Dallas Divorce Law Blog by Michelle O'Neil

A growing number of Tarrant County residents are choosing to see their divorces through without the aid of an attorney, the Fort Worth Star Telegram reports. According to the newspaper, the number of pro se filers in divorce cases is up eight percent from 2004 to 2008. Attorneys say that while do-it-yourself litigants may cost them some business initially, they often make up the difference in correcting faulty pro se forms.  Steve Campbell, Ft. Worth Star Telegram  04/20/2009

During tax time, clients inevitably ask about collection of child support from an obligor’s tax refund. There are two methods available to enforce child support payments from delinquent child support obligors through federal tax collection. The first procedure allows collection of past-due child support by offsetting the support arrearages amount against a federal tax refund due to the delinquent payor. See I.R.C. §6402(c). The second method is an assessment and collection procedure where the U. S. Treasury Department is authorized to collect the certified amount of unpaid child support by levying against essentially any property of the delinquent child support obligor that would be subject to levy when collecting federal taxes. See I.R.C. §6334(c). The regulations for these two procedures may be found in the Treasury Regulations. See Treas. Reg. §301.6402-5(a)(1).

It seems that the economy is having an effect on the child support system.  I have observed an increase in cases involving nonpayment of child support, as well suits to modify and lower child support obligations in the Dallas County Family Courts as well as the Collin County Family Courts.  I’ve talked to other Dallas area divorce lawyers and they report similar observations. 

When a person who owes child support (aka, the obligor) loses his job is having trouble paying his obigation for whatever reason, it is essential to file a suit requesting modification of the obligation as soon as possible.  Failing to pay child support according to the court order can subject a person to the possibility of going  jail for contempt of court for up to 6 months for each occurrence of a violation.  In other words, failing to pay child support per the court order for one month carries a maximum possible contempt sentence of 6 months in jail.  Each subsequent month where the obligator fails to pay child support can also carry a 6 month sentence. 

Once a suit for modification is filed to lower the child support obligation, the court has the ability to grant a temporary reprieve of the child support obligation and even, in some cases, make the child support decrease retroactive to when the suit for modification was filed.

It’s that time again — the time when the Lege meets and changes “everything”, then we all have to run around and figure out how to adjust.  Today, SB 445 was voted favorably out of the Senate Jurisprudence Committee.  This bill, if made law, would require the Texas Supreme Court to promulgate rules that would allow jurors to ask questions of a witness or to the court and take notes during civil trials.  Can you imagine being in the middle of a trial, presenting your evidence, when all of a sudden a juror raises his hand and asks a question?  [Lawyers shudder across the state... thinking how do you object to an inappropriate question by a juror!]   But, on the other hand, it would give insight to what jurors are interested in and help frame the issues for the trial.  Wow!

Today the US Supreme Court released its opinion in US v Hayes, a decision out of West Virginia.  The questions is whether a person convicted of a crime against a spouse can later possess a gun.  Federal firearms laws prohibit a person convicted of a crime of domestic violence from later possessing firearms.  But, the distinction arises when the conviction is for a crime that does not specifically mention domestic violence as a charging element.  In Hays, the former husband was convicted of assaulting his wife-at-the-time, but the conviction was not for “domestic violence assault”, just “assault”.  Later he was found to have a gun and was charged with illegal possession of a firearm after a domestic violence conviction. 

The former husband appealed the conviction, noting a distinction between a conviction for a crime of domestic violence versus a crime of assault.

Justice Ginsberg, writing on behalf of the majority opinion, states:

Congress defined “misdemeanor crime of domestic violence” to include an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationshipas an element of the crime.

Thus, the US Supreme Court held that there’s no distinction between a conviction for assaulting your wife versus a conviction for domestic violence assault.  Both are prohibited from future possession of a firearm.

The Texas Supreme Court reversed a contempt finding in a Denton County divorce recently.  In In re Coppock, the parties entered into an agreed divorce decree that prohibited using coarse or offensive language in communicating with the opposing spouse.  This provision was contained in some general provisions of the decree, but did not include any injunctive language.

