America is in the grip of the deadliest viral outbreak in a century and it is happening in an election year during the most divisive political eras since the Civil War.  It’s a perfect storm. 

Swirling in this political maelstrom is the hot wind of social media debates over masks, social distancing, opening up the economy, individual rights and public health.  There are a few people blowing hard in one or the other direction.  But most of us are standing in the eye of the storm feeling pulled in all directions.  It seems like we are being force to make a choice between being safe from a potentially deadly virus or protecting our economic well-being and our right to not have the government dictate our private lives.

It seems sometimes like we are being ask to choose between life or liberty itself.  
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In the last few months, the government, in the name of protecting lives from the COVID-19 virus, has implemented extraordinary restraints on many of our fundamental liberties. These include the Free Exercise Clause of the First Amendment, the First Amendment Right to Assembly ; the right to interstate travel under the Commerce Clause; Privacy rights under the 4th Amendment, and for those lingering in prisons and jails, the right to a speedy trial under the 6th Amendment.  Are all these violations of our liberties even legal under the U.S. Constitution?

Yes actually.  But only for a limited manner and a limited time.

During public health emergencies, state and local governments have the authority to enact measures to protect the welfare, health, and safety of their citizens. While in normal times these would be condemned as an infringement of our constitutionally protected rights, it is within the authority of the states' police powers under the 10th Amendment for the government to take extraordinary actions in extraordinary times.  This clause in the 10th Amendment gives government in times of crisis the power to abridge certain individual rights we would normally expect to be unbreakable.

Specific to our times, the police powers under the 10th Amendment gives states the authority to force isolation for public health purposes.  As recent as May 30, 2020, the U.S. Supreme Court has affirmed that states do have the power to force isolation on citizens for their health and safety.  Chief Justice John Roberts in his concurring opinion recognized the uniqueness of our "extraordinary health emergency" that is “fraught with medical and scientific uncertainties” as well as the highly contagious nature of the virus, stating that leeway should be given to states power to protect health and safety.

But government's police power under the 10th Amendment is not a blank check.  The government's restrictions on our liberties must pass the legal test we call "strict-scrutiny" analysis. Government restrictions when challenged in court, must pass the test of being both "a compelling government interest” and also being the “least restrictive means” of achieving the government's legitimate purpose in protecting the public.

And who will be the ones putting the government's restrictions on our liberties to this strict-scrutiny test? It will be your friendly neighborhood lawyer.

Lawyers have a job - it is called vigilance. Thurgood Marshall once said, “grave threats to liberty often come in times of urgency.” This has never been more true than today. Recent history confirms Marshall's axiom that when government is given authority to curtail our rights during times of crisis, it is very hard to get it back from the government when the crisis has ended. One example is the huge expansion of government surveillance of the public after 9/11.  Prior to 2001 the government would not be tolerated to do the level of spying on U.S. citizens it was granted under the so called Patriot Act - a law which was passed by Congress on a promise that the spying would only be temporary.  Yet 19 years after the terrorist attacks, that surveillance program continues to this day. 

General John Stark's famous statement of fierce dedication to liberty, which became the motto for the State of New Hampshire, is "Live Free or Die".  But it is doubtful that he meant that to be taken as literally as some do today.  Even during a global pandemic, we do not have to make such a drastic choice - nor should we allow anyone to make us think we do.  The preamble to the U.S. Constitution reminds us that it is our God-given right to have BOTH life and liberty (and the pursuit of happiness).   For life and liberty to both flourish, there must be a delicate balance struck between the necessary restrictions on certain actions during security, health and safety emergencies, and the full exercise of personal liberties we should expect as the norm in all other times.   As advocates for citizens who seek to limit government authority, lawyers have a responsibility to be sure the government doesn't abuse or upset that delicate power balance. Attorneys - often maligned and put down by the public, are actually the guardians of citizen power against an overreaching government that would take that power away.

As we try to navigate the rapidly changing environment of the pandemic, where new technologies and treatments will constantly shift the need to restrict liberties we once enjoyed, it is up to lawyers and policy makers and the citizens they serve, to ensure that measures designed to protect us don't permanently reduce our fundamental rights.

If we do not stay vigilant, we may forever lose our liberty.  And if that is allowed to happen, then we would compound the tragedy of this pandemic with the travesty of oppression.   Instead, lets make clear headed decisions based on the best available information.  Let's put aside our selfish desires and fears and think equally about what is good for neighbors and our nation both today and in the future.

We don't have to make a choice to "Live Free or Die".  Let's survive today, but let's also preserve our freedoms for tomorrow. 

A big decision needs to be made early on in a divorce case- who will take care of the kids?  Separated or newly divorced parents have to make tough decisions about child care in the best of times, but with the spread of the coronavirus, those choices are harder than ever.  As our Texas Governor moves forward with re-opening the economy, more parents are returning to work.  This has made child care decisions more urgent -and desperate-for millions of Texans.

