideas or asking questions of people in your life who have been through divorce before. However, I would advise against relying on the perspective of these folks when it comes to planning and goal setting. For that, you are much better off working with an experienced attorney to at least learn about the process. 

I think simply meeting with a qualified and sufficiently experienced attorney for even a consultation can make a huge difference in minimizing the cost of your case. Like anything else in life, we don’t know what we don’t know. What I mean by that is that we can assume all sorts of things about divorce and we can plan for all sorts of events. However, unless we know whether or not a certain event is likely or unlikely to occur could be the difference between having a long and drawn-out divorce is one that can be negotiated and settled rather quickly. Getting good advice from your attorney means that you can put that advice into practice and set reasonable goals for your case. 

Rather than pushing hard to accomplish certain things within the case that is difficult and unreasonable to accomplish why not learn from your attorney and be guided by their advice? If you can determine what the likely outcomes of a divorce are in warrior facts and circumstances play into those likely outcomes you can be better served to do what is best for yourself and your children. Not backing down from your goals in a case is a bad thing but it can end up being a bad thing if you hold positions that you are unlikely to win in court. There is no prize for not backing down on principle if your principles are way far off and not based on reality’s terms. 

A long divorce means an expensive divorce. If you select the wrong attorney and he or she provides you with advice or perspective that is bad then you could end up pushing hard for goals that are nearly impossible to win on. Rather, your best bet is to work with an inexperienced attorney who can communicate reasonable goals to you and help you to develop a plan to achieve those goals. Completing this step alone will go a long way towards helping you minimize any unnecessary cost there even divorce. 

Hidden cost #2: trying to represent yourself and not succeeding 

The unfortunate truth is that many of the clients that our law office has been fortunate enough to represent over the past few years have been folks who initially tried to represent themselves in a divorce. While nothing is preventing you from representing yourself in a divorce I can tell you that there is certainly a risk to doing so. One of the major risks of representing yourself is that not only could you be taken advantage of by your spouse and their attorney which you may end up lengthening a divorce that could have otherwise been settled or resolved sooner rather than later. 

There is nothing necessarily wrong with the idea of representing yourself in your divorce. The Texas family code allows you to represent yourself in divorce just like you can represent yourself in any other type of legal matter. If you go down to the courthouse you will find many people who are representing themselves in a whole range of family law cases. However, what I would tell you is that there are few types of legal cases that are more intricately moving into your life than a family law case. As such, you need to be sure that you are prepared to represent in a divorce before deciding to do so. 

Going through with the divorce without an attorney means that you are taking a risk. It’s not so much that good decisions cannot be made by you about your divorce but that it is always advisable for you to have the perspective and advice of an experienced attorney versus not having that type of advice if you were to represent yourself. Bear in mind that an attorney does not make decisions for you in your case but rather helps guide you based on your circumstances. What many attorneys will help you do would be to help you avoid taking positions that you are unlikely to win and help you avoid problems in the day-to-day maintenance of your case. 

Keep in mind that the decision-making associated with your case with maintaining deadlines in keeping up with necessary responses to documents filed by the opposing party is just as important in many ways as being able to present evidence in a courtroom. Any attorney will tell you that most of your case is spent doing the former rather than the latter. With that said, your best bet would be to understand that what you don’t know is as just as important as what you do know. Of course, some people can accomplish their goals without the assistance of an attorney. By the same token, I believe you are much more likely to be able to accomplish those goals with an attorney rather than without one. 

What many of our clients have told me over the years is that by representing themselves without an attorney at the beginning of their case, these folks lost time and motivation to accomplish their goals. This can set you back on a financial and emotional level that may be difficult to recover from. My advice would be to avoid putting yourself in that situation by hiring an experienced family law attorney with the Law Office of Bryan Fagan before your case even begins. From there, you can be guided in how to proceed with your divorce correctly and can learn to make decisions for yourself that will not end up costing you money. 

Hidden cost #3: negotiating based on principle rather than on circumstances 

When it comes to your divorce case, it is much more likely that you will be settling your case based on negotiations rather than on evidence presented to a judge. Whether it be in mediation or in informal settlement negotiations with your spouse the greatest likelihood is that your divorce case was to end with a settlement of some sort rather than in litigation. This is a positive given how expensive trials can become. What that said, there is a big difference between negotiating your case based on the facts and circumstances as they are than on what you considered to be right or just. 

