Digital assets are a huge part of our everyday lives.  The pictures on your iPhone, your Netflix account, documents saved in Dropbox, your Kindle library, and your Instagram page are all examples of digital assets.

While it may seem that digital assets are inconsequential when it comes to a divorce, that may not always be the case.  Technology has become such a significant part of our daily lives that digital assets may have significant monetary value beyond just the sentimental value.

A digital asset is intangible content that is stored in various types of digital formats.  Examples of common digital assets include: e-mail addresses, social media accounts, web sites and domain names, digital media (photos, videos, e-books, movies, and videos), blogs, reward points, data storage accounts (Dropbox, OneDrive), digital storefronts, and virtual currency (such as Bitcoin).

If these digital assets were acquired during the marriage, they will be considered part of the community estate and will be subject to a just and right division by the court.  When going through a divorce, each party should take an inventory of all digital assets that are considered community property.  If a digital asset was acquired prior to marriage, was a gift, or was inherited, it will be considered separate property and not subject to division in the divorce.

Once the digital assets have been identified as part of the community estate, they will be valued.  Valuing these assets is highly case dependent and will often require negotiation between the parties.  For example, a party’s personal social media page may have no monetary value.  However, if a couple has a social media page or website that generates revenue (such as a blog or Instagram account), the parties will want to give it a monetary value and determine who will be awarded the account.  There will certainly be some digital assets that have no value and you should focus on those digital assets that are most important.

When the parties divide the digital assets, the final decree should include language that allows the party who has been awarded the account the ability to change the password.  Additionally, the decree should include language that the party who is awarded the account is responsible for any fees associated with the account.  For example, if one party is awarded a domain name, that party will be required to pay the fees associated with the domain moving forward.

Some digital assets can be “shared,” which a great way to avoid conflict during divorce.  In many cases, digital assets can be copied and re-created so that both parties can have family photos or videos.  In some instances, digital libraries can be copied, but you cannot violate licensing agreements.

It may be a pain to divide these digital assets, but it should be dealt with during the divorce proceedings, particularly any income-generating assets or virtual currencies.  You do not want to deal with this after your divorce has been finalized.

You should not change passwords or block access to a digital asset until you have agreements with your spouse or a court order allowing you to do so.  Preemptively removing a spouse’s access can create bigger problems for you in the long run and in many instances would be a violation of the county’s standing orders.

When going through a divorce, take the time to discuss your digital assets with your attorney.  These are as important as ever and the attorneys at The Draper Law Firm are ready to help.

Blog Post by Samantha Mori, Associate Attorney

0

Today the Texas Supreme Court issued its opinion in the landmark child custody case In re C.J.C.  Holly Draper served as lead counsel for the father, with Brad LaMorgese of Orsinger, Nelson, Downing and Anderson serving as co-counsel.  The case began back in 2018 when the child’s mother was tragically killed in a car accident.  The child was three at the time.  Both the maternal grandparents and the mother’s fiance sued for joint custody with the father.  The Court of Appeals ruled the grandparents did not have a right to sue for custody because they could not prove the father was unfit, and the grandparents were dismissed from the suit.  Texas law did not include a similar requirement that the fiance prove the father was unfit, so he was allowed to remain in the case.  A Denton County judge then gave the fiance rights and possession time with the little girl over the father’s objections.  We sought relief from the Texas Supreme Court, arguing that the trial judge violated the fit father’s constitutional rights when she gave rights and possession to a non-parent.

The case has garnered national attention, with nine different organizations filing amicus briefs into the case in support of our position.  The State of Texas and the Texas Public Policy Foundation participated with Holly Draper in oral arguments in support of the father.  Oral arguments were held via zoom on April 22 after COVID-19 delayed the original argument date.

The Court’s ruling today is a huge victory for parents in Texas.  Eight justices joined the majority opinion, with Justice Lehrmann issuing a concurring opinion.  The majority opinion found this case to be very similar to the landmark United States Supreme Case of Troxel v. Granville and rejected the opposing party’s position that the fit parent presumption should not apply because this case involved a modification.  The Court held that “we read any best-interest determination in which the court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent to include a presumption that a fit parent acts in his or her child’s best interests.”  The Court also clearly found the father to be fit in this case.  You can read the entire opinion here.

0

Today we are discussing some basic “Dos” and “Don’ts” to help you with some legal issues that may arise during and as a result of the COVID-19 pandemic. Check out the links for more information and resources.