Child care options are decreasing
Most single parents with minor children need to work during the day.  In the pre-pandemic days, one common option for many was to have grandparents watch the children while the primary care parent works.  However, not every parent is blessed with this as an option.  And now, with the spread of the Covid-19 virus and it's high death rate among the elderly, many people who did have this option are now not willing to risk the lives of their own parents by exposing them to grandchildren who  often do not display symptoms of Covid-19 and can infect their unwitting grandparents with the virus.

​The usual option, if relatives are not available, is to rely on private daycare.  But many parents are worried that they will be putting their children at risk by taking them to a daycare center during a pandemic. This fear is spurred by news that Texas has just experienced one of  it's most infectious and deadly weeks for Covid-19.

State data shows an increase in coronavirus cases stemming from both large gatherings and child care centers. The state reported 576 positive cases of the coronavirus — 382 staff members and 194 children — in child care facilities as of this week. That’s up from 59 cases in mid-May. 

Are Daycare Facilities Safe?  Little Guidance from the Government.
Of those facilities that remain open, even at limited capacity, the State's response to the fears of contaminating kids in daycare has been muddled, to say the least.

Just two weeks ago, the government surrendered all existing regulation of safety measures at state-licensed child care centers.  As of mid-June they  were no longer required to comply with a list of safety precautions that had been in effect since mid-April. That meant centers could decide for themselves if they wanted to check staff temperatures, require parents to drop off their children outside or stop serving family-style meals, according to a previous notice from the state Health and Human Services Commission.

Then, in an apparent reversal this week, Gov. Greg Abbott directed a state health agency to enact new safety standards for child care centers during the coronavirus.  However those new standards have not yet been published.

To make matters less clear, individual county and municipal authorities in Texas have been sending mixed messages to citizens about how their local government plans to respond to the recent deadly spike in infections.  In Harris County, which includes the City of Houston, Judge Lina Hidalgo has announced plans to mandate masks and return to the stay-at-home conditions imposed this Spring.  Meanwhile in neighboring Galveston County, which includes more suburban and semi-rural /industrial areas, Judge Mark Henry has defiantly announced that he won't issue any new government restrictions and said people must rely on their own personal responsibility to stay free from infection.   

Ultimately, Parents Must Find Daycare Options and Judge Facility Safety On Their Own 
Experts say that daycare is a key piece to reopening the U.S. economy.  If a single parent must go back to work and has no other child care options, then choosing among the remaining daycare facilities that remain open in the area may be the only choice.  But without clear government guidance, selecting the safest daycare facility for your child is a daunting challenge. 

That is why we are offering a checklist of the most important, researched questions to ask a daycare facility before you enroll your child.  The checklist is based on expert recommendations and can help you determine if a child care, daycare or daycamp facility is coronavirus ready.  No facility can guarantee your child will be 100% safe from infection, but download this free checklist and bring it with you when you visit the facility or ask questions from it when on the phone.  Researched from the CDC and other experts, this question checklist will help you pick the safest daycare facility.  The Palmer Law Firm is offering this checklist as a free public service.  

To download the Daycare Safety Checklist.  Please click HERE.

Although Texas continues loosening it's restrictions on local business, the state is experiencing it's highest infection rates both in the number of tested cases and in the number of Texans hospitalized due to COVID-19.  Many Texas parents are asking - during this crisis do I have to exchange my child for summer visitation?

July 1st- Expanded Summer Possession Order
With talk of a second wave of illnesses across the country, some municipalities are thinking of re-introducing social distancing restrictions.  At the same time, July 1 is coming quickly.  For thousands of Texans under a Standard Possession Order, this is the first day of the non-custodial parents' time for their expanded summer possession period.  The non-custodial parent is the parent who the child or children do not live with on a day to day basis.  Under the standard possession order, which is the custody arrangement most Texans have in their court orders, the parent who the child does not live with gets a 30 day period in the summer.  Unless a different time frame was communicated back in April, the default period begins July 1 and ending July 30.  However, with the ongoing coronavirus threat - which seems to be growing daily- some parents are wondering if they have to exchange the child on July 1.
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Violation of Your Order
The answer is, that unless the court has specifically changed your custody order, you still must do what your current visitation order says.  Neither the coronavirus threat, nor any shelter-in-place orders by local government will automatically change your custody orders. 

In fact, the Texas Supreme Court issued an order  (https://www.txcourts.gov/media/1446470/209059.pdf)  that expressly states:

"Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a governmental entity that arises from the pandemic."  (The Supreme Court of Texas, Misc. Docket No. 20-9059, Twelfth Emergency Order Regarding the Covid-10 State of Disaster, dated April 27, 2020).

So, no matter what you hear, or how you feel about the pandemic, if you do not follow your custody order as written, you may face civil or even criminal contempt penalties.

Modify by Agreement
However, if both parents agree that now is not the time to have an extended summer possession period, then in most cases, they can agree to change the possession times this summer.  Most standard possession orders allow parents to change visitation by agreement.   Just make sure that you review the terms of your order and make sure that any agreement to deviate from the court order that you make with the other parent is documented in writing.  This is to protect you by making sure there is no miscommunication or later accusations that there was no agreement.

