Texas Divorce and Family Law Blog

Doctor Blows Himself Up Rather Than Give Up House In Divorce

2007-10-05T06:45:00.000-07:00

A sad example of the insanity some people allow themselves to fall into in a divorce.

A 66 year only New York physician apparently blew himself up along with the $6million dollar historic Manhattan building that was the source of his bitter divorce case. He had told his wife that he would only leave the house if he was dead. In an email sent to his wife prior to the explosion, he said that she was a "gold digger" but that she would wind up only being a "ash and rubbish digger".

Source: http://www.wnbc.com/news/9490570/detail.html

Legislature Passes Attorney Privacy Bill

2007-05-18T14:57:00.000-07:00

On Tuesday, Governor Perry signed legislation that allows lawyers to choose to keep their home address, home telephone number, Social Security number, email address, and date of birth confidential. HB 1237 takes effect on September 1, 2007.

Texas Senate Passes Family Law Bills

2007-03-30T14:23:00.000-07:00

The Senate passed several bills supported by the State Bar Family Law Section this week. Each measure is authored by Senator Chris Harris (R-Arlington) and will move to the House for consideration:

SB 304 relating to the calculation of child support obligations.
SB 430 relating to a claim for reimbursement in a suit to dissolve a marriage.
SB 432 relating to the consent to and annulment of certain marriages.
SB 433 relating to attorney's fees in certain post-judgment proceedings.

New Proposed Law Schools In Texas

2007-02-09T14:56:00.000-08:00

Two bills establishing new Texas law schools have been filed in the Texas Legislature.

Senator Royce West (D-Dallas) filed Senate Bill 105, which establishes a law school in Dallas by the University of North Texas System. For more information, please click here.

House Bill 1099 by Representative Eddie Lucio III (D-Browsnville) would establish the Reynaldo G. Garza School of Law at the University of Texas at Brownsville.For more information, please click here.

Signature Required For Discovery In Texas Family Law Cases

2007-01-21T01:56:00.000-08:00

The Texas Rules of Civil Procedure 191.3(a) says that if a party is represented by an attorney in a Texas Family Law case, then every request for discovery, every disclosure, every objection, response and notice must include the attorney’s signature. It must also include his or her Texas State Bar number, his or her address, phone number and fax number.
If the party is pro se, it must include the party’s signaure, address, and telephone number and fax number (if any).

The Effect of the Signature

The signature on a disclosure certifies that, to the best of the signer’s knowledge, information, and belief, which was formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made. (TRCP 191.3(b)). The signature on discovery request, notice response or objection certifies that, to the best of the signer’s knowledge, information and belief, which was formed after a reasonable inquiry, (1) the item is consistent with the rules and warranted by existing law or good-faith argument for the extension, modifiction , or reversal of existing law; (2) has a good faith factual basis; (3) is not interposed for an improper purpose; and (4) is not unreasonable or unduly burdensome or expensive. (TRCP 191.3(c)).

Effect of Failure to Sign

If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party. A party is not required to take any action with respect to a request or notice that is not signed. (TRCP 191.3(d)).

Sanctions

If the certification is false, without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion.

No "Man Of The House" Becomes The Norm

2007-01-16T06:09:00.000-08:00

From the New York Times today:

For what experts say is probably the first time, more American women are living without a husband than with one, according to a New York Times analysis of census results.
In 2005, 51 percent of women said they were living without a spouse, up from 35 percent in 1950 and 49 percent in 2000.

Coupled with the fact that in 2005 married couples became a minority of all American households for the first time, the trend could ultimately shape social and workplace policies, including the ways government and employers distribute benefits.

Several factors are driving the statistical shift. At one end of the age spectrum, women are marrying later or living with unmarried partners more often and for longer periods. At the other end, women are living longer as widows and, after a divorce, are more likely than men to delay remarriage, sometimes delighting in their newfound freedom.

In addition, marriage rates among black women remain low. Only about 30 percent of black women are living with a spouse, according to the Census Bureau, compared with about 49 percent of Hispanic women, 55 percent of non-Hispanic white women and more than 60 percent of Asian women.

In a relatively small number of cases, the living arrangement is temporary, because the husbands are working out of town, are in the military or are institutionalized. But while most women eventually marry, the larger trend is unmistakable.