The ex-wife was found to have violated that provision 84 times by sending caustic emails to her ex-husband where she made fun of his weight, belittles his finances, mocked his ability in bed, and dismissed his new wife as “trailer trash”.  Former Judge Vickie Issacks found the ex-wife in contempt and sentenced her to jail.  The sentence required three consecutive 180-day terms, which would be waived if she reported for 4 nights in jail and paid the ex-husband’s attorneys fees.

The Texas Supreme Court held that the contempt order is void because the underlying order did not directly command action sufficient to be enforced by contempt.  Further, the Court held the provision of the decree did not clearly state it was an order of the court instead of an agreement of the parties because it did not contain “decretal” language (e.g., “IT IS ORDERED…”) and was not in the injunction section of the decree.  As such, the Court found it to be an agreement of the parties and therefore only enforceable as a contract.

Interestingly, the Texas Supreme Court cites to In re Dupree, a case I won on writ of habeas corpus out of the Dallas court of appeals.  It is unusual for the Texas Supreme Court to cite to a case as authoritative out of the court of appeals level.  This means that the Texas Supreme Court has accepted the Dupree case as authoritative. 

The ex-wife also asserted certain First Amendment challenges that the provisions of the decree unlawfully restrained her right of free speech.  However, since she did not make those challenges in the trial court, the ex-husband argued those were waived.  The Court did not reach the constitutional arguments because it held the contempt order void for other reasons.

So the writ of habeas corpus was granted and the ex-wife was released from confinement.

Note, Texas divorce lawyers utilize similar orders, called the Standing Order in most counties, in virtually every pending divorce in Texas.  (Click for Denton County Standing Order, Collin County Standing Order or Dallas County Standing Order.) This case may lessen the enforceability of those provisions, even though the Coppock case dealt with a final order and those frequently are found in temporary orders. 

Yesterday I received an email from a client forwarding an email from her husband, where the email string from the husband included a conversation with *his* lawyer.  I’m sure the lawyer will not be happy when he finds out that I received his email/advice from his own client. 

The attorney client privilege protects confidential communications between a lawyer and client, but only if those communications are kept confidential.  Including anyone else in the communication  will negate the privilege.  So, if you take your Mom with you to visit your Dallas divorce attorney, the privilege will be negated.  If you tell your best friend what your attorney told you during a confidential meeting, the privilege will be negated.  And, if you forward to anyone else a confidential email your attorney sent to you, the privilege will be negated.  This includes blind cc on emails to or from your attorney too.

Why is this important?  You and your attorney may discuss some strategy in your case.  If you share that with someone outside your attorney’s office/staff, even if it isn’t the opposing party, then the opposing party can legally broach the attorney-client privilege and use whatever communication has been released as part of the case. 

So, for example, say that you confide in your divorce attorney via email that you met a new love interest on Facebook and want to go on a date.  Then, your attorney responds via email that you should wait.  You forward that email to your new love interest and say my attorney says to wait, but I just won’t tell her what we’re doing.  Then, the love interest doesn’t work out and sends that email on to the spouse you are divorcing.  Attorney-client privilege is waived and that evidence can be used against you in your divorce case.

So, the lesson, keep private conversations between you and your attorney just that, private.

The Dallas Family Law section of the Dallas Bar Association held their annual conference last Friday at the Dallas Trade Mart.  This is the opportunity every year for Dallas divorce lawyers to discuss recent trends in family law litigation in Dallas, Texas.  Each year the Dallas family court judges give presentations on their preferences and local rules.  One new local rule that the judges announced was that temporary orders must be presented within 14-days of the date of the ruling and final decree must be presented within 30-days of the hearing.  The consequence for failing to abide by this rule is to risk dismissal of the case.

You may have read  recently about David Goldman whose wife went to Brazil for vacation with their son and then refused to bring him back.  She later divorced him in Brazil and remarried a Brazillian lawyer.  Recently the wife died, leaving the son with the new stepfather who refuses to return him to the Father in the U.S.  David went to court in New Jersey and got orders requiring the return of his abducted son to the U.S., but they have been ignored.

