Predicting Divorce

(I first saw a note about this article on Don Philbin’s ADRTOOLBOX site. 1 )

Like the break-ups themselves, divorce rates are a complicated subject to study.

Questions abound: Should we really want divorce rates to go down? Is it true that about half of American marriages end in splitsville? And why are so many baby boomers ending things all of a sudden?
— Drake Baer, Thrive Global. (2017, November 6). 5 factors that may predict divorce, according to psychology. Retrieved from http://www.cnn.com/2017/11/06/health/predict-divorce-partner/index.html

As a mediator helping people to resolve their differences in the process of obtaining a divorce (and a judge formerly presiding over that finality), I was struck by the quandary of “should we really want divorce rates to go down.” Unfortunately (and I think, oddly) the article does not address that question!

On the other hand, it does lay out the promised 5 factors. None are much of a surprise to family law practitioners but it is helpful to keep them in mind. They are instructive and of use perhaps most useful to any reader with children to educate on the dangers that may lurk ahead in their relationships.

Returning to the original question: I think “yes,” we should want the divorce rates to go down as marriage is still an essential institution in American society. Knowing these 5 dangers in advance is useful but I believe that we need more attention can be given to how to repair a marriage that is getting in trouble. I thought it not a good idea when judges lost the power to order a couple to counseling. Perhaps that should be revisited.

In the meanwhile, pre-divorce mediation can be a good tool to smooth the departure, if not avoid it. Mediators should not try to be marriage counselors but getting the discussion going is useful if productive conversation can be obtained.

Footnotes:

  1.  5 Factors That May Predict Divorce – ADR Toolbox. (2017, November 19). Retrieved from http://www.adrtoolbox.com/2017/11/5-factors-may-predict-divorce/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+adrtoolbox+%28ADR+Toolbox%29

DWT – the new driving offense

Driving while texting. Or DWCW — Driving While Communicating Wirelessly. Some cities have had ordinances on the books banning DWT for some time, and we all know the no-DWT in school zones. But this is comprehensive.

I am going to shamelessly steal an excellent write-up Jerry Bullard that was recently communicated, but not wirelessly while driving!

As of September 1st, texting and using other types of electronic messaging while driving is illegal in Texas.  HB 62 prohibits drivers from using “a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”  Under the new law, “electronic message” means “data that is read from or entered into a wireless communication device for the purpose of communicating with another person.”  However, it is an affirmative defense to prosecution if a driver uses a portable wireless communication device in conjunction with a hands-free device or to do, among other things, the following: (1) navigate using a GPS or other navigation system; (2) report illegal activity, summon emergency help, or enter information into an app that provides information relating to traffic and road conditions to app users; (3) read an electronic message that the person reasonably believed concerned an emergency; or (4) to activate a function that plays music.  Of course, drivers may still get pulled over if a police officer suspects them of texting or using the device for other prohibited purposes.

HB 62 includes provisions intended to preempt local texting-and-driving ordinances; however, it does not necessarily supersede stricter bans (i.e., hands-free laws) that currently exist in many Texas cities.  . . . .  Also, here is a link to Dallas attorney Jeff Rasansky’s blog, which provides an excellent overview of the law (post-HB 62) and summarizes several municipal ordinances currently in effect: http://www.jrlawfirm.com/blog/texas-texting-and-driving-laws/#hands-free.

Violations of the law enacted by HB 62 are punishable by a fine of $25-99 for first-time offenders; $100-200 for repeat offenders. HB 62 also provides that, if an accident caused by prohibited conduct results in the death or serious bodily injury of another person, the driver can be charged with a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year (in addition to any other charges or penalties).

— From an email by Jerry D. Bullard of Adams, Lynch & Loftin, P.C., Grapevine, TX. (with permission)

Veteran’s post-divorce disability waiver sticks former spouse

Veteran’s post-divorce disability waiver affects former spouse

The case

An important case where considering a property division with a service member. The case is HOWELL v. HOWELL, certiorari to the supreme court of arizona, No. 15–1031. Argued March 20, 2017—Decided May 15, 2017.

The short answer

Service member and spouse divorced, then he retired and she began getting 50% of his retirement pay. 13 years later, the Air Force classified him as partially disabled. As required in receiving disability pay, he waived $250 per month. Retroactively, ex-spouse’s part was also reduced. SCOTUS says she’s stuck.

Planning point

Build in a contingency plan that compensates her if a post-divorce disability determination occurs.

Case report

The following is as reported from Legal Information Institute at Cornell Law School.

The Uniformed Services Former Spouses’ Protection Act authorizes States to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U. S. C. §1408, but expressly excludes from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits, §1408(a)(4)(B). The divorce decree of petitioner John Howell and respondent Sandra Howell awarded Sandra 50% of John’s future Air Force retirement pay, which she began to receive when John retired the following year. About 13 years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, federal law required John to give up an equivalent amount of retirement pay. 38 U. S. C. §5305. By his election, John waived about $250 of his retirement pay, which also reduced the value of Sandra’s 50% share. Sandra petitioned the Arizona family court to enforce the original divorce decree and restore the value of her share of John’s total retirement pay. The court held that the original divorce decree had given Sandra a vested interest in the prewaiver amount of John’s retirement pay and ordered John to ensure that she receive her full 50% without regard for the disability waiver. The Arizona Supreme Court affirmed, holding that federal law did not pre-empt the family court’s order.