“This is yet another of the inexorable signs that there is no going back to a world where we can assume that marriage is the main institution that organizes people’s lives,” said Prof. Stephanie Coontz, director of public education for the Council on Contemporary Families, a nonprofit research group. “Most of these women will marry, or have married. But on average, Americans now spend half their adult lives outside marriage.”

Professor Coontz said this was probably unprecedented with the possible exception of major wartime mobilizations and when black couples were separated during slavery.
William H. Frey, a demographer with the Brookings Institution, a research group in Washington, described the shift as “a clear tipping point, reflecting the culmination of post-1960 trends associated with greater independence and more flexible lifestyles for women.”

“For better or worse, women are less dependent on men or the institution of marriage,” Dr. Frey said. “Younger women understand this better, and are preparing to live longer parts of their lives alone or with nonmarried partners. For many older boomer and senior women, the institution of marriage did not hold the promise they might have hoped for, growing up in an ‘Ozzie and Harriet’ era.”

Emily Zuzik, a 32-year-old musician and model who lives in the East Village of Manhattan, said she was not surprised by the trend.

“A lot of my friends are divorced or single or living alone,” Ms. Zuzik said. “I know a lot of people in their 30s who have roommates.”

Ms. Zuzik has lived with a boyfriend twice, once in California where the couple registered as domestic partners to qualify for his health insurance plan. “I don’t plan to live with anyone else again until I am married,” she said, “and I may opt to keep a place of my own even then.”
Linda Barth, a 56-year-old magazine editor in Houston who has never married, said, “I used to divide my women friends into single friends and married friends. Now that doesn’t seem to be an issue.”

Sheila Jamison, who also lives in the East Village and works for a media company, is 45 and single. She says her family believes she would have had a better chance of finding a husband had she attended a historically black college instead of Duke.

“Considering all the weddings I attended in the ’80s that have ended so very, very badly, I consider myself straight up lucky,” Ms. Jamison said. “I have not sworn off marriage, but if I do wed, it will be to have a companion with whom I can travel and play parlor games in my old age.”

Carol Crenshaw, 57, of Roswell, Ga., was divorced in 2005 after 33 years and says she is in no hurry to marry again.

“I’m in a place in my life where I’m comfortable,” said Ms. Crenshaw, who has two grown sons. “I can do what I want, when I want, with whom I want. I was a wife and a mother. I don’t feel like I need to do that again.”

Similarly, Shelley Fidler, 59, a public policy adviser at a law firm, has sworn off marriage. She moved from rural Virginia to the vibrant Adams Morgan neighborhood of Washington, D.C., when her 30-year marriage ended.

“The benefits were completely unforeseen for me,” Ms. Fidler said, “the free time, the amount of time I get to spend with friends, the time I have alone, which I value tremendously, the flexibility in terms of work, travel and cultural events.”

Among the more than 117 million women over the age of 15, according to the marital status category in the Census Bureau’s latest American Community Survey, 63 million are married. Of those, 3.1 million are legally separated and 2.4 million said their husbands were not living at home for one reason or another.

That brings the number of American women actually living with a spouse to 57.5 million, compared with the 59.9 million who are single or whose husbands were not living at home when the survey was taken in 2005.

Some of those situations, which the census identifies as “spouse absent” and “other,” are temporary, and, of course, even some people who describe themselves as separated eventually reunite with their spouses.

Over all, a larger share of men are married and living with their spouse — about 53 percent compared with 49 percent among women.

“Since women continue to outlive men, they have reached the nonmarital tipping point — more nonmarried than married,” Dr. Frey said. “This suggests that most girls growing up today can look forward to spending more of their lives outside of a traditional marriage.”

Pamela J. Smock, a researcher at the University of Michigan Population Studies Center, agreed, saying that “changing patterns of courtship, marriage, and that we are living longer lives all play a role.”

“Men also remarry more quickly than women after a divorce,” Ms. Smock added, “and both are increasingly likely to cohabit rather than remarry after a divorce.”

The proportion of married people, especially among younger age groups, has been declining for decades. Between 1950 and 2000, the share of women 15-to-24 who were married plummeted to 16 percent, from 42 percent. Among 25-to-34-year-olds, the proportion dropped to 58 percent, from 82 percent.

“Although we can help people ‘do’ marriage better, it is simply delusional to construct social policy or make personal life decisions on the basis that you can count on people spending most of their adult lives in marriage,” said Professor Coontz, the author of “Marriage, a History: How Love Conquered Marriage.”

