Will Texas' Ban on Same-Sex Marriage and Same-Sex Divorce be Challenged?

The issues of same-sex marriage and termination of such marriages may be dealt with in Texas sooner that this commentator expected. Thursday, October 1, 2009, Dallas Judge Tena Callahan ruled that the state’s ban on same-sex marriage violates the equal protection clause of the Constitution. Texas Attorney General Greg Abbott filed a petition in intervention, which was denied by the judge. Abbott’s office indicated the State would seek an appeal of Judge Callahan’s decision. For more information, see today’s Houston Chronicle and The Dallas Morning News.

Marital Mediation - A New Arena for Family Law Mediators

In many states, a new and quickly growing area of family mediation is marital mediation.   Marital mediation is a process of assisted negotiation designed to preserve a marriage in ways not attempted by family therapy. The process uses family mediation skills to help couples negotiate new terms for their marriage. Marital mediation is not couples therapy or marriage counseling. There is no diagnosis, assessment or treatment of an illness or disability in the hopes of solving marital problems or achieving a better relationship. Through a dispute resolution approach, marital mediation provides the building blocks and a firm path to a happier and more satisfying relationship and marriage. 

Relationships are often plagued by disagreements, extramarital affairs, silent tensions or overt arguments which can lead to feelings of unhappiness and dissatisfaction and which often result in divorce or break-up. Many marriages face issues that prove too difficult to resolve without outside assistance. Because couples rarely sit down and directly negotiate with each other about what they find frustrating in the other person’s behavior and what behaviors could be substituted to ease the friction, marital mediation offers an approach to resolving conflict and to build a better relationship by using dispute resolution techniques in a cooperative, problem-solving way to reach an understanding to avoid future misunderstandings or inaccurate assumptions.

Couples may use marital mediation to enter into a written post-marital contract resolving issues such as how much of joint funds can each spend without checking first with the other, who owns what marital assets or how to cooperate in preparing a joint tax return. Other common marital mediation issues include her needs vs. his needs, intimacy issues, extramarital affairs, financial management, parenting practices and responsibilities, personal health and hygiene, religious practices and conflicts, living arrangements, career plans and expectations, relationships with family and friends and division of household labor and tasks.

For a family mediator, marital mediation is a way to expand your practice to offer mediation to help couples stay married. One of the major challenges for a marital mediator is to remain effective without losing neutrality.  As a marital mediator, there can be deep professional satisfaction in working with couples to help create a more enduring marriage.

Marital mediation is similar to divorce or separation mediation in many respects, yet the entire tone and energy of the couple is different. It looks for ways to strengthen a relationship through better communication and new behaviors. Please note that in Texas, marital mediation focuses more on the divorcing or separating couple rather than the marriage couple looking to strengthen their relationship. Marital mediation in the context of the divorcing couple is helpful because it provides an opportunity for constructive communication to help make the transition from confliction spouse to cooperating parent.

The mediation process is empowering to couples because it is so client-driven: the emphasis is always on the clients themselves, respecting their ability to recognize their own issues and craft their own solutions whether that is to strengthen a marriage or to strive for a cooperative divorce.

Sources: www.mediate.com; www.maritalmediationworks.com; www.achievingresolution.com

Do you really want a "mean" lawyer?

My colleague, Dick Price, wrote a fantastic piece about "mean" lawyers.  I find Dick's insights helpful and valid whether one is in the midst of family law case or general civil litigation. 

Dick's words of wisdom follow:

Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.

1. What is the client's overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There's no right or wrong answer. It just helps the lawyer to know what the target is.

2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there's no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.

3. What "mean" actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered "mean" in some circumstances. Within that limited category, what would the client want?

4. How does the client think "meanness" will advance his/her cause? Some clients don't realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?

5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, "mean" isn't cheap. The attorney's fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the "tit for tat" strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.

Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don't need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can't afford or won't want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.

Montgomery County Standing Order in Divorce and Suits Affecting the Parent/Child Relationship (SAPCRs)

All of the courts of Montgomery County have approved a Standing Order regarding children, pets, property and conduct of the parties that will apply in all divorce cases and in most SAPCRs. The order became effective March 15, 2009, and will likely eliminate the need for attorneys to request temporary restraining orders in Montgomery County in the future.

To obtain a copy of the Standing Order, please utilize the following link to the Montgomery County website: http://www.co.montgomery.tx.us/dcourts/standingorder.pdf

Is Your Case Eligible for Harris County's Family Law Evening Court?

In September 2008, Harris County anno unced a new monthly Family Law Evening Court. The first session was held on September 9, 2008. The new Evening Court is a great way to get a fast disposition of uncontested cases. Eligible cases include uncontested matters handled by volunteer attorneys through pro bono agencies certified by the Interest on Lawyers Trust Accounts (IOLTA) Program and uncontested pro se cases with a poverty affidavit.  Members of the Harris County judiciary preside on a volunteer basis. The program is presented through the cooperation of the Harris County family law courts, the Harris County judiciary, the Harris County District Clerk's Office, the Harris County Sheriff's Office and the Houston Bar Association.

Family Law Evening Court is held on the second Tuesday of each month from 5:30 p.m. to 7:30 p.m. on the second (2^nd) floor of the Family Law Center. To find out if your case is eligible, contact the clerk of the court in which the case is assigned. Public users can go to www.hcdistrictclerk.com, select the Civil/Family Courts menu and follow the Family Services link to the Evening Court’s docket search link. Users can then select a date and view the docket listings for the Family Law Evening Court.

Thanks to the court's evening hours, litigants will not have to miss work. Evening court also will help relieve the crowded family court dockets.

Sources: Houston Bar Bulletin, May 2009; Houston Chronicle, September 5, 2008.

Iowa Supreme Court voids ban on same-sex marriage

On Friday, April 3, 2009, the Iowa Supreme Court declared unconstitutional a 1998 state law limiting marriage to one man and one woman. Iowa is now the 3^rd state in the U.S. to legalize same-sex marriage. The other two states are Massachusetts and Connecticut. 

The Iowa Supreme Court Opinion cited a constitutional duty to ensure equal protection under the law – “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”

Though this is a victory for advocates of same-sex marriage, there are many unanswered legal questions that remain, such as what happens when same-sex couples relocate to another state that does not recognize their marriage, or what happens when and if the couple wants to divorce. 

For more information on same-sex marriage and domestic partnerships across the country, see the story in The Houston Chronicle.