What to do if Child Support is Still Being Withheld After Kids are Adults

We helped a former client today who learned that his employer was continuing to withhold child support payments from his check, even though his children were “emancipated” (that is, they are at least 18 years of age, out of high school, and not disabled). It occurs to me that other folks in Texas might find themselves in this position, also; so, I am writing about that situation today.[1]

The first step in addressing this issue is taking a look at the Withholding Order. Does it explain (as it should) that child support is to be withheld for only so long as no child is
“unemancipated?” (“emancipation” is explained, above). If it does, then you should contact your Human Resources Dept. to discuss the withholding with them. For smaller companies, especially those which operate in just Texas, this may be effective. Larger, more geographically diverse organizations, often require that withholding for child support continue until such time as they receive a new court order that expressly terminates that withholding (this is silly, in my opinion, because the withholding order, itself, mandates the termination of the withholding when the kids age-out; nevertheless, bureaucracies might not care, and insist upon their “policies” being followed, which might require a new order). Since suing your employer to enforce the terms of the withholding order seems unlikely to be a good strategy (for obvious reasons), we will need to try to satisfy their policies.

When another order is required by your employer, we consider contacting the parent (who is receiving the wrongly withheld child support), to see whether s/he will agree to  an order terminating the child support withholding.[2] If so, then a motion can be filed, requesting termination of the withholding; and then, an Agreed Order Terminating Withholding for Child Support prepared, signed, and submitted to the court. Next, we contact the Court Coordinator, for your particular court, to see whether the court will require a hearing (usually, no hearing is required, unless another party is involved in the case, such as Child Protective Services). If no hearing is required, then the Judge should sign your order upon our submission of it.

If a hearing is required, then we will set it, working with the Court Coordinator, for available court settings (dates and times for hearings). Once it is set, then all parties (usually, just the other parent) must be formally notified of the setting. Then, at the time of the hearing, we appear with you, present your testimony, and our argument, regarding why termination should end, and then, request the Judge sign the order.

Once we have a signed order, we will contacthe District Clerk’s Office to request that the order be sent to your employer. They will need to have a completed form with various information about your case, your employer, and the order. And, there may be a fee payment required.

Finally, the order should be sent by the District Clerk’s Office to your employer. And, the withholding should terminate.

We hope that this information has been helpful.

Until next time, keep on loving those kiddos!

 

Best regards,

 

David

[1] We are licensed to practice law in Texas, and are familiar with the child support withholding process in Texas. Accordingly, our comments apply only to those who have a child support withholding order issued by a Texas state court

[2]  Some parental relationships are toxic ones. When we are dealing with one of those, in which the parents can’t/won’t cooperate about anything, then we skip this step.

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Can I appeal my Divorce Case Judgment?

Today, we will discuss your options, when you are dissatisfied with the result of your divorce case.

Initially, it bears repeating that in most (perhaps, all) U.S. jurisdictions, fewer than 5 percent (5%)of the filed cases make it all of the way through trial. And, of those a very small percentage are appealed. So, the odds of your having an appeal are small. Nevertheless, appeals do happen.

We have done appellate work in Texas for more than thirty (30) years, so we have learned a few things about them. To begin with, it’s important to note that an appellate court is not going to reconsider the merits of the case, and (perhaps) reverse the judgment of the trial court, merely because one party is not satisfied with the case result. Instead, the appealing party (the “Appellant” in Texas state law practice) must show that the judgment of the trial court is based on reversible error. Let’s discuss this a bit.

In order for reversible error to exist, the appealing party must show (in Texas) that:

  1. the court made an error in its rulings; and, that error was of such magnitude that it probably caused the rendition of an improper judgment; or,
  2. the court abused in discretion on matters for which it has discretion. Those discretionary matters include issues such as child custody, and the award of Community Property[1]) are not going to be found to be error, unless the court’s judgment is found to be an abuse of that discretion. In Texas, that means that the court acted arbitrarily or unreasonably; or, without reference to guiding rules or principles. That is (obviously) a high standard to meet.