Besse Gardner, 24, said she and her boyfriend met as college freshmen and started living together last April “for all the wrong reasons” — they found a great apartment on the beach in Los Angeles.

“We do not see living together as an end or even for the rest of our lives — it’s just fun right now,” Ms. Gardner said. “My roommate is someone I’d be thrilled to marry one day, but it just doesn’t make sense right now.”

Ms. Crenshaw said that some of the women in her support group for divorced women were miserable, but that she was surprised how happy she was to be single again.

“That’s not how I grew up,” she said. “That’s not how society thinks. It’s a marriage culture.”
Elissa B. Terris, 59, of Marietta, Ga., divorced in 2005 after being married for 34 years and raising a daughter, who is now an adult.

“A gentleman asked me to marry him and I said no,” she recalled. “I told him, ‘I’m just beginning to fly again, I’m just beginning to be me. Don’t take that away.’ ”

“Marriage kind of aged me because there weren’t options,” Ms. Terris said. “There was only one way to go. Now I have choices. One night I slept on the other side of the bed, and I thought, I like this side.”

She said she was returning to college to get a master’s degree (her former husband “didn’t want me to do that because I was more educated than he was”), had taken photography classes and was auditioning for a play.

“Once you go through something you think will kill you and it doesn’t,” she said, “every day is like a present.”

Can a Catholic Attorney Be a Divorce Attorney?

2006-08-27T22:11:00.000-07:00

Disclaimer: I have no moral authority in religious matters. The only justification for the following opinion are my many hours of internet research, and soul searching and praying on this topic. I do not evangelize in my practice of law and I respect every person's choice on the topic of religion. I also believe in the necessity of the separation of church and state to allow our government to act for all the people regardless of religion or creed. However, I like everyone, daily struggle to reconcile my vocation with my religion, and I have seen very little about this topic written about from the attorney's perspective. Therefore, in the hope that others may benefit from these thoughts, I have decided to make this post.

In 2002, John Paul II advised Catholic attorneys that they should refuse to take civil cases that promoted divorce. Many people took that to mean that a Catholic attorney could not participate in any divorce actions. This simply is not true, and was not the message of the Pope.Catholic attorneys should not become involved in civil matters that encourage or promote the division of the holy institution of marriage. However, Catholic attorneys, who take cases in which they act in good faith and moral purity, are merely promoting a peaceful and just resolution to disputes. Good Catholic divorce attorneys who allow themselves to be guided by the Holy Spirit, will find ways to counsel their clients towards a more Christ-like solution to their clients relationship problems. A good Catholic attorney should first and foremost guide his client toward reconciliation with their spouse and should not take any case in which he or she feels that so engaging will destroy a remaining chance of reconciliation. Furthermore, the faithful Catholic attorney should use every opportunity that presents themselves in the divorce process towards seeking reconciliation.

Beyond that I believe that Catholic attorneys can and should engage in the practice of divorce and family law. These Catholic attorneys may become the only voice of moral wisdom for a client who finds themselves in a confusing secular system of family courts. They may be the factor that will prevent a painful process from becoming descending into a vengeful winner-take-all battle that keeps Christ's love from entering the hearts of the clients. They may be the only rational voice for the best interest of the children of divorce- who are innocent victims caught in the middle and sometimes their welfare is forgotten about by embattled spouses.

It must be remembered that Catholic divorce attorneys are only dissolving the legal civil bonds. They cannot ever destroy the Holy bonds which tie a married couple together. A Catholic attorney can assist a party in ending the civil bonds that have tied them to another if the reasons are just- such as to obtain child support, or effect a just division of property so a spouse who is no longer being financially support can survive. Remember that the Catholic Church does not forbid a married man and woman to live apart if living together becomes destructive to them. The civil divorce only dissolves the legal and financial bonds. It can never dissolve the holy bond.However, A Catholic attorney sins if they knowingly use their powers to obtain a divorce for unjust and sinful reasons such as so a client can marry another person or so they can otherwise commit adultery or other sins.

