The Texas Supreme Court’s longtime staff attorney for public information, Osler McCarthy, retires on August 31 after many years of dedicated service. I wanted to salute his hard work and share a well-written tribute to him recently prepared by former Chief Justice Wallace Jefferson.
The post Salute to Osler McCarthy appeared first on 600 Camp.
The 2015 landmark Obergefell Supreme Court case allowed gay couples to be able to get married finally. Allowing for basic civil rights, The Court allowed same-sex couples to visit each other in the hospital, guarantee an inheritance, adopt children, and much more. The flood gates opened, and much work around the country was done to expand the rights of same-sex couples, but one right remains in limbo....
Alfonso and Brad fell in love in 2007. Deciding to be financially savvy, they moved in together in 2008 after the housing crisis. They shared clothes, vehicles, pets, holidays. Everything. 2015 rolled around, and they planned to get married, but life happened, and they never got around to it. Alfonso was busy finishing up medical school, and Brad worked as a 5th-grade teacher to support their household. They didn’t have the money to throw the big wedding they always dreamed of. Still, they held themselves out to their friends and family as husbands and wore wedding bands around their ring fingers.
Years went by, and the thought of spending all that money on a big wedding just seemed silly. Why do that when it could be spent on so much more? Alfonso graduated from medical school and worked his way up to be a successful heart transplant surgeon. By 2016 he was making well over 300,000 dollars a year, and Brad was over halfway to retirement and had a great 401k and pension from the teacher’s union.
But everything changed in 2016. Brad comes home early from work and hears “bumps” coming from upstairs. He goes up to investigate. You see where this is going. Brad peers open the door and see his ex-boyfriend, Charles, in bed with Alfonso. Brad closes the door and goes downstairs, and leaves.
Brad hires The Law Firm of Bryan Fagan to divorce Alfonso. Brad wants half of all their assets. Brad claims he and Alfonso are common-law married. Alfonso says they were never married and that common law marriage cannot apply because Obergefell has only been law for a year. Brad’s lawyer argues that Obergefell is retroactive and that they have been married since 2008.
So, what’s the deal? Is Obergefell retroactive? Wait, what even is common law marriage?
Let’s back up.
What is Common Law Marriage? (Link to Blog Post)
Texas and Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Utah, and the District of Columbia recognize common law marriage. Alabama, Florida, Georgia, Idaho, Indiana, Ohio, Pennsylvania, and South Carolina also recognize common law marriage before a specific date (each state is different).
Great, now that you’ve read about Common Law Marriage, here’s the million-dollar question:
Is Obergefell Retroactive?
Are Alfonso and Brad Common Law Married? Considering all the things that make a common law marriage valid—they held themselves out as husbands to the world; they wore wedding bands; they shared a home; they shared assets; they shared pets; they shared everything. Under normal circumstances, of course, they are common law married. But here’s the kicker...time. Time is everything. Do we start time in 2015 when Obergefell became law, or do we start in 2008 when they moved in together?
If we started time in 2015, they’ve only technically been together for less than a year, but if we started in 2008 when they moved in together, we could certainly establish common law marriage. If they are married, then Brad gets half the stuff.
Short Answer: Yes, Obergefell is retroactive. However, some jurisdictions like Texas and South Carolina use the complex civil procedure to deny litigants their constitutional rights. For a more detailed analysis, see below (note that the details below are written at a legal professional reading level).
The seminal case regarding Obergefell retroactivity is Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016). This case is...incredible, and I can’t imagine the strain of the plaintiffs in proving her case. If you want an example of bravery, look no further. The lawsuit stemmed from a car crash case of all things. In summary: the car crash happened in 2014; Ms. Ranolls died from the crash; her lover, Ms. Hogan, had to prove that she was common-law married to Ms. Ranolls; the defendants fought her tooth and nail so that she would not be entitled to damages for wrongful death, etc. It isn’t perfect, quite frankly. Imagine losing your wife in a car crash, and then the defendants have the gall to exacerbate you further by suggesting you cannot be entitled to relief because you are gay. What is most superb about this case is that Obergefell was decided halfway through it!
Mr. Steve Walden of the Terry Bryant Law Firm took on this case before the Honorable Marcia Crone. Mr. Walden explains that the firm was locked and loaded, ready to make the argument once the Obergefelldecision came down. Judge Crone abated her ruling on the matter until SCOTUS handed down their ruling. What is the most fascinating is not that a personal injury firm handled an important family law matter (which in and of itself is incredible), but that they were ready to go the second the decision came down. Plaintiffs in these cases are EXTREMELY rare. First, plaintiffs must be gay, which is only 3.5% of the population. They must have been dating or been together before 2015. Then they must not have been married after Obergefellwas handed down. And then someone must either die or wants to divorce.
The court stated, “Generally, in both civil and criminal cases, unconstitutional laws and rules are void ab initio, or void from inception, as if they never existed,” then cites about five authorities to back it up. It’s brilliant. “Over the Years, the Supreme Court has issued a series of decisions addressing retroactivity and its limitations,” again citing to half a dozen authorities.
Citing the Supreme Court from Rodrigue v. Aetna Casualty and Surety Company, 395 U.S. 352, 89 S. Ct. 1835, 23 L.Ed.2d 360 (1969).
First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not foreshadowed. Second, it has been stressed that “we must...weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application...
For those interested more in the analysis of retroactivity, Judge Crone’s analysis is brilliant and flows like water. For those of you legal geeks, I highly recommend it.