In regard to the first of those, one or more erroneous rulings, typically on a matter of law, must be shown. For example, incompetent evidence is admitted; or, improper Jury Argument is made (if your case, in fact, has a Jury). Then, it must be shown that the Appellant properly preserved that error, such as by making an objection; obtaining an adversary ruling (a ruling against the objection; and, (perhaps) offering proof of excluded evidence.[2] That establishes error. Next, the more difficult task of showing that the error is reversible must be shown.

The presumption in Texas is that any error committed by the trial court is “Harmless.” In order to overcome that presumption, the Appellant must show (again, in Texas) that “the error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting the case to the court of appeals. (TRAP 44.1).”

Item Number 2 rarely occurs, in our experience. So, the focus is on Item 1, above. To show that an improper judgment resulted on account of the error, that error must be of such magnitude that it likely overcomes the cumulative result of the other case elements. So, we are not talking about trivial matters. Errors of this kind are matters such as admitting expert testimony (and, likely opinions) that were not shown to be relevant and reliable. Or, excluding important evidence (documents, audio-visual materials, or testimony, e.g.) that would likely significantly alter the case result. That is not an easy task.

Appellate work is specialized and highly technical. If you believe that you may have an appealable issue, please contact a qualified appellate lawyer as soon as possible. There are time limits which, if missed, can end the option of appealing a trial court’s judgment.

That’s all for today: keep on loving those kiddos (Grown-ups, too)!

 

My best,

 

David

 

[1] Texas is one of just eight (8) Community Property States; so, this concept of “awarding Community Property” does not apply to the other states and territories on the United States)

[2] This is a general discussion The technicalities of error preservation are beyond the scope of this post.

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Premarital Property Agreements in Texas

It is our experience that many folks do not understand just how useful and powerful Premarital Property Agreements (PPA) can be in Texas. We hope to bring you some helpful information in that regard today. Accordingly, here is a brief, introductory discussion of PPA:

To begin, it is important to know that Texas law broadly supports the use of marital property agreements, both those made prior to marriage, as well as those made during marriage. Today, we will discuss Premarital Property Agreements. We will later write about marital property agreements made during marriage. So, please check back later for information about those.        

Next, the Texas Family Code expressly provides that:

  1. “(a) premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration (i.e., without the exchange of anything of value, other than the terms of the agreement itself); Texas Family Code Section 4.002
  2. The parties are authorized to make a wide range of property agreements, provided that they are not in violation of public policy; and which do not purport to adversely affect the right to child support.

Due to that incredible breadth of that authority, PPA can completely change how people’s assets and liabilities will be divided upon death or divorce. For example, many of our clients who have been previously divorced want to ensure that there will be no fight about assets (such as retirement benefits or home equity) either upon their death, or upon another (potential) divorce. They may also wish to agree that there will be no Community Property created; but rather, that each spouse will own his or her earnings, and the property purchased with those earnings, as Separate Property. (Texas Family Code Section 4.003). Reimbursement claims can also be affected or eliminated by these agreements. (Texas Family Code Section 3.410). When done correctly, there is nothing left to divide nor allocate upon a party’s death or divorce, unless the parties wish to create some joint property, by the terms of their agreement.

  1. These types of agreements become effective upon marriage; (Texas Family Code Section 4.004).
  2. Importantly, these agreements may be amended during marriage (again, without consideration) in writing, signed by the parties. (Texas Family Code Section 4.005)

To support the use of premarital property agreements, Texas law favors the enforcement of premarital agreements voluntarily entered into by parties. Accordingly, the only way for a party to such an agreement to avoid that enforcement (assuming that the agreements become an issue in a subsequent marriage dissolution, such as a divorce, action between the parties) is for that party to prove that either:

  1. It was not voluntarily signed by the party seeking to prevent enforcement.

or

2a. The agreement was unconscionable when it was signed; and

2b. A fair and reasonable disclosure of the property or financial obligations of the other party was not made; and

2c. That disclosure was not waived by the parties to the agreement; and

2d. The party seeking to avoid the enforcement did not have, and reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Unless those very narrow exceptions are proved, then the agreement will be enforced by the court, if requested. The Supreme Court of Texas has held that

“Recognizing (additional exceptions to enforceability, besides those two listed above) would judicially expand (the very limited exceptions provided by Texas law) and run afoul of our longstanding preference to protect the freedom of contract by enforcing contracts as written. Texas has a strong public policy favoring freedom of contract that is firmly embedded in our jurisprudence. We have repeatedly recognized that parties shall have the utmost liberty of contracting. And that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts. We rarely find a contract unenforceable on public policy grounds. Premarital agreements are no exception.” (internal quotations omitted) (emphasis added). In re Marriage of I.C., 551 S.W.3d 119, 124 (Tex. 2018).