In this situation, David relies upon the government of Brazil to honor its commitment to the Hague Convention treaty, which sets out the procedure for resolving international custody disputes.  Hague Convention was adopted to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the nation-state of their habitual residence, as well as to secure protection for rights of access. Its purpose is to deter international child abduction and to provide a mechanism for the prompt return of abducted children to their home countries where the courts can resolve the custody issue on its merits.

The Hague Convention applies only among contracting states and is available only when a child is wrongfully removed from a signatory country and retained in another signatory country. The United States ratified the Hague Convention in 1988, and the Convention was implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000).

Brazil signed on to the Hague treaty on December 1, 2003, according to the Department of State’s website.  The process, according to the State Department is this:

Hague applications are submitted to the U.S. Central Authority for forwarding to the   Central Authority in Brazil.  The Brazilian Central Authority examines the application and determines whether they will accept it.  Once the application is accepted, the Central Authority with the aid of INTERPOL determines the location of the child.  Once the location of the child and taking parent is known, the Central Authority attempts to mediate an agreement between the parents.  If an agreement is not reached, the case is forwarded to the Attorney General’s Office (AGU), who files the case with a federal court.

The petition is assigned to a federal judge within 48 hours of its filing with the court.  The court notifies the taking parent and summons their attorney to contest the petition. The AGU, acting on behalf of the Brazilian Central Authority as well as the left behind parent, then has an opportunity to respond to the taking parent’s arguments.  After both parties have been heard, the Judge submits the case for examination to a representative of the Ministerio Publico. 

The Ministerio Publico presents a formal opinion to the Court in all cases involving minors.  In Hague abduction cases, the representative will submit a report recommending either the return of the child or that the child should remain in Brazil.  In Federal cases, the representative will be a Procurador da Republica (Public Prosecutor).  If the case is filed in the local family courts, the representative will be a Promotor (State Public Prosecutor).  The Judge has complete independence to rule on the case and does not have to follow the Ministerio Publico’s recommendation in his decision.  At this stage the Judge may request additional documentation or evidence and hold a hearing with representatives from the AGU and Central Authority.  The AGU continues to follow the case, acting on the left behind parent’s behalf throughout all legal procedures until there is a final decision. There is no time limit for a verdict to be issued in the case.

Once the other biological parent passed away, David should have automatically seen the return of his son.  That he didn’t is a tragedy.  If there is an consolation for David, it must be that at least Brazil has signed on to the Hague treaty, providing remedies for him.  There are many parents whose children have been abducted to countries that have not agreed to the Hague treaty, leaving the parents with very few remedies and very few allies, fighting for their children under the laws of a foreign country.  Examples of countries that do not subscribe to the Hague treaty include Cuba, Haiti, Iran, Saudi Arabia, Japan, Pakistan, Thailand, Pakistan, Yemen.  For a complete list, check out the State Department’s map of countries. 

My heart goes out to all parents dealing with issues of international child abduction.  It is a very hard situation.  All parents who regularly see their children should be grateful and remember the tribulations of these parents when dealing with their custody issues.  Maybe they seem more trivial in comparison?

Houston televisions stations had a boone of advertising during the superbowl from an online dating site for married people ashleymadison.com.  The CEO said in the Houston paper that it made financial sense because Houston and other Texas areas are a fast growing market for the company.  You can imagine that local marriage counselors and clergy criticized the ads.

Maybe they did target the Dallas market.  Did you see any ads for this company during the superbowl?

As a Dallas divorce lawyer, it makes me think that I need to investigate whether the opposing parties in my divorce cases might have a profile on such websites.  Having been playing on facebook today, I am pondering creating a new question for discovery interrogatories and production inquiring about opposing parties’ online presence.  Also, I’m thinking I might ought to investigate my own client’s participation online to prepare for what might be out there for some other interprising attorney to find.