Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Many people are under the impression that filing first in a divorce will put you at an advantage over your spouse. This is generally not true but there are some reasons a person should consider when pushing to be the first to file in a divorce.
The first person to file a divorce in the state of Texas is known as the petitioner. The opposing party is known as the respondent. This petitioner’s name will be stated first in the case style on all pleadings that are filed in the case and will be the first party to present their arguments at any hearings or at trial.
Being the party to file the initial suit means the petitioner can have an option at deciding what county to file in. If both parties are residents of different counties, it may matter to a person that they file in the county where they currently reside. This can be for many reasons, a big one being convenience. Especially for parties that are domiciled out-of-state, it can be urgent that you file your suit first. This would ease you from having the inconvenience of having to travel, and instead require the other party travel to the county where you have filed the suit.
Of course, this does not give the petitioner any county as an option as they must meet the residency requirements to be able to file in any county. For example, in order to file within Harris County a person must be (1) domiciled in the State of Texas for at least six months, and more specifically, (2) have resided in Harris County for at least 90 days prior to filing a petition for divorce. Only one party needs to meet these requirements, meaning that even if you do not meet these requirements you can still file within that county if your spouse does.
However, a court would still need to be able to exercise personal jurisdiction over a respondent if the petitioner meets the residency requirements. This means they will need to have the authority to require the out-of-state party to subject themselves to the laws of the state and court. Simply stated, personal jurisdiction is the court’s power over the parties to a lawsuit. Personal jurisdiction is typically granted to a court over an out-of-state respondent through a long arm statute. The two main types of long arm statutes that pertain to a divorce would be divorce jurisdiction and parent-child jurisdiction if there are children involved in the marriage. All statutes in relation can be found within the Texas Family Code, Section 6.305.
Another thing to consider when filing first, is that the Petitioner is responsible for paying the initial filing fee. This fee can range anywhere from $300 to $400 depending on what county the lawsuit is filed, and if there are children involved. As a respondent, the only pleading required would be an answer which is mainly free, but at most can cost a few dollars. If you are wanting to countersue the petitioner for divorce, the respondent would need to file a counterpetition which can range from $50 to $100. In short, the initial filing will incur more costs. This as well does not include the fees a petitioner will have to bear by requesting a citation and hiring a process server to serve the respondent. This too can be costly, especially if the respondent’s whereabouts are unknown. These fees are something a person should keep in mind if they are insisting on filing first in a divorce.
A petitioner can have the upper hand in a divorce because they are able to set the tone of the divorce. This means they will have to decide whether they want to plead fault or no fault in the original petition. However, pleadings can be amended and changed by either party after the initial filing. Most people however will aim for an amicable divorce where no-fault has been plead, but they can always amend later if they want to include any at fault grounds for the divorce.
Along with the original petition for divorce, it is not uncommon for a petitioner to file a request for temporary orders along with the petition. They are often requested in the initial pleading, and their purpose is to put restrictions on how the parties should behave during the divorce proceeding. These can include visitation rights, conservatorship of the children, child support, who will have access to the marital home, bills, etc. A petitioner can have the advantage here because they will have more time to prepare for the hearing versus the respondent. A petitioner can also ask for a Temporary Restraining Order (TRO) which can help prevent the other party from hiding assets. A TRO is binding on your spouse and can help deter these behaviors. A petitioner has the advantage to prepare for both a temporary order hearing and a temporary restraining order.
Most family and divorce law cases will not make it to trial, this is because most cases will settle in mediation before the case goes to trial. While it is the most cost-efficient method to settle outside of court, there are a small percentage of cases that do end up in a trial. If you are a petitioner in a case this can have a significant impact on what trial strategy is used. A petitioner gets to present their case before the judge first, to which a respondent will have to counter-argue and put on their case second.
If you are unable to file first in a divorce proceeding, a person should not worry too much because you will still be able to fully present your case in the divorce process. You have the right to counterpetition and present your arguments before the court. However, if you are persistent in filing first you should keep in mind the advantages you will be entitled to in preparing your case against the respondent. Also, you should be aware of the cost you will incur with the initial process of filing and service of process.
Originally published by John McFarland.
Last April the Fort Worth Court of Appeals issued its opinion in Bluestone Natural Resources II, LLC v. Randle, No. 02-18-00271-CV, 2019 WL 1716415. The Court decided that, under Randle’s lease, Bluestone could not deduct post-production costs and owed royalty on plant fuel and compressor fuel. Bluestone has petitioned the Supreme Court for review and the Court has asked for briefs on the merits.
Randle’s lease was a printed form with an exhibit. The printed form provided that royalties on gas would be “the market value at the well of one-eighth of the gas so sold or used …” Exhibit A provided that “the language on this Exhibit A supersedes any provisions to the contrary in the printed lease hereof.” One provision in Exhibit A dealt with post-production costs:
Lessee agrees that all royalties accruing under this Lease (including those paid in kind) shall be without deduction, directly or indirectly, for the cost of producing, gathering, storing, separating, treating, dehydrating, compressing, processing, transporting, and otherwise making the oil, gas and other products hereunder ready for sale or use. Lessee agrees to compute and pay royalties on the gross value received, including any reimbursements for severance taxes and production related costs.
The trial court held that Bluestone could not deduct post-production costs, and the Fort Worth Court of Appeals agreed. The Court distinguished Heritage Resources v. NationsBank, 929 S.W.2d 118 (Tex. 1996) and held that the no-deduction clause in the lease’s exhibit modified the royalty clause – in particular, the second sentence of that clause. The second sentence, not present in Heritage, provided an alternate measure of value for royalties – “gross value received” rather than “market value at the well” – and “gross value received” means proceeds prior to deduction of post-production costs. This part of Exhibit A conflicts with the printed royalty clause and so must supersede that clause.
