Covenant Marriage In Texas and Crisis Marriage Course- Two Stink Bomb Bills From Austin

This piece is from the Texas Observer. Its about a real stinker of a bill (HB 180) trying to be passed in the Texas legislature to create something called a "covenant marriage" in which parties who enter into this special marriage could not file for a divorce unless they first go to counseling. Sounds innocuous enough, but here is the kicker: either the counselor or one spouse could forever keep the other spouse from EVER filing for a divorce. All they have to say is that the marriage is "salvagable" (whatever that means). This is simple blackmail. To say nothing of the increased costs of getting a divorce this counseling would create, think of the nightmare scenario of an abusive spouse having complete veto power over an abuse victim's ability to even file for divorce simply by saying he thinks the marriage is "salvageable". Sure, the counselor could give permission to file for divorce, but under this bill, the counseling is without any time limit, and as long as they are getting paid, why would a counselor end steady work?

Another lousy bill up for consideration is HB 2684 which would require parties to wait two years (TWO YEARS!) after filing before they can finalize a divorce. Under this bill, there would only be three ways to avoid being committed to this bleak divorce limbo/hell. One would be to attend a ten hour "crisis marriage education course". The cost of such a course could easily be in the thousands and would likely not be available in all counties. Another would be to file divorce "for cause" such as adultery. What will happen as a result? We will be taking a step backwards into the bad old days before no-fault divorce when people lied in court about fake cruelty or adultery just so they can get a divorce. Naturally the other party will have to hire a lawyer to protect themselves and mitigate the possibility that these lies will result in a judge awarding more property to the other, or perhaps taking their children away. The net result of the bill is not only that the pain and cost of divorce be increased, but that one or both parties are unfairly going to get their reputation dragged through the mud on public record or even possibly face criminal charges because of these "necessary lies". In addition, it will be harder for victims of domestic violence to get out of bad marriages. The other, would be to obtain a protective order. Already there are some unscrupulous parties who will file false protective orders to gain an advantage in a divorce. No doubt you will see a ten-fold increase of false statements of domestic abuse to avoid the bureacratic red tape put up if this bill passes. Not only would this be devastating to innocent parties falsely accused, but such "cry wolf" tactics could desensitze family law judges to the point where they might turn down protective orders when they are really justified.


These bills represent wrong-brained thinking about the source of the problem of increased divorce in this country and an artless solution that totally misses the mark. The bill may go to vote this week or next. All readers are encourage to call their representative in the Texas Legislature and tell them to vote against this bad bill before it becomes bad law.

What that state has joined, let no one tear asunder—without properly signed releases and a permission slip from a counselor.

To strengthen the bonds of matrimony, Rep. Bill Zedler wants to create a second tier of marriage licenses that would be $5 cheaper, but also make it harder to get a divorce.
The idea of “covenant” marriages—already allowed in Louisiana, Arkansas and Arizona—is that couples who obtain the We Really, Really Mean It marriage license will pledge a stronger troth. Those not interested could still get a garden-variety license that allows no-fault divorces.

“It’s easier to get out of a marriage than to get a lease on your car,” Zedler says. “You often see that some flare-up happens, and with the option of a no-fault divorce, one person can decide ‘I want out,’ and that’s it.”

Couples seeking a covenant license would have to receive premarital counseling. They couldn’t divorce unless both spouses and a counselor agree the marriage is unsalvageable. (Divorce without permission slips would be permitted in cases of imprisonment, abandonment, adultery, and abuse, with certain stipulations.)

It’s tempting to make jokes about picking between two levels of hell, but family violence counselors say Zedler’s bill is no laughing matter. Battered women do not need another potential barrier when trying to escape from an abusive relationship, they say.

Under Zedler’s bill, abused spouses in a covenant marriage would have to file a police report and get a court protective order before they could legally divorce. Zedler says he plans to amend the bill to require just a sworn affidavit.

Laura Wolf, director of public policy at the Texas Council on Family Violence, says no-fault divorce is often the best option for battered victims, who may have concerns about going to public authorities. Zedler’s affidavit would require victims to state on the record that they’re being abused.

“It may be safer for a victim of family violence not to have to disclose to the general public that that’s what’s happening in her home,” Wolf says. “It would potentially expose her to greater shame, greater danger, or it might provoke her batterer into contesting a divorce.”

Kathy Miller, president of the Texas Freedom Network, says two women are killed every week in Texas by an intimate partner. “Texas should do nothing to place barriers in the way of those women facing that situation,” Miller says.

Wolf points out that covenant marriages are already available through churches, though the covenants have no legal standing.

“People can opt into a covenant marriage in their own faith community today, but by the state creating this option, they put victims of domestic violence at risk,” Wolf says.

Zedler says he’s doing it for the kids: “If you look at what happens to children who are in a marriage versus a divorce, there is less child abuse, less crime, they are less likely to be in poverty. The end result is that it’s beneficial for us to create an environment that helps to maintain a marriage.”

Ex Husband Wants Alimony To End After Ex Wife Becomes A Man

CLEARWATER, Fla. — Lawrence Roach agreed to pay alimony to the woman he divorced, not the man she became after a sex change, his lawyers argued in an effort to end the payments.

But the ex-wife's attorneys argued Tuesday that the operation doesn't alter the agreement.
Less than a week after commissioners in nearby Largo drew national attention by firing the city manager after he announced he was a transsexual, lawyers for Roach and his ex-wife grappled in another transsexual rights case that delves into relatively uncharted legal territory.

Only a 2004 Ohio case has addressed whether or not a transsexual can still collect alimony after a sex change, those involved say.

"There is not a lot out there to help us," Circuit Judge Jack R. St. Arnold said.
Roach and his wife, Julia, divorced in 2004 after 18 years of marriage. The 48-year-old utility worker agreed to pay her $1,250 a month in alimony. Since then, Julia Roach, 55, had a sex change and legally changed her name to Julio Roberto Silverwolf.

"It's illegal for a man to marry a man and it should likewise be illegal for a man to pay alimony to a man," said John McGuire, one of Roach's attorneys. "When she changed to man, I believe she