Modify by Court Order
But what if the other parent does not agree to modify the possession order this summer?  The only way to avoid getting yourself into trouble with the law is to file an emergency request with the court to modify the order BEFORE July 1.  In it's order, the Texas Supreme Court has stated that this is an option open to parents:

"Nothing herein prevents …courts from modifying their orders on an emergency basis or otherwise." (Id.)

However, if you wait until after June 30 to file your request, you will already be in violation of your custody order at the time you file it, and your chances of it being approved decrease and your chances of being found in contempt of court for violating the existing order increases.

If you are in this situation, you should consult an attorney immediately to file the appropriate paperwork before the June 30 deadline. 

The U.S. Economy has lost more than 20 million jobs in April, 2020 due to the Coronavirus pandemic placing the nation's unemployment rate at it's highest level since the Great Depression.   Millions of American are facing economic turmoil and the greatest impact of that will be on children.  In this video, Texas Family Law Attorney Sean Y. Palmer talks about steps you should take now if you can't pay your child support obligation because of the loss of income due to the coronavirus crisis.

The COVID-19 epidemic has been a horror show. But as with most disasters, there comes some positive outcomes if you look in the right places. The global pandemic and resulting social distancing is forcing innovation and change in a profession that has been long behind the technological curve.   The practice of family law is experiencing a seismic shift in thinking and process.  Change causes a lot of tension, especially in the legal field.  But this rapid paradigm shift, as stressful as it may be today, will ultimately benefit the family law practitioner and the people they serve.

In early March when stay-at-home orders began to be issued, the business of the courts and all the ancillary meetings and hearings involved with civil cases, such as family law matters, suddenly shut down. Temporary order hearings were rescheduled indefinitely. Mediation sessions were canceled. Clients seeking relief for their divorce or child issues were stuck with out any immediate relief, or even knowledge of when their case would resume. Without the ability to meet face-face, much of the practice of civil law- and the subsection of  family law in particular, just..stopped.

The reason the wheels of justice ground to a halt was not because of the viral outbreak directly.  It was because of the outmoded ways civil law has been long practiced, and the inability of some practitioners to shift their paradigms quickly enough to the new normal.  Many practicing family law are or were deeply entrenched in the old ways of using only person to person communications to conduct business.  Although video conferencing and other alternate options had long been available, many family law practitioners eschewed those opportunities and rarely used these options for the two decades or more they have been available.  

As a family law litigator myself, I have long lamented the waste that was endemic to the old way of practicing prior to the pandemic.  For even the most cursory matters I would have to physically appear in court.  This meant I would have to charge my clients travel time to the courthouse and parking. When we got to the court, unless I could find some way to be productive otherwise, I would have to charge my client for the time I spent waiting for our hearing- sometimes for hours. I would try to be productive with my client but it was usually a losing proposition.  The actual bench time I would have could be as little as 15 minutes after waiting for several hours. That never sat right with me.

Perhaps even more wasteful was the mediations I had to attend on almost all cases.  The mediations themselves were, in most instances highly valuable activities, but the logistics under which they were conducted were wholly wasteful. I would often have to travel several hours to attend mediation across town only to be sequestered to a room where we would never engage with the other party in person anyway. It always seemed so ridiculously wasteful and so unnecessarily expensive.

But now virtual attendance for these appearances is becoming widespread and necessary. This is an exciting development because it will provide clients with much more cost effective and productive way of resolving family law disputes.  Trials, hearings, and mediations scheduled precisely and consistently through software are much more likely to be heard on time and with fewer distractions. Judges, attorneys, and mediators will be able to schedule their days and complete their tasks with greater efficiency and will therefore be able to increase their productivity.  Clients will not have to pay for ancillary costs such as travel which will increase their overall satisfaction. Clients will also not have to take more time off from work for hearings than necessary that are bumped or delayed due to the difficulty of managing a live court room.

It's not to say that there aren’t many challenges ahead. On the one hand, security and confidentiality of certain communications must be maintained, and on the other hand access to the public and maintaining our open court system must also be maintained.   There will need to be new thinking about how to conduct trials in a virtual way.  Direct and cross examination of witnesses, the introduction of documentary evidence and impeachment will all need new processes and techniques. If more legal work will be done through technology, there will need to be serious thought put into bridging the “digital divide” so that all socio-economic levels will have access to the new justice system.

But these challenges can and will be overcome. In the middle of a viral outbreak, they simply must.   The necessity will drive the innovation as it has throughout human history. And the benefit that will come to judges, attorneys, and clients will be made abundantly clear in the months ahead.