Bluestone argued that the second sentence in the Exhibit A provision did not establish an alternate “valuation point” for the royalty, so the valuation point must still be “at the well” as provided in the printed form. The Court disagreed:
[Bluestone] argues that once an “at the well” measure is baked into the royalty provision, it requires super clarity in any provision that attempts to alter its effect. We construe this argument to mean that once a royalty provides an “at the well” point of valuation, a lease can alter that scheme of valuation only by clearly altering its terms to provide a different point of valuation, such as by striking the words “at the well” when they appear in a lease. …
We do not see how we would be giving Exhibit A its controlling role if we were to cut and past the words “at the well” from Paragraph 3 of the Printed Lease into Paragraph 26 of Exhibit A. In fact, that approach would seem to take exactly the opposite approach mandated by the superseding provision in Exhibit A; we would be resolving the conflict by giving superseding effect to the terms of the Printed Lease. …
In essence, Appellant’s position boils down to the argument that once it appears, the “at the well” measure is so “baked into” the royalty calculation that it has to be physically removed by going to the length of actually striking those words wherever they appear.
The Court noted that the Supreme Court has recognized that “a proceeds measure–not tied to particular point of sale–creates a measure that does not allow the lessor to net-back its post-production costs,” citing Judice v. Mewbourne Oil Co., 929 S.W.2d 133, 136 (Tex. 1996): Burlington Res. Oil & Gas Co. LP v. Texas Crude Energy, LLC, 2019 WL 983789 at 5; Chesapeake Expl. LLC v. Hyder, 483 S.W.3d 70, 873 (Tex. 2016); and Heritage Res., 939 S.W.2d at 130.
The Court noted that its conclusion may be contrary to that of the El Paso Court of Appeals in Commissioner v. SandRidge, 454 S.W.3d 603 (Ct.App.-El Paso 2014, no pet.), which construed very similar language to allow deduction of post-production costs.
The Court also held that Bluestone had to pay royalty on plant fuel and compressor fuel. Plant fuel was gas produced from the leased premises and burned in the gas plant that processed the lessee’s gas. The compressor fuel was a commingled gas stream that included gas produced from the lease and other leases and was sent to compressors on Plaintiff’s lease and other leases to compress gas produced from the leases. The lease provides that “Lessee shall have free from royalty or other payment the use of … gas … produced from said land in all operations which Lessee may conduct hereunder .. and the royalty … shall be computed after any so used.” The Court held that this provision applied only on gas used on the leased premises. “Hereunder means “under or in accordance with this writing or document.” Plant fuel was not used to operate the lease or produce oil or gas from the lease, but to process gas in the third-party gas plant.
The Court also reasoned that the lease required payment of royalty on “gross value received” from the production; that the lessee received value from the processo in exchange for free use of the gas as fuel; and that Bluestone owed royalties on that value.1
The Court recognized that some of the gas produced from Plaintiff’s lease was used in compressors on the lease and therefor would be covered by the “free from royalty” clause. But the Court held that, because the lessee commingled gas from the lease with other gas, it had a duty to account for the aliquot share of the gas that is burned in compressors on the lease, citing Humble v. West, 508 S.W.2d 812 (Tex. 1974), and had failed to do so, and so was obligated to pay royalty on all production from the lease used as compressor fuel.
Originally published by Seyfarth Shaw LLP.
By Minh N. Vu
We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163). California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with 24% and 18% of the market share, respectively. With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.
What types of lawsuits are trending now?
Braille Gift Card Lawsuits. Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.
Website and Mobile App Accessibility Lawsuits. Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.
Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.
The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.
In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.
Hotel Accessibility Information on Reservations Websites. A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.
Accessible Hotel Room Dispersion. Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.
Inaccessible Facilities. Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.
Be sure to subscribe to our ADA blog to receive notices of developments throughout the year!
Edited by Kristina Launey
Originally published by Tiffany Dowell.
A recent case involving a will devising “personal effects” to a family member is a good reminder of the need to be detailed and complete when drafting a will, and the importance of residuary clauses.
In 1990, Mildred Ethridge drafted a will that included the following provisions:
I, MILDRED L. ETHRIDGE, (femme sole) of Midland County, Texas, for the purpose of the distribution of my entire estate, real, personal and mixed, which I wish to have take effect at my death, do make, publish and declare this to be my Last Will and Testament, and I do hereby revoke all former wills and testamentaries heretofore made by me at any time.
I hereby appoint and name Fred D. Davis, Jr. as Independent Executor and trustee of my estate, to serve without bond. I give Fred D. Davis, Jr. all my personal effects to clear my estate after my death.
I give and bequeath my 1/2 ownership in my residence and homestead…to Patricia Petosky.
Mildred passed away in 1994. Prior to her death, she gifted her 1/2 ownership interest in the homestead to someone else, leaving Davis as the only named party under the will. Davis was named executor of her estate.
At her death, Mildred had money in checking accounts and miscellaneous property including furniture and a television. She also had mineral interests that were not specifically devised in her will or included in the inventory submitted to probate. The mineral lessee began paying royalties to Mildred’s estate and Davis opened a checking account to receive these royalties. Believing he was entitled to her entire estate, he transferred the royalty payments from the estate’s checking account into his personal account.