There is little doubt that many of you reading this blog post feel like you have been wronged in some way leading up to your divorce. Your spouse took advantage of you or did something that causes you to feel like he or she has not treated you fairly. As a result, you want to take those circumstances and apply them to how you negotiate your divorce without considering how a court is likely to view those same circumstances. For example, if your spouse cheated on you at some point in the marriage then you may be asking for all of your Community property and sole possession of your kids based on this occurrence. 

You may believe that this bad act on the part of your spouse will trump every other action or circumstance involved in your case. While I am not here to tell you that their actions were good or positive by any means, what I do need to share with you is that how you view certain circumstances in your case may not be the same way that a court views them. As such you should be careful about negotiating your divorce based on what I like to call the Superman factors. What I mean by this is that Superman fought for truth, justice, and the American way. These novel concepts are important but remember that they are based on a cartoon. Your life is not a cartoon and you cannot necessarily afford to negotiate in the same way. Rather, I recommend that people negotiate strongly based on the specific circumstances of your life and just as importantly how a judge would be likely to rule on those same circumstances. 

Ultimately, it doesn’t matter how you view your circumstances all that matters is how a judge would be likely to view them. If it becomes abundantly clear to you that a judge who is not likely to be your circumstances in the same way you do then you should be wary about proceeding into your case with a particular mindset. Whether that perspective comes from your attorney or an experienced mediator you should take their opinion for what it’s worth. Just because you don’t believe that something is just or right does not mean that it will not happen to you in your divorce. 

For example, it is entirely plausible that your family court judge will not view your spouse’s infidelity as being as important to your divorce as you might. Even though the divorce may hurt your heart a great deal it may cause you to be enraged just at the thought of the act that doesn’t mean that a family court judge would necessarily rule in your favor based on a Community property division or child custody decision. It is important to keep the circumstances of your case in mind when you want to go shooting rather than basing how you negotiate off on your opinions about what justice demands. 

Hidden cost #4: going to trial

There is nothing wrong with going to trial in your divorce. Somewhere around 10% of divorce cases go to trial in Texas based on my understanding of the statistics. While it is far from a sure thing that your case will go to trial it is still an outcome that you need to be aware of. The problem with going to trial is not the time commitment necessarily but the money commitment that you incur. If you are going to trial over something critical to your life or over something that is well justified then that is one thing. It is another thing to go to trial over a subject that is not critical to your life or is based on something you are not likely to win. 

Simply put, you need to be sure that you are not signing up for a trial that could either be avoided or is not worth the cost to you. Value and worth are subjective and you need to Explorer the value of your cases and what the worth of going to trial is with your attorney. If you realize that the subject matter your divorce trial would center around is not important to you then you should not go even if you have to give something up that you want in mediation. Live to fight another day and live to spend your money on an outcome that is more important to you. 

Hidden cost #5: getting a worthless divorce order 

Finally, I want to point out to you that getting what you want in a trial or a mediation is only the first step in the battle. The second step is being able to translate those victories into a final win in your final orders from the divorce. You need to be able to ensure that the final decree of divorce in your case accurately states the judge’s orders or the terms of your settlement for mediation. If not, then you may wind up with a situation where your final orders are not worth the paper that they’re printed on. 

Many people going through a divorce don’t think of it this way but the whole purpose of getting a divorce is to have final orders that wrap up your case and allow you to gain a final decree of divorce that is enforceable in the future. Just like an enforceable contract is not worth anything to you so do our final decrees of divorce which have no enforceability in the future. You and your attorney need to spend a great deal of time reviewing your final decree of divorce before signing to ensure that the orders are enforceable and match up with what the judge said in trial or what you agreed to in mediation.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn as much as you can about the world of family law and to find out how your circumstances may be impacted by the filing of a divorce or child custody case. 

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Northstar Financial Services (Bermuda) Investors Seek Up to $500K in Damages from SunTrust Bank Division, Truist Investment Services

Colombian Claimants Allege Negligence, Misrepresentations, and Failure to Supervise

Two investors from Bogota, Colombia are pursuing a Financial Industry Regulatory Authority (FINRA) arbitration claim against Truist Investment Services for the losses they suffered in Northstar Financial Services (Bermuda). The claimants, who are from the same family, had looked to the brokerage firm, which is affiliated with SunTrust Bank, to keep their assets safe. 

As longtime SunTrust Bank clients with an account in Florida, the investors were not interested in taking on any undue risk and were mostly invested in bank products, including money markets. Yet, Truist Investment Services recommended that the claimants invest more than $125K in Northstar Financial Services (Bermuda). 

