Texas Alimony Law Changes September 1, 2011

Big Changes in Texas Alimony Statutes

By Marissa Balius

The word “alimony” often evokes strong emotions for people who are facing a divorce. For those paying alimony it may feel like a penalty for staying in a tortured marriage as long as they did. For those receiving alimony it may feel more like a punishment for all the years spent staying home to take care of the kids instead of pursuing a career.

Although alimony in Texas (which is referred to as “Spousal Maintenance”) has historically been considered remedial in nature and scope, big changes are coming, effective September 1 of this year.

While someone seeking alimony still has to meet the threshold requirement of showing that he or she does not have sufficient property and income to meet his/her minimum reasonable needs, there have been some changes in who qualifies for spousal maintenance, the duration of a alimony order and the amount that can be ordered. Now it’s up to the judges in Texas to objectively apply the law to the facts in each case.

Some of the highlights of the new statutes that will take effect for cases filed on or after September 1, 2011 are:

  • Removal of the 10-year marriage requirement for eligibility in limited circumstances.
  • Increasing the cap on the amount of alimony that can be ordered to the lesser of 20% of a spouse’s gross monthly income or $5000 per month.
  • Increasing the maximum duration of spousal maintenance payments from three years to a sliding scale of five to ten years depending on the length of marriage.

Marissa Balius is an experienced family law litigator with sixteen years of experience, and a Partner at Albin | Harrison | Roach. including ten years as an Assistant Attorney General in the Child Support Division. If you have questions about whether or how these changes to the law may affect your rights, please call or email us to schedule a free initial consultation.

Should You Submit to a Breathalyzer Test?

By Manuel “Mito” Gonzalez

Nobody likes tests, so why do we take them?

Never, never, never take a breath or blood alcohol test!

There. I have given you the single best piece of advice for dealing with a DWI stop. If you followed this one piece of advice, you would increase the likelihood of being found not guilty in a DWI trial by at least 50%. You would almost certainly receive a better plea bargain offer, and you could even possibly avoid having an ignition interlock device placed on your vehicle.

So, if this advice is so good, why do people continue to ignore it and take the test? That, dear readers, ranks among the greatest of all mysteries along with who built the pyramids, who is buried in the tomb of the Unknown Soldier, and what happened to Jimmy Hoffa

Here is why I say, “Don’t take the breath test.” It is Not Fair to You.

Did you know the breath-testing machine used in Texas doesn’t actually test the sample for alcohol? It uses filters to “screen out” all the things typically found in human breath that resemble alcohol and whatever is left the machine presumes is alcohol. It is no different than having someone pour out a large jar of change and ask you to find the quarters. But, instead of showing you a quarter, they show you a penny, dime, and a nickel. Once you remove those coins, everything else is a quarter, right? Wrong. What about foreign coins of the same size, (thanks Canada for making your “Loony,” “Toony,” and quarter roughly the same size)? How about those dollar coins? Ever lose a Susan B. Anthony in a vending machine? How about the newer dollar coin with Sacagawea on it? Fifty-cent pieces?

You see the problem? Older machines had only three filters. We were told that was good enough, yet some years later two more filters were installed. Nobody went back to check the results of the old tests because no sample is captured or kept for retesting. The State just moved on like nothing happened.

Just like all machines that have a computer, the breath-testing machine is capable of detecting and storing large amounts of information. However, when that information demonstrates that the machine is not operating as advertised, the State doesn’t want the public to see that information. Currently, Texas uses a machine manufactured by a company called CMI. CMI also makes the operating system that runs the computer and testing equipment inside the machine. As made, the machine is capable of recording fluctuations in electrical voltage, interference from outside sources, and a host of other information. That information can be used–and has been used–successfully by defense attorneys to show that specific machines were not working as advertised when they were used on people arrested for DWI.

The State of Texas has its own operating system for the CMI machine called “Black Mamba.” Just as no one wants to get stuck with COBRA insurance coverage, Black Mamba isn’t good for you either. Things named after snakes rarely are. Black Mamba allows the State to tell the machine not to record certain types of information. Can you guess what type of information that might be? That’s right, anything that might help your lawyer show the machine wasn’t working properly when it was used on you.

Feeling good about taking the test now?

When the police request a sample of your breath or blood, they will inform you that if you refuse, your license could be suspended for 180 days. Also, if you take the test and fail, your license could be suspended for 90 days. Most people cite the possibility of a suspension as a reason they submit to the test. As explained above, there is no way for your lawyer to determine whether or not the test was administered fairly, nor is the sample you submit retained for future testing. Based on these circumstances, in my professional opinion a person is better off in the long run refusing the test, running the risk of an administrative suspension, and getting an occupational license if needed.