DOs:

  • DO plan for your future with a will, living, will, statutory durable power of attorney, and medical power of attorney.
    • Every adult should have these four documents to ensure that (1) your assets pass according to your wishes; (2) you choose the end-of-life medical treatment that you want; and (3) you decide who will make medical and financial decisions for you in the event you are unable to make them for yourself.
    • Many attorneys, including the attorneys at The Draper Law Firm, are working hard to continue to provide these services to clients throughout the state. Due to the coronavirus, many attorneys are not providing in-person execution of these packages, but there are options to have these executed.  We are actively monitoring possible changes in the law that would allow for virtual signings.
  • DO continue paying your child support obligation.
  • DO follow your court ordered possession and access schedule.
  • DO co-parent to do what is in the best interest of your child.
    • Nothing about the current circumstances is normal. We encourage you to communicate and work with your co-parent to find creative and agreeable solutions to problems that may arise during this time.
  • DO reach out to resources that can help if you are struggling.

DON’Ts

  • DON’T ignore shelter-in-place orders.
    • Most counties in the state have issued shelter-in-place or other orders restricting movement. Only essential businesses remain open.  If you are required to go out, you should follow the CDC recommendations to protect yourself.
    • Remember, exchange of children according to a possession and access schedule is considered essential, but please be smart about this and do what is needed to keep your children and community safe.
    • Collin County Order, Dallas County Order, Denton County Order
  • DON’T participate in unnecessary travel.
    • Much like ignoring the shelter-in-place orders, traveling unnecessarily exposes you, your children, and others that you interact with to the virus.
  • DON’T assume the courts are closed.
    • If you have legal concerns, remember that attorneys are still operating to meet the needs of their clients. Courts are holding virtual hearings for most matters and the legal community is working together to find creative solutions to issues that may arise.
  • DON’T assume you are entitled to 100% percent of a stimulus check.
    • The government recently passed legislation that will entitle many adults to stimulus checks for themselves and their dependents.  If you are married, this money is community property and is subject to division in a divorce.  If you have questions or concerns about what effect your recent or pending divorce will have on a stimulus check, you should reach out to your attorney.
    • While back-owed taxes and defaulted student loan payments will not prevent payment, a stimulus check can be seized for past-due child support.
  • DON’T be afraid to reach out to your attorney.
    • Your attorney is there to answer case specific questions that may arise as a result of COVID-19.  Please keep in mind that this is uncharted territory for all of us, and sometimes the only correct answer is that we don’t know.

Blog post by Samantha Mori.

0

Unfortunately, the COVID-19 pandemic has resulted in many people losing jobs or seeing a reduction in pay.  For someone who is court-ordered to pay child support, this can trigger the need to modify.  First and foremost, losing your job or having a decrease in pay does not mean that your child support obligation automatically changes or goes away.  It is critical to act quickly to modify your child support obligation unless you are in a financial position to continue paying the same amount.

In order to modify your child support obligation, you must obtain an order from the court.  If the other parent will agree to the change, you can get an agreed modification done very quickly through an attorney.  If the other parent will not agree, you will need to prove that your job loss or reduction in pay constitutes a “material and substantial change” sufficient to modify child support.  Determining what is a “material and substantial” change is a fact-intensive inquiry and decided on a case-by-case basis.  In general, any change in income caused by a lost job or decrease in pay that would change the child support calculation by more than $100 is considered to be a material and substantial change for purposes of a child support modification.

What should I do if I have lost my job or had my pay reduced?

If you have lost your job or had your pay reduced, you have two options for pursuing a modification of your child support payments. You can either hire a private attorney or you can request a modification through the Texas Attorney General.  A private attorney will charge you but is generally much quicker.  The Attorney General is free, but the process can take several months once a request is made.  If your child support obligation will be reduced significantly, it is usually worth the cost of a private attorney to make that change happen quickly.  You should start the process as soon as possible because job loss or a reduction in pay will not stop or “pause” payments.  You will not be able to retroactively reduce your child support obligation, so you want to initiate the modification as soon as possible.  Do not stop making payments if at all possible.  If you do, arrearages will begin to accrue and you will not be able to reduce those arrearages with a modification.  You will be responsible for paying the full amount owed plus interest, as you can only modify going forward.

What does the process look like?

