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.

   

Modern Texas Lawyers are mobile and agile. They are doing a lot of advocacy right from their cell phones and are always on the lookout for applications that will make them more efficient. Here are the top five practical apps that can help Texas Lawyers on the go.

5. Audible.
Whether it is keeping up with the latest news or reading a business book, the long stretch of Texas roads can be opportunities for the mobile lawyer to get up to speed. Audible is the best and largest audio book/newspaper/magazine source. Stream or download to your phone, plug in to your truck's audio jack and you are good to go!

4. Texas Constitution and Statutes.
It's not a code book, just the law. A great asset when you need to quickly throw down code numbers.

3. Calendars by Readdle.
The best I've found. The monthly view actually displays text- even on your little phone screen. Invaluable when you are standing at the bench picking an entry date that doesn't interfere with you son's baseball game.

2. Hourskeeper.
You wanna get paid don't you? This app tracks your time from your phone and generates serviceable invoices directly from the app that you can email or print. This ain't Time Slips. It's just drop dead simple- which what I love about it.

1. Dropbox
All your files. At any time. At any place. Need I say more?

Apps come and go and lawyers have to keep looking to find the best ones. Of course there are all the considerations about security and confidentiality in the use of apps- but that's a topic for different day.

Texas Rule of Civil Procedure 21c Privacy Protection for Filed Documents has had a substantial impact on family law cases.

A divorce with children could, and oftentimes will, have filings that include all of the types of sensitive data this rule addresses. Rule 21c became effective January 1, 2014, and it states:

(a) Sensitive Data Defined. 
Sensitive data consists of: (1) A driver’s license number, passport number, social security number, tax identification number, or similar government issued personal identification number; (2) a bank account number, credit card number, or other financial account number; and (3) a birth date, home address, and the name of any person who was a minor when the underlying suit was filed.

(b) Filing of Documents Containing Sensitive Data Prohibited. 
Unless the inclusion of sensitive data is specifically required by a statute, court rule, or administrative regulation, an electronic or paper document, except for wills and documents filed under seal, containing sensitive data may not be filed with a court unless the sensitive data is redacted.

(c) Redaction of Sensitive Data; Retention Requirement.
Sensitive data must be redacted by using the letter “X” in place of each omitted digit or character or by removing the sensitive data in a manner indicating that the data has been redacted. The filing party must retain an unredacted version of the filed document during the pendency of the case and any related appellate proceedings within six months of the date the judgment is signed.

(d) Notice to Clerk.
If a document must contain sensitive data, the filing party must notify the clerk by: (1) designating the document as containing sensitive data when the document is electronically filed; or (2) if the document is not electronically filed, by including on the upper left hand side of the first page the phrase: “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.”

(e) Non-Conforming Documents.
 The clerk may not refuse to file a document that contains sensitive data in violation of this rule. But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the redacted, substituted document.

(f) Restrictions on Remote Access.
Documents that contain sensitive data in violation of this rule must not be posted on this rule. Texas Family Code Section 102.008 “Contents of Petition” subsection (a) requires that the petition and all other documents filed in all suits affecting the parent-child relationship, except suits for adoption, be entitled “In the interest of______________, a child.” Section 102.008 (b) requires that petitions include the name and birthdate of the child. If the child’s name must be in the title of all documents filed in a suit affecting the parent child relationship, and the child’s name is sensitive data, aren’t all filings going to include sensitive data? It is entirely possible that a Judge could reach that conclusion.

 Many attorneys use the child’s initials in place of the child’s full name in the style of all documents filed after the original petition. However, this would not comply with a strict interpretation of Texas Family Code Section 102.008 (a). It is best that you contact the court clerk to determine if the Judge in your case has a stance on this issue and if so, how they want you to style your filings. Texas Family Code Section 105.006 (a) lists the information that must be included in a final order in a suit affecting the parent child relationship, except for terminations and adoptions. This information is as follows:

(1) the social security number and driver’s license number of each party to the suit, including the child, except that the child’s social security number or driver’s license number is not required if the child has not been assigned a social security number or driver’s license number; and
(2) each party’s current residence address, mailing address, home telephone number, name of employer, address of employment, and work telephone number, except as provided by Subsection (c). This means that in all final orders in suits affecting the parent-child relationship, other than termination and adoptions, there will be numerous types of sensitive data.
​
 Many attorneys will redact social security numbers, and driver’s license numbers and leave only the last three to four digits in the final order. A strict interpretation of Texas Family Code Section 105.006 (a) and Texas Rule of Civil Procedure 21c (b) is that the driver’s license numbers and social security numbers are required by statute and therefore should not be redacted. Again, the best way to determine how to address this situation is by calling the court clerk to determine the court’s preference. 

In the old days, a spouse who was suspicious that their partner was hiding assets from them would hire a private investigator in hopes of turning up information, lawyers say. But now, funds are transferred electronically and many clients never set foot in the offshore jurisdiction where they have their accounts. So today, most lawyers wait for the court to order ‘‘discovery,’’ a process in which both parties exchange information pertinent to the case, and then look for instances where assets have mysteriously disappeared.

Experts in the industry say that Americans are still hiding money offshore from litigious spouses and tax officials alike, but that it is getting harder for them to do so. In the last few years, the Obama administration and the Treasury department have erected staggering penalties for those who hide their wealth offshore, as well as many new reporting requirements.

A federal judge in Mississippi ordered the state to drop its ban on adoptions by same-sex married couples, saying Wednesday that it doesn’t pass muster under the Supreme Court’s 2015 landmark marriage ruling.
The law was said to be the last of its kind in the U.S. But efforts to skirt the full implementation of the Supreme Court’s decision in Obergefell v. Hodges using laws described as “religious freedom acts” remain alive and well in a number of Republican-led states along with measures permitting discrimination against transgender people.
Indeed, the Mississippi legislature has just approved a bill that says, among other things, public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman and that the state government can’t prevent clerks from refusing to license a same-sex marriage. The measure is currently in a conference committee to work out differences between state House and Senate versions.
The state’s prohibition on adoption by same-sex couples was enacted in 2000, as state and federal courts began the process of legalizing same-sex marriage, and reads, simply, “Adoption by couples of the same gender is prohibited.”
It was challenged by four lesbian couples wishing to adopt children either privately or through the state’s foster care system.
Judge Daniel P. Jordan III, of the U.S. District Court for the Southern District of Mississippi, called the state’s defense of the law “tepid,” based mostly on issues of standing, and which agency or part of government could or could not be sued.
While Jordan said the Supreme Court’s Obergefell decision did not specifically involve adoptions, “the Court extended its holding to marriage related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts.” Jordan cited this passage of the Obergefellopinion, written by Justice Anthony Kennedy: “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.”