I’m not suggesting that we will never have a live trial again.  But the prospect of conducting a full evidentiary trial with a jury of twelve, a full panel of attorneys, a judge, clerk, stenographer and a full public gallery anytime in the near future is a dim possibility.  I do not think we will ever fully go back to the old ways of practicing. The use of video conferencing, paperless documents, e-signatures, file sharing and other technologies have long existed but will now become the norm.  The practice of law, at least the practice of family law, is at last being dragged into the 21st Century.  There will be adjustments, but the family law practitioner will learn that the benefits will far outpace the inconvenience of change.  And the one thing the epidemic has done is to force the change.  There is really little choice.  Those practitioners who embrace and adapt to this new normal will thrive.  Those who continue to resist will forever wait for the return of a world that no longer exists.

Click the video below

Finding a divorce lawyer can be a daunting task. For many, divorce is their first experience with the legal system, aside from a traffic ticket or two. It can be tempting to look for a lawyer who markets himself as aggressive. Here are some reasons to think twice.

1. Aggressive does not mean effective
An aggressive attorney often makes few friends in the courthouse. The judges often have little patience for certain aggressive tactics, such as refusing to agree to a new hearing date. An effective attorney will compromise on procedural issues, realizing that a case is won or lost with arguments and facts, not tricks. You will also find that fighting over such procedural issues often does little more than waste money.

2. Aggressive attorneys have a harder time reaching settlements
You may think there is no way that you will settle with your current spouse. Statistics show otherwise; upwards of 90 percent of cases settle before trial. Settling a case is far cheaper than going to trial. Most attorneys charge a higher rate for trial hours, not to mention the extra cost due to preparation, additional hearings, and potential post-trial motions. Since an aggressive attorney will be less likely to compromise, you will have a harder time settling, running up costs that you have to pay. You may think that your spouse will ultimately have to pay your court fees, but typically, each party pays his own lawyer.

3. Aggressive attorneys are often not realistic
A good attorney will help you understand what the court is likely to consider in your case. He will explain the factors the court will consider in determining such things as child support, spousal support, visitation, and property division. In a typical divorce situation, one party will not get all the property, all the time with the children, or unending spousal support. An aggressive attorney may not give you a reasonable assessment of the likely outcome, leaving you unprepared for the final settlement or decree.

4. Aggressive attorneys make it more difficult to work with your ex-spouse in the future
Divorce cases are unlike most other court cases. In other civil or criminal matters, the parties likely never have to see one another, or work with one another, again. Unfortunately, in divorce cases, ongoing issues of child custody, visitation and debt issues often force the parties to continue to work together long after the final paperwork is signed. An aggressive attorney will encourage you to push for more instead of compromise, and it will make it more difficult to work together in the future.

We've heard it all the time:  it is important to stay positive . But we seem to suddenly be living in a world where there is very little good news to be positive about. The coronavirus pandemic affects all of us in profound ways.  Some matters are just generally inconvenient , some of them are profound. But as the stay-at-home orders continue into multiple months, there is a noticeable fatigue with the situation among the public. Now more than ever, it's essential to stay positive and focus on a better future. This can certainly be a challenge even for the most upbeat of people.  Here are five useful tips stay positive in a bad news world.

1. Be grateful.
​Experts say that focusing on the positive aspects of your life is a key to feeling happiness. Instead of turning on the news when you wake up in the morning, try practicing expressing gratitude. Begin the day by making a list of all the things that you are grateful for. If you are working  be grateful that you are still able to work period if you cannot work, be grateful for your health and for your loved ones. Even the smallest of things like a good cup of coffee are a blessing and by being mindful of how those small good things add up will keep you from focusing on all the negative things.

2. Maintain a daily routine.
Have you found yourself waking up at the "crack of noon" lately?  Do you stay up at all hours looking at cat videos?  Don't let this chaos rule your life. Have an agenda and stick to it , even if you are not working. If you have to take care of children , then this is even more important- both for you and your kids. Get up early in the morning . Make your bed. Get a good breakfast. Have a plan for the day. Accomplishing tasks, any tasks will make you feel productive and in good mental health. Being consistent will give you a sense of stability and a positive mind-frame.

3. Exercise for mental and physical health
Just because there is a stay-at-home order doesn't mean but you can't get out and exercise. Daily exercise is a must. Spend at least 15 to 30 minutes a day doing a fitness workout or just walking. Endorphins are released in the brain when you exercise and this will improve your mood and make you feel more relaxed. Sunshine, fresh air and being out in nature has been proven to beat depression.

4.  Be Organized.
Even though you may have more time on your hands than ever before, you may feel that you are getting even less done. This may be because your mind is cluttered,  and your environment often reflects your state of mind. Take time to clean out and organize both your house and your mind. Tackle those stacks of paper, organize your storage, and throw out anything that you haven't found useful. Having an organized environment will make you feel less stressful.  And sanitizing your space to prevent the spread of the coronavirus will be much easier if the area is already uncluttered and organized. 

5. Social Distance Doesn't Mean Social Isolation
Even though we must practice social distancing, we should make every effort we can using alternative means to stay socially connected. Make a concerted effort to reach out to your family and friends through phone calls, social media, FaceTime, or good old-fashioned letter writing. Cards and postcards are especially welcomed in this time. Try connecting with at least one person outside your home a day.