The following is an excerpt from the Catholic Encyclopedia which summarizes the duties of the Catholic Divorce Attorney:

"From the Decree of the Holy Office, 19 December, 1860, in answer to the Bishop of Southwark, it is clear that in England an attorney may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority a Catholic attorney may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which now therefrom. "

Pistol Packin Preacher's Wife

2006-08-02T21:45:00.000-07:00

"A preacher's wife was arrested after police say she pulled a gun on her husband because she allegedly was upset over text messages he had sent to a member of a church youth group. Tammy Estes surrendered to law officers at the Pentecostal Church of God in Newport after a brief standoff at the church Sunday evening. No one was injured. She was taken to the Jackson County Detention Center. She was expected to be arraigned Monday. Police say a church service had just begun when Estes pulled a gun on her husband, preacher Larry Estes, about 7 p.m. According to congregation members, she was upset over messages Larry Estes allegedly exchanged with a youth group member and she demanded he admit infidelity." Yahoo News Link to Article (last visited 7-31-06 NVS)

Court Rules That A Parent's Vistiation Rights Are NOT a Federal Protected Right

2006-07-08T08:32:00.000-07:00

The United States Court of Appeals for the Ninth Circuit examines the constitutional interests at stake when police act in visitation disputes. The case involved an ongoing custody and visitation dispute. Father had sole custody of the son and Mother had visitation rights. Police were regularly called upon to intervene when the parent's transferred the child. In this case, Father came to pick up son from Mother and Mother insisted that she had a week of additional visitation time. Father then called the police to assist in retrieving his son. Mother alleged that Father knew the police officer that was called and that he and the officer had conspired to deprive her of visitation. The district court found sufficient factual questions regarding this alleged conspiracy to deny defendant's motion for summary judgment.

In reversing the district court, the court of appeals acknowledged that Mother had a liberty interest in her visitation with her son, but held that the officer's acted reasonably in interpreting the custody order and the deprivation of one week of visitation did not rise to the level of a federal constitutional violation.
The court noted the prudential considerations supporting this holding: "In so holding, we are mindful that this case arises in the intersection of several fields of law where federal courts have shown the greatest hesitation in creating new federal mandates. We will not disregard this justifiable caution lightly. Substantive due process vindicates those interests which are fundamental and, contrary to [Mother’s] theory, may not to be used as a font of tort law to be superimposed upon whatever systems may already be administered by the States.... If every custody dispute, including ones only concerning a weekend or even an hour of visitation, can give rise to a federal claim necessitating federal interpretation of a state custody order, federal courts could rapidly become de facto family courts. Such a result is not permitted by Supreme Court jurisprudence."

The court noted the fact-specific nature of its holding: "We need not hold that visitation rights will never give rise to a substantive due process claim.... We need not reach the question whether interference with a lengthy visitation period or repeated interference with shorter periods may give rise to a cognizable substantive due process claim. We need not decide here whether interference that affects the existence of visitation rights altogether, rather than discrete instances of visitation, might give rise to a viable claim. Nor need we reach the question whether custodial parents may bring suit. "

As to the procedural due process analysis, the court concluded that no pre-deprivation hearing was required in enforcing this visitation order, as Mother could have sought to have the order clarified at an earlier time and the state's interest in promptly enforcing these orders was significant.

Justice Silverman wrote separately to note his disagreement over the court's statement that “'a single instance of visitation, of a single week in duration', is not a fundamental right.... Even though a non-custodial parent may have visitation “only” every other weekend, to some parents that weekend is the moon and the stars." However, under the circumstances of this case, given the reasonableness of the police officer's actions, he agreed that the district court should be reversed.

Brittain v. Hansen, 9th Circuit No. 03-57012 (June 22, 2006)

Source: Family Professor Blog

Immigration Law Requires Both Parent's Consent for a Passport

2006-06-15T21:07:00.000-07:00

In July 2001, the United States Department of State began to implement a new law regarding passport application procedures. Under the Two-Parent Consent Law, both parents are required to execute the passport application for a minor U.S. citizen under the age of 14. By putting this new law into practice, the Department of State seeks to decrease the likelihood that a U.S. passport will be used to facilitate an international parental child abduction.

Basic Requirements of the New Law
Under U.S. immigration law, passport applications for minor children under age 14 must be filed in person by a parent or an individual specially authorized as a person "in loco parentis." (This term is used to identify a foster parent, or other appropriate authority, e.g., a county custodial agency, protecting the minor's legal rights). Either parent, whether a U.S. citizen or not, may apply for a U.S. passport on behalf of the minor child. However, in addition to establishing the child's identity and U.S. citizenship, the adult applicant must also document his compliance with the Two-Parent Consent Law.