If the other parent will agree, the quickest way to have your child support modified is to have an attorney file a petition to modify and an agreed order modifying child support.  If the other parent will not agree, your lawyer will file a petition to modify child support or the Office of the Attorney General will conduct a review of the child support order.  It is your responsibility to show the material and substantial change in circumstances.  The court will consider your past employment, ability to work and earn an income, and current federal minimum wage when considering whether to grant a modification and in what amount.  After a hearing, the court will determine if a modification is appropriate and, if so, how much the new child support obligation should be.

Are courts operating right now?

Yes.  COVID-19 has changed the way courts are functioning, but the courts are still functioning and cases continue to move forward.  Only “essential” matters are being heard in person, but non-essential hearings are taking place virtually via Zoom.  This means that your attorney can still file a suit for modification and request a hearing to have the order modified during this crisis.

Child Support

(Blog post by Samantha Mori and Holly Draper)

0

The outbreak of COVID-19 has had a significant impact on most people’s day-to-day lives.  Businesses shut down, schools closed, and people are uncertain in many areas of their lives.  Many counties (including Collin, Dallas, Denton, and Tarrant) have issued “shelter-in-place” or “stay-at-home” orders that restrict leaving home to essential activities only.  School closures and various (sometimes conflicting) shelter-in-place orders have left parents concerned about how this will affect possession and access schedules.

The Texas Supreme Court recently issued guidance on this topic.  On March 24, 2020, the Court issued its Seventh Emergency Order Regarding the Covid-19 State of Disaster.  The Court ordered “for purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the existing trial court order shall control in all instances.  Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a government entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”

What does this mean for parents? 

The Supreme Court has ordered that parents must continue to follow the possession and access schedule as ordered by their court.  This means that possession and access to a child are not affected by any shelter-in-place that your city or county has issued.  In fact, many shelter-in-place orders explicitly state that traveling to exchange the children is not a violation of the orders.

What if you believe your child is at risk by going to the other parent?

The Texas Supreme Court has thus far not issued exceptions that would permit a parent to withhold a child on the basis that the child is at risk of exposure to coronavirus.  We strongly recommend working with your co-parent to do what is in the best interest of your child under the circumstances.  Absent an agreement between the parents, the court ordered possession and access schedule is still in effect.  Although we expect courts to be lenient when a parent is reasonable in taking certain actions to keep a child safe, a party who does not follow the court-ordered schedule could be subject to court action, such as contempt of court.  If you have concerns about this issue, you should reach out to a family law attorney familiar with your court, as this situation will be case and fact specific.

What if schools stay closed?

Texas courts have given a great deal of guidance about how school closures impact child custody schedules, which are usually based on school schedules.  After several counties put out orders related to school closures, the Texas Supreme Court did the same.  In short, parents need to follow the originally published school calendar for possession and access unless they agree otherwise.  You can find the full text of the Texas Supreme Court’s order on possession during school closures here.

But aren’t the courts shut down?

The district courts in Texas are operating differently due to the COVID-19 pandemic, but they are still operating.  Many hearings are now conducted virtually via zoom.  Only hearings on essential matters can happen in person, but even those hearings can be conducted virtually by agreement.  Clerks are still processing filings and the court systems are still functioning and moving cases forward.  Many attorneys (including those in our firm) are working virtually and continuing to file cases and move cases forward on behalf of family law clients.

This is a constantly changing situation, and new orders have come out regularly from various state and local courts over the past few weeks.  For those in Collin County, Judge Emily Miskel of the 470th Judicial District Court is trying to keep up-to-date emergency orders posted here.  The Collin County District Courts Facebook page regularly posts updates with helpful information as well.

(Blog post by Samantha Mori and Holly Draper)

0

The Draper Law Firm has been largely virtual since 2008.  With many lawyers forced to go virtual due to the coronavirus situation, here a few helpful resources for making the transition:

Phone System – Having a VoIP based phone system is extremely helpful when you are virtual.  It allows people to use their office number from anywhere via a desktop or mobile app without ever having to give out a personal cell phone number.  Our firm uses Ring Central.  Grasshopper is another example, but a search for “VoIP for business” will give you a lot of good options.

Answering Services – Having a backup answering service can be very helpful when everyone is working from home, especially since many people are now also managing their children’s schooling from home at the same time.  Our firm uses Lex Reception, but other options include Ruby Receptionist, Answering Legal and Smith.AI.  During business hours, our phone system will ring to our legal assistant first, but if she is unable to answer for whatever reason, it will switch over to the answering service.