We are here if you need us.
As the effects of the coronavirus pandemic continue from weeks into months, we hope that you find some comfort in knowing that we are still operational and here to assist you. Whether you are a current client or if you are looking for family law assistance, our team is here for you and will continue to be available to address your concerns. We offer remote consultations and can provide legal services from a distance.
If you need help, you may email me directly at Sean@thepalmerlawfirm.com or call us at 832-819-3529.

Divorces don’t begin when you file paperwork with the court. They don’t even begin when you make your first visit to a lawyer.  They don’t begin when move out.  They don’t begin when you start making a separate budget for yourself.  No.  Divorces begin in the heart.

Heart, Mind and Action Stages of Divorce
If the thought of a divorce becomes a daily habit and the idea of remaining together is more painful than the prospect of being apart, then the divorce process has likely started.

There are three distinct stages in a divorce. The Heart Stage, The Mind Stage, and the Action Stage.  Intervention such as marriage counseling at any of these stages may prevent the divorce from happening, but as people move from one stage to the next it is increasingly unlikely that anything can be done to prevent the divorce from happening.

The Heart Stage
When you married, you believed that your spouse was the one (non-related) person in the world who care the most about you, who would put you above all others including themselves. If that belief is betrayed, then you will naturally experience great pain at the loss of the hope you had that this is the someone who will be with you forever. When that faith permanently dies, then you are experiencing the Heart stage of Divorce.

In my experience the Heart Stage of Divorce can take place long before the Mind or Action Stage of Divorce- perhaps years or even decades.  If a marriage has any chance of being saved then it’s best chance is before the Heart Stage is finished.  

The Mind Stage
The Mind Stage of Divorce is when you begin to mentally imagine yourself separated from your spouse and you begin to actually make plans to make it happen.  You begin to think about what life will be like and how you will make that happen.  This is when you begin to make a mental inventory of things you would want from the house. You will also be thinking about how custody arrangements would work. You may even begin to start searching around for housing.  When you seriously start to think about how to make the divorce happen, and what steps you will have to take to make a divorce happen, that is when more than half of the decision is made.   It’s is similar to when potential buyers of a house begin to imagine how their furniture will fit into the new house. Experienced realtors know that the sale is nearly made at that point.  It is at this stage of divorce that many people seek out the advice of a divorce attorney. They may not be ready to file yet, but they are gathering information they need to make the divorce happened.

If there is no intervention after this stage, it is very hard to keep the divorce from not happening.

The Action Stage
This is the final stage of divorce. This is when action is taken on the plans developed previously. This is when one spouse moves out, or a spouse empties the bank account or when the spouse hires an attorney. At this stage of the divorce it is very unlikely, though not entirely impossible, that the divorce can be prevented.  This is because other institutional factors begin to reinforce the decision to divorce. This includes contractual obligations that have been made such as signing a lease, or signing a service contract with a lawyer, or paying filing fees for divorce. These forces anchor the decision and make it harder for it to become more fluid and possible to be reversed.  If the divorce is to be stopped at this stage, it would take  massive intervention and counseling - which does not normally occur.

There is no one definitive point when a divorce starts, but there are distinct stages that couples go through as they approach the final divorce. As they go through each stage then the reality of a divorce becomes more certain.

If you need more information about this topic, please call 832-819-3529 and we will be happy to speak with you about this, or any other issue related to divorce in Texas.

(Author's Note:  Yes I realize the COVID-19 is NOT the flu.  But there is no vaccine yet for bad puns.)

With more than a month gone by in the Coronavirus shut-down even the most Pollyannaish ,  cream puff, "pie- in-the-Sky people who are extolling the virtues of the increased family time are beginning to sour to seeing the same faces over and over again. Even couples who normally get along are feeling the aggravation of day to day 24/7 interaction.

“Togetherness” is all fine and good, but without any chance of real alone time many married couples are considering calling it quits.
And the news is awash right now with predictions of a spike in the divorce rates as a result. Looking at China, many divorce attorneys are anticipating a big increase in the number of divorce filings.
But this has not turned out to be true at least not yet.

Is Staying At Home Actually Promoting Marriage Stability?
In my firm, prior to the mandatory stay-at-home orders, I was working long hours to keep up with the new filings that were coming in over the Holidays. But now the phone calls has slowed to a trickle. This is the same for other family law attorneys.
So does this mean that shelter in place orders are actually reinforcing marriages? I don't think so.
It's too early to draw conclusion about the coronavirus crisis and its impact on marriages In Texas. However I suspect there is a group of people who intended to separate before the lock down and still want to do so but for financial reasons are deciding they can't afford to right now.