Under this new law, both parents must consent to the issuance of a U.S. passport for their child under the age of 14. In the alternative, the applying parent must document his or her sole authority to obtain a passport for the child. In other words, before a U.S. passport may be issued to a child under age 14, the adult applicant must be able to produce documentation of one of the following:

Evidence of sole custody

A court order allowing the parent (or legal guardian) to travel with the child

Written consent of the other parent, or a written statement under penalty of perjury that the other parent agrees to issuance of the passport or is unavailable

Coverage and Exceptions
The Two-Parent Consent Law applies to all passport applications made at domestic U.S. passport agencies in the U.S. The law also covers passport applications made at U.S. consular offices abroad.

In the event of special family situations or exigent circumstances calling for the child's immediate travel, exceptions to the requirements of the Two-Parent Consent Law may apply.

Applicability to Grandparents
Grandparents may not apply for the passport of a grandchild unless they have a document of guardianship or written authority that complies with the Two-Parent Consent Law.

Source: Alan Pearlman

Latest Texas Statistics: Less Divorces, Less Marriages

2006-06-10T16:56:00.000-07:00

The latest statisics reveal that divorces in Texas have been decreasing over the last two years. There were 63,717 Texas divorces so far in 2005*. There were 7.3% less Texas divorces this year than over the same time period last year and a nearly 12% decrease from the same time period in 2003.

The number of marriages has also decreased. There were 141,156 marriages made so far in 2005*. However, this is 11,192 less marriages made than the pervious year and 11,296 less than the same time period in 2003.

*From January to October

Source: National Vital Statistics Reports, Vol. 54, No. 17, May 10, 2006

Til Death Do Us Divorce

2006-05-30T04:48:00.000-07:00

PITTSBURGH — Dr. John Yelenic and his wife separated in 2002, agreed to a divorce and even hammered out a property settlement.

But the Blairsville dentist was slain the day before he was to sign his divorce papers, setting the stage for what attorneys say is a first-of-its-kind request in Pennsylvania: a divorce decree after death.

The dentist's divorce attorney, Effie Alexander, says simply that Yelenic would have wanted it that way. Another attorney who represents Yelenic's estate believes the decree is needed to protect a property settlement an Indiana County judge approved last week.

But an expert in Pennsylvania family law says there is no reason to declare a dead man divorced because the dentist's wife and adopted son will receive support under the property settlement, which legally overrides his will.

"What difference does the decree really make?" said Pittsburgh attorney Jay Blechman, chairman of the family law section of the Pennsylvania Bar Association. "As far as I can tell, there isn't a difference."

Alexander isn't so sure.

"We are, along with the estate attorney, conducting research to determine if there's any significance to the decree being denied," she said.

Officials in at least one other state are grappling with posthumous divorces.

In Connecticut, Hayley Kissel is seeking to divorce her estranged husband, Andrew, a millionaire developer found slain in his Greenwich home last month. Millions of dollars are at stake.

Judge Kevin Tierney said Friday a death doesn't necessarily mean the marriage has been dissolved and suggested the case could end up in the court's complex litigation section if it is not resolved.

In Pennsylvania, Indiana County Judge Carol Hanna refused to issue the divorce decree after a May 19 hearing, but gave the dentist's divorce attorney until June 2 to file written arguments on why one should be issued.

"From my perspective, this is what John wanted," Alexander said. "You know how people say after someone is dead, `If there was one thing I could do for him now'? Well, this is really a personal thing for me and my law firm."

Yelenic and his wife, Michele, of Indiana, Pa., married in 1997 and adopted a son, J.J., now 8. The couple separated in 2002 and Michele Yelenic filed for divorce the next year, citing an irretrievable breakdown of the marriage.

John Yelenic, 39, was slain at his home on April 13. Investigators have not identified a suspect but believe his death was not random. They have refused to say how he died, other than that he bled to death after a violent attack.

The strange case of the Yelenics' divorce revolves around a January 2005 amendment to the state's divorce code and the implications of a bifurcated, or two-part, divorce _ one in which the divorce decree is issued separately from a property settlement.

A two-part divorce is used, for example, when a person wants to remarry without having to wait for the property settlement _ which is often far more complicated _ to be resolved, Blechman said.

