Lawmakers in Massachusetts are considering a bill that would prohibit people from dating or having a sexual relationship within their home while they are going through the process of getting a divorce.
An Act relative to divorce, Bill S.787, was filed by State Sen. Richard Ross, a Republican from Wrentham, on behalf of former Wrentham Selectman Robert LeClair.
Under the legislation, couples going through proceedings that involve children and a marital home would not be allowed to conduct relationships within the home until the divorce was finalized and custody issues were resolved. The only exception would be if they received "express permission" from the courts.
Query: Does this mean such activity is to be precluded when the children are around? Or even when the children are in the other parents home for the entire summer?
Some Courts in Texas insert a "morality clause" into their orders that prohibits a parent from having someone with whom they have an intimate relationship stay at the house between the hours of 10 pm and 8 am.
So we'll see if Massachusetts follows.
See the article here.
The Dallas Morning News is reporting that United States District Judge Orlando Garcia has ruled that Texas' ban on same-sex marriage is unconstitutional. Both the Texas Family Code and Texas State Constitution ban same-sex marriage. The article cites the judge's decision:
“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent,” he said in his order. “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.” Lawyers arguing for the State said that the legislature and the citizens of Texas had chosen to "preserve the traditional definition of marriage." It appears the judge was not swayed by that argument. Judge Garcia "acknowledged his ruling would be far from the final say on the matter" the DMN reports. It is likely that the Supreme Court will decide the issue by ruling on this case (or one of the 22 similar cases in other states) in the future.
Personally, I'm not surprised by this ruling. Recently, federal courts in Virginia, Oklahoma, Utah and other states have struck down various state-level same-sex marriage bans. These cases are a direct result of the U.S. Supreme Court's U.S. v. Windsor decision. In Windsor, the Court struck down section 3 of the Defense of Marriage Act (DOMA) that restricted the federal definition of "marriage" and "spouse" to heterosexual unions was descriminatory and violated the Fifth Amendment.
The judge has stayed his ruling from taking effect until the ruling can be reviewed on appeal. So how does this ruling effect Texans?
Right now, nothing has changed. Same-sex couples are still prohibited from obtaining a marriage license. It is likely that the State will appeal the ruling to the 5th Circuit Court of Appeals. Read the whole article here, it also has a copy of the Judge's ruling attached.
You may think that the calls and texts you send and receive from your cell phone are yours and private.
While it is clear that the content of such communications is private–absent a court order--data about to whom, from whom, the duration of such calls, and the facts of the text message's transmission, are NOT private.
AT&T just disclosed that it had honored over 300,000 requests for cell phone information from law enforcement agencies in 2013. This does NOT include the number of requests from civil subpoenas, in cases like divorces or child custody cases.
The data that is clearly NOT private (in response to a subpoena) is the occurance (date, time, duration, and to/from what number) of a call, text, or email. Geotags--location information--may be in a different category. Click here to take read an older post, Think Before You Text, about the risks that text messages and e-mails can pose to clients.
So everyone leaves a digital trail of their cell phone usage that CAN show up in a divorce or custody case.
But there is one potential positive of getting the cell phone records: a case of call spoofing previously discussed in a previous News item here.
A story in PCMagazine about AT&T's responses to law enforcement requests is here
Attorney-client confidentiality is a bedrock principle of the American legal system. Candor and free expression between attorney and client is essential in the course of representation.
But lawyers are not immune from cyber security concerns, and despite prudent precautions, some attorneys can fall victims to cybercrime.
The ABA Journal reports a North Carolina attorney inadvertently downloaded a virus that shut him out of his computer system.
Like other businesses, the attorney was targeted via e-mail. He opened a fairly innocuous attachment, and that's when the Crypto Locker virus took over. The article reports that "Thousands of documents stored on his computer were made inaccessible," the attorney reports, "it was actually an email that looked like it was coming from our phone system because our system sends voice mail messages as an attachment.”
The makers of the virus essentially held his computer hostage, and offered him access to his computer if he paid a ransom.
My recommendation for lawyers: regularly back up your electronic files with external hard drives, and keep them in a secure, fireproof place--and consider having a backup copy located outside of your office in a secure and fireproof place. Also consider secure cloud services.
My recommendation for everyone: be careful what you download--schemes like this Crypto Locker extortion ring are pretty sophisticated.
The ABA Journal story is here.
My friend Mark Bentley, who works as a lawyer for the UT System in Austin, commented that their office is not immune from cyberattacks like this one. He adds that these malware can be masked and look like trusted websites and known e-mail senders.
A married couple promises to stick together for better or worse, for richer or poorer. According to a recent study, after hard economic times and the economy starts to rebound, so does the divorce rate.
In a recent story in the LA Times, divorces plunged when the recession struck and slowly started to rise as the recovery began, quoting a study to be published in Population Research and Policy Review.