The second case is Ford v. Freeman, No 3:18-CV-3095-B (ND Tex. 2020), and is only one page long. In this case, an insurance policy payout is at issue. The beneficiary was assigned in 1996, and the will was executed in 2004. The Court affirmed the finding of the United States Magistrate Judge that the will was valid to the decedent’s common-law same-sex spouse.
Penned by Justice Patrida-Kipness, Hinojosa v. Lafredo, No. 05-18-01543-CV (Tex. App. Jun.2, 2021)[1], incorrectly upheld the trial court’s interesting error. In this case, the trial court put the question of Obergefellretroactively to the jury. The jury was asked, “Are [the parties] informally married?” Confused, the jury asked:
“If the same-sex couple met the requirements of informal marriage before June 26, 2015, does the Obergefell decision state whether the effective date of the informal marriage is the date of the Supreme Court decision or the date the conditions were met?”
The trial court responds:
“You have all the law and instructions to answer the question in the jury charge.”
There were two issues in this case on appeal. The first is that the parties were married in Italy in 2000. The jury was not instructed as to whether this marriage was valid. The second is, of course, the jury instruction above.
Courts decide questions of law. Juries decide questions of fact. It is improper for the court to assign questions of law to the jury. That’s a fact.
Let’s get into the first issue. Why didn’t the Court hold the marriage in Italy to be valid? Civil procedure. The Court states that the jury charge was lacking “substantially correct wording.” The court was correct here. The instructions given were ambiguous and not fully laid out. It’s unfortunate.
Next, the court states that the four elements of a formal marriage were not completed: (1) get a marriage license; (2) the clerk executes the license; (3) the ceremony is 90 days within the execution; (4) there’s a ceremony with a clergyman or official. Appellant argues that the first three were impossible in Texas in 2000 and that Obergefell should render these elements automatic. The court declines to do so, arguing it would open the flood gates. Indeed, the court states the truth, “The legal question of whether Obergefell is retroactive has not been determined by the Supreme Court of Texas or by The U.S. Supreme Court.” However, the court cites Ford v. Freeman and Rannells.
Indeed, the court skirts this question by determining that the clergyman was not certified to perform Italy’s marriage. Again, the Court rules correctly. The clergyman was some “psychic spiritual guide,” not a minister. Let’s move on.
The Court goes on to obliterate appellants’ second argument through the civil procedure rather unfairly. The Court claims that the appellant did not object to the trial court’s answer to the jury’s question and thus did not preserve the issue for appeal. Further, the Court stated whatever confusion the jury may have had was immaterial to the threshold question presented, which is preposterous.
Most importantly, the Court did not even touch on the question presented as a question of law rather than a question of fact. The jury is not to decide questions of law, only of fact. The Court skipped this entire argument in error. Hopefully appellant will seek Certiorari of a writ of Habeus Corpus.
Texas still has precedent, however, as cited in the Ranolls case above.
In the fall of 2015, a County Clerk in Tarrant County, Texas, refused to register a “Declaration of Informal Marriage” between two men claiming they had been in a common-law marriage for twenty-three years. After being contacted by the couple’s attorney, the Tarrant County Clerk issued a statement, clarifying that her office would accept common-law affidavits dated before June 26, 2015, the date of the Obergefell decision.
Also, a same-sex couple was married in Travis County, Texas, in February of 2015. In re State, 489 S.W.3d 454, 457 (Tex. 2016). A Travis County Judge granted the couple’s request for a temporary restraining order, preliminary injunction, and permanent injunction to declare [the definition of marriage as between a man and a woman] unconstitutional. The Texas Attorney General sought a writ of mandamus with the Supreme Court of Texas challenging the validity of the trial court’s order and failing to provide notice to the Attorney General. This case was dismissed as moot after Obergefell was issued. Though the court did not hold so explicitly, it applied Obergefell retroactively to validate the February 2015 marriage.
Lastly, Parker v. Pidgeon, 477 S.W.3d 353, 354 (Tex. App.-Houston [14th Dist. [ 2015) recognized an out-of-state same-sex marriage that was pending an injunction. After Obergefell was issued, this injunction was reversed.
The Honorable Judge Rebecca Freyre penned the Court of Appeals opinion in 2018 with help from her brilliant and handsome law clerk, Jacob Scholl. Hogsett v Neale, 480 P3rd 696 (Colo. App. 2018). Judge Freyre gives a detailed analysis with four paragraphs. Indeed, neither party in the case even cared to contest the retroactivity; to them, it was obvious and the decent thing to do. Supreme Court of Colorado affirmed its lower Court of Appeals opinion stating that Obergefell was indeed retroactive, but not really, “Because neither party here contests Obergefell’s retroactive application, that question is not before us. In this case.” Hogsett v Neale, 478 P3rd 713 (Colo. 2021).
The Supreme Court of Montana affirmed its lower District Court’s opinion that Obergefell was retroactive. Adami v Nelson (In re J.K.N.A.), 398 Mont. 72 (Mont. 2019). The Montana Supreme Court cites the Ranolls case mentioned above, “Therefore, Obergefell’s holding that state prohibitions against same-sex marriage violate the United States Constitution operates retroactively about Adami’s claim that a common-law marriage existed with Nelson, and her claim is not barred on those grounds.”
Citing the Pennsylvania case, Gill v. Van Nostrand, 206 A. 3d 869 (D.C. 2019) gives a comprehensive retroactivity analysis. “We now expressly recognize, as the trial court did and as did Obergefell...that a same-sex couple may enter into common-law marriage...and this rule applies retroactively.” And “a party in a same-sex relationship must be allowed to prove a common-law marriage, even at a time when same-sex marriage was not legal.”