Aside from the general unfairness of the test, there are several additional reasons to not take this test. If you take the test and get a result above a .14, you get extra punishment. The way the law is written, if you go to trial the State has to prove you were a .08 at the time of driving. However, if your test result is a .15 or greater at the time the test is given, you are subject to having an ignition interlock placed on your vehicle while you await the conclusion of your case as a condition of your bond. That’s right. While you are out of jail awaiting resolution of your case you could have a breath-testing device hooked up to your car. And, you get to pay for this privilege.

If you plead guilty, depending on how the State alleged your DWI in the court’s file, and if there is evidence that your test result was a .15 or greater, Texas Code of Criminal Procedure Article 42.12 § 13(i) requires the court to order that you place the interlock on your car for at least half the time you are on probation. This is on first time DWIs!

Are you still willing to take that test? Are you beginning to see why the State so desperately wants you to take this test?

Here is the reality of DWI case management. Most of the time, you will get a better plea bargain offer if the State has no idea what your alcohol concentration was. Once they know, they are emboldened with regard to their chances of convicting you, so their offer is higher and they are much less willing to come down off that original offer. Given the realities of how prosecutors handle their dockets and how the law is stacked against you and the reliability of the machine used in Texas, there is no reason to ever submit to either a breath or blood alcohol test.

I am a defense lawyer with more than 16 years of experience. Having  spent ten years with the Collin County Criminal District Attorney’s Office where I held several positions including that of chief felony prosecutor and chief of the white-collar crime section, I bring an understanding of how the prosecution works to the courtroom with me.

If you have any questions or concerns about a DWI please contact me at 214-423-5100 or visit our web site at http://www.ahrlawfirm.com to arrange a free initial consultation.

Medical Expenses – Getting the Other Parent to Pay their Fair Share

by Sharon Corsentino

When considering whether to file an enforcement action to collect past due unreimbursed medical expenses from the parent of your child, it is important to have everything in order prior to filing. To enforce orders of the court, you must be very specific about each violation the opposing party has allegedly committed.

The clients who are most successful in obtaining a judgment for the full amount they are claiming are the ones who keep impeccable records. While it is quite a burdensome task, it can definitely pay off in the long run.

My advice to clients is to treat your child’s unreimbursed medical expenses like a business.

  1. Open a separate file for the receipts.
  2. Keep a spreadsheet of when you gave notice of the expense to the other party and whether it was paid.
  3. Keep copies of emails or letters you send to the other party notifying them of the unreimbursed expenses.
  4. If you send a notice letter via U.S. mail and it is returned to you as undeliverable, keep the letter unopened. Make a notation on a sticky note to identify the contents of the letter.

It is also very important that you do not hoard the receipts. Send the receipts to the opposing party in a timely manner using the time frames set out in the order. Do not wait to just send them to the opposing party on an annual, semi-annual, or quarterly basis. You must make certain that you are complying with the terms of the orders so that if the opposing party fails to reimburse you, then you can enforce the order.

Sharon Corsentino is an experienced Collaborative attorney, mediator and litigator at Albin | Harrison | Roach in Plano, Texas. She works primarily in the areas of family law, probate, and estate planning. Sharon helps couples to settle their disputes privately, without involving a judge who could impose decisions on them that do not meet their needs. Sharon’s non-adversarial approach generally results in unique settlements that truly address the interests and concerns of all parties.

Employer Alert: OSHA Requires Employers to Ban Texting while Driving

By Laura Calhoun and Todd Albin

Making the roads safe by banning texting

Don't Text and Drive

Motor vehicle crashes have long been the leading cause of worker fatalities, and in recent years, drivers distracted by activities such as texting are often found to be the cause. Based on National Highway Safety Administration data, the risk of a crash or near-crash by a driver who is texting is more than 23 times higher than that of an undistracted driver. As a result, texting while driving was prohibited for Federal employees by a 2009 Executive Order signed by President Obama. The Department of Labor through OSHA has now partnered with the Department of Transportation to stop distracted driving on the job in the private sector as well.

As part of this initiative, OSHA now requires employers to ban employees from texting while driving. Specifically, per OSHA, an employer has a responsibility and legal obligation to create and maintain a safe and healthful workplace, and that duty includes include having a clear, unequivocal and enforced policy against the hazard of texting while driving.