"From 2009 to 2011, about 150,000 fewer divorces occurred than would otherwise have been expected, University of Maryland sociologist Philip N. Cohen estimated. Across the country, the divorce rate among married women dropped from 2.09% to 1.95% from 2008 to 2009, then crept back up to 1.98% in both 2010 and 2011. The National Marriage Project earlier dubbed the drop in divorce "a silver lining" to the Great Recession, arguing that tough times were pulling many husbands and wives closer together. But some couples may have simply put off divorce until they could afford to part, researchers say. The economic uptick may have finally given them the freedom to split."
Food for thought.
Deion Sanders won custody of his kids in a jury trial this week; actually the sole right to determine where his three children live. He willl make all educational, health and extracurricular decisions for his two sons, ages 11 and 13, and share that responsibility for his 9-year-old daughter with his estranged wife, Pilar Sanders. He was obviously elated. His Wife commented: “If that’s not one-sided, you have to be blind, dumb, crazy and stupid.” I wonder whether she was describing her husband, the lawyers, the jurors, the judge, the legal system, or all the above but expressly excusing herself.
The contentious divorce slogs on. Pilar tried to contest a premarital agreement she signed after not only having an experienced family law attorney advise her about the agreement, but after she executed she went to Court and told a Judge she knew what she was doing and understood it. But the enforceability of the agreement has been upheld.
But the end is coming. Oh, yea, until the appeal...
This picture is taken with two of my law school classmates - Mark Bentley and Jim Phillips - who work in the General Counsel’s office of the University of Texas system in Austin. I met them for a visit this week, and also with the knowledge that the picture below would end up on the appropriate Facebook walls. Indeed, Mark had it up while we were just beginning our visit in Jim’s office downtown after taking the picture at the Capitol.
There may be bills about Facebook pending before the legislature now; I do not know. But I do know a whole lot about the bills that have been filed that affect Family Law.
I spent the week in Austin as a volunteer lobbyist for the Texas Family Law Foundation to help good legislation to be promulgated by the legislature. Experienced family law attorneys volunteer to spend a week in Austin to aid with that effort. Sometimes bills will be heard before the Judiciary & Civil Jurisprudence Committee of the House or before the Jurisprudence Committee of the Senate. During the 2011 session, I testified before both the House and the Senate committees. I refer to the week that I, along with Heather King and Charla Bradshaw, testified as the “Superbowl” week of the 2011 session for Family Law, as the Fraud on the Community bill, the Alimony bill, and the Paternity Fraud bill all had hearings that week. Those three bills, all of which became law, were a main part of the Family Law Section’s - and Foundation’s - 2011 legislative package.
This week in February 2013 found the committees of the Senate and House just getting organized and not yet conducting hearings on bills. So my job this week was to assist the Foundation’s lobbyists, Steve Bresnan and Glenn DeShields, in reviewing bills and explaining some bills to either the staff of the committees, to the legislative aides of senators or representatives, or, in fact, to legislators themselves.
Steve would talk to the appropriate party, and would arrange a meeting . We would explain our request for refinement, clarification or express our concerns about a bill. I believe that the Texas Family Law Foundation and its lobbyists are well respected in Austin, due in part to the fact that the Family Law Bar speaks with one voice. Not to mention skilled and knowledgeable lobbyists.
An example is that a certain legislator’s bill would have caused an impermissible retroactive modification of a family law judgment. Steve notified the legislator’s staff of our concerns and arranged a meeting with the legislator and we were accompanied by a member of the Attorney General’s staff to the meeting. After our visit and by the end of the day, we were able to suggest insertions and deletions into the bill with which the legislator, the AG’s represenative and the Foundation were all very comfortable.
So not only did I get to see how “sausage is made” but I got to participate just a little bit in that process. And hopefully made for a little bit better sausage.
Mark Bentley, Jim Phillips, Ken Raggio, UT School of Law class of 1974
Is someone--like your teenager--using Facebook too much? You want to have them quit Facebook? You could try reaching into your wallet.
A research consultant in Boston paid his 14-year-old daughter a $200 fee to quit the social network until summer, according to a post on his blog that has been further reported on tech websites. The consultant, Paul Baier, posted an inage of the "Facebook Deactivation Agreement" he made with his daughter on this Tuesday.
Per the agreement (signed by both parties) the teen promised to deactivate her account on the social network from this past Monday until June 26, 2013. In return, Baier will pay his daughter $50 in April and the remaining $150 in June, at the end of the five months.
The teaching point for parents of teenagers is clear. But for those in a divorce or family law case, deactivating or de-publicizing Facebook or other social media accounts may be a very wise move. Then the "other side" can't get easy access to potentially damaging materials.
This does not mean deleting or terminating the account. The general rule is to deactivate, not terminate. TERMINATION of an account could be viewed as SPOLIATION, or the destroying of evidence. A lawyer in Virginia was ordered to pay $520,000 for his role in his client's DELETIONS from the client's Facebook account. A link to the Virginia Supreme Court case is here.