In 2010, Mildred’s heirs discovered they may have been entitled to royalties under her estate. They argued that the mineral interests did not pass under her will. At trial, the court had to construe the meaning of the term “personal effects.” The court held that this term as more limited than “personal property” and rule that it included only the furniture and television owned by Mildred, but did not include her bank accounts, receivables, and interest in oil, gas, other minerals, royalties, real property, or other personal property. As to these assets, the court held she died intestate and the intestate succession laws should govern distribution.
Davis appealed the court’s decision regarding the definition of “personal effects.” The Eastland Court of Appeals affirmed the trial court’s ruling. [Read full opinion here.]
The court noted that, when interpreting a will, a court seeks to ascertain the intent of the testator based on the language included in the will itself. Terms used in a will are to be given their “plain, ordinary, and generally accepted meaning” unless the will shows they were used in a technical or different sense.
First, Davis argued that the initial clause in her will stated that her intent was to dispose of her entire estate, real, personal, and mixed. It was her intent, Davis argued, to divide her property into two categories–the 1/2 interest in the Oxford House, and then everything else, which she referred to as “personal effects.” Davis argues the court should broadly interpret the phrase “personal effects” because Mildred was not an attorney and her will was not drafted by an attorney.
The court rejected this argument. Under the law, the term “personal effects” generally refers “to articles bearing intimate relation or association to the person of the testator” such as clothing, jewelry, toiletries, glasses, dentures, and luggage. Mineral interests do not fall within the scope of “personal effects.” Further, Mildred indicated she intended to dispose of her entire estate, real, personal and mixed. By stating she left only her “personal effects” to Davis, it appears she did not intend for that to include her real property as well.
In light of this, Mildred’s will did not dispose of her entire estate. When a person drafts a will, there is a presumption that he or she intends to dispose of the entire estate. That presumption is strong, noted the court, but can be overcome in situations where the testator fails to provide for complete distribution of property. In that situation, the testator is found to have died intestate as to the property not included in the will. In this scenario, the court upheld the finding that Mildred died intestate as to her mineral and royalty interests and her bank accounts.
Thus, the court affirmed. Davis was entitled only to the furniture and television, while the bank accounts, mineral interest, and royalty interests passed through intestacy.
First, I think the most important reminder from this case is the need for including a residuary clause in a will. Even the most carefully drafted will may omit certain assets. Whether that be something the testator simply forgot, something purchased after a will was drafted, or something that the testator thought was covered by the will that simply was not, this can certainly happen. One way to avoid the issue here, where a portion of the estate passed outside the will via intestate succession, is to ensure that a will has a residuary clause. This clause simply disposes of any estate assets that remain after all of the other devises in the will have been made. In this case, for example, had there been a residuary clause, the bank accounts, mineral rights, and royalty rights would have passed to the person named in the residuary clause. A sample residuary clause could be: “I give the rest, residue, and remainder of my estate to my husband.”
Second, when writing a will, it is important for the testator to do his or her best to think of all assets owned. I always recommend that before delving into will drafting or other estate planning, parties gather information on their assets, agricultural business, farm and ranch. This includes an inventory list that identifies all major assets including real property, vehicles, equipment, mineral rights, royalty interests, bank accounts, retirement savings, investment portfolios, and personal property of significant value such as jewelry, artwork, and firearms. Having a complete inventory list can help to ensure one’s will does bequeath all of one’s assets.
Third, it is important to continue to update a will after it is drafted. This is particularly important if major life changes occur such as births, deaths, divorces, or the sale or purchase of assets. It is good practice to do a quick review of one’s will each year to ensure that changes do not need to be made.
Fourth, I always recommend that people at least consider using an attorney to draft a will. There are certainly documents that I think people can adequately draft themselves without too much worry. Wills, however, are so important and their interpretation is so critical that using an attorney to ensure that the testator’s wishes are carried out is generally well worth the cost. Additionally, while there is an up-front cost to have a will drafted by an attorney, it will almost always be less than the cost of litigating a will dispute down the road.
Finally, for anyone serving as an executor of an estate, it is really important to ensure that the executor understands what assets exist and how they are to pass under the will. Here, it was the executor’s belief that mineral and royalty rights were included in the term “personal effects” that caused the issue leading to litigation. Executors should be extremely careful and prudent before deeding over any assets from an estate.
The post Will Dispute Arises Over Definition of “Personal Effects” appeared first on Texas Agriculture Law.
Originally published by Kacy Miller.
Testifying is stressful, regardless of topic. But when it’s about something personal, the witness requires even more intensive coaching to stay composed.
Nothing says Happy New Year like a “Bull” episode with a predictably ridiculous happy ending. This week’s episode, “Look Back in Anger,” involves a civil trial alleging sexual abuse of a minor during camp for at-risk boys. The challenge, however, is the abuse occurred about 25 years ago. Even though New York temporarily lifted the statute of limitations for childhood sexual abuse for one year, suing over abuse from a quarter century ago is challenging, at best.
The plaintiff, Stephen Raposa, had originally hired Bull’s team to sue on behalf of his younger brother, Ryan, who claimed he had been molested at 13 by the camp’s founder, a wealthy businessman named Peter Maybrook. Ryan’s life had since been plagued with drugs, alcohol, theft and, generally, failing to cope in the adult world. One afternoon, Stephen finds Ryan bleeding out in his bathtub: He OD’d and slit his wrists to make sure the deed was done.
The team informs Stephen that despite New York’s new laws, he cannot sue on behalf of his deceased brother. Moments later, Stephen tearfully admits that he too was molested at the camp by Maybrook, and a claim is born.