Common-law marriage is unavailable in Pennsylvania since 2003, so this entire realm of case law will be obsolete one day. In Re: Estate of Carter, 159 A. 3d 970 (Pa. Super. Ct.), the superior court reversed the trial court’s ruling that Obergefell retroactivity was a legal impossibility, “because defining marriage as one man and one woman has been declared unconstitutional, it cannot preclude the recognition of common law marriage [before Obergefell].” Moreover, the Superior Court overruled itself from a similar case in 1984, which the trial court relied upon.
Additionally, as cited in Ranolls, In Re Estate of Kimberly M. Underwood, Mp/ 2014-E0681-29 (Bucks County Court of Common Pleas, July 2015), the court found that a decedent and her surviving spouse had been married since 2001, until the time of the decedent’s death in 2013.
Without a doubt, the most confusing legal opinion in this list is Swicegood v. Thompson, WL 192045 (S.C. Ct. App. 2016), penned by Chief Judge James E. Lockamy. As the late Justice Scalia would say, “Pure Applesauce.” The court dances back and fro’ on the line of dignity, scholastic integrity, and mere train of thought.
One moment you think they favor ruling one way; the next, you are sure they are opening in the alternative. To spare you, the reader, any drain on your valuable time—The Court states that yes, Obergefell is retroactive but attempts to differentiate between all the other cases on our list due to issues on the timeline. In short, the litigants separated, claimed common law marriage, and the trial court rendered a judgment before Obergefell had been issued.
The first infuriating issue is the trial court rendering its judgment a mere month before Obergefell was issued. The appellate division glossed over this stark judicial misconduct. The trial court should have abated its decision as the Rannolls court did.
“Our review of United States Supreme Court decisional law compels the conclusion Obergefell must be applied retroactively.” Despite this, the court terrifically completes a triple somersault of mental gymnastics to ask themselves if their previous law against same-sex marriage could still be applied. Rather than guide the readers along a beaten path, explaining the timeline, they dive down a rabbit hole of “impediments.” Evidently, in South Carolina, you must agree to be in a common-law marriage? I don’t understand. Perhaps I should bang my head against the wall with fantastical force to understand the Court’s genius.
The Court rules that even though Obergefell applies retroactively, so too does their law stating that same-sex marriage is not permitted because the litigants did not intend to be married because they knew they could not. Yes, you read that correctly. Basically, “Yeah, we recognize the Supreme Court says we should do something, but we’re South Carolina and whateva, we do what we want.”
The Court is obnoxious in its recognition of sister states that have “recognized informal or common-law marriages have applied Obergefell retroactively to find litigants were entitled to establish common law marriage,” citing Colorado’s Hogsett, D.C.’s Gill, Federal’s Rannells, and Pennsylvania’s Carter.
The ghastly lack of logical reasoning and basic human decency is an affront of judicial officers everywhere. Not only is it immoral, but the analysis begs the question, “Did you pass the bar exam?”
Let’s hope counsel John G. Reckenbeil files for Certiorari and a writ of Habeus Corpus. Probably, not considering he’s just an employment lawyer.
Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, New Hampshire, Ohio, Oklahoma, Rhode Island, and Utah do not have any rulings.
In contrast to case law, the articles written on the subject are numerous and bountiful (sorted by relevance).[2]
Lee-ford Tritt, Moving Forward by Looking Back; The Retroactive Application of Obergefell, Wis. L. Rev. 873 (2016).
Steven A. Young, Retroactive Recognition of Same-Sex Marriage for The Confidential Marital Communications Privilege, 58 Wm. & Mary L. Rev. 319 (October 2016).
Charles W. “Rocky” Rhodes, Loving Retroactivity, 45 Fla. St. U. L. Rev. 383 (Winter, 2018).
Kaitlin E.L. Gates, Catching the Gold at the end of The Rainbow: The Impacts of Retroactive Recognition of Same-Sex Marriage on Community Property Division, 9 Est. Plan. & Community Prop. L.J. 263 (Spring, 2017).
Andrew M. Albritton, Separation Equality: Retroactive Community Property Regimes for Long-Term Same-Sex Couples, 30 Tul. J. L. & Sexuality 153 (2021).
Mark Strasser, Obergefell, Retroactivity, and Common Law Marriage, 9 Ne. U. L. Rev. 379 (Summer, 2017).
Timothy Ramos, Colorado Court of Appeals Holds That Same-Sex Couples May Allege A Common-Law Marriage Existed Pre-Obergefell, 2019 LGBT L. Notes 10 (January 2019).
Huiyi Chen, Balancing Implied Fundamental Rights and Reliance Interests: A Framework for Limiting the Retroactive Effects of Obergefell in Property Cases, 83 U. Chi. L. Rev. 1417 (Summer, 2016).
Mark A. Momjian, Common-Law Marriage Recognition After Obergefell: Evidentiary Challenges Facing Same-Sex Litigants, 91 Pa. B.A. Q. 142 (October 2020).
[1] The Court had previously rendered a judgment in December 2020 but vacated that judgment on its motion due to one of the judges being replaced by-election. This new opinion includes Justice Goldstein, who succeeded Justice Evans.
[2] You can find more articles and sources using the following search on Westlaw or Lexis Nexis
adv: Obergfell v Hodges and retroactive! And Common Law marriage. Then filter by date after June 26, 2015.