Since there is so much that can be done through the usage of a PPA, it is recommended that, prior to your marriage, you consult with an attorney who is sufficiently experienced with them, if you are thinking using a Premarital Property Agreement.[1] I advise my clients to contact us as soon as a marriage is contemplated. We will want to have adequate time to discuss matters with our client; draft the initial documents; and then, have them reviewed by the other party’s attorney. Wedding Planning is stressful enough already, without adding an unnecessary, time-crunch element to them!

That is all for today. Please check our other blog posts and return from time to time to see newer ones.

[1] Please remember that other property agreements can be made during a marriage.

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Can CPS Terminate Parental Rights Based on Old Events?

As always, I can give advice only about cases pending under Texas law, since I am licensed within only that state. CPS in other states may be similar or dissimilar to Texas CPS

The Department of Family and Protective Services (of which CPS is a part) states in their publications that:

“(w)e promote safe and healthy families and protect children and vulnerable adults from abuse, neglect, and exploitation.

Values

Accountable: We act with a sense of urgency to deliver results in an accountable, ethical, and transparent manner.

Respectful: We recognize the value of each person and act timely, value privacy, and treat all with respect.”[1]

In light of those express commitments to act “urgently,” and “timely,” we might expect that if CPS had concern(S) about the safety and welfare of children, then they would focus on recent events involving those children. In our experience, however, that is not always the case.[2]

Our courts have held that allegations of abuse or neglect against a parent must not be too remote in time, if termination of parental rights is sought because of that behavior. And, if you think about it, that makes sense: something that a parent did or did not do years ago does not bear strongly on a child’s current living circumstances. Put another way, “termination proceedings should be based on facts that are fresh enough to apply to the children at the time of the trial.”[3]

Texas CPS has to show not only some act of abuse or neglect by the parent, but also, that the termination is in the current “best interest” of the child. So, something that happened long ago does not provide solid evidence of what is currently in a child’s best interest. Things change over time; kids mature, and their needs change.

So, what are some examples of time periods that our courts have found to be too long past (remote) to support a current termination of parental rights? Well, in our research we have learned that our (Texas) courts have, so far, not defined that time period precisely. They have, however, determined in one case that that five (5) years between the act of abuse or neglect, and the termination trial, was too long. Another Texas court has held that three (3) years was too remote to support a termination finding.

Consistent with those cases, the Texas legislature has enacted legislation in Texas which requires generally (as with most things dictated by a law, there are exceptions to the general rule) that termination cases end within one year of when they are begun. But, of course, even if they meet that standard, the acts of abuse or neglect may still be found by a court to be too remote if the case was not started until a long time after the incident(s) occurred.

So, CPS should investigate a case soon enough after alleged abuse or neglect occurs; and, begin and complete their legal case timely. The burden of accomplishing those things fall on CPS, and not on the parents.

As with most legal matters, it is important to consult with an attorney for legal advice as soon as possible. Once a case has been filed, you may be entitled to have legal counsel appointed for you.

As always, we wish you the best, and hope that all kids are treated with love and respect.

Until next time, please take care of yourself and your loved ones!

 

Best regards,

 

David

 

[1][1] Texas Child Protective Services Handbook,” Section 1110

 

[2] Granted that some things, such as our government’s response to a pandemic, is out of the control of CPS

[3] This language is from a brief that we prepared and filed

 

 

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The Importance of Non-Expert Witnesses in Child Custody Cases

This article, as its name implies, discusses the impact that non-expert witnesses, such as a child’s teacher, doctor, daycare provider, neighbor, or the parents of a child’s friends, can have when a court is considering child custody. If you want to see the specific child custody factors that a Texas Family Court will consider, then I refer you to my earlier post, “How Child Custody Cases are Won (part 1).” I also have written about how to show evidence of those child custody factors in Part 2  and Part 3 of that series.