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Cruise News: CDC Orders & New Alaska Sailing Law

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Cruise passengers may have mourned when “[t]he CDC Director issued a No Sail Order for cruise ships effective March 14, 2020 due to the risk cruise ship travel introducing, transmitting, or spreading COVID-19,” but hope is on the horizon for those wishing to set sail again. This blog post summarizes current Center for Disease Control (CDC) Orders and a new law that positively impacts those wishing to sail to Alaska.

CDC Orders & Guidance

On September 30, 2020, the CDC extended previous “No Sail Orders” until “the earliest of (1) the expiration of the Secretary of Health and Human Services’ declaration that COVID-19 constitutes a public health emergency; (2) the CDC Director rescinds or modifies the order based on specific public health or other considerations; or (3) October 31, 2020.”

Image by bernswaelz from Pixabay

Then, on October 30, 2020, the CDC issued the first of several Framework for Conditional Sailing Orders, which outlined the requirements “for a phased resumption of cruise ship passenger operations.” The most recent update occurred on May 5, 2021, in which they released the next two phases “for cruise ships operating or seeking to operate in U.S. waters.” According to the CDC website, “With the issuance of these next two phases, cruise ship operators now have all the necessary requirements and recommendations they need to start simulated voyages before resuming restricted passenger voyages and apply for a COVID-19 conditional sailing certificate to begin sailing with restricted passenger voyages.” However, the website also cautioned that the “CDC may adjust these requirements and recommendations based on public health considerations and other factors.”

Most important for cruise passengers, though, the CDC issued an order effective on February 2, 2021, that requires travelers to wear “face masks while on conveyances and at transportation hubs,” including cruise ships. There is a Frequently Asked Questions (FAQs) webpage from the CDC about this order that covers topics such as when people are not required to wear a mask, people who are exempt from wearing a mask, and the “categories of conveyances” which are exempt from the requirement.

Further CDC orders and guidance relevant to cruise ships are available here. Updates to information and requirements seem likely over the summer, so cruisers should keep an eye out for changes.

Alaska Tourism Restoration Act

Image by Dennis Larsen from Pixabay

Cruising novices might not know that, prior to this week, US cruises to Alaska were essentially required to stop at a least one Canadian port, due to the Passenger Vessel Services Act of 1886, Pub.L. 49–421, and its implementing regulations, 19 C.F.R. §§ 4.50(b), 4.80, 4.80a. This became problematic when Canadian officials implemented a ban on cruise ships sailing in all Canadian waters, which is currently in effect until February 28, 2022.

However, on May 24, 2021, President Biden signed into law the Alaska Tourism Restoration Act, which removes this impediment until “(1) the date on which covered cruise ships are no longer prohibited by the Government of Canada, any political subdivision of Canada, or any port or province of Canada, from entering, berthing, or docking in Canadian waters of the Pacific Coast due to the COVID-19 pandemic; or (2) March 31, 2022.”

This is great news for cruisers, as cruise lines are already releasing Alaska itineraries for this summer. Happy sailing!

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An Overview of the COVID-19 Hate Crimes Act

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On May 20, 2021, President Biden signed into law the COVID-19 Hate Crimes Act, Pub. L. 117-13, which “addresses hate crimes throughout the COVID-19 pandemic, with particular emphasis on the increase in violence against Asian Americans.” The bill was introduced on March 23, 2021, by Rep. Grace Meng, D-N.Y., and Sen. Mazie Hirono, D-Hawaii.

According to a summary produced by the Congressional Research Service, the Act has five main provisions (cited verbatim below):

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• This bill requires a designated officer or employee of the Department of Justice (DOJ) to facilitate the expedited review of hate crimes and reports of hate crimes.

• DOJ must issue guidance for state, local, and tribal law enforcement agencies on establishing online hate crime reporting processes, collecting data disaggregated by protected characteristic (e.g., race or national origin), and expanding education campaigns.

• Additionally, DOJ and the Department of Health and Human Services must issue guidance aimed at raising awareness of hate crimes during the COVID-19 (i.e., coronavirus disease 2019) pandemic.

• The bill establishes grants for states to create state-run hate crimes reporting hotlines. It also authorizes grants for states and local governments to implement the National Incident-Based Reporting System and to conduct law enforcement activities or crime reduction programs to prevent, address, or respond to hate crimes.