Video Conferencing – Don’t you wish you had bought stock in Zoom a month ago?  Video conferencing is extremely important during a time when we cannot have much face-to-face interaction.  Ring Central includes a video meeting component powered by Zoom.  Zoom offers a free option, but it limits the length of meeting time.  GoToMeeting, Skype and FaceTime are other options.  FaceTime requires each person have an apple device, so I do not think that is the best option for office use.

Cloud-Based Storage –  This is critical to operating virtually, as it allows everyone in your office to access and work on the same documents without e-mailing things back and forth.  We use DropBox for business, which is secure and HIPAA compliant.  Other options include ShareFile.com, Egnyte.com, Box.com, Clinked.com, and Google Drive.  Texas Ethics Opinion 680 provides that a lawyer may use a cloud-based electronic data storage system to store client confidential information, but lawyers must take reasonable precautions related to data breaches, unauthorized access, and the disclosure of confidential information.

E-Signing Software-  Use software that allows people to sign documents electronically  such as Adobe Acrobat Pro or DocuSign.  We send out forms through Clio Grow, which allows clients to fill out questionnaires and sign fee agreements electronically.

Practice Management Programs – Our firm uses Clio Manage for practice management.  It allows for time keeping, billing, calendars, reporting, task management, and has greatly streamlined the case management process for our firm.  Other examples of practice management programs or task management programs are MyCase, Practice Panther, and RocketMatter, Monday.com, Dubsado, Padio, Trello, Asana, and Smokeball.

Office Essentials – Every person in the firm should have their own laptop and printer / scanner / copier.  When you are largely paperless, you don’t need the huge copier systems that many firms have at the office.  An at-home all-in-one printer for less than $200 will be perfectly sufficient.  It is important to either have a good shredder or have a lockable box for storing to-be-shredded documents.  Once it is full, have a shredding company come shred it.

If you have other resources you think would be helpful, feel free to share them with us using the Contact form and we will update accordingly!

 

0

Did you know that under the current state of the law in Texas, it is easier for a non-relative who had minimal involvement with a child but lived under the same roof to get in the door on a custody suit than it is for a grandparent or other family member?  Unfortunately, once someone gets in the door and has “standing” to sue for custody, the Texas Family Code does not provide any statutory protections for fit parents beyond a presumption in original suits that a parent should be appointed as the managing conservator over a non-parent.

The Texas Family Code might not protect fit parents, but the United States Constitution does.  The United States Supreme Court held in the landmark case of Troxel v. Granville, 530 U.S. 57 (2000), that the due process clause of the fourteenth amendment protects the rights of a fit parent to parent as he or she sees fit, without government interference.  The U.S. Supreme Court specifically found that “[t]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”

The Draper Law Firm currently represents the father (“Relator”) in a mandamus proceeding currently pending before the Texas Supreme Court (In re C.J.C., Texas Supreme Court Case No. 19-0694).  We are arguing that the trial court judge abused her discretion and violated the father’s constitutional rights when she awarded rights and possession to a non-parent (the deceased mother’s fiance) over the fit father’s objections.

The case has garnered a lot of attention both within Texas and nationally, as six amicus curiae have filed briefs in support of our position.  Five non-profit organizations – the Texas Public Policy Foundation, the Texas Home School Coalition, the Parental Rights Foundation, the Alliance Defending Freedom, and A Voice for Choice Advocacy – have filed amicus briefs arguing for the protection of parental rights and asking the Texas Supreme Court to grant our petition.  Notably, the Texas Attorney General and the Texas Solicitor General filed an amicus brief on behalf of the State of Texas in support of our position.  This kind of amicus support in a family law case is exceedingly rare, and it underscores the importance of the issues involved in this case.

The Texas Supreme Court has set the case for oral argument on March 24, 2020 at 9:00 a.m.  Holly Draper will be arguing on behalf of the father, seeking to have the Texas Supreme Court render an opinion that would protect the rights of all fit parents in Texas.  Both the State of Texas and the Texas Public Policy Foundation have filed motions requesting to participate in oral argument.  If you are interested in learning more about the case, all of the briefs and filings can be found here.  The Texas Supreme Court live streams all oral arguments.  The site for viewing live oral arguments or searching for past oral arguments can be found here.

 

1

Although most stay-at-home-moms I come across are married, every once in a while I come across a stay-at-home-mom who is not.  She has chosen to stay home and take care of the child(ren) while her boyfriend continues to work.  Maybe he convinced her that it costs too much for childcare for her to work, or maybe she just always dreamed of staying home with her baby.  Whatever the reason for making that decision may have been, there are a number of reasons why that decision can really come back to bite her down the road.  Below are five reasons why you should never decide to be a stay-at-home-mom if you are not married to the father of your children.