The Judge of your particular court expects that if your child custody case has made it all the way to a contested trial, then the mother and father of the children in the case disagree—likely strongly—about what custody arrangement is in the child or children’s best interest. And so, your Judge will not be at all surprised when the Mother testifies that she is the better parent, and the Father claims that he is, actually, the better one. We will need to give the court more help in making its custody decision. Often, that “help” comes from the testimony of other folks who have been involved with the children and family.

If the children are school-aged, then their current and former teachers probably have a sense of which parent has been involved in discussing those children’s academic performances, addressing educational issues, and being available during unscheduled events that require immediate attention, such as a school’s early dismissal due to bad weather, or a child’s illness. And, if the parents have been separated during the school year, then those teachers can usually offer opinions on how rested, clean, and prepared those kids are for school when they stay with Mom, and when they stay with Dad. Child care workers can offer similar information about younger children, who are not yet attending school.

If your child participates in one or more organized activities, such as soccer, band, or drama, then the parents of the other children involved in that activity can testify about when, and to what extent, each parent supports the child in that activity; such as by driving the child to practice or performances, attending those events to watch their child, and supporting the group as a whole through volunteer activities and fund-raising, for example. Since the child will probably want to continue in the activity after the custody case has ended, those people can give valuable insight to the court about each parent’s support of their child’s interests.

The neighbors of children usually know if there are “issues” at a parent’s home, such as loud fights, wild parties, or police activity at that home. And, while they often do not volunteer to testify in court, they can be subpoenaed to come to court to testify.

The records at the child’s doctor’s office typically will mention the dates of appointments, who brought the child to that appointment, and the health condition of the child when seen by the doctor. If one parent has been more involved in the child’s healthcare than the other one has, then the Judge can often determine that to be the case by reviewing those records, assuming that the proper foundation has been laid by your lawyer to make those records admissible in evidence.

Child custody cases are emotional. Both parents may truly believe, and testify, that their children would be better off with them. The people discussed in this article who have observed the children and the parents, over substantial periods of time, can often help clarify to the court where those kids will, truly, be better off.

And, just as important as the evidence that we do want the court to hear, this is the kind of evidence that we do not want to have presented against us in a child custody case, if we hope to win that case. Thanks for taking the time to read this article. As always, we appreciate your comments and feedback.

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How You Can Help Your Children Survive Divorce (Part 2)

Recently, I posted the first part of this article, which discussed ways that you can protect your children from the ill-effects of a divorce in “How You Can Help Your Children Survive Divorce (Part 1)”. This is the second part of that piece, and contains additional information to help your children as they make this life transition with you.

15. Don’t use your children as your friends or confidants. Divorce is usually hard. Besides having your family split-up, you may have, also, lost friends during the divorce. Your children need you to be their parent, rather than someone whom they have to make feel alright. Do not cry on your children’s shoulders. That is not emotionally healthy for the children nor the parent. If you are lonely, then find an activity that you enjoy, and meet some new people. That is fun!

16. Be reasonable and flexible with possession of your children. Children are happier when they have frequent and free access to both parents – regardless of the formal written court’s order. If you and your ex can make agreements about when each of you will have possession of the children, then your children will benefit from that flexibility.

17. Do not imply that your children will be “missing out on fun” with you while they’re away visiting the other parent. And certainly don’t have your child ask the other parent if it would be okay to allow him or her to do something with you during the other parent’s time. Instead, talk to the child’s other parent, yourself, about the arrangement. And whatever the result of that conversation is, do not involve your child in that discussion. If you do, then the child will experience confusion or dislike for one or both parents. And, that will make your child unhappy.

18. If your child is young, then help him or her pack for visits. Get your child where he or she needs to be on time. Don’t let your actions communicate that you resent the time they spend with their other parent, nor that you do not respect the other parent. Remember, “Happy Children” is the goal here.

19. Both parents should provide a space in their home (a room, closet, shelf or drawer) where the children can keep their belongings undisturbed between visits. Make sure that there is a picture of the child’s other parent, and any siblings, prominently displayed there. This helps your child know that he or she is part of a loving family, and does not have to focus on only one-half of that family at a time.

