Dallas Divorce Law Blog by Michelle O'Neil

Dallas, Texas — Michelle May O’Neil of Dallas’ divorce boutique firm O’Neil Anderson announces the release of Divorce Cost & Prep — the first in a planned line of divorce-related apps for the iPhone by her newly formed company DivorceApps.com. She and her business partner, forensic CPA Bryan C. Rice, saw a niche in the iPhone app industry that was not being met. “When I got my iPhone, I couldn’t believe how many games were available, but so few apps for divorces,” said Rice. “Michelle and I teamed up to develop some apps that would be beneficial for our clients to use.”

Divorce Cost & Prep serves two purposes. First, a person contemplating divorce can assess the hidden and direct costs of divorce, such as the cost of providing two houses, two wardrobes for the children, or transportation costs for exchanging the children between houses. Second, the app gives divorce clients a list of information and documents to gather for their lawyer to assist preparation of their divorce. O’Neil wanted to provide an app that would make a client’s life easier and her own as well. “Many times clients want to know what documents they can gather for their lawyer, so this will give an easy way for clients to gather everything I will need for their case,” says O’Neil.

Divorce Cost & Prep is available on iTunes for $4.99.

The pair have more apps in the works. Bear Cahill of BrainwashInc.com assisted with the development of the divorce apps for the iPhone.

The app was first featured on CBS11 news in a story by Carol Cavazos (Video link here). The Morning Express with Robin Meade on CNN HLN picked up the story and the app went worldwide. Television and radio stations across the world have featured the Divorce Cost and Prep app. The app has also received rave reviews from reviewers such as walletgenius.com and topcydiaapps.com.

I am often asked whether court’s still presume that custody of a child should go to the mother as opposed to the father. The short answer is no. Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody. Generally the best interests of the child are the primary considerations the court assesses in determining custody issues. The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in.

Historically, gender played a role in assessing parental fitness. This role led to the development of the “tender years doctrine” which in essence stated a child should not be separated from his or her mother. Early records of the tender years doctrine date back to the mid 1800′s and needless to say there have been dramatic shifts in socio-political viewpoints since that time. The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code. According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally. In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children.

Despite the shift away from the mommy presumption, there are some judges who retain an “old school” mentality and still believe that the child should remain with his or her mother. This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge’s court, then your attorney will have to clear the mommy presumption hurdle.

Remember that scene in the movie He’s Just Not That Into You where Drew Barrymore complains about the number of ways to be turned down by a date?  Well, it’s worse after the relationship! 

Couples who used to see each other’s friends only at parties now enjoy 24-hour access to their beloved’s confidants thanks to Facebook. Sharing passwords to e-mail accounts, bank accounts and photo-sharing sites is the new currency of intimacy. And courtship — however brief or intense — is wantonly scrutinized by the whole world on Twitter, Tumblr and Facebook.

As a result, the idea of what it means to break up is also being redefined. Where once a spurned lover could use scissors (literally) to cut an ex out of the picture, digital images of the smiling couple in happier days abound on the Web and are difficult to delete. Status updates and tweets have a way of wending their way back to scorned exes, thanks to the interconnectedness of social media. And breakups, awkward and drawn-out in person, are even more so online as details are parsed by the curious, their faces pressed against the digital glass.

Consider this advice when breaking up a relationship in the new social media age:  change passwords, stop posting on social networking sites, acquire a new e-mail address, and secure or make copies of whatever is posted about you online.  Users, of course, control what they post on private accounts. Where it gets tricky, though, is when photos, videos and comments have been forwarded, retweeted or reposted to friends’ accounts or on public Web sites.

Yesterday I was asked if someone voluntarily terminates their parental rights, then does that automatically end their child support obligation.  Typically, the answer is yes, but the court can, in special circumstances, order the child support obligation to continue post termination.  A court can order financially able individuals to pay child support for a child in substitute care (CPS custody) if CPS has been appointed the managing conservator of the child.  In this instance, support can be ordered until the earliest of (1) the child’s adoption, or (2) the child’s 18th birthday or graduation from high school.