Back in the 90’s, I recall folks, pundits and the like, asking if the kids of the time would step up the way prior generations did in WW II and even in the Viet Nam War. Folks doubted the young people, spoiled as they seemed, would step up. I was in the Texas National Guard at the time and had no doubts they would step up. Heck, they already were participating and sacrificing for their part-time job in the armed forces. Starting in 2001, those kids, born in the 1980’s and 90’s, stepped up in a big way. They are still stepping up. I was Battalion Commander of a drill Sergeant unit in 2006 and 2007. The Drill Sergeants scaled back their harassment during the two wars. The Sergeants felt that folks who enlisted voluntarily derived some extra respect. They did deserve some extra respect.
Young Marines
In a dusty Kabul airport, 11 Marines, one soldier and one Navy Corpsman were blown to bits by a fanatic suicide bomber. Those kids were as young as the war itself. LCPL Rylee McCollum was 20 years old. Two Marines in their dress uniform knocked on the door of LCPL McCollum’s parents at 0330 in the morning to tell them about their son. That dreaded knock.
Maxton Soviak grew up in northern Ohio playing football. His sister, Marilyn, said his death left a Maxton sized hole in the lives of those who knew him. Maxton was a Corpsman, or Navy medic. He graduated from high school in 2017. His football coach said everyone looked to Maxton in tough situations. He was passionate, energetic. He held nothing back.
Nicole Gee was promoted to Sergeant 24 days before her last day in uniform. Just days before that last day, she posted a picture of herself holding an Afghan baby. She said, “I love my job.” She was at the airport, escorting women and children to freedom and safety, when she was killed.
One in Ten
These were America’s best. Only one in ten kids qualifies for the Army. And, once they are in, they are scrutinized, harassed and pressed over and over. These boys become young men within days and weeks.
The mission at the Kabul airport is to process Americans and Afghans. For the first time in over a decade, soldiers must get on the ground, out of our armored vehicles and talk face-to-face with Afghans and possible terrorists. The soldiers can feel the breath of the folks they are talking to. Thirteen died. More were wounded. But, the mission continues. Those young, brave boys must still face the elephant. The CENTCOM commander, Gen. Kenneth McKenzie says in the end, “there’s no substitute for a young man or woman standing up there conducting a search of that person before we let him in” [to the airport]. The next day after the blast, other young Marines, soldiers and Corpsmen were back at it, searching and escorting.
War has not changed. There is never a substitute for a young man or woman who is willing to stand up there doing their duty. Thank God we still have young men and women who believe our country is worth that devotion. Let us hope we will continue to be worthy of their devotion.
A new law will make Texas the 21st state that allows people to carry firearms without a permit. The law takes effect on September 1. There is a reasonable fear that this new law will escalate the rate of gun violence among Texans. The state is currently experiencing volatile times: the Big Lie extremism versus Save Our Democracy moderation; Red versus Blue; Vaccinated versus Unvaccinated; Masked versus Unmasked; and Insanity versus Sanity.
These contentious issues are more often than not expressed, even debated in angry, menacing terms. Threats and violence have become an almost automatic response among Texans in settling their disputes.
For example, in the early morning hours of August 15, 2021, a sports bar dispute in San Antonio left three people dead and two gravely injured outside in the bar’s parking lot. It is not known if the arrested suspect had a permit for the semi-automatic weapon used in the fatal shooting rampage.
Violence has become a seemingly acceptable dispute resolution tool throughout the nation, which has the most devastating personal and social effects, is now commonplace.
One Nation Under Fire: 404 Killed in One Week
This dark reality was evidenced during the week of Saturday, July 17, through Friday, July 23, when ABC News tracked the “gun violence ripping across America.” The news network found 1,018 shootings across the country that week that left 404 people dead and 928 wounded.
Worse yet, the Gun Violence Archive, upon which ABC News relied, reported that as of August 19, nearly 800 teenagers and 199 children had died from gun violence in America thus far in 2021. To date, over 29,000 people have been killed by firearms in 2021.
Law enforcement in Texas is rightly concerned that these kinds of numbers will increase after the state’s new no-permit law, which allows anyone 21 years or older without any training to open carry a handgun, takes effect. “Because there’s been zero training and zero background check, that’s a recipe for disaster,” said McKinney City council member Frederick Frazier has also been a long-time lobbyist for law enforcement issues.
The permitless gun carry law came when the Houston Police Department reported on the 172nd day of 2021 that Houston had 66 more homicides this year than it had last year at the same time—222 homicides 2021; 156 in 2020.
The Supreme Court has ruled that the U.S. Constitution guarantees every citizen of this nation the right to own and possess firearms. Gun ownership, however, is a constitutional freedom with limits. Individual states determine how that freedom can be exercised: ownership with a permit, ownership without permit, concealed carry, open carry; and/or specialized training, no training.
Our society today is gripped with exactly what constitutes individual freedom. Too many people assume that freedom is an unlimited concept—the right to act, say or respond in any way they feel is appropriate. The law, however, does not protect unlimited freedom. For example, an individual has the freedom to go to a movie theatre, but that freedom does not give the individual the right to stand up during the movie and shout “fire.”
Unbridled freedom is the most toxic danger to a civilized, organized society.
Unbridled freedom replaces social order with social chaos; the rule of law with mob rule; government regulation with anarchy; public safety with terrorism. The rule of law must restrain unlimited freedom, and the rule of law must exist to protect society from those who violate the law.