20. Do not ask your children to serve as messengers or spies. Anytime children are asked to betray one parent to the other, the children will feel guilty. Since divorce engenders guilt feelings in children anyway, it’s cruel to set them up for more. It, also, puts them in a position of having to choose loyalties between parents, rather than feeling loved by, and loyal to, both parents.

21. If you are having a hard time co-parenting with an ex you can’t stand, try thinking of it as doing business with someone you don’t like. Stick to the task at hand, be polite, and don’t get personal.

22. Do not use pick-up and drop-off times as occasions to fight with your ex-spouse. If conflict seems unavoidable, try arranging weekend possession periods so that the non-custodial parent picks the children up from school on Friday afternoon and returns them to school on Monday morning. This plan will not only avoid conflicts, it will help the non-custodial parent get involved in the children’s school work.

23. If your ex-spouse attempts to engage you about something while your child is present, simply tell him or her that you will be glad to discuss that matter at an appropriate time, and that now is not the time. Usually, that will end the discussion. But if it doesn’t, then simply walk away. You are setting boundaries for yourself and your children by doing this. If your ex still won’t leave you alone then contact security or the police. Additional Court Orders may also need to be put into place.

Following these pointers, along with the others that I discussed in the earlier article, will help your children to find their happiness sooner than they might otherwise do so. And raising happy, healthy kids is our goal, as parents, right?

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How You Can Help Your Children Survive Divorce (Part 1)

Divorce can be tough, especially for children who don’t know why it is happening, what it means, and whether they are the cause of it. The children’s parents can work together on a few things to lessen the impact of divorce on their children.

The following information was gathered from multiple sources, including my experiences handling child custody cases, things taught to me by mental health professionals, and my reading of available literature on the subject.

1. If possible, both parents should sit down together with their children to break the news about the divorce. This will minimize the risk of one parent portraying the other as the “bad guy” and reduce the temptation to use the children as allies or confidants at such an emotional time. It will also lay a groundwork that will help the children progress through the denial phase. In addition, you will demonstrate that you’re still co-parenting.

2. Be ready to answer (to the extent possible) younger children’s logistical questions about where they will live, who will take care of them, and how much time they will spend with each parent. Older teens should have a voice in determining their living arrangements.

3. Assure the children that they did not cause the divorce, and likewise, that they cannot change their parent’s decision, no matter how much they may wish mom and dad could stay together. Emphasize that your decision was not made on a whim.

4. Spare the gory details. Provide an honest, but age-appropriate, explanation for your break-up, such as “Mommy and Daddy will be happier living in different houses.” Children who have no rationale for their parents’ split are more likely to blame themselves.

5. Acknowledge that the divorce will be painful for everyone, and apologize to the children for disrupting their lives. Again, assure them that the split-up is not their fault.

6. Make a commitment to them to preserve their relationships with both parents and with members of their extended family. Assure the children that both parents will always love them, and that they can contact the other parent at any time.

7. Alert teachers and other care givers to your announcement so that they can help watch for signs of emotional stress in your children.

8. If possible, don’t move or change schools simultaneously with the divorce. Losing a parent plus their home, teachers, and friends is more than you should expect children to handle.

9. Remember that the longer and harder you fight each other, the less time and energy you have for parenting your children. Some experts say that it’s not the divorce so much as its accompanying disruption in parenting that does the real damage. For this reason and others, the wisdom of engaging in a protracted custody battle should be considered. Sometimes the children really do need to have a court make custody orders that the parents cannot agree to on their own. And sometimes the parents can come-up with a suitable child custody arrangement on their own without battling it out in court.

10. Allow your children to grieve the divorce. Let them know it’s okay to cry.

11. Realize that your children are acutely aware of your pain and are likely striving to not trouble you further. For this reason, they tend to bury their own pain and anger. Try to provide your children with a peer support group or other safe place where they can express their feelings.

12. Be open to the notion of seeking counseling, for yourself and your children, not only at the time of the divorce, but anytime they need it. The danger signs are: a) problems that get worse over time instead of better, b) drastic changes, and c) continuous extreme behavior, whether it’s acting out or being “the perfect child.”

13. For the good of your children’s self-esteem, avoid denigrating your ex-spouse in their presence, and ask members of the extended family to do the same. If you have nothing positive to say about your ex, try to put your children in contact with someone who does. The children do not need to know “the truth,” if that truth is negative about the other parent. Hearing negative things about a parent affects a child’s happiness. So, there is no legitimate reason to bad-mouth the other parent; even if that bad-mouthing is truthful.  If your ex is truly a horrible person, it’s likely that your children will discover this fact on their own over time.