Voluntarily terminating your parental rights is an extremely serious decision with major consequences and shouldn’t be considered because someone wants to evade their child support obligations.  In this economy, Dallas divorce lawyers (as well as lawyers from all across the state) have seen an increase in suits to modify prior child support orders.  Anyone considering terminating their parental rights because of their child support obligation should first consider whether or not they are entitled to modify their child support.

I received a question from a client today asking how the court would determine the value of the piece of property in the community estate.  Often times, the parties will litigate over the value of a piece of property, so it is important to know how, in the absence of an agreement, the court will determine a property’s value.

As a general rule, property is valued according to its fair market value as of the date the marriage is dissolved.  Texas courts have routinely defined fair market value as the price the property will bring when it is offered for sale for one who desires, but does not need to, sell, and is bought by a person who desires, but is not required to, buy.

If a piece of property doesn’t have a fair market value, the property can be valued using its intrinsic value.  The intrinsic value of property is the actual monetary value of the property’s use to the owner, excluding any fanciful or sentimental consideration.  In determining intrinsic value, the fact finder cannot consider any evidence of the property’s fair market value, but can consider the property’s original purchase price, its replacement cost, its uses, and any other facts that might shed light on its intrinsic value.

In sum, the majority of the time the court will determine value by using the fair market value approach at the time the divorce is granted.

In dividing assets in a divorce, a dollar is not always a dollar.  For example, in a typical divorce, a couple will have a house, retirement accounts, cash accounts, personal property.  In dividing a house, typically the equity in a  house for purposes of the division of assets in a divorce, is calculated by subtracting the mortgage balance from the fair market value, leaving an equity balance that is used in negotiating a fair division.  However, a dollar in equity is not necessarily equal to a dollar of cash.  Equity can never really be determined until a house sells.  Equity is invisible money, not available to buy groceries.  Equity can only be converted to cash through a sale of the property or a loan repaid with interest.  Further, since in Texas a homeowner/borrower cannot get access to the top 20% of home value, the cash is only available if the asset is sold.

Declining property values in this economy means that the party who receives the house in the division of assets needs to think about how to assign value to the equity.  The possibility of future sale , including realtor fees andseller costs, should be considered in reaching the equitable settlement.

Hat tip to Noel Cookman of The Mortgage Institute for this information.

Cincinatti Enquirer

An Ohio appeals court has upheld a judge’s order barring the mother of a 9-year-old girl from smoking around her daughter, the Cincinnati Enquirer reports. Legal experts say that the issue of parental smoking is an increasingly common one in child custody disputes. One lawyer suggests a simple rule of thumb: “parents who wish to retain custody of their children should not smoke in front of them.” Janice Morse, The Cincinnati Enquirer 11/08/2009

In April 2008, Victoria’s paternal great-grandmother, Marilyn Anderson, objected to the child’s mother, Racheal Hill, smoking around Victoria during visits. The child returned home “smelling of cigarette smoke as a result of Racheal smoking in her home and car,” court records say.

Eight months later, the court ordered all parties to protect Victoria from second-hand smoke; the appeals court, which oversees an eight-county area, upheld the smoking ban Oct. 26.

Disputes over parental smoking have been cropping up in family-court cases nationwide, legal experts say, and the cases highlight two competing interests: A parent’s right to smoke versus a child’s right to breathe smoke-free air.

Courts appear to be deciding such clashes based on the “best interest of the child,” rather than whose “rights” win out, Kansas lawyer Jeanette Igbenebor wrote in a 2002 article, “Smoking as A Factor in Child Custody Cases.”

The article recommends: “As a simple truism, parents who wish to retain custody of their children should not smoke in front of them.”

Action on Smoking and Health, a non-smokers’ rights group in Washington, D.C., says courts in at least 18 states have ruled that “subjecting a child to tobacco smoke is a factor which should be considered in deciding custody.”

In the Warren County case, even with no evidence that Victoria suffers specific reactions or health issues from exposure to smoke, the court ruled that a smoking ban was in the child’s best interest.

To reach that conclusion, the court did something unusual. It “took judicial notice” – without anyone presenting proof in court – of an “avalanche of authoritative scientific studies” that say second-hand smoking poses risks to children.