The episode, as usual, confuses civil procedure with criminal procedure, and most of the time ignores procedure altogether. Apparently in the world of “Bull,” this thing called “discovery” does not exist, which makes for interesting television, but laughable moments. Instead of writing about the litany of far-fetched procedural snafus, I want to focus on a subtle, but critically important, interaction between Bull and his client.
After deciding to take on the case, Bull met with Stephen privately to talk through the details of what happened. (Note: Typically, this sort of meeting would occur before deciding to file a lawsuit, but again, procedural muckety-muck.)
Stephen has not told his story of childhood molestation to anyone before and he is clearly uncomfortable. Bull’s advice to him was spot-on:
[Your discomfort is] completely understandable, but you’ll have to tell the story in front of a jury, and the best way to prepare for that is here.
Seldom do I wholeheartedly agree with Bull’s musings or tactics, but I can get on board with this one. Witness preparation is one of the most important, but often ignored, elements of trial prep. The law and the facts are the foundation of any successful case, but since human beings are the ones carrying the water for those facts, the people who tell your story must be ready to do so in a concise and compelling way. Unfortunately, the trial (and deposition) setting is so anxiety-producing that I’ve seen even the most composed professionals turn into sweating stammerers who would confess to the Lindbergh kidnapping just to get out of the hot seat.
Witness prep both helps them hone their message and also find ways to manage their (perfectly natural) anxiety. Here’s a rundown of my most crucial witness prep tips:
Acknowledge the Witness’ Discomfort
Whether your witness admits to it or not, he or she is feeling stress and anxiety about the prospect of testifying. And if your witness is testifying about personal issues, as opposed to accounting numbers or business policy, it’s even more difficult. This is especially true with victims in criminal matters; in family law cases, where dirty laundry and mudslinging accusations are almost a given; and in wrongful death or personal injury cases where a witness is testifying about a heart-wrenching loss, be it life or limb.
Empathize with your witness and acknowledge what they’re feeling. Let your witness feel all the feels; it’s OK. It’s not your job to make the feelings go away altogether. Instead, provide feedback that acknowledges what the witness is feeling and offer some support. Lawyering also involves a bit of shrinking (as does jury consulting).
The feelings that emerge when a witness recalls his story should never be overlooked, and I’m here to say, they often are. So, props to Bull for at least acknowledging the witness’ discomfort.
Practice Telling the Story
I’ve worked with witnesses who simply could not share their story without bursting into tears, expressing inappropriate anger or shutting down completely. And I am a friendly face and advocate. Can you imagine how these witnesses would fare in a deposition or on the stand without having told their story multiple times?
The more often a witness talks through her story, the more comfortable she’ll become with telling it. I’m not promising that your witness will turn into a rock star, but with preparation, she will certainly testify more effectively than they would otherwise. And know this: Telling the story does not always involve a formal mock question-and-answer session. Sometimes, you just need to have a casual conversation with your witness and allow her to process the experience, tap into the memory bank and figure out what her story actually is.
Use repetition to your advantage during the prep sessions. The story does not need to be perfect. It does not need to be trial-ready right out of the gate. It just needs to be accurate. Over time, the act of repetition teaches your witness that she can, in fact, tell her story. And tell it well.
Do Not Cram
The opportunities to talk through the story should occur long before the scheduled deposition or actual trial testimony. Do not, I repeat, do not, cram the night before. And do not wait until the witness bombs in a deposition to refine the message.
Ask any of my clients what I nag them about, and they’ll tell you this: Preparing your witness for testimony begins during discovery. It’s an ongoing process, not an eight-hour marathon meeting.
Break your prep sessions into multiple, shorter sessions. Yes, it’s a beatdown scheduling-wise, but it’s actually a win-win. The witness is provided more opportunities to tell her story and you are provided with multiple chances to identify inconsistencies, areas that require some information-gathering, and determining potential strengths and weaknesses from a fact standpoint.
Back to Bull
And now I realize I haven’t told you what happened in “Bull.” The quick version is this: Despite skepticism about Stephen Raposa’s claim that he too was abused by Maybrook (especially after the defense proves that Maybrook was out of the country during the critical date in Stephen’s testimony), Bull and team miraculously find photographic evidence of Maybrook’s affinity for young boys, resulting in a $35 million verdict against him.
The civil trial gave rise to criminal charges that most likely will put Maybrook in prison for a very, very long time.
OK, so I said it was a “happy” ending, and there isn’t such a thing when dealing with matters of sexual abuse. But, at the very least, there was a measure of justice for Raposa, which is something.
Photo: Michael Weatherly as Dr. Jason Bull and Aaron Dean Eisenberg as Stephen Raposa in “Bull” season 4 episode 11: “Look Back in Anger.” Photo: CBS Broadcasting Inc.
Originally published by Joanna Herzik.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
9. Texas Supreme Court on arbitrability of class claims – Christopher Stevenson of Adair Myers Graves Stevenson @AdairMyers in Houston
7. Happy New Year!! A Great Time to Review Your Insurance Policies for a Worry-Free Year – Chip Merlin of the Merlin Law Group @MerlinLawGroup
6. Safety, Substance Abuse and Mental Health: Helping yourself through a Texas family law case – Bryan Fagan @bryanjfagan of Law Office of Bryan Fagan in Houston
3. Your Estate Plan May Need To Be Tweaked: The SECURE Act Has Passed – Rania Combs of Rania Combs Law @raniacombs in Houston
2. Court Holds That Will Contestant Was Not Estopped From Challenging the Will Due to Accepting Assets – David Fowler Johnson @TXFiduciaryLit of Winstead PC in Fort Worth
1. The Thinning Tightrope for Harassment Investigations – Robert G. Chadwick, Jr. @chadwicklawusa of Seltzer Chadwick Soefje & Ladik, PLLC in Frisco
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
If you have been served with a petition for divorce or a Suit Affecting the Parent-Child Relationship, then you may have questions about how to proceed. It’s probably pretty clear to you that your spouse or the other parent to your child has filed a lawsuit against you, but after that, you are unclear on exactly what you should be doing. Do you need to file something yourself? Should you hire a lawyer? If you were served with the papers at a park or in a parking lot is that legitimate?