14. If the children point out your ex-spouse’s faults and question you about them, validate their feelings, By saying something like “I can see that you are upset.” You can also tell them that both parents are doing the best that he/she knows how.

By following these steps, you will be helping your children adjust to their new living situation. I will write more on this topic later.

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Who Gets Divorced in America and Why?

The Who

Most of us have heard the divorce rate in America is high. Overall, approximately half of all marriages end in divorce, according to the most recent statistics. This works out to 6,646 divorces per day, and 46, 523 divorces per week-large numbers. But upon a closer look, the statistics reveal interesting differences in the types of folks who are more or less likely to see their marriages end in divorce.

The numbers reveal that 41% of all first marriages end in divorce. 60% of all second marriages wind-up in Divorce Court. And 73% of third marriages end there. This is somewhat more optimistic for folks who have not already tried marriage. Three out of five first wed Americans will not be divorced during their lifetimes.

Researchers have looked at Americans who divorce, and found some interesting trends. For example, the careers or occupations with the highest reported divorce rates are: dancers and choreographers, who have a divorce rate of 43.05%; bartenders, who divorce at the rate of 38.43%; massage therapists, whose divorce rates clock-in at 38.22%; “gaming cage workers” go through divorce at the rate of 34.66%; and “extruding machine operators” have their marriages end in divorce 32.74% of the time.

Conversely, the listed jobs of those least likely to divorce are the following: “Directors of religious activities and education” get divorced at the rate of just 5.88%; clergy wind-up in divorce court 5.61% of the time; whereas, the marriages of transit police wind-up there 5.26% of the time; optometrists see their way to divorce court 4.01% of the time; and, the chances of agricultural engineers divorcing is just 1.78%.

Other demographics also relate to whether people are less likely to go through a divorce. If your parents are still married to one another at the time of your wedding, then you are less likely to be divorced. The same is true if you are over the age of 25 when you marry. Folks who have attended college are less likely to divorce than those who never attended college. Interestingly, people who live in a “Blue State,” one in which Democrats tend to prevail over Republicans in state-wide races, are less-likely to divorce than are their “Red State” counterparts.

If both spouses smoke, then divorce is more likely. If one spouse does all of the household chores, then a divorce is more likely in that couple’s future. Married people who frequently socialize with divorced people tend to divorce more frequently than do folks whose friends are mostly other married couples. Spouses who first met each other in a bar are more likely to get divorced. Surprisingly, spouses who have just a daughter or daughters, but no son are more likely to divorce. And not surprisingly, married people who frequently or constantly have significant money problems find their way to divorce court more frequently than those who do not often have that issue arise in their marriages.

The Where
States with the lowest divorce rates are Hawaii with a divorce rate of 9.4%; Massachusetts, whose citizen divorce at a rate of only 9.1%; New York which has a divorce rate of 8.4%; New Jersey, which sees just 8.2% of its marriages end in divorce; and, North Dakota, comes in with the lowest divorce rate of 8.1%.
‘The secret to a happy marriage is if you can be at peace with someone within four walls, if you are content because the one you love is near to you, either upstairs or downstairs, or in the same room, and you feel that warmth that you don’t find very often, then that is what love is all about.” ~ Bruce Forsyth

The Why
Another interesting survey result concerns the reasons stated by divorcees for their divorce. When asked “Why did you get divorced?” the number one answer was not “fighting about money” nor “disagreements about sex.” The number one reason given for divorcing is “Poor Communication.”

So, what exactly is the “poor communication” that so often leads to divorce? “Nagging” is frequently cited by those who have gone through divorce as being a major reason that they became dissatisfied with their marriage. The frequent “suggestions” and unsolicited “advice” that comprises “nagging” often lead to both spouse’s being annoyed. The one being nagged (the “naggee”) is annoyed for obvious reasons. But, the one doing the nagging also becomes frustrated when his or her well-intentioned advice is typically met with an attitude of resentment and irritation.