• Finally, in the case of an individual convicted of a hate crime offense and placed on supervised release, the bill allows a court to order that the individual participate in educational classes or community service as a condition of supervised release.

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Just because your employer is not keeping records does not mean “time is an illusion” and they get to steal your wages—you may still be able to prove what you are owed!

Austin Campbell

Wage theft—when employers fail to pay their employees the amounts they are legally required to for the work their employees perform—is by some estimates more common than all forms of robbery combined. Ross Eisenbrey, Wage Theft Is a Bigger Problem than Other Theft – But Not Enough Is Done to Protect Workers, Econ. Pol’y Inst. (Apr. 2, 2014), available at https://ift.tt/3uCxmHs [https://ift.tt/3vDMNjW]. A significant part of that is unpaid overtime in violation of the federal Fair Labor Standards Act (“FLSA”).

Given the magnitude of the problem and the limited resources of the U.S. Department of Labor, the burden is often on you as the employee to sue and prove that you are owed overtime pay, as well as how much you are owed. The FLSA requires employers to keep records of employees’ wages and hours, but does not allow an employee to sue employer just for failing to keep proper records. Thus, often—especially in situations where your employer is illegally treating you as a salaried employee to avoid paying you overtime altogether—you can have a hard time even figuring out what you are actually owed.

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The post Just because your employer is not keeping records does not mean “time is an illusion” and they get to steal your wages—you may still be able to prove what you are owed! appeared first on Dallas Employment Lawyer Blog.

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Are Non-Compete Agreements in Texas Enforceable?x

The State of Texas will generally frown upon contracts and other business arrangements that restrict employees from changing jobs as they see fit. Free enterprise is big in Texas and the state approaches any potential restrictions on trade or commerce with great trepidation. In fact, the Texas Free Enterprise and Antitrust Act of 1983 deems unlawful any contract or agreement that restrains trade or commerce, with certain exceptions being made. The exceptions allow for a balance between free trade and businesses still being allowed to take steps to protect their interests. With this being said, are non-compete agreements in Texas enforceable even though they can be viewed as a restraint on commerce and freedom of employees’ mobility?

Are Non-Compete Agreements in Texas Enforceable?

In a non-compete agreement, the employee is agreeing not to engage in competing with the employer which usually means the employee cannot be employed by a competitor during employment or after employment with the employer in the non-compete agreement. In Texas, businesses are in a position to negotiate such contracts, which are sometimes known as covenants not to compete, and the agreements can be found to be valid and enforceable.

In order to be considered enforceable in Texas, a non-compete agreement must fall within certain parameters. This is because, while such restrictive agreements may be valid in Texas, Texas courts have acknowledged that overly broad restrictions on the mobility of employees can be harmful to the free market. Because of this, non-compete agreements are only enforceable in Texas if supported by valid consideration and there are only reasonable restrictions on time, geographic scope, and activities set forth in the agreement.

In regards to geographical scope, a reasonable geographical scope will generally include the area where the employee worked for the employer. An agreement’s attempt to restrict location beyond that scope risks being overly broad. If found to be overly broad and, thus, unreasonable, the non-compete agreement may not be enforceable.

The duration of the non-compete agreement cannot be unlimited. While there is no set time frame for what would be considered a “reasonable” duration, it can be agreed upon that an unlimited restriction on competition would most certainly be unenforceable. The reasonableness of duration will depend on a number of factors, including the business’s industry and market, as well as the employee’s role in the company, among other factors.

Again, with restrictions on the scope of activity in a non-compete agreement, there are no set parameters on what will be found to be reasonable. Generally speaking, a court is likely to honor an agreement that restricts the employee from making contact with existing customers. Furthermore, a court is likely to be okay with a restriction on an employee going to work for competitors, depending on whether the time and geographic scope are reasonable as well.

Business Law Attorney

Non-compete agreements can be valuable business tools when properly drafted and utilized. For a non-compete agreement and other business agreements that are solidly executed to protect the best interests of your business, The Kumar Law Firm is here to help. Contact us today.

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Do I Have a Case If Rear-Ended While Stopped?