My first piece of advice on this subject is to at all times remain calm. A process server or constable has been hired by your opposing party’s attorney to go to the courthouse, pick up the documents from the court and give them to you. This has the effect of providing you with legal notice of the lawsuit having been filed. If you are approached by a person with paperwork that looks important you should receive the papers. There is no benefit to running away, throwing them on the ground or refusing to comply. Your opposing party will get “credit” for serving you notice of the lawsuit no matter what you do at that point.
Another point that I would like to make is that your spouse will get credit for having served you no matter where you are served. Many people are served at their home. Some are served at work. Others are served at doctor’s appointments, family member’s homes or other places that they regularly visit. Your opposing party will coordinate this with their attorney and the process server. Do not be surprised to be served if your spouse has spoken to you about filing for divorce or for a child custody case.
Do not make assumptions about what the paperwork you are served with says
One thing that I have noticed that people tend to do after they are served with a Petition for Divorce is that they will immediately read and become frustrated with what they are reading. The legal terms that are used in a Petition are often utilized in different ways than we would use those same words in everyday conversation. So, while you may think a phrase or request means one thing- it likely means something completely different.
With that said, you can read through what has been handed to you- it is your case after all. But, until you speak to an attorney do not make any hard and fast assumptions or determinations about what has been written in those documents. Requests for attorney’s fees to be paid by you is a common request in a Petition. When you file your Answer to that petition your attorney will likely make the same request of your spouse. It is not something to get immediately upset about.
What happens with the timeline of your case once you are served with a Petition?
The timeline or “clock” begins to tick as soon as you are served. The process server will report back to the courthouse with a document certifying that you were served with the Petition on that day at the specific time you were provided notice of the lawsuit. From there, a couple of different things happen.
First, you now have twenty days to file an Answer. Technically you have until the first Tuesday at 10:00 after the expiration of twenty days to file your Answer. An Answer is your legal response to the allegations and requests made by your opposing party in their Petition. It is not a complex legal document, but rather alerts the court that you are intending to participate in the lawsuit and have responses ready to the allegations made in the Petition. Most importantly, by filing an Answer you keep the opposing party in your case from getting a default judgment.
As simply as I can put it, a default judgment is a legal judgment that your spouse can get from a judge if it is shown that you were provided notice of the lawsuit, were served properly and then never filed an Answer. In order to keep your having not filed an Answer from delaying the end of the case, your spouse can then proceed to court after 60 days to have the judge sign into effect final orders that were created by her. You are bound by those orders even though you never laid eyes on them. Therefore, filing an Answer is a very important step in your legal case.
What should your reaction be after getting served?
We have already talked about how you should react at the moment that you are served. Well, you should continue to act calmly and rationally after the fact, as well. Speaking to an attorney as soon as you can is a good idea. I always advise potential clients of the Law Office of Bryan Fagan to speak to a handful of attorneys in order to get a good idea of what the issues are, to learn as much about the process as possible and to get a feel for the attorney herself. Once you have interviewed enough attorneys to feel comfortable you can make arrangements to hire one.
The lawyer will take care of filing an Answer for you. However, he or she will certainly ask you for information about your family in order to not only file an Answer but to prepare for the next stages of your case. The attorney should inform you that your case is a marathon and not a sprint. You may want to take action immediately to address inconsistencies or “lies” in the Petition. You will get that opportunity, but it likely will not come in front of a judge- more on that later.
For now, you should enter the mindset that you are not going to contact your spouse unless you absolutely have to. Communication regarding your child is fine as long as you can be civil. You do not need to speak to your spouse if he or she is being uncivil or nasty to you. By the same token, you should not act that way towards him or her.
Consider not logging onto Facebook, Twitter, Instagram or any other social media until your case is over with. Family law attorneys are good at getting dirt on the opposing party and social media is a great place to look. For example, if you log into a social media account and say nasty things about your spouse and make this out to be World War III then that is information that certainly would be interesting to your spouse and their attorney. Do not give your spouse any ammunition to be used against you later. Work with your attorney, work to see your kids and play nice in the sandbox.
An alternative to filing an Answer: signing a Waiver of Service
There is one other way to respond to your spouse’s Petition for Divorce that we have not yet discussed in today’s blog post. That would be signing and filing a Waiver of Service. If you and your spouse are on speaking terms, agree on whatever issues exist in your case, and want to work together from the start to finish your divorce as quickly as possible then you can sign a Waiver of Service.
A few items to consider before signing a Wavier of Service. First, you need to read the Waiver carefully. Usually, if you have already hired an attorney, he or she will advise against you signing the document no matter what it says. However, if you do not believe that hiring an attorney is necessary then a Waiver can be signed. This happens with some frequency in situations where you and your spouse have talked through the divorce in a detailed fashion and have agreements in place on all issues related to your case.