Against this backdrop, anyone in Texas 21 years or older has the freedom to walk into a licensed gun store on September 1, purchase any legal handgun, put it in a holster, fastened to their hip, and walk out into the public arena. We’re the wild, west West, again.
Existing State and Federal Gun Laws Apply
However, existing state and federal laws still limit the freedom to buy firearms. Gun purchasers must still undergo a background check or present a valid License to Carry permit before purchasing the handgun. “Gun toters” must also abide by federal law, which prohibits ex-felons, violent domestic abusers, and the mentally incapacitated from owning or possessing a firearm.
University of Law Professor Bill Piatt told San Antonio’s KENS-5 television station that guns are also still barred from public places like schools and hospitals and banned from private businesses that elect to invoke such a ban.
These restrictions notwithstanding, Texas remains one of the easiest states to purchase a weapon without a background check, whether by individual sales or at gun shows prevalent in the state.
States with Highest Gun Ownership Have Highest Gun Death Rate
The bottom line is this: the five states which the lowest gun ownership—Massachusetts, New York, New Jersey, Hawaii, and Rhode Island—have the lowest gun violence death rates, while the five states with the highest gun ownership rate—Alaska, Wyoming. Mississippi, New Mexico, and Alabama—have the highest gun violence deaths.
Gun violence is also a critical issue in Texas.
According to Texas Fast Stats, Gun violence costs Texans $16.6 billion a year, and the state leads the nation in the number of guns lost or stolen from licensed gun dealers.
There are roughly 1.5 million Texas with a License to Carry permit. As of September 1, there will be no need to have a license to carry a handgun in public in Texas.
Will this new law increase gun violence in Texas?
This constitutional experiment remains incomplete.
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Let’s face it, every business is likely to encounter some kind of dispute at one point or another. Competing management styles, difficult team dynamics, and other things can mean big headaches for a company even if it is otherwise thriving. Because of this, it can be important to have a plan in place to help address issues before they become out of control and jeopardize the wellbeing of the business. ADR can be a good option for this.
ADR, or “alternative dispute resolution,” refers to less formal means of resolving disputes outside of the courtroom. In ADR, parties to a conflict work collaboratively with a neutral party or panel in order to try and arrive at mutually agreeable resolutions to the problem. There are, in fact, several different kinds of ADR. Two of the more commonly employed ADR methods are mediation and arbitration. Knowing about the available ADR methods and what options may be best for your own situation can be important so you know which may be the best fit.
In mediation, the neutral third party is a mediator who works together with all parties to negotiate a mutually agreeable resolution. Mediators receive specialized training on resolving conflicts through negotiation techniques and managing various human dynamics. Effective listening skills are, of course, also important for a mediator to possess. The mediator is tasked with facilitating each party’s move towards a common ground. He or she may develop proposed solutions to the conflict. At the end of the day, however, the final decision on the conflict resolution is left to the parties. In arbitration, one or more arbitrators are tasked with listening to the respective arguments from all parties to a conflict. Usually, there will be a panel of three arbiters as opposed to just one arbitrator. Prior to arbitration, all parties must agree to abide by the decision rendered by the arbitrator.
In whatever ADR method you decide upon, there can be a wide variety of benefits. First of which is the fact that ADR is generally much more cost-effective than bring a dispute to court. Litigation can be expensive. The court fees and costs alone can run high. Furthermore, ADR usually will cost you less time than litigation. The court system is known for many things, but efficiency is generally not one of them. Save yourself and your business time with ADR solutions.
Litigation can jeopardize the well-being of a business in many different ways. First of all, it is disruptive. Pending litigation can be distracting and alarming to employees of a business. Furthermore, litigation is public and, therefore, subject to public scrutiny. Litigation can quickly tarnish a company’s brand and reputation. ADR, on the other hand, is confidential and closed to the public.
ADR also offers more flexible solutions to problems whereas court resolutions tend to be much more structured and narrow minded. Furthermore, parties have more power in coming to a resolution than they would in court proceedings, which means that everyone works together and becomes invested in the outcome of the resolution. This, in turn, can mean parties are much more likely to comply with the agreed-upon resolution.
Are you interested in ADR for your business? Talk to the dedicated business law team at The Kumar Law Firm about your options. Contact us today.
A will is a great tool for you to determine who ends up with what when you die. I can’t put it any more clearly than this. A will is a document that names an executor whose role and obligation, under the law, is to follow your wishes and execute the terms of your will. Whether you want particular pieces of property to go to your nephew George, your local church, or a non-profit organization, a will can position you to be able to control your destiny in this regard- or at least the destiny of your property.
Having a will does not increase the likelihood of anything bad happening to you. I have had clients and potential clients talked to me about their concerns that were having a well-drafted means that they are asking for something bad to happen to them. There is no truth to this. The reality is that the longer you go in life without a will, the more you are asking for something to happen to you to take that decision out of your hands. I’m not telling you that something bad will happen to you, but I say that weird things happen. Just take a look at the past year and tell me that any of us could have seen this coming a couple of years ago.
A will is not something for rich people. A will is not something for poor people. That will is not something for people between those two groups. Rather, a will is something for every adult. I would argue that you need to have a will if you are over the age of 18. Going without a will is leaving to change your future and that of your family. Without knowing your specific circumstances, I could not tell you exactly what you are facing, and the prospects for your family or after you pass away. Of this, I know one thing: all of us will die and run from our responsibilities simply because it is uncomfortable to come face to face with this reality; it’s doing everyone in your life but disservice.