Financial Downturns and Divorce Rates
According to the Texas workforce Commission More than a million Texans have filed for unemployment benefits in the last month . That number doesn't include those employed but working reduced hours.
Divorce filings are down and the number is relatively low.  Will we see a sudden spike?  I remain skeptical.   Prior to the 2008 Great Recession, divorce rates were at an all time high . But then when the market crashed the rate dropped 18% and has remained so to this day.
Under the present crisis we're going to see a much longer and deeper recession then even the prior one. If history holds out, we will see you continuing decrease in the divorce filing rate. That may change if the economy bounces back suddenly but although it is certain that people are tired of seeing each other it is not certain if that will prompt them to file for divorce before they have enough money to make that happen.

Alternatives to the High Cost of Divorce
What this amounts to is a lot of miserable people . Not only will everyone be hit hard financially but they will be in sour relationships that will increase the stress . However there are alternatives.
People may try to do their divorce if they feel is uncontested . However the resources that used to be there such as County law libraries no longer available except electronically.

Mediation
Online mediation is another alternative to resolving conflict but it does not completely address the need to have the agreement converted into a divorce decree and to have that decree approved by the judge. Although the civil courthouse is are closed for anything but emergency issues the courts are allowing divorce orders to be submitted electronically by submission of an affidavit.

Limited Scope Representation
Another creative solution is to hire an attorney who does limited scope representation. This attorney can be hired to get people who do their own voices through the more complicated parts of the divorce process yet not hiring them for full representation. This saves people thousands of dollars because they're only hiring the attorney as needed. However, most attorneys do not except this kind of employment.
There can be no doubt that the Corona virus shut down is changing our family dynamics and the way that we get divorces. There is a lot of uncertainty. And many people already feeling the pressure of loss of income and increased conflict at home are looking for some relief.

Two Lessons
There are two at least two lessons to be learned during this time of social distancing and stay-at-home orders.  The first is that we have to find new ways to get things done.  We still need to do all the things we did before, but we now have to find different ways to do it.  People are still people.  They still going to need to eat, to earn a living, etc. and yes- occasionally get out of bad marriages. These things can be delayed for a short time, but eventually, necessity (the mother of invention) will force people to find inventive solutions.  The other lesson is that we are all connected.  What affects one, affects the many.  Whether it is a stimulus check, or a neighbor who sewed a mask for you, we are re-learning that we don't have to go it alone.  The same holds true of getting access to the justice system.  Trying to do your own divorce is daunting but you should not let that prevent you from getting the relief you need.  You should think out of the box and work with professionals who are willing to come up with cost effective and creative solutions. 

Certain Texas divorces or other Texas family cases benefit from the use of a private investigator. Investigators can be very helpful in obtaining documentation regarding lifestyle, assets, income, roomates, friends, paramour and parent s including their criminal history, work history, demonstrating hidden affluence, locating and interviewing witnessess, and obtaining information regarding abuse or neglect.


The best way to select and hire an investigator is to find someone referred to you by a lawyer. A next best way would be to simply look in they yellow pages- these investigators typically do more family work. At a minimum, the investigator should have a Class A (investigatons only) or a Class C (investigations or security) license from the Texas Department of Public Safety- Private Security Board. Beyond that, there are several advanced certifications which may distinguish one investigator from another such as the designation of Texas Certified Investigators (TCI) or the national designation of Professional Licensed Investigator (PLI) or Certified Legal Investigator (CLI).


When hiring a private investigator, costs are always a consideration. Costs for a private investigator in Texas varies widely across the state. Rates can range from $35 to $150 per hour. A recent survey of the Texas Association of Licensed Investigators found that the average hourly rate of approximately $85.00 per hour with mileage rates at $0.40 per mile. you have the right to a written contract at the time you are contracting the service. The average for an infidelity surveillance will typically run about $3500 to have a real chance of likely success.


In every Texas family law case, be it divorce or a suit affecting the parent-child relationship, there a issues of both law and fact. In cases where it is called for and a private investigator is employed, then the facts become clearer. And everyone wants the the outcome of their case dependent on solid, verifiable facts, as opposed to the vague and uncertain outcome that is dependent on your attorneys’ art of persuasion. Even the greatest attorney in the world wants facts on their side and hiring a private investigator may be the best way to get those facts brought to light.

​Many Americans are eagerly anticipating the federal relief check that was promised as part of the $2 trillion economic stimulus package passed on March 27.  The legislation, which is the largest aid package in U.S. history, will provide financial assistance in the form of direct payments to most Americans in the amount of $1,200 for single individuals, and  $2,400 to married couples earning up to $150,000 with an additional  $500 granted per child.

But if your marriage is in the process of being dissolved in one of the estimated 806,400 divorce cases that are currently going on in the United States, then the question arises- who gets the check?  

To answer that question you first have to look at your most recent tax filing.  The stimulus checks, which are scheduled to go out within three weeks, will be distributed based on your 2019 tax return if you filed already.  If not, your payments will be distributed based on your 2018 tax return.  For various reasons, many divorcing couples have not have yet filed their returns for 2019, so the IRS will be looking at the return from 2018 for information.   This is very significant for divorcing couples because it is likely that their situations have dramatically changed since the 2018 return was filed.  