Most waivers tell a court that you have received the Petition for Divorce (thereby proving that you have notice of the filing of a lawsuit) but waiver your right to be personally served with the lawsuit. From there, you will provide your contact information to the court so that they can have it on record if official mailing from the judge has to be sent out for any reason.
Temporary Orders: What they are and what they mean to your family law case
Filing for divorce, being served and then having an Answer filed can be looked at as the first step in the divorce process. Step number two involves something called Temporary Orders. This is a step where the marching orders for you and your opposing party will be established during the duration of your case. It is important that you be able to either negotiate for or have a judge award a fair array of temporary orders because the final orders in your case tend to mirror the temporary orders to a great extent.
If your case involves children then the temporary orders will deal primarily with them. Visitation, child support, conservatorship, etc. will all be dealt with. These orders will be signed by you, your opposing party and the judge. In a divorce, issues related to bills, property, temporary spousal support and other circumstances specific to your case will be hammered out. Issues regarding the sale of your home or other property, as well as the allocation of debts, will be determined later in your case.
Most of the time, family law cases in the temporary orders phase will be settled in mediation. Mediation is a process where you and your attorney, your spouse and their attorney and an independent attorney will come together to attempt to settle and negotiate your case. You will typically go to the mediator’s office and that attorney will put you in one room and your spouse in another (with your lawyers). The mediator will then bounce back and forth in between your rooms in hopes of reaching a settlement.
If a settlement is reached, the mediator will draft a document known as a Mediated Settlement Agreement (MSA). That MSA will be the basis from which the temporary orders in your case will be drafted. One of your attorneys will be charged with the responsibility to draft the temporary orders based on the language contained in the MSA. Both attorneys will typically look over the final draft and decide whether or not it fairly reflects the MSA. Once both sides are satisfied it will be signed and sent to the judge for their signature.
If no settlement, then a temporary orders hearing occurs
Tomorrow’s blog post from the Law Office of Bryan Fagan will center around Temporary Orders. This is a full-fledged hearing that allows you and your opposing party to submit evidence to a judge if a settlement cannot be reached in mediation. It is called a hearing but in reality, it is a mini-trial. A person who walks into the courtroom could not distinguish your hearing from a trial, anyway. If you are interested in what your temporary orders hearing could look like, then please head back here tomorrow.
Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan are honored to be able to serve the community that we work and live in. For us, learning about you and your needs is the basis for developing a strong attorney-client relationship. We hope that you have learned something from our blog post today and always encourage questions and suggestions about the topics we discuss here.
If you have any questions or need clarification on anything you read today please do not hesitate to contact our office. We offer free of charge consultations here in our office six days a week. These consultations are a great opportunity for you to learn more about your case and to have your questions answered in a comfortable environment. We look forward to meeting with you and serving your needs along with those of your family.
Originally published by Seyfarth Shaw LLP.
Seyfarth Synopsis: In an unusual opinion considering an issue raised by the plaintiff for the first time on appeal, the Second Circuit clarifies that unlike under the Equal Pay Act, Title VII plaintiffs need not show “equal work for unequal pay” to succeed on a pay discrimination claim. This case demonstrates that plaintiffs have options when bringing such claims and underscores the different challenges employers face under the different statutory schemes.
On December 6, 2019, the Second Circuit Court of Appeals vacated in part a summary judgment ruling that had dismissed a plaintiff’s pay equity claims against her former employer. The plaintiff had alleged, in relevant part, violations of the Equal Pay Act (“EPA”) and Title VII related to the setting of her compensation. The District Court for the Eastern District of New York dismissed her claims because she had failed to prove she performed equal work for unequal pay, as she was the only employee in her position at the company. After consideration, the Second Circuit vacated the District Court’s order related to the Title VII claim, clarified the standard for Title VII discriminatory compensation claims, and remanded the case back to the District Court for further proceedings.
Plaintiff filed her lawsuit in 2014 alleging violations of the EPA, Title VII, the Pregnancy Discrimination Act, the whistleblower protections of the Consumer Product Safety Improvement Act, and related provisions of New York state law. In sum, Plaintiff’s complaint claimed that Defendant had paid her less because of her gender, retaliated against her when she brought forward concerns about her disparate pay and potential Consumer Product Safety Act violations, and terminated her because she was pregnant. Defendant filed a motion for summary judgment on Plaintiff’s claims in March 2017.
In March 2018, the District Court granted the motion for summary judgment. After analyzing Plaintiff’s pay discrimination allegations, the District Court held that Plaintiff’s Title VII claims, like claims brought under the EPA, required her to show “positions held by her purported male comparators [were] substantially equal to her position.” Lenzi v. Systemax, Inc., No. 18-979, 2019 WL 6646630, at *6 (2d Cir. Dec. 6, 2019) (internal citations omitted). Plaintiff could not make this showing because she was the only employee who held her job title and duties, so her Title VII claims were dismissed. The District Court further noted that Plaintiff had not presented evidence of discriminatory intent in the determination of her pay, as is also required for Title VII wage disparity claims.
Plaintiff subsequently appealed the District Court’s order to the Second Circuit. Notably, in the briefing of the summary judgment motion to the District Court, both Plaintiff and Defendant had agreed that Title VII disparate pay claims shared the same standard as EPA claims but required an additional showing of discriminatory animus; however, on appeal, Plaintiff challenged the District Court’s holding that Title VII discriminatory compensation claims, like EPA claims, required a showing of equal work for unequal pay.