Taking judicial notice is fairly unusual, said Marianna Brown Bettman, a University of Cincinnati law professor.

“This could be viewed very broadly in future cases,” she said. “If you don’t have to prove that smoking is harmful to your child specifically…then that could become kind of a general order in almost any case.”

Bettman wonders: “Is this going to be now a general standard that’s fair to raise in a disputed child custody case?”

Dayton-area attorney David McNamee, who represents Victoria’s great-grandmother, thinks it should be.

McNamee, who devotes about 90 percent of his law practice to family-court issues, said smoking has become an issue in more child visitation and custody cases during the past five years or so.

Mitchell Karpf, a Florida lawyer who chairs the American Bar Association’s Family Law Section, predicts the smoking issue could evaporate from the courts in coming years. As pressure to quit smoking increases, the number of smokers dwindles, he said.

In the meantime, courts likely will treat smoking “no differently than any other health hazard to a child,” Karpf said.

In Ohio, no-smoking rulings date to at least 2002, when the state Supreme Court upheld a Lake County judge’s decision prohibiting anyone from smoking around a healthy child. That judge acted on his own initiative.

Often, parties agree they shouldn’t smoke in front of kids, McNamee said. McNamee says that he is a smoker, but has never lit up in the presence of his 8-year-old daughter.

Andrea Ostrowski, a Springboro lawyer who represented Racheal Hill, said the case is about a bigger principle than her client’s desire to smoke.

“She doesn’t necessarily mind stepping out of the house (to smoke) when the child is there,” Ostrowski said.

Rather, Hill objects to the court’s “intrusion into her home,” regulating even a legal activity such as smoking, Ostrowski said. The court ruling also limits where Hill can take her daughter, such as to the home of a friend who smokes.

Ostrowski is concerned that the smoking ban “can be used as leverage” against Hill during future visitation and custody proceedings. Hill could be hauled into court on the mere suspicion that she smoked around the child, facing a contempt charge that could bring jail time, Ostrowski said, adding: “How do you prove that you didn’t do something?”

Ostrowski also is concerned that custodial parents could cite this case as an example and try to get courts to enforce limits on other legal activities of non-custodial parents. “The court has opened that door,” she said.

The advantage that children get from living in two-parent families may actually be due to family stability more than the fact that their parents are married.A new study finds that children who who are born and grow up in stable single-parent homes generally do as well as those in married households in terms of academic abilities and behavior problems.

The study appears as a chapter in the new book “Marriage and Family: Perspectives and Complexities” (Columbia University Press), which Kamp Dush edited with H. Elizabeth Peters, professor of policy analysis and management and director of the population program at Cornell University.

Read about the story here.

O’Neil Anderson, formerly known as The May Firm, was featured today in the NeighborsGo website.  To see the article, click here:  The May Firm Expands to Become O’Neil Anderson.

In a July 31, 2009 opinion by the Dallas Court of Appeals, it was confirmed that Federal law trumps Texas law when it comes to income tax issues.  In In re S.L.M., the mother brought child custody proceedings against father.  The district court appointed mother and father as joint managing conservators and awarded mother the right to claim the children as exemptions on her federal income tax return. On appeal, father contended the district court erred in awarding mother the right to claim the two children as tax exemptions.  In re S.L.M., ___ S.W.3d ___, No. 05-08-01277-CV, 2009 WL 2343264 (Tex. App. – Dallas July 31, 2009, no pet. h.).

The Dallas Court of Appeals held the district court erred in awarding mother the exemption rights and examined tax exemptions under the United States Internal Revenue Code.  In computing taxable income, a taxpayer is permitted to claim dependents as exemptions and the exemption is awarded to the custodial parent as the parent having custody of the child for the greater portion of the calendar year.  Id. at Sect. 152(e)(4).

When applying the pertinent provisions of the tax code to the facts, the court determined that father had greater periods of possession that mother and as such, should have the right to count the children as exemptions on his tax return.  As a Dallas divorce lawyer it is important to stay on top of not only family law developments but developments in other areas that impact family law.