Not only will the previously filed tax return be used to calculate the amount of the stimulus checks,  but it will also determine were the checks are deposited or mailed.  In past government stimulus payments in 2001 and 2008, the money was delivered both through direct deposits and by physical checks in the mail.  The problem for divorcing individuals is that who has control of the bank account and who is living at the last known address will likely have changed since the last filing.  If they are involved in a high-conflict case, the spouse who does not have control of the account or the residence runs the risk that the other spouse will take the check and spend it for themselves before there can be an accounting for it.

A proposed solution may be to immediately file or amend your 2019 taxes to "married filing separately" so that you receive a separate check from the IRS.  However,  I don't think that is a reasonable option at this point.  Although the IRS has extended the federal deadline for tax returns from April 15 to July 15, it is uncertain that your filing will be processed by the IRS in time before the checks are distributed.   In addition, filing separately usually results in high overall taxes which may offset a large portion of the benefit of the payment.  

Another point of dispute may arise in who gets the $500 per child portion of the check.  Although there is no official guidance on this, the most likely answer is that it will be the person who claimed the child on the last tax return.

The ultimate answer to who gets part, or all of the stimulus check in a divorce is that the check will be characterized the same as any other marital asset is.  In the State of Texas, the stimulus payment will be considered community property and therefore subject to division by the court.  If you are in the middle of a divorce case and you want to get on top of this issue,  an attorney can help you draft a temporary order that will prevent the stimulus payment from becoming yet another problem to deal with in your divorce.  Or if your spouse succeeds in temporarily swiping the benefit and taking the check for themselves, then an attorney can help you balance the equities on final orders by convincing a judge or jury to award you a larger share of other available property, if possible.

The amounts of this stimulus check may not be worth fighting over in court.  The best solution is to try to come to an agreement - either to fairly divide the check now, or to hold on to it pending the final division of the whole marital estate.  But there is talk of future stimulus checks of larger amounts being distributed in the future based on how long the coronovirus pandemic keeps hurting the economy.   A well crafted temporary order now may prevent future check disputes when the financial consequences of who gets the stimulus check are higher.

If you have any questions about this topic or any other issues regarding your Houston/Galveston area divorce, then please contact us.  For a limited time we are offering free virtual consultations to anyone going through a divorce or custody issue.  Visit us at www.thepalmerlawfirm.com to schedule. 

The ground-breaking Supreme Court case of Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which links the right to marriage as a personal right protected under the U.S. Constitution Has sent ripples throughout the family law world. The ramifications of this case will be talked about for many years to come and just what its limits are will be the topic a family law for just as long.
 
As lawyers , it's our job to take prior cases end apply them to the cases we have before us.   But sometimes this effort stretches thing a bit far.
 
This was the case of Lecuona versus. Lecuona , No. 03-17-00136-CV  out of Travis County.  The case was appealed all the way up to the U.S. Supreme Court, which refused to hear the case.
Shawn Hall Lecuona appealed from a final divorce decree that ended her marriage to Mark R. Lecuona.
 
Mark was the petitioner in the original case, and the sole ground for divorce on which he relied, and which the district court subsequently found, was the no-fault "insupportability" ground.  Insupportability is the basis of the “no-fault” divorce scheme in Texas and is by far the most common ground plead for in Texas divorces.
 
Shawn opposed the divorce on religious grounds and urged that Mark's suit, and particularly the no-fault "insupportability" standard on which he relied, unconstitutionally infringed her protected interests in what she viewed as an immutable "blood covenant" among the couple and the Almighty.
In her appeal, Shawn relied United States Supreme Court's decision Obergefell v. Hodges, which struck down state prohibitions against same-sex marriage as a violation of a "right to marry [that] is a fundamental right inherent in the liberty of the person" and protected by the Due Process and Equal Protection Clauses of the federal constitution. 
 
She said that Obergefell translates into a constitutional restriction against Mark using Texas's no-fault divorce law to end a marriage. She argued that for her professed religious reasons, she desires to stay married and because this is a sincerely held religious belief, Mark cannot divorce her.
 
So the question is:  Does the State of Texas violate a person’s First Amendment’s freedom of religion if it grants a divorce despite a person’s sincere religious belief that marriage is a sacred bond that cannot be broken.
 
No.
 
The Court held that Obergefell, whose analysis is rooted in the Supreme Court's view of personal liberty, does not, either directly or by implication recognize what would effectively be an affirmative constitutional right of one spouse to compel an unwilling other spouse to remain married.
 
The Court also points out that to NOT grant a divorce because of religious grounds of one spouse is a violation of the other spouse's liberty to NOT hold that believe that liberty and state  divorce laws.
 
The Court also pointed out Shawn's theory represents a significant and novel expansion of Obergefell .  People are trying to use Obergefell in many novel ways but the courts have stated that Obergefell is limited in it’s scope and doesn’t open wide a door to all kinds of novel claims that run contrary to firmly established principals.
 