The Court’s Decision
In evaluating the dismissal of Plaintiff’s Title VII claims, the Second Circuit first addressed Plaintiff’s failure to challenge Defendant’s argument at the summary judgment stage that a pay discrimination claim under Title VII required a showing that the Plaintiff’s position was substantially equal to the positions held by her purported comparators (in fact, the Plaintiff adopted this standard in her own briefing on the issue). While the Second Circuit recognized that “[s]uch a concession ordinarily precludes a party from advancing a different argument on appeal,” it ultimately decided that it would exercise its discretion to consider the Plaintiff’s later argument that such standard was not appropriate. Id.
The Second Circuit then acknowledged that one of its opinions from 1995, which held that“[a] claim of unequal pay for equal work under Title VII . . . is generally analyzed under the same standards used in an EPA claim,” is commonly used by district courts in their analyses of Title VII pay discrimination claims. Id. (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995)). The Court expressed a desire to “take this opportunity to clarify that a Title VII plaintiff alleging a discriminatory compensation practice need not establish that she performed equal work for unequal pay,” as is required by the EPA. Id. at *7 (emphasis added). While affirming that a plaintiff could bring a claim for equal work for unequal pay under Title VII if they could show a discriminatory animus behind the pay determination, the Court emphasized that such a claim was not the only kind of Title VII claim available related to pay.
The Second Circuit gave examples of several variants of disparate pay claims that could be alleged under Title VII that would not require an equal work for unequal pay showing: “[f]or example, an employer might hire a woman for a unique position in the company, but then pay her less than it would had she been male . . . [s]imilarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination [if required to make such a showing].” Id. Ultimately, the Second Circuit rejected the notion that plaintiffs can only succeed on discriminatory pay claims under Title VII if there is an employee of the opposite sex in an equal position earning a higher rate of pay.
The Court concluded its holding by reiterating that “all Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.” Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). Discriminatory pay claims can be brought successfully under Title VII even if the plaintiff cannot show a purported comparator of the opposite sex earning a higher wage (provided that the challenged pay rate is not based on seniority, merit, quantity or quality of production, or any other factor besides sex). The Second Circuit then found that the Plaintiff had sufficiently shown discriminatory intent with respect to her pay and vacated the District Court’s order granting summary judgment on her Title VII claim.
Implications For Employers
The Second Circuit’s opinion is, in effect, a reaffirmation of the U.S. Supreme Court’s 1981 holding in Washington County v. Gunther. 452 U.S. 161 (1981) (“[C]laims for sex-based wage discrimination can also be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job.”). However, this case serves as a good reminder that employers should not expect to rely exclusively on the fact that there is no comparator in an equal position as a defense to a pay discrimination claim. Plaintiffs in such positions have options as to how to structure their theory of the case. And the oft-repeated mantra that Title VII is to be interpreted in line with the EPA clouds important, substantive differences between those two statutory schemes. When performing pay equity audits or setting employee compensation, employers should be mindful of those differences, particularly employers with more specialized positions or smaller operations that may have only one or two employees in senior leadership roles or performing the same kind of work. Such employers may also want to check market analyses and reporting when setting compensation. This case shows how pay equity claims can be brought even where there are no purported comparators, perhaps especially when it comes to high-level or specialized positions that are unique within a company.
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Family law cases are among the most difficult of all areas of the law because of how intimate the subject nature is. True, you may not be worth millions of dollars like a multinational corporation but your family case deals with subjects that are more important than money. Your marriage, your children, your personal behaviors and that of your spouse are all relevant in a family case. While an investment banker’s work habits may require some embarrassing information to be disclosed in a trial, nothing compares to having to discuss your marriage to a room of strangers in a divorce trial.
Sometimes the material that is relevant in a family law case is more than just intimate or embarrassing. On occasion there is subject matter that relates to family violence, the safety of your children and even mental health disorders that become a huge part of family law cases. In these situations, you need to be able to know what to expect to encounter when dealing with problems associated with matters that are best kept private but are nonetheless relevant to your current family law case. Whether you are concerned for the well-being of your kids, yourself or even your soon-to-be ex-spouse I want to share some tips on how to handle these sorts of circumstances in your own family case.
What to do when you are worried about the safety of your children
If you find yourself worried about the safety of your children there is no time to waste in attempting to do something to remove those concerns from your life and theirs. Imagine being in a position where you had suspicions or thoughts about a hazard in your child’s life but did nothing to remedy that hazard. The next thing you know, something bad happens to your child and you end up blaming yourself for having identified a problem but having done thing to stop that problem from impacting your child.
This happens all too regularly with family law cases, I am afraid to say. For some reason our instincts as parents are inhibited by all of the hoopla associated with a family law case. This is ironic because at the core of what you are doing, no matter if it is a divorce or child custody case, is a desire to improve the lives of your children. The best advice that I can give to you is that you can improve your child’s life by addressing any concerns regarding safety immediately after you learn about them.
First and foremost, concerns about your child’s safety should be addressed by police and Child Protective Services (CPS). It is probable that the police will contact CPS anyways, but you should see to it that the police are aware of any concerns that you have for your child’s well being. If your child comes home from their mother’s house and tells you that her friend is acting inappropriately, your first step should be to talk to your child about any incidents that have occurred. Next, contact the police if that voice in your head tells you to. Better to be safe than sorry.
You need to know that if your spouse has a history with CPS, that will be an especially relevant bit of information that will need to be discussed with the judge. Family violence is a serious subject as judges want to, above all else, keep your children safe. Any words that you or your spouse use towards one another that could be construed as violent or threatening can and will likely be brought up again.