Held: A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. This Court’s decision in Mansell v. Mansell, 490 U. S. 581 , determines the outcome here. There, the Court held that federal law completely pre-empts the States from treating waived military retirement pay as divisible community property. Id., at 594–595. The Arizona Supreme Court attempted to distinguish Mansell by emphasizing the fact that the veteran’s waiver in that case took place before the divorce proceeding while the waiver here took place several years after the divorce. This temporal difference highlights only that John’s military pay at the time it came to Sandra was subject to a future contingency, meaning that the value of Sandra’s share of military retirement pay was possibly worth less at the time of the divorce. Nothing in this circumstance makes the Arizona courts’ reimbursement award to Sandra any the less an award of the portion of military pay that John waived in order to obtain disability benefits. That the Arizona courts referred to her interest in the waivable portion as having “vested” does not help: State courts cannot “vest” that which they lack the authority to give. Neither can the State avoid Mansell by describing the family court order as an order requiring John to “reimburse” or to “indemnify” Sandra, rather than an order dividing property, a semantic difference and nothing more. Regardless of their form, such orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress. Family courts remain free to take account of the contingency that some military retirement pay might be waived or take account of reductions in value when calculating or recalculating the need for spousal support. Here, however, the state courts made clear that the original divorce decree divided the whole of John’s military pay, and their decisions rested entirely upon the need to restore Sandra’s lost portion. Pp. 6–8.

238 Ariz. 407, 361 P. 3d 936, reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Alito, Sotomayor, andKagan, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Gorsuch, J., took no part in the consideration or decision of the case.

Managing someone else’s money in Texas

A Toolkit to deal with a growing population of “age”

The Tools

The Texas Appleseed Project and AARP have produced a set of guidelines for persons managing someone else’s money. It includes:

Help for Agents Under a Power of Attorney

Help For Supporters Under A Supported Decision-Making Agreement

Help for Court-Appointed Guardians of the Estate

Help for Representative Payees and VA Fiduciaries

Help for Trustees Under a Revocable Trust

The project page as the expected caveat

This toolkit does not give legal advice. If you have questions about your responsibilities, talk to a lawyer, read our guides as background or visit the “Seniors and the law” webpage at TexasLawHelp.

and I likewise state that inclusion of these references is not intended to give legal advice and no representation is made of the quality of these materials.

An aging population

The population over age 65 in Texas is projected to grow from an estimated 3 million in 2015 to more than 9 million by 2050. Many of those individuals will need help managing their affairs – some through the appointment of a guardian. Texas currently has more than 50,000 active guardianships. OCA is working to provide resources for courts and guardians to help protect Texas’ most vulnerable citizens. — Texas Office of Court Administration, Newsletter April 2017

A tremendous growth of an increasingly needful population, and an opportunity for attorneys to assist, and to redress mischief when it occurs. My observation in mediating cases where guardianships were in place, or needed to have been in place, or where management (or lack thereof) of funds was occurring — is that misunderstanding and misfeasance were as prevalent as malfeasance.

Perhaps these aids will assist better compliance.

How to Kill a Perfectly Good Lawsuit with a Motion to Show Authority in Texas

I loved seeing this blog post. While on the bench, I actually saw a couple of these. While this blog discusses it in terms of a business environment, I can imagine other situations in Guardianship and Estate cases. Continue reading

Dangerous child protection bill – HB205

Action needed on CPS reform bills in committee at 9:00 am on Monday, April 17, in room E2.030

In the current legislative session, there is the most curious — and I say dangerous and ludicrous — bill. HB205 among other things requires that before a court may order a parent to participate in services or permit the child to receive services provided by the Department, the court MUST conduct a trial,  and the Dept. must prove by clear and convincing evidence that the parent abused or neglected the child or is likely to do so in the immediate or foreseeable future. The bill also requires the court to appoint an attorney for the parent without reference to a finding of indigency.

If you want to keep the CPS system from getting into even more trouble, please check out the committee meetings and register your feelings.

The Forceful Mediator

Is the forceful mediator effective? I recently read an article that included the following invective:

There are a few self-styled elite mediators who work in New York City and claim success through forcefulness, their ability to whup good lawyers into submission. They are mainly retired judges who rely on their high status, rather than mediation skills, to generate work. Since this forcefulness is claimed to be effective, we must ask: Does it really work? (emphasis added) Kichaven, J. (2017, February). The Myth Of The Forceful Mediator. Retrieved February 20, 2017, from http://brickcourtmediators.co.uk/the-myth-of-the-forceful-mediator/

Continue reading

Email required now by State Bar

email graphicAmazing, I think back to January 1, 1997 when I first took the bench as Judge of the 33rd Judicial District of Texas and no lawyer in the five counties 1 was using email. No lawyers had web sites. Possibly the Llano District Clerk had a web site but I’m now sure about that. Continue reading

  1. Burnet, Blanco, Llano, San Saba and Mason

DWI roadside tests

WASHINGTON—The Supreme Court on Thursday issued a middle-ground decision on the rights of drunken driving suspects, ruling that police officers can require a driver to take a breath test without obtaining a warrant, but not a blood test.

Wall Street Journal. (2016, June 23). U.S. Supreme Court Takes Middle Ground on Drunken-Driving Tests Without Warrant – WSJ. Retrieved June 27, 2016, from http://www.wsj.com/articles/u-s-supreme-court-takes-middle-ground-on-drunken-driving-tests-without-warrant-1466692448

It’s a certainty in Burnet County now that a warrant will be obtained to take a blood sample. This Supreme Court decision is really of no importance to the areas that have gone “no refusal” either all the time or, as Austin does, during certain weekends and days of special events.

The evidence obtained by a blood test, if obtained by a valid warrant, is almost impossible to beat. Therefore, just don’t drink and drive.