Likewise, per OSHA, Employers will be considered in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job. OSHA has made clear that when it receives a credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, OSHA will investigate and, where necessary, issue citations and penalties to end this practice. [1]

By implementing policies prohibiting texting, employers will meet their new legal obligations and take great strides toward helping to keep their employees and others safe on the roads.

 

Dealing with the Child Support Division of the Texas Attorney General

by Marissa Balius

The Attorney General of Texas is the child support collection agency in the State of Texas. Dealing with the child support division of the Texas Attorney General (OAG) can be a frustrating process even for the most experienced attorney. Here are some tips that will help you with the process:

 

  1. Know your OAG number. You need to provide it on all communications with the OAG. It is your identification number with their office. The number should also be on all communication they send you.
  2. If the OAG is reporting you have a child support arrearage (back support payments) and you believe that the information they are reporting is wrong, ask for a child support arrearage calculation from their office. This document will show each payment due, each payment made and any interest that has accrued on the account. Take this payment record and every court order that required you to pay or receive child support to your own attorney to review.
  3. When you call or go into the Attorney General’s office, write the name and title of the person helping you and take good notes of your conversation for future reference. In my experience, they do not always keep good records, and inevitably you will get conflicting information.
  4. The OAG is not a neutral party. If they are involved in your case they have an interest! Discussions you have with anyone in their office are not protected by attorney-client privilege and can be used against you in court.
  5. If you are served with a legal document filed by the Attorney General or receive a Notice of Child Support Review Conference, hire an attorney immediately. DO NOT go to court or attend a Child Support Review Conference without your own attorney. You need your own representative to explain the legal process and advocate for you. If you are unable to retain counsel before your first court appearance or Child Support Review appointment, be careful about what you sign. They may have you sign an appearance of counsel or waiver of service or other document that may seem harmless at the time but may adversely affect your case.
  6. Each child support office has a customer liaison and each region has an ombudsman, a liaison between the public and the child support office that tries to resolve customer complaints. If you are not getting action or the results you and your attorney deem appropriate, ask for the ombudsman’s name and contact information. Lastly, if all else fails, contact your state senator and representative. In the Dallas/Fort Worth area state congressmen have a lot of leverage in dealing with the child support office and in my experience they can get the ball rolling when all else fails.
  7. The OAG sends out a variety of letters: DO NOT DISCARD THEM. Keep everything you receive as many of the letters have time frames to respond, hearing dates and in-office appointment dates and times. The OAG has the power to ruin your credit, garnish your wages and levy your bank accounts; any correspondence you receive is important!
  8. Don’t count on their employees for legal advice! By law, they should not be giving legal advice to either parent, and the information they provide is not always accurate.

If you need an expert to help you navigate through a case with the Attorney General’s office please contact me via email at mbalius@ahrlawfirm.com or by phone at 214-423-5100.

Marissa Balius knows the ins and outs of the Texas Attorney General’s office. She is an experienced family law litigator with sixteen years of experience, including ten years as an Assistant Attorney General in the Child Support Division.

Facing Divorce in an Uncertain Economy with Collaborative Law

First Posting:  Huffington Post on 2/5/11

By Curtis Harrison

These are uncertain economic times for all of us. While the outlook is slowly improving, news updates still occasionally toss around scary catch phrases like “double-dip recession,” and “double-digit unemployment.” And for those facing a divorce or a post-divorce modification suit, the fragile economic forecast can make an already uncertain future feel more like a double-looped roller coaster.

Take heart, because you still have options. You don’t have to raise the debt ceiling just to survive this period of transition in your life. It is a matter of enlightened self-interest. You and your spouse may not be able to agree on anything else, but most couples can agree that they don’t want to bankrupt themselves in the process of getting a divorce.

While some may be able to achieve a “kitchen table” solution, for most folks, the issues are too complex to resolve without guidance. But that guidance doesn’t have to come from a trial attorney. You and your spouse can choose to keep your divorce out of the hands of judges through a process known as Collaborative Law. There are several compelling reasons why Collaborative Law may be the right tool for those concerned with their financial resources:

1. In traditional divorce litigation, both the husband and the wife can waste thousands of dollars preparing for a contested final trial that usually does not take place. Why? Because the vast majority of litigated divorce cases wind up settling prior to trial.
In collaborative cases, 100% of every dollar spent is dedicated toward achieving the goal of settlement. 0% is spent preparing for trial.