What does this mean to you on a practical level? Well, for starters, you need to get into the mindset that anything and everything that you say can be recorded and documented. This means those words can be taken out of context, potentially, and used against you and to the advantage of your spouse. Meaning: choose your words carefully. Especially choose how you text and email your spouse. Take a moment before responding to a particularly mean or nasty email to consider how your response can be utilized against you by your spouse.
Next, certainly never put your hands on your spouse for any reason. Even if you are justified in touching your spouse do not do it. Remove yourself from any situation that may rise to violence, animosity or anger. It is not worth it to you to be involved in any discussion that is heated. Use your attorney to convey difficult messages if you don’t believe that your spouse can be respectful of you and your opinions. Even if you are merely defending yourself, it can be a disaster to your case if you were to injure your spouse (especially if you are a man).
One thing that I have seen in recent years is people fighting over cell phones. Grabbing for a phone to see if someone has contacted your spouse or for any other reason can be dangerous. Mostly because those sort of actions can quickly escalate and lead to further use of violence or at the very least coarse language. Nothing contained in that phone is worth potentially losing time with your kids over- or even going to jail for. Be aware of your surroundings and do what you can to de-escalate any situation that you believe could lead to heated tempers.
Is protective order relevant to your situation?
A lot of clients ask about protective orders at the beginning of a child custody or divorce case. The thought being that one could potentially serve the purpose of de-escalating potentially dangerous situations. A protective order can serve a purpose when family violence has occurred in the home recently and that the violence is likely to continue but for the obtaining of a protective order.
If you get a protective order against your spouse that can be severely detrimental to his case in a divorce or child custody matter. You would need to decide whether or not to pursue a protective order that protects you and your kids or just you. While in today’s world we do not ordinarily consider these situations all that often, the fact is that men can be abused, as well as women. Think about all the information we are told about how women are reticent to come forward with details about abuse that they have suffered. The same can be said for men. Men are typically even less willing than women to come forward with details about abuse that they have suffered.
Handling issues regarding mental health in conjunction with a family law case
These are two subjects that come up all the time in family law cases. In some cases they are the primary reasons why there are child custody issues or circumstances that have led to discussions about divorce. Whether your spouse has been diagnosed with having a mental impairment or other mental health difficulty, or you suspect him or her of having a condition like this, mental health problems shine through brightly in many family cases.
Do you suspect your spouse of being bi-polar, having anxiety or being depressed? Some clients of mine in the past have commented that their spouse must be bi-polar considering how hot and cold he/she is. One minute they could be having a conversation together, and the next minute that same spouse could have grabbed a knife to attack our client. Behavior like this that is inconsistent and aggressive can be downright dangerous.
Another problem that clients frequently run into are issues related to a parent’s inability to take their medications as prescribed. The result is comments that relate to how good a parent your spouse might be when he or she is taking their medication, but if that medication is not taken as prescribed your spouse may be the most disagreeable person on earth. It is understandable to not want to take medication when those medicines cause you to feel out of sorts, but that concern needs to be balanced against the desire to keep your safe.
Finally, you need to speak to your attorney about your own history involving drugs and alcohol. The reality for many parents is that if there is a history of drug or alcohol abuse, you probably do not want to share those details with anyone. However, the worst thing that you can do is to keep that history a secret until a mediation or hearing date. Having your lawyer blind-sided by an opposing attorney who disclosed a history of drug and alcohol abuse is not a good plan to have.
Beware of back and forth bickering
Sometimes it is inevitable that you and your spouse will get into an argument. That happens even in the best functioning of marriages. Those arguments usually go nowhere and just leave everyone involved stressed to the max and angry that the discussion was ever started in the first place. Many times, we can see these discussions/arguments happening ahead of time and it takes a little bit of self-control to simply avoid them altogether.
There is nothing more awkward and potentially detrimental to your case to get into an elaborate game of bomb throwing in a courtroom. It typically will happen like this: both you and your spouse have allegations that the other acted inappropriately, was emotionally abusive or generally did something that was harmful to the kids. You then use your time on the witness stand to defend yourself and then hurl a few bombs her way.
What this ends up being is a back and forth game of unsubstantiated allegations. Instead of using your time productively to testify credibly for yourself and against your spouse, you are going to alienate your judge and distance yourself so far from the facts of your case that you may have trouble getting back on track. I have seen this happen many times in other cases and even in my own cases. Emotionally it may be satisfying to fire back at your spouse when he or she makes allegations against you, but in the long run that sort of behavior rarely if ever turns out to work to your advantage.
The people in your life that you trust are there to be your support system
We all have moments in our lives that require the support of others. Whether it is during a difficult family law case, a death in the family or the loss of a job, we cannot always be at our best. It is during those times that we rely on others to prop us up and support us. With that said, keep in mind that there is nothing wrong with doing so. At some point in the future it is likely that you can repay that person by being there for him or her when they need you.
Remember, also, that your mental and physical well-being matters. Staying in a marriage for the sake of your kids is noble, but ultimately self-defeating. Your kids deserve a parent who is at their best. You cannot be at your best when you are involved in a marriage that is emotionally
unfulfilling or worse yet- violent. We will discuss this topic when we pick up where we left off today in tomorrow’s blog post.
Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan would like to express their sincere appreciation for your interest in today’s blog post. We post articles like this every single day in order to share some of the knowledge that we can have gained through serving people in our community just like you.
In order to speak to one of our licensed family law attorneys about your case, please do not hesitate to contact us today. A consultation at our office is absolutely free of charge and can go a long way towards helping you better understand your circumstances and how to help your family and yourself.
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