For example in Pidgeon v. Turner, 538 S.W.3d 73, 86-87 (Tex. 2017) the Texas Supreme Court observed that Obergefell "did not address and resolve" the issue of "whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples" or invalidate Texas "Defense of Marriage" enactments, "'[w]hatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . .'" (quoting Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017), and citing other authorities recognizing Obergefell's limited scope)).
 
In general the lower courts must use what the higher courts have said at face value and not craft novel extensions to suit a desired outcome.
 
In  Ex parte Morales, 212 S.W.3d 483, 488 (Tex. App.—Austin 2006, pet. ref'd) in a novel constitutional challenge to Penal Code Section 21.12, through that "as an intermediate state appellate court, we must . . . defer to the authoritative pronouncements of higher courts that currently define the scope of the constitutional principles we apply here" (citing Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 564-65 (Tex. App.—Austin 2004, no pet.))).
 
Covenant marriages are a perennial bill offering in the Texas State legislature but year after year it fails to pass. Covenant marriages would make it more difficult for married couples to get a divorce by adding additional requirements , waiting time , fees or other impediments to getting a divorce. Only three states so far have adopted covenant marriages and the data shows that very few residents within those states elect to enter into "covenant marriages". One of the significant reasons why a covenant marriage statute would be difficult to pass is because of the controverting liberty issue cited in the Lecuona case. Specifically, that the state cannot impose religious conditions on a either spouse's right to be married or not to be married.
 
Another aspect to consider are  two new statutes under the Texas government code that went into effect in 2017. These statutes are commonly known as "anti-Sharia law" (although they were not specifically named as such to avoid then being challenged in court) also limits the ability of the State to put religious conditions on obtaining a divorce.
 
Sections § 22.0041 and § 22.022 of the Texas Government Code, states that “litigants in actions under the Family Code involving a marriage relationship… are protected against violations of constitutional rights and public policy in the application of foreign law.”

Foreign law as the proponents of these statutes have attempted to make sure do not apply in Texas courts was the religious based domestic laws of Muslim countries or Sharia law. Could these new statutes be used to further prevent religious conditions being imposed I'm getting a divorce? I think that is interesting food for thought.
 

 

One thing this election cycle has done is to bombard the public with negative impressions about the American democratic process.  Your children are absorbing all of this in as well- and getting a very negative first impression of our how our nation elects our representatives in government.  But negativity is not the whole picture.  We know that there are many honest and good citizens who seek office with the sincere motivation to make our nation a better place.  And while cynics and pundits may make headlines by gleefully sneering at the side shows in politics, the silent majority of Americans are hopefully expectant that election day will be the beginning of a better time.  For all it's faults, most Americans take great pride in what this nation is, and what it potentially could be.  Deep down, most of us have faith that our democratic process is the best the world has to offer, and we have feel that our elections will make us even stronger nation.

As a patriotic parent, you want your children to love America as much as you do.  So how can you teach your children about American democracy without them being permanently affected by the negativity they are seeing in the media?  Here are five 'winning' things parents can do to make election day special and give kids a positive view of our democratic process:

     1.  Be a Role Model of Involvement
Volunteer in a political campaign and give your kids a firsthand look at how their democracy works by getting them involved, too.  Start by giving them a candidate's T-shirt, cap or button.  Plant a campaign sign in the front yard.  They'll have lots of fun going door-to-door with you, handing our flyers, or working in campaign headquarters.

     2.  Watch the Debates Together
Watch the candidates' debate on TV and ask the kids who they thought won.  For older kids, you might consider attending the debate, if open to the public.  If you've got a houseful, organize your own "political debate" at the dinner table.  For once, the kids can actually argue with your blessing, but it is a great opportunity to model that you can argue a political point, but still love and respect those with different views.

     3.  Play Politics
Children play as a safe and fun way to prepare themselves for future adult roles.  Encourage them to role play about politics.  Suggest to your child's teacher that the class have a mock election at school.  Kids Voting USA offers special age-appropriate Election Day activities.  Classes from kindergarten through high school can exercise their "right" to vote through this hands-on learning experience.   Find out if there is a Kids Voting USA affiliate near you and if such a program can established at your children's school.  It's non-partisan- and fun.

     4.  Get Out The Vote With Your Kids
On Election Day, involve your kids in get-out-the-vote activities, and then throw your own election night party at your home for friends, neighbors, and the kids.  Or, if you are working for a candidate, let your kids join the party at campaign headquarters to watch the returns come in.

     5.  Kid Candidates
Got a kid with political ambitions?  Encourage him or her to run for school office (even if you have to handle the tears that might go with the agony of defeat).  In order to run a campaign, they will need a campaign manager, a snappy campaign slogan, and a platform.  Make the campaign a family affair with everyone pitching in to make posters and buttons as well as being resident guinea pigs for the candidate's speech practices.  Running for office is a great way to understand the challenge and excitement of the democratic process.  It will give your child new respect for candidates who put themselves on the line this way.