New Texas Law
Determining answers relating to child custody can be one of the most difficult decisions in divorce proceedings. A recent change in Texas law has removed some obstacles to resolution of this problem. In 2009, the Texas legislature amended the joint conservatorship law. The new law now allows a court to accept a parent's proposed joint conservatorship plan even if it does not grant one parent the exclusive right to determine where his or her children will live, so long as the plan dictates that the children's primary residence will be within a specified geographical area. Although this change in the law may seem small, it can make a big difference in the highly charged conflict of many divorces.
Prior Statutory Guidelines
Until recently, the statutory guidelines for jointly managed conservatorship required the proposed plan designated which parent would determine the child's or children's primary residence. This power would allow only one parent to make the residential decision.
Parents would argue of this one exclusive right and not really understand what they were arguing over. Just the word "exclusive right" made one parent feel like the other parent was considered the "better" parent. This one issue would cost thousands of dollars in attorney fees. With the change in the law, the legislature and courts are hoping this will reduce the conflict. However, the judges are already wondering how this issue will be resolved now. Sometimes with a new law goes into effect, there are a host of new problems to be resolved. That is why it is important to have an experience attorney handle your most valuable asset, your children.
Do I Really Need a Will?
The excuses are usually, "I don't really own anything," and "Preparation of a Will is too expensive." If you own a car, house, or dog, you own something. Without this piece of paper, there are situations where your children may inherit a share of your family home. Minors do not have a legal capacity to manage real estate, so a court would then need to set up an Administration. Your spouse would not be able to refinance, sell the home, or even rent it out, without a court order. Without this important piece of paper, a Judge, may be required to decide for what purpose funds may be distributed to your children. It is hard to imagine a piece of paper could mean so much to a family.
In Texas, a married couple has community property which is owned one-half by each spouse. Community property is all property acquired during marriage, other than property acquired by gift or inheritance. Where it becomes complex is the classification of property. Is it community or separate property? If the deceased has children from a prior marriage, then the spouse retains her/his one-half share of the community property, and the decedent's one-half share of the community property is divided equally between the children. This is when minors inherit a share of the real estate.
If you are married and have the same children as your spouse, one-third of your separate personal property passes to your spouse and two-thirds to your children. Your family home may be classified as separate property if it was purchased before marriage or it was purchased with a gift for a down payment. There are other cases where the family home may be considered separate property. If the property is classified as separate, your spouse may just have the right to use it for life.
As you can see, without this piece of paper, title to your property may be shared by several, including minors. This can be prevented if you have this simple piece of paper prepared.
A Little Known Law Which Can Save Thousands of Dollars
Our laws change and the public usually does not learn of the changes until years later.
"We all have learned over the years that one of the greatest developments during our life time in the area of litigation is the dispute resolution process known as mediation," states former district court judge, Vicki Pinak. "However, few know about a law created in 2001 which helps families resolve their disputes during the divorce process without the fear of a Court making the rules. This law is known as Collaborative law," states Pinak. Vicki Pinak also noted that over 90% of litigation and family law cases settle anyway. Pinak asks, "Why do the parties spend so much time and expense getting a case "ready" for trial?"
Pinak explained Collaborative "family" law as a process in which the parties and their attorneys agree to make a good faith attempt to reach a settlement without court intervention. Pinak states, "This is a legal process which allows the parties to dissolve their marriage in a way that considers everyone's needs and minimizes conflict." The Family Law Judge will enter the Final Divorce Decree after the issues have been resolved by the parties and their attorneys.
This process provides less risk of losing control of the case due to emotional meltdowns and a continued analysis by the attorneys of the cost vs. the benefit to the parties. "I truly believe that the people using the Collaborative law process are giving their families the greatest opportunity for having a happy and healthy future," states Pinak.
Vicki Pinak moved to Fort Bend County is 1972 and graduated from Dulles High School. Pinak has been practicing law for 20 years and is an established mediator and Arbitrator. To become a member of a panel with the American Arbitration Association one must go through an interviewing process and be invited to be an Arbitrator (Judge) in Arbitrations. Pinak was appointed as a panel member of three panels in the areas of employment, construction, and commercial cases.
GENDER BIAS INFORMATION:
(From Texas Center for Legal Ethics & Professionalism website)
For example, the task force made the following findings:
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Gender stereotypes and gender-biased treatment toward litigants and counsel of both sexes have a negative impact on the litigation process and may affect case outcome. Nine out of 10 female law professionals responding to a State Bar survey reported being the target of at least one incident of gender discrimination in the courtroom during the preceding three years.
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Women litigants often experience hostile, demeaning, or condescending treatment from attorneys and sometimes from judges.
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Judges rarely reprimand counsel or court personnel whose behavior or comments exhibit gender bias.
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Discriminatory treatment of attorneys affects their credibility and may have serious consequences on their ability to advocate effectively for clients.
Gender bias can be subtle and unintentional. This guide is designed to help judges, attorneys, and court personnel identify gender bias in our courts. Sometimes we need to be reminded that elimination of gender bias will promote "equal justice under law."
Recognizing Gender Bias
A striking finding of the task force was the significant gap between the perceptions of men and women concerning the extent of gender bias. Although a majority of male attorneys and judges surveyed by the task force believed that bias against women does exist, most felt that it exists in only a few areas and involved a few individuals. In contrast, more than half of the women respondents indicated that bias against female litigants not only exists, but that it is widespread. Most women also said gender bias is subtle and hard to detect rather than readily apparent.