2. In traditional divorce litigation, both the husband and the wife can waste hundreds, if not thousands, of dollars with their lawyers fighting over what documents will or will not be produced to the other side. Why? Because the goal in litigation is to beat the other side; and one way to do that is to resist producing documents and information during discovery in the hope of bushwhacking the other party at trial.

In collaborative cases, the parties exchange documents freely, informally, and inexpensively. Transparency is paramount.

3. In traditional divorce litigation, both the husband and wife can waste thousands of dollars by hiring competing expert witnesses to value businesses, trace assets, or make recommendations regarding custody of the children or possession of the children. Why? Again, the goal is to beat the other side, and another way to do that is to hire experts to do battle either at the negotiating table or at trial.

In collaborative cases, experts are jointly engaged and serve as neutrals. They don’t take sides or play favorites. For most cases, no more than one neutral financial expert is needed. So there are generally no competing opinions do battle. If a second opinion is desired, they too can be jointly engaged.

4. In traditional divorce litigation, neither you nor your spouse exercises much control over the process. You have virtually no control over the outcome. Why? Because the judge or jury makes the decisions at trial; and frequently the cases that settle short of trial actually settle as a result of emotional or financial exhaustion.

In collaborative cases, the spouses control both the process and the outcome. Texas was the first state to pass a collaborative law statute that actually strips the courts of the authority to make decisions in a collaborative case. As a result, both spouses share an incentive to operate efficiently and effectively. If they can agree on nothing else, they can usually agree that they don’t want the lawyers to make off with their estate.

These are just some of the economic advantages the collaborative law model offers over traditional divorce lawsuits. The current economic climate may be tenuous and the future unknown. But if you are facing a divorce you need not climb aboard the litigation roller coaster. Consider keeping control over the process, the costs, and the outcome by learning more about the collaborative law method.

Curtis W. Harrison, Collaborative Attorney
Board Certified – Family Law by the Texas Board of Legal Specialization
Albin | Harrison | Roach; 5601 Granite Parkway,Suite 400; Plano, Texas 75024
Telephone: 214-423-5100; Fascimile: 214-423-5111
www.ahrlawfirm.com

It’s Superbowl Weekend – How to Handle a DWI Stop

by Mito Gonzalez

It’s Super Bowl XLV weekend and, for many people, it’s time to party. Do you know what to do if you’re stopped by the police?

Well, do you?

Did you know the rights given to you by the Federal Constitution can be expanded by your individual State Constitution? Do you know how to enforce your constitutional rights? Most Americans know they have rights; they just don’t know what those rights are. Never is this more evident than during encounters between the public and the police.

After practicing criminal law for fifteen years, it seems to me that now, more than ever, people are under informed or just plain misinformed about their rights and how to interact with the police. The average person has more incorrect beliefs regarding their constitutional rights than the Federal Government has holidays. That ignorance almost always negatively impacts the average citizen. This situation cannot be remedied easily, but a few simple rules can help place you on the path to knowing and exercising your rights.

  1. You have the right to remain silent, use it.
    Believe it or not, most people get arrested because of what they say, not because of what they have done. If you are stopped by an officer all you must do is identify yourself. Where you are coming from, what you have been doing, and where you are going is none of his or her business. Everything you say and do in the presence of an officer is recorded. Don’t try to talk yourself out of a ticket only to get arrested for a greater offense.
  2. You have the right to be free from unreasonable searches and seizures.
    Pretty much any search of your person, car, or house without a warrant is unreasonable. Never agree to allow the police to search your car. You have no idea what someone may have left in your car and you will be held responsible for anything the police find.
  3. Field sobriety tests are voluntary – don’t take them.
    If the officer asks you to “take a few tests to make sure you are ok to drive,” you need to exercise your rights and just say no. The officer already believes you are intoxicated and is just looking to get you on video. These tests are not designed to test-driving skill and are not accurate at determining intoxication. Even when administered under perfect conditions, in a lab, with healthy young subjects, these tests have been shown to produce false positive indications of intoxication. None of these tests are used by doctors or in clinical situations and the medical community does not recognize them as accurate indicators of intoxication. If doctors don’t believe in them, why should you?
  4. Always ask for an attorney.
    When you have a problem with your health, you call a doctor. When your problem involves the law, call an attorney. In most cases, asking for an attorney will stop further questioning from law enforcement and give you the time and access to the information you need to make good legal decisions.

Now that you know your rights, I hope you enjoy your Super Bowl weekend.

Have more questions? Contact us. We have the answers.

 

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