One of the most common types of vehicle crashes to occur in the United States is rear-end collisions. Each year there are around 1.7 million rear-end collisions across the country that range from minor bumper taps to fatal crashes. Rear-end collisions can happen in a variety of ways, including while actively driving on the road, driving at higher speeds on the highway, or while stopped at a traffic light. Rear-end collisions can be tricky because there may only be a small amount of damage to your vehicle, and you may not feel that you have been injured after being hit. Even the most minor rear-end crash can cause unseen structural damage to your car and injuries that can leave you with chronic pain. Injuries can result in lost time from work and costly medical bills.  You do not have to be actively driving while being rear-ended to have a case against the person who hit you. If you or a loved one has been rear-ended while stopped at a stop sign, yield sign, traffic light, or while parked, you may have a valid claim for financial compensation for your losses.

Data from the National Transportation Safety Board shows that 87 percent of all rear-end collisions are caused by distracted drivers. If a driver is not paying attention to the road ahead because they are distracted, they will not notice a vehicle stopped ahead and will not be able to brake in time to prevent a collision. Common distractions while driving include talking on the phone, texting, reading messages, interacting with a GPS system or radio, eating, drinking, or interacting with passengers. Some other common causes of rear-end collisions include speeding, reckless driving, road rage, falling asleep at the wheel, driving under the influence, and mechanical issues with the vehicle. Rear-end collisions usually occur directly behind the vehicle hit, however, a vehicle can also be hit at an angle from behind and the accident be considered a “rear-end collision.” The way that your vehicle is hit and the speed of the driver who hit you directly contribute to the severity of the accident.

Rear-End Accident Injuries

The types of injuries commonly seen in rear-end collisions range from minor to severe. The severity is dependent upon how fast the driver who hit you from behind was going – the higher the speed, the more severe the injuries. The moment you are hit from behind, your body will fling forward and back, being held down by the seatbelt, and you may hit the steering wheel, windshield, and other parts of your car that can cause bruising, cuts, and whiplash. Head, neck, and back injuries are extremely common in rear-end accidents, especially when the vehicle hit was stopped completely. That vehicle’s driver and passengers take on the full force of the impact. In severe rear-end collisions, traumatic brain injuries, spinal cord injuries, and internal bleeding can occur. There may also be cognitive injuries resulting from a concussion or post-traumatic stress disorder. Psychological injuries are just as important as physical injuries and should be treated properly. It is essential to seek medical treatment immediately after being rear-ended. Documenting your injuries will be critical in the legal battle to come.

Steps to Take After Being Rear Ended

After a car accident occurs and you have obtained medical treatment, make sure to speak to the police and let them know you were rear-ended while stopped. Take pictures of the accident site, your injuries, and your vehicle for documentation if you are physically able. It is important to also get a copy of the police report and contact information for the driver that hit you, including insurance information. Medical bills and car repair costs will start to add up after a rear-end collision. Not only do you want to get medical treatment, you will want to make sure your vehicle is still safe to operate after being hit. In most cases, if you were properly stopped at a stoplight, stop sign, yield sign, or parked in a parking spot, and are rear-ended by another vehicle, the driver of that vehicle is at fault.

The other driver’s insurance company will try to pay as little as possible to you as possible and will make it very difficult to obtain your rightful compensation after the auto accident. This is where an experienced personal injury lawyer will be incredibly useful. A lawyer will make sure the claim is filed appropriately with the insurance company and will make sure you receive compensation for your injuries, lost wages, and any pain and suffering that you may have experienced as a result of the read-end collision, among other car accident injuries and losses.

Your lawyer will build your claim around the negligence of the at-fault driver. They will prove the driver had a duty of care to keep their eyes on the road and not hit the vehicle stopped in front of them. Having the appropriate documentation can help your case move quickly and will give your lawyer everything they need to prove your case. Important documents to give your lawyer include:

• Police report
• Copy of your medical bills
• Copy of your medical records
• Vehicle repair estimate
• Tow truck bill
• Rental car receipts
• Documentation of missed work hours and lost wages
• Accident scene photos and video
• Photos and video of your injuries and damage to your vehicle
• Witness statements

These items will help your lawyer fight the at-fault driver’s insurance company’s legal team. Having someone on your side to stand up for your rights after being rear-ended will reduce the amount of stress you take on after the accident and help you recover full compensation for your damages.

Houston Rear-End Collision Lawyers

The experienced Houston rear-end collision lawyers at Adame Garza LLP will analyze the details of your situation and determine the best course of action. If you or a loved one has been injured in a rear-end collision, our team of lawyers can put your mind at ease. We have helped hundreds of car accident victims across Houston, and we can guide you through every step of seeking compensation for your injuries. Contact us today for a free consultation.

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