  1. Texas is a community property state, which is great… if you are married.  If you are not married, the father of your child, who you are in a relationship with and who you are sure would never do anything to hurt you, can be making millions of dollars.  Unfortunately, you will never see a penny of it if you split up.  Every dollar he makes is his separate property.  He is accumulating wealth while you are accumulating nothing.
  2. You know that beautiful house you and your child’s father picked out that he bought and you both live in?  It’s his separate property.  If he decides he wants to move on (or you can’t take his abuse any more, etc.), guess who gets to stay in the house?  Him.  And guess who will probably not be able to qualify to rent her own place because she has not been working in so long?  You.
  3. Because you were not married, you have no chance of getting spousal support.  Your only possible source of support from the father is child support.  Even if you are lucky enough to receive the maximum amount of child support, it is nowhere near enough to support you and your child(ren).
  4. The longer you have been out of the workforce, the harder it will be to get back in.  That degree your parents spent big bucks on or you went into debt to get?  It’s pretty worthless if you have not worked in years.  (This is true regardless of whether or not you were married, but at least if you were married, you would hopefully have some community assets to get you through while you got back on your feet.)  If he decides to kick you out of his house, you will need to support yourself and your child(ren) immediately.  That is not easy to do.
  5.  Don’t think you can just go back home to live with your parents if this happens to you if your parents don’t live nearby.  Residency restrictions are almost always granted if one party requests it.  A judge will likely not be sympathetic to your request to move far away so you can move in with your parents because you have no way of supporting yourself.  The court’s priority is for the child to have regular access to both parents, which cannot happen if you move away.

You may be wondering why I limited this post to stay-at-home-moms instead of “stay-at-home-parents” or “stay-at-home-dads.”  The reality is that it is women, not men, who make this mistake.  I have never seen an unmarried man give up his career to stay home with a child while his girlfriend worked.  I urge you to think long and hard before you go down this path.

Divorce

0

One of the most common misconceptions I hear from people about child custody cases is that once a child reaches a certain age, that child can choose whether or not she wants to see mom or dad.  This is absolutely not the case.

Under the Texas Family Code, once a child reaches the age of 12, that child gets a vote.  The child can choose whether she wants to live primarily with mom, primarily with dad, or fifty / fifty with each parent.  This vote carries a lot of weight, and in order for a judge to go against the child’s wishes, a parent must prove those wishes are not in the child’s best interest.  For example, if Teen Girl likes living with Mom because Mom has no rules, Mom allows Teen Girl to drink, and Mom allows Teen Girl to have lots of private time with her boyfriend, whereas Dad has a lot of rules and does not allow those types of things, Dad has a legitimate argument that it is not in Teen Girl’s best interest to live primarily with Mom.

Although a child gets a vote at age 12+, more often than not I see agreements reached before the child actually has to meet with the judge.  If one parent requests a modification due to the wishes of the child, the other parent will often agree to avoid expensive litigation (assuming there is not a legitimate “against the best interest of the child” argument to be made).

I often hear from parents who say their children do not want to see the other parent at all, or they want to spend significantly less time with the other parent than is ordered.  I always remind those parents that, unless the other parent is a really bad parent (alcoholic, drug addict, abusive, neglectful, etc.), it is extremely difficult to get anything less than a standard possession order for that parent.  Further, it is the parent’s responsibility to ensure the children go to their periods of possession with the other parent, even if they do not want to go, or the parent can be held in contempt.  In my experience, the older a child gets, the more deference a judge will give to that child’s wishes, but the reality is that parents need to follow court orders.

1

The Draper Law Firm, PC is excited to announce that Holly Draper has been selected as a 2019 Texas Super Lawyer in the area of Family Law.  No more than five percent of lawyers receive this distinctive honor each year.  The Super Lawyers list is published in this month’s Texas Monthly magazine, as well as in the annual Texas Super Lawyers magazine.

Ms. Draper has previously been recognized as a Rising Star by Super Lawyers in 2016, 2017 and 2018, an honor bestowed upon only 2.5 percent of lawyers age 40 or younger or who have been practicing less than ten years.  In 2017, Ms. Draper made the Super Lawyers’ list of the Top 50 Up and Coming Women Lawyers in Texas.

1