Before the change in the law last year, the dead spouse's will or estate laws held sway if a property settlement hadn't been finalized, Blechman said.

Under the amendment, a judge can posthumously enforce a property settlement if grounds for the divorce existed when the spouse died. Judge Hanna approved the settlement based on an affidavit Yelenic had signed saying the couple have lived apart for more than two years, which is grounds for divorce in Pennsylvania.

Michele Yelenic's attorney, Daniel Lovette III, declined comment on the case. But Lovette said he doesn't oppose efforts by Alexander, the dentist's divorce attorney, and Paul Anthony Bell II, the estate attorney, to seek the posthumous divorce decree.

Bell sees the divorce decree as a way to tie up loose ends.

"It seems to everybody that the divorce decree being granted would definitely put a seal on" the property agreement, Bell said. "I guess we're all leery that something might come up as to the estate aspect of it if the decree is not granted."

Source: AP

Divorce Case Slips Into the Twilight Zone

2006-05-21T08:19:00.000-07:00

Law.com reports that the Connecticut Statewide Grievance Committee has officially reprimanded a lawyer for humming the Twilight Zone theme during a divorce hearing. The parties and their counsel were meeting with the family services supervisor and the guardian ad litem when the possibility of psychological exams came up. One of the parties asked why such a test would be necessary, and the opposing lawyer explained that someone in the room had psychological problems, "doo doo doo doo, doo doo doo doo."

The previous nine grievance complaints against the lawyer had been dismissed.

Case Update: Texas Grandparent Access

2006-04-23T16:46:00.000-07:00

The Texas Supreme Court reversed a trial court's grant of generous grandparent visitation in a case in which Mother had objected to her mother-in-law's visitation with the child after Father had died. The trial court had rejected Mother's claims that the statute was unconstitutional and awarded her mother-in-law "possession" of the child for one weekend a month, two weeks in the summer, four days during Christmas vacation, and alternating Thanksgiving weekends, as well as access through weekly telephone calls. The Texas Supreme Court found the situation in this case to be "virtually the same" as the facts of Troxel v. Granville, 530 U.S. 57 (2000). "In this case (as in Troxel) there was no evidence that the child's mother was unfit, no evidence that the boy's health or emotional well-being would suffer if the court deferred to her decisions, and no evidence that she intended to exclude [Grandmother's] access completely." See the full opinion by clicking here: In re Mays-Hooper, 2006 Tex. LEXIS 256 (April 7, 2006)
Originally posted in http://lawprofessors.typepad.com

A Taxing Problem: Divorce follows Taxes

2006-04-20T18:44:00.000-07:00

Although not necessarily inevitable as death and taxes, some people seem to thing that divorce and taxes go hand in hand.

An AP story recently reported the opinion of Bevery Pekala, a Chicago divorce lawyer says that her practice picks up significantly right after tax day. She said people in troubled marriages find out a lot about each other when they get their financial papers in order to pay their taxes. She says this is especially true for spouses who aren't up to speed on family or business finances.

Signing a Joint Tax Return May Put You In "The Joint"

2006-03-19T10:56:00.000-08:00

On March 15, 2005, the Wall Street Journal published an article about how difficult it is for spouses and former spouses to get Innocent Spouse Relief from the IRS.

The IRS can collect the entire amount owed in taxes from either spouse when they have both signed a joint tax return. You can file an "innocent spouse" affidavit and make the defense that you did not know and had no reason to know that any under reporting of income or other wrongdoing associated with the filing of the tax return, and therefore you should not be responsible for paying any additional taxes, penalties or interest due.

However, the article reports that of the nearly 50,000 innocent spouse claims received by the IRS in 2005, only 21% were allowed in full and another 8% were partially allowed.

Therefore, before you sign a tax return that you have any doubt about, you should not sign it. This is especially true if you are thinking about a divorce or are in the process of divorce.

Something to Wine About

2006-03-18T17:29:00.000-08:00

Almost 300 cases of the finest wine, and it evaporated like morning mist. Five-hundred-dollar bottles. Thousand-dollar bottles. The French Bordeaux from his children's birth years, which he planned to uncork at their weddings. The 1966 Chateau Lafite-Rothschild he wanted to share one day with his brother.