The ensuing arguments caused by nagging, then become about the appropriateness of the nagging, rather than about the real issues in the relationship: the nagger’s lack of trust and the naggee’s lack of responsibility. Naturally, when this happens enough times, the fun is sucked out of the relationship, and both spouses become disinterested in being together. It is not a far distance from this relationship state to being divorced.

Another poor communication type which tends to lead to divorce (according to surveys of divorced Americans) is “Insincerity.” Spouses communicate in this poor manner when they say “yes” when they actually want to say “no.” Or, they may answer a question with an “I don’t know” instead of stating their true opinion, when they feel like their actual opinion will be rejected or put down. So, in order to avoid a fight, these spouses do not communicate honestly with their partners.

Marriage counselors warn us that dishonest communication does not take a marriage in a healthy or sustainable direction. Eventually, the spouse who is being told the insincere answer learns that he or she is not being told the truth. And, when that happens the feelings of affection between the spouses is replaced by feelings of mistrust, resentment, and anger. Once those feelings dominate, too often a vicious cycle begins, leading to divorce.

“Mixed Messages” are another poor communication technique mentioned by the survey respondents. Besides saying things which are inconsistent with one another, spouses also may send mixed messages by verbalizing one thing, while their body language conveys another message. For example, a spouse may answer a question “How are you” with the answer “fine” while crossing his or her arms. Or, perhaps a spouse, when asked “What is wrong?” will say “Nothing, I’m fine” while shaking his or her head as though irritated or avoiding eye contact. The message received by the inquiring spouse is a dismissive one.

“Competitive Communication” is communicating with one’s spouse in a manner seeking to “win’ an argument rather than trying to understand his or her perspective is another unhealthy mode of communication which often appeared in the survey results. A healthy romance is not about “beating” the other spouse when disagreements arise nor “winning” an argument. That is not exactly the type of message which builds trust and affection nor does it lead to the “peace” described in the Forsyth quote, above.

Divorced people often describe poor communication habits of either one spouse’s interrupting while the other spouse is speaking or attempting to finish the other’s sentences. At this point, the spouses are taking “at” each other, rather than “to” one another. This leads to emotional distance between the spouses being created. And, given enough distance and enough time, a marriage will come unwound when there is significant emotional distance between the spouses.

Finally, impolite comments, such as a spouse saying “I should have figured as much would happen,” when the other one makes a mistake, is obviously unhealthy. But also, the neglecting of common courtesies, such as the saying of “please” and “thank you” can build resentment and distance in the marriage. And, we already know where that can lead.

Ideally, every marriage would be healthy and happy. But, as we know, many of them fall way short of this ideal. Thankfully, we know factors that give marriage a better shot at being successful.

How Divorce Affects Children
Researchers have had decades of divorces in America to study. The effects of divorce on children have been thoroughly examined. They are not encouraging.

Children from divorced families are twice as likely to not graduate from high school as are their fellow students who have intact families through the Twelfth Grade. Also, one of four children of divorce report being emotionally detached from their families at some point before attaining adulthood. Many children of divorce have lower grades in school. And, as one might expect, these kids are more likely to experience problems of behavior or emotion.

Almost every studied society of human beings has one or more forms of marriage. While they vary greatly from one society to another, they all show positive benefits when they are healthy, and have negative effects when they are not healthy.

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Can Courts Douse the Flamer’s Flames? Defamation Remedies in Texas

In this day and age, most of us are connected to scores and scores of other people electronically. Just think how many Facebook friends, Twitter followers, and Linkedin connections you have. Many of us also have virtual relationships with folks on Tumblr, Pinterest, and elsewhere. How easy would it be for someone—a disgruntled former business partner, employee, or lover to damage your standing and reputation with many of the people to whom you are connected? How might that damage cost you?

Defamation —the making of untrue statements about another person which damages that other person’s reputation, has been actionable since before the founding of the United States-indeed, the courts of the King of England recognized defamation as being actionable as early as the Sixteenth Century. Today, however it is much easier to spread hurtful lies about another with just the click of a mouse. And, those lies can spread much further and faster than ever before.

If someone posts something online which defames you, what can you do? Are you powerless to be able to have those hurtful lies removed? If Texas courts have the appropriate jurisdiction to handle the case , can you have a Texas court look at the remarks in question, and if that court finds the remarks to be defamatory, take action to remedy or undo the harmful effects of those lies? The Supreme Court of Texas recently decided a case on that matter. 