The creation of a will is also important because it determines how your assets will be distributed upon your death. This is critically important if your family is extremely dysfunctional or if there are rifts between family members. You may not even be aware of the dysfunction in your family because you have become used to it or refuse to see the reality of problems within the family structure. If you do not create a will, then the state of Texas’s laws on intestate distribution would force a family to realize that certain family members we’ll end up with the property. In contrast, others will be kept out of the distribution.
It is completely up to you how your property is divided upon your death. You can either choose to play a role in that process and take charge of your circumstances and protect your family members and your legacy, or you can choose to let a judge you have never met and who would never have had a chance to meet you decide these issues for you. All things being equal, I would always want to have the final say-so over how my property is divided. My theory is that I have a better idea of what’s best for my family than a judge in a strange court.
Undoubtedly, every family has some degree of dysfunction or circumstances that are better left for you to make decisions on than any other person. Remember that they will do not go into effect until you pass away. This means that while your family could change over time, you would be able to step in and see to it that your will is changed to fit with the times and go along with changes in your family life. As long as you are of a sound state of mind and have followed all the protocols and laws set forth by state law, your will can be altered up until the time of your passing.
For example, I have run into situations with clients who love their children dearly but do not want their grandchildren to be able to receive any property out of their estate once they pass away. Often, this is related to having grandchildren treat grandparents, but it could be for any other reason under the sun. Keep in mind that you can specify to whom your property should be distributed two upon your death by creating a will. If your grandchildren are engaging in the behavior when you draft the will you disapprove of, you can protect your grandchildren by not distributing property to them through your will.
You may be asking yourself how protecting your grandchildren is anything related to keeping them out of your will. The reality is that giving property or money to a person when they cannot control bad behavior is very dangerous. It will be like offering someone with an addiction to alcohol a drink or a drug habit money without any conditions. Enabling a person to make bad decisions for themselves is not healthy and not beneficial. If you have misgivings about loved ones inheriting property from you, then the best way to counteract this is to have a will created for yourself.
By the same token, you may be in a position where you disapprove of the lifestyle choices of your children but would prefer to allow your grandchildren to inherit property from you. Sometimes decisions made regarding marriages, divorces, or other problems in your family can lead to disharmony, and significant disagreements can occur. If you are concerned with the habits of your children but do not want to punish your grandchildren for their parent’s behavior, they will is a great mechanism to put into place to protect all parties involved.
More and more often, grandparents are taking a central role in the raising of their grandchildren. Whether by providing after-school care or fully raising grandchildren, the relationship between grandparents and grandchildren cannot be understated. With that said, if you are a grandparent who has provided primary caregiving responsibilities for your grandchildren, then you may have concerns about how to divide your property in a while. Whereas you may have previously considered dividing your property evenly between your children, this may no longer be viable considering the extent to which you have built a relationship with your grandchildren and the importance of being able to provide for them after your passing.
Let’s suppose that you and your husband raised your three grandchildren from when they were little until their current ages. You then decided to divide your state in 2/3 and allow each of your grandchildren to receive 1/3 of your property at your passing. If you have other children or grandchildren that you want to account for in your will, then create creative solutions in this regard.
A solution that may not work well for your family would be to disinherit a child in favor of their grandchildren. If your child is estranged from their children and your grandchildren, then this child may not think a gift is sufficient to prevent a challenge to the will. It may be wiser for you to completely disinherit a child rather than give a token gift or something of that nature. Rather, you need to prove that you intend to cut them out of the will and make it completely, so they cannot inherit property.
Unfortunately, substance abuse problems seem to become more and more common across our society. Whether that substance is alcohol, drugs, or even addictions to things like pornography, we see people engaging in negative behavior to their detriment with a growing frequency. What this means for you and your family is that you need to think about how to protect your estate and your family. Remember the point I made earlier about how giving a family member money when they have an addiction is unhealthy. They give it like giving an alcoholic drink. You would want to avoid this or at least delay until that person can seek treatment and get healthy. Otherwise, it can take some time to ensure that your decisions are not inadvertently hurting someone that she would otherwise like to help.
It is not uncommon to be frustrated, angry, and at the very least upset at you’re child, and at yourself for being in a position where you have to make the difficult decision about whether or not to allow for that child to inherit property from you at your passing. Most people do not want their legacy to be furthering an addiction or putting their child in a position, or some harm could befall them. As a result, your attorney will need to work with you to manage your expectations and become comfortable making decisions that could be difficult for you to discuss with your family. Sometimes it is beneficial for your family to discuss these issues before your passing so that you can avoid surprising them and causing disruptions to family life at the time of your passing.
As an attorney, I can identify trends in families with substance abuse issues that may affect how the property could be divided in a will. You may want to do everything possible to help your child with their addiction problem, but it could be that your child does not look to you for any guidance on this subject. This could be because they are so deep in their addiction that they cannot be reasoned with or because you have burned bridges with them in the past. It is important to be honest with yourself so that you can position yourself to make a positive impact on their life the best way your know-how.
You may have attempted to do everything that you would be able to provide a good upbringing for your child and show them a well-defined and loving way to live their life. Spending money on attorneys fees, therapy, medical treatment, and a list of other costs may only have increased your frustration with them. With that said, you may be looking for reasons to disinherit or leave a child out of your will. However, you may want to do so gracefully.
You should not think about yourself primarily as an enabler if that is where your mind is at the time of your drafting your will. You may have good intentions for what you have done in the past in terms of caring for your child, but circumstances well beyond your control could have harmed your ability to intercede successfully on behalf of your child. Remember that your child is not able to think rationally through these issues due to their addiction. Couple this with an inability to tell the truth and even distinguish the truth from a lie, and you have a potentially combustible situation.