The only vintage that remained in his ransacked office, Doug Eisinger said, was a single bottle of 1990 Dom Perignon. "I plan on drinking that on the day of my divorce," he said.

Eisinger, who lives in Sherwood Forest in Anne Arundel County, Md., claims that his estranged wife, Elizabeth, absconded with his $200,000 wine collection in November, breaking into the office of his construction company where the wine was hidden, then loading about 3,500 bottles into a rental truck.

Elizabeth Eisinger's attorney says that she had her own key to the office, that she took much less wine and that she made nowhere near $200,000 upon selling it wholesale (and not through a ritzy Washington, D.C., auction house, as her husband contends).

Who gets to keep the money won't be sorted out until the divorce -- a particularly messy affair filled with charges and countercharges -- is settled, probably in the summer. Until then, all that both sides can agree on is that the wine is gone for good.

Custody disputes over huge, vastly expensive wine collections are bubbling up in a growing number of divorce cases across the country, lawyers say, as some Americans' cellars age better than their marriages.

"It's really been in the last decade," said Sheila Sachs, a Baltimore divorce lawyer who specializes in high-net-worth divorces. "People are spending a lot on wine. It's almost more of an asset of influence now than jewelry."

While these disputes often are settled amicably, they can also turn as vicious as bar brawls -- and not just because wine is difficult to appraise and evenly divide.

"People have an emotional relationship with their wine cellars," Sachs said.

Others manage to wait until after the divorce to savor vengeance. Cleaveland Miller, a Baltimore-area lawyer and part-owner of Calvert Fine Wines in Hunt Valley, knows of a woman who waited patiently for her half of her ex-husband's beloved 100-bottle stock, then poured every last drop down the sink.

Not every cellar custody battle tastes of the grapes of wrath. Some couples simply and dispassionately disagree about how to appraise a collection, said Sally Gold, another Baltimore attorney who has handled several wine-drenched divorces. Even though wine is literally a liquid asset, it's difficult to appraise and divide. Splitting a favorite case down the middle can diminish its market price, for instance, and it's hard to measure how some wines' worth will increase with time.

But, in mid-divorce at least, some bon vivants have little patience for legal niceties. The courts weren't quick enough to salvage much of Roger Yaseen's $500,000 Bordeaux collection, which the New York investment banker said his ex-wife "held hostage" in 2001 after he decided to remarry.

The hearings dragged on while the wine languished in what he claimed was the dangerous climate of his ex-wife's house.

"The wines were going through serious, serious problems," he said. "Inappropriate humidity conditions and everything."

Yaseen said that more than half of his hoard soured.

From the Delaware News Journal.

Dad's Rights, Mom's Rights, But What About The Kids?

2006-03-17T17:45:00.000-08:00

An organization known as The National Center for Men has reportedly filed a questionable federal court lawsuit on behalf of a baby’s admitted biological father.

The theory behind the suit seems to be that: men are denied equal protection of the law, because the biological mother’s reproductive rights supersede the biological father’s reproductive rights.

Therefore, the organization’s argument apparently goes, it is unconstitutional to impose child support obligations on a father - unless the father wanted, planned or later accepted the child.

The reported facts of the case indicate that the father alleges that the mother told the father she was unable to conceive. The article did not indicate whether the mother knew the truth.

Interestingly, it does not appear from the article whether the father asserted the mother’s alleged fraud as a defense in the state court paternity case that imposed the child support obligation.

Arguably, doing so may have quietly put an end to this particular father’s cause.

Child Support Enforcement

2006-03-17T00:23:00.000-08:00

What is child support enforcement depends on the underlying order which is being sought to be enforced. An obligee might be ordered to provide health insurance, and other financial benefits to the child. Therefore, the terms of the underlying order must be studies carefuly before begining with a child support enforcement proceding. If the complaintant says that child support has not been paid, then the payment history should be obtained. If the complaint is that uninsured medical has not been paid, then copies of all correspondence and copies of bills that were sent asking the obligor to pay should be obtained. If the obligee did not comply with the order for request of uninsured expenses, then a motion for contempt will not succeed. Once all of this information is gathered, the attorney should be able to adivse on the best course of action. Only when there is a strong case to be made that the obligor failed to meet his or her obligations, and that the obligee met all their own obligations, should a motion to enforce be filed. TFC 157.001.

Howdy!

2005-05-08T08:17:00.000-07:00

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