While both the Texas Constitution, and United States Constitution, protect the freedom that we all have to speak freely, it is well-established under Texas jurisprudence that “speech is not an absolute right,” and that defamatory speech is unprotected under both the Texas and United States constitutions, since such wrongful speech is “an abuse of the privilege to speak freely.” Similarly, in a long line of cases going back to the founding of this country, the United States Supreme Court has ruled that the Freedom of Speech is “not an absolute right, and the state may punish its abuse.”

So, what kind of “punishment” may be imposed when someone abuses his or her freedom of speech? Under Texas law, the punishment has always been the award of monetary damages. Unfortunately, Texas law did not provide the right to have a court order the removal of the offensive speech once it had been found to be defamatory. And so, with the damaging speech in place, its harmful effects could continue indefinitely, until now.

On August 29, 2014, the Supreme Court of Texas decided in the case of Kinney v. Barnes that in addition to awarding a money judgment for the damage which a defamatory posting causes to someone’s reputation, a Texas court can now properly issue “a permanent Injunction requiring the removal of posted speech that has been adjudicated defamatory…” This is a big change from the prior law in Texas and one that is a breakthrough for the victims of defamation.

The traditional remedy for defamatory speech, i.e. the award of monetary damages, is also still available. Those damages “can include economic damages like lost income, noneconomic damages like loss of reputation and mental anguish, and even punitive damages upon a finding of actual malice.” Besides remedying the harmful effects of hurtful statements, the award of monetary damages may also act as a powerful deterrent to the making of the statements in the first place.

So, while the state and federal constitutions prohibit a Texas court from ordering that a person not make future remarks which may be defamatory, if those remarks are, in fact, made, then a lawsuit against the maker of those remarks may be filed. And, if they are found to be defamatory, then the court can order that the remarks be removed, and that monetary damages be awarded as just compensation.

In the Internet Age, published remarks can go around the World at the speed of light. The effects of untrue remarks are leveraged in their ability to harm. The power to have defamatory remarks removed would seem to be a valuable one.

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Planning for Social Media after Death

Don’t forget about your accounts. They live on, ghost ships of your former life – the Facebook account, the Twitter feed. They have been silenced by your departure, but in many cases will remain alive for years to come unless the platform is notified of your death by relatives. It may be upsetting to your relatives to see mourners post to your Facebook after your death, a process that has become standard in the last few years, a kind of informal funeral guest book.

Imagine your spouse or children having to cope with these reminders for months as people learn of your death. While it may be comforting immediately after your funeral, at some point the accounts will need to be finalized and removed. Currently, the process is ad hoc; there is no button on Twitter to report a user’s death and take down their account. You must navigate the help files to find out how to delete accounts, and unless you have the user ID and password, it can be very difficult and time consuming to go through the deletion process.

When we pass, we (of course) want to make things as easy as possible for those whom we leave behind. Good planning can make a significant difference in this regard. Part of that good planning is for your will to take into account your digital trail, and leave some instructions for its disposal (if that is what you want to happen).

That’s why, in addition to a will, another document, addressed to your Executor, and relating to your digital life, is so important. Social media accounts, online banking, investment accounts, email, all the elements of your online existence, should be cleaned up after your death. You will make your executor’s job much easier by providing the relevant information in a spreadsheet which contains your account login information, password, and any account data such as banking account numbers.

Creating this document will take only an hour or two, but will eliminate hours or weeks of work on the part of your loved ones. In Excel, simply list the accounts on the left then the user name and password on the right. You will want to periodically update the file, every six months or annually, as information changes or passwords are updated. Keep the file on your desktop where it can easily be found, as well as a hard or digital copy with your will.

Provide explicit instructions as to the end date of your social media accounts. A good rule of thumb is to terminate them within 60 days of your death. If your spouse wants to keep a record of the nice things people said about you, it’s easily printed for posterity. This general housecleaning of your digital life will allow your executor to wrap up loose ends as easily as possible, and is a thoughtful gift to leave behind.

Copyright © 2024 Heiman Law Firm. All Rights Reserved. Website by Butler I. T. and Higher ADvantage