It is understandable to have concerns about handling a situation involving your child if they are behind bars. You have likely run through the gamut of emotions regarding how to feel towards your child in terms of being upset, embarrassed, angry, or even extremely disappointed. However, I’ve also seen parents go the other direction and feel sorry for their children and easily be manipulated by them. Even when your child gets out of prison or jail, it can be a precarious position to put them in by handing over a large sum of money upon your passing. There are ways, however, for you to consider this.
First, you can create a trust for your child to prevent them from having access to the money too soon after they get out of prison or jail. This is not to say that your child will not need to access this money, but they may not be in a position to be able to make good decisions for themselves at this time. The trust will allow you to ensure that the money is kept safe for them and invested wisely. Meanwhile, they can also take steps to improve their mental health and decision-making over time.
While your child may need the money when they first get out of prison or jail, the fact is that they cannot likely be trusted with this money immediately upon their release. If my children were getting out of prison or jail, I would rather rely upon friends, family, and other programs available to them to get back on their feet in the immediate time after their release. During that time, they will have accountability measures to meet with a parole officer, outside contact, or job placement advisor to solidify their standing.
Once they have become a part of the community, shown a willingness to work, and stayed away from drugs or alcohol, the trustee would be able to release funds. While there is no magic method of keeping your child safe and circumstances like these, after all, they are an adult, and you can take steps to participate in their bad behavior actively. Funding your child when they are not in a place where that good decision can be made could be a major mistake. The last thing you want to do with your will contributes to bad actions by your child when they may not be fully capable of caring for him or herself.
These types of difficult life decisions or exactly why you need to consider hiring an attorney before drafting a will. Your lawyer will have experienced similar situations with other people and can help you determine the best course of action for you to take, considering your family dynamic.
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. How are licensed probate and estate planning 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 more about the world of estate planning and probate law in Texas and learn how your family circumstances can be impacted by the filing of a probate case or the drafting of a will.
The decision to represent yourself in a Texas family law case will probably be the most impactful, but she will make for the entirety of your case. Well, nobody knows exactly how your case will turn out. I can tell you with some degree of confidence that choosing to represent yourself in a family law case has some advantages but many disadvantages. Whether or not you should represent yourself in a family law case depends upon many factors. I want to discuss the factors you should consider before representing yourself in a divorce or child custody case. Once we have gone through those factors, we can talk about some of the potential hurdles or problems that you may encounter in not having an attorney available throughout the entirety of your family law case.
As I just mentioned, there is no requirement in the Texas family code or Texas civil cases in general for you to be represented by an attorney. While it is smart to consider all of your options, your case may be one where there is no specific need to hire a lawyer. With that said, however, you may determine that your circumstances put you in a position where the risk is too much or too great for you to move forward without an attorney. In that case, even if you’re case is one where you do not need to hire an attorney, it may be there you are better off doing so despite the circumstances of your case. However, you need to do a pretty thorough investigation of your circumstances before you can say one way or the other whether or not you need a lawyer.
The first question that you need to ask yourself is whether or not you have children. As a father of three small children, I can tell you that it’s not as if you will forget that you have kids. However, I recommend that you consider the fact that if you have kids, then you have more to lose or gain in a family law case than someone who does not have children. The reality is that you have your relationship with your children and then everything else. I’m willing to bet that you consider your relationship with your children the most important thing and that everything else is battling for second place.
With that said, there is so much at stake in the negotiation side of a divorce that you need to think through your children’s issues. Every case involving kids is important. This is especially true if your children have special needs or require particular types of care when it comes to their well-being. Do you know your kids better than anyone, and if they need special attention in their education, health, or other areas of their life, then you need to be the person who gives them that special care? There is no better place for you to do so than in your family law case.
The other major factor to consider in a family law case is the amount of property you have at stake. Property is only a consideration in a divorce case. Likewise, if you are involved in a child custody case, you will invariably have children involved in your case. Otherwise, this would be a concise discussion. To be sure, however, many divorce cases involve meager amounts of property and limited risk to the parties when it comes to going into a case without a lawyer. Switching the car title to the other person’s name, splitting a couple of thousand dollars between a checking account, and other tasks like these can be done without a lawyer.
Of course, your circumstances may require you to perform a more in-depth look into your case to determine whether or not you need an attorney. I would treat this discussion as a jumping-off point or a basic place for you to begin. If you have children in your divorce or are involved in a child custody case, generally speaking, you should hire an attorney. Likewise, in your divorce, if there is a substantial amount of property or you have any children involved in the case, then you need to have an attorney as well.
The best way to assess your circumstances against the Texas family code is to meet with and interview multiple family law attorneys before deciding to hire one. What you can get out of multiple interviews is that you can learn not only something about Texas family law in each of these interviews, but you can also begin to determine what you are looking for in an attorney when it comes to your personality and theirs, their experience level, how much you can pay and other factors like these.
Now that we have covered how important it is for you to consider hiring a family law attorney when you have children or a fair amount of property involved in your family law case (or both), we can now start to get into what difficulties you may face if you decide to forego hiring an attorney. Even “simple” divorce cases can go sideways on you if you don’t know what you’re doing and have no guidance. No one is expecting you to have as much knowledge or experience in handling a divorce or child custody case as would a family law attorney. Unfortunately for you, that is the standard by which a judge will look at your case.
Consider your case from the perspective of a judge.
An attorney will tell you that it isn’t so important what they think of your case but ultimately what a family court judge will think. Everyone has an opinion about this or that matter related to your case. All you need to do to confirm this is ask a friend or family member about what they think regarding your family law case. From there, you won’t learn pretty quickly that just about everyone you know has an opinion about your life.
However, having a friend or relative with an opinion about your case and an attorney having an opinion is significantly different. For one, an attorney will guide you to a determination about your case based on what a judge is likely to consider. Ultimately, it is the judge who would be deciding in your case if you and your Co party cannot come to a settlement. Otherwise, you would be taking your case before the judge and allowing them to make rulings on issues of the greatest concern to you. Shouldn’t you be mainly interested in what that person must think compared to everybody else?
This is where you may encounter a hurdle in your case and not even know it until it is too late. Proceeding through your family law case without the assistance of an attorney means that you may be approaching issues based on your perspective rather than a judge. I think this is a significant mistake and missed opportunity. It would help if you approached everything within your case from a judge’s perspective, understanding that what you think is not as important as what the judge will think. Judges tend to approach cases more from the perspective of the dry facts of the case rather than based on emotion. As a result, your perspective and their perspective may be completely different. As a result, you could find yourself holding opinions and positions about your case based on your biases and not on the somewhat cut and dry factors a judge will be looking to.
Another important way that an attorney can help guide you in your case probably better than you can guide yourself is that an attorney will help you prepare documents that ultimately have to go before a judge. I have seen judges require unrepresented parties to submit multiple forms of documents until they get something right regarding the formatting of a pleading or motion that they filed. Additionally, many family court judges require that you work with an independent attorney through the county law library or courthouse to file documents.
This is another aspect of a family law case that you may not come to understand the importance of until it is too late. While some of your cases will depend upon your ability to work with your opposing party in the negotiation process, what you need to be aware of is that what you can put down onto paper will ultimately matter in your case. This is true no matter if you are involved in a divorce or a child custody case.
In a divorce, you will be working to have entered into the record a final decree of divorce that accurately reflects the nature of your settlement negotiations or the orders of a court. This final decree of divorce will give you your marching orders when it comes to how to handle dividing your kids’ time between you and your spouse as well as how your community property is defined and ultimately divided. If those orders in the final decree are not accurate, are not clear, or otherwise make it difficult to divide your property or your children’s time, then you will have problems down the road.
In a child custody case, you seek an effective final order in a suit affecting the parent-child relationship. This order covers the most important part of your life- your child and your relationship with your child. Having a clear order that a judge sign is the goal of your child custody case. Anything short of that would be a disservice to you and your family. Considering that these documents are long (oftentimes more than thirty pages in length) and detailed, it would make sense to have an attorney at least assist you with drafting them. That’s not even to mention that the language and verbiage used in a court order are not exactly what we use in our everyday lives.
Family law cases are often decided after the parties, and their attorneys can come together to develop creative solutions to the problems facing the family. If creative solutions were not needed to answer complex problems, you and your opposing party probably wouldn’t need attorneys. However, it occurs quite a bit in family law cases where parents and parties alike need to creatively think through the issues in their case to accommodate difficult circumstances such as those involving a pickup and drop off of children, visitation schedules, and even division of property.
For instance, most family law cases are familiar with the standard possession order for parental visitation. This is the quintessential family law visitation schedule where parents split time with their children, and parties can see their children regularly based on whether or not they are the primary conservator or the possessory conservator. However, if you work regular hours or for any other reason are unable to take possession of your children like this, then a standard position order would not work for you and your family. As a result, you should consider alternative means of possession and plan for creative solutions essential in your case. Many families put themselves into positions where they will struggle with visitation and possession due to the extreme difficulties they are put in about pick-up and drop-off schedules.
This could be avoided if he had an attorney who had some degree of experience in creating creative solutions 2 family-related issues for families with children. You can eliminate a lot of stress by not putting yourself in situations where you are asked to do too much regarding travel, logistics, or anything else relating to these pickup and drop-off times. You can have a pickup and drop-off schedule that works for you and your child. However, it might take some degree of creative thinking to get you there.
Likewise, you may run into a situation where you and your spouse have some difficulties dividing up your community estate. The basics of Community property in Texas are pretty straightforward. Property acquired during your marriage is presumed to be part of the community estate, absent other evidence. However, that is where the details come in and can be difficult to manage. Calculating the specific value of a certain property, determining the best way to divide property in light of each of your separatist states, and engaging future property value versus current property value are all areas where an attorney would certainly be able to assist you.
The process of dividing Community property becomes even more important because you and your spouse will likely not have the opportunity ever to come back and preview your steps and correct them for any mistakes made. Truthfully, the best thing you can do is pay close attention to the first case and then hope that no problems are moving forward. You can minimize mistakes and problems by having an experienced attorney available to walk you through the process. Otherwise, you were hoping against hope that no mistakes were made due to your inexperience in a family law case.
Being involved in a family law case means that you are working as hard as possible to do what is best for yourself and your family. This does not mean that you have to go it alone. Rather, you have an opportunity to addressed matters and get them right the first time rather than have to go back and attempt to make mistakes and hope you can come back to court in the future. Having an attorney is not a guarantee of success, but it puts you in a position to maximize the chances. Still, you have within a family lock case to address longstanding issues and put you on the road towards success in your life.
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 more about the world of Texas family law and how your family may be impacted by the filing of a divorce or child custody case.