What, then, is gender bias?
Gender bias may be defined as the predisposition or tendency to behave toward people mainly on the basis of stereotypes about their sex.
Placing a burden on one sex that is not placed on the other.
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Holding women attorneys to different standards than their male counterparts; assuming competence on the part of male attorneys but expecting female attorneys to prove their ability.
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Expecting more credentials or greater qualifications before qualifying women as expert witnesses than those expected for men in the same profession.
How Gender Bias is Manifested in the Courtroom
As To Litigants: The Task Force found that women litigants often experience hostile, demeaning, or condescending treatment in the courtroom, and that male litigants are negatively affected by gender stereotypes both in the family law system and in the criminal justice system. Gender-biased behavior may include:
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Calling female litigants by first names while addressing male litigants by title (Mr., Dr., Professor).
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Making condescending references to women's roles, such as referring to the litigant as "just a housewife."
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Expressing surprise upon hearing that a father is seeking custody of his child.
In a gender-neutral court, the claims of men and women litigants are considered equally legitimate and are treated accordingly. A gender-neutral court strives to free the litigation process from predetermined assumptions regarding the relative roles and attributes of men and women
As To Court Personnel: Gender bias in the treatment of court personnel may include:
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Assuming that a female clerk is subordinate to a male clerk.
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Addressing female court personnel by terms of endearment or diminutives.
In a gender-neutral court, court personnel are viewed as providing valuable service to everyone using the court and are accorded respect and courtesy. It is unfair to assume that employees' authority or ability to assist is related to their gender.
As To Lawyers: The task force heard of numerous incidents in which women attorneys were treated with rudeness, condescension, or contempt. Treating male and female attorneys differently solely because of gender is not only unfair to them it can undermine their credibility and may seriously impact their ability to be an effective advocate for clients. This disparate treatment undermines the justice system's goal of providing equal justice for all. Treatment that can sabotage the goal of fairness includes:
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Referring to female attorneys by diminutives (honey, sweetie, little lady, etc.) or first names while addressing male attorneys as Mr. [last name].
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Looking to male attorneys to provide information to the court and ignoring female attorneys.
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Failing to recognize and respond to women lawyers to the same extent and in the same manner that male lawyers are responded to and recognized.
In a gender-neutral court, the judge does not engage in this behavior or tolerate this behavior from attorneys or court personnel. Good attorneys, regardless of gender, are seen as competent advocates. Women attorneys in a gender-neutral court are not expected to be more passive in their advocacy or more tolerant of interruption or reprimands than men.
As To Witnesses: The task force found that male and female witnesses often experienced disparate treatment. Imagine being haled into court for the sole reason that you have information important to a case, and then being treated in a hostile, demeaning, or condescending manner! Such behavior may include:
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Treating women in such a way as to indicate that their opinions or statements are unimportant, irrational, or unduly emotional.
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Referring to female witnesses by first names, terms of endearment, or diminutives.
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Addressing female expert witnesses as Miss/Mrs./Ms. rather than by an earned title, such as Doctor/Professor that denotes an area of expertise
In a gender-neutral court, credibility of witnesses is judged by the same standard for women and for men. Treatment of female or male witnesses that suggests that they are not worthy of belief solely because of their gender thwarts the goal of gender fairness. In a gender-neutral court, expert witnesses are judged on the basis of their qualifications and not their gender. Sometimes attorneys will explain that referring to witnesses in ways that undermine their credibility is nothing more than trial tactics. Trial tactics based on or exploiting gender bias are not tolerated in a gender-neutral court.
As to People From Diverse Communities. A court sensitive to "equal justice under law" treats everyone entering the court with dignity and respect, regardless of gender, racial or ethnic background, disability, sexual orientation, religion, age or ability to speak English.
A gender-neutral court is careful not to make assumptions about people's roles in the courts based on any of these factors.
Some Suggested Ways To Avoid Gender Bias
1. Address all persons in the courtroom by last names and appropriate titles:
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Counsel or attorney
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Mr./Ms. (unless Miss or Mrs. are requested)
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Dr. or Officer or Representative/Senator
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Jurors or Juror #1
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Presiding Juror
To avoid differential treatment or even the appearance of differential treatment, address both women and men in the same formal or professional manner. Always use a consistent form of address such as "Attorney X" and "Attorney Y." In private conversation or social settings, first names and other informal address may convey a friendly or casual attitude; in the public settings where courthouse business takes place they suggest a lack of respect.
2. Address mixed groups of women and men with gender neutral or gender inclusive terms:
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Colleagues
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Members of the jury
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Members of the bar
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Counselors
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Ladies and gentlemen
Conversation that creates an exclusively masculine or feminine atmosphere should be avoided so that everyone is included in the justice system.
3. Use gender neutral language in all court correspondence and jury instructions.
Use "Dear Counsel" when not using the individual's name and where appropriate include reference to he/she, him/her. The plural (witnesses/they) is helpful.
4. Avoid terms of endearment and diminutive terms in courthouse interaction, as such terms imply a lower status:
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honey, sweetie, dear, doll, babe.
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little lady, pretty girl, young lady, lady lawyer (in reference to adult women).
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boy, son(in reference to adult men).
These terms can demean or offend even if the speaker does not intend to do so. Courtroom protocol requires the highest degree of professionalism and courtesy.
5. Avoid comments on or references to physical appearance, such as:
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body parts
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pregnancy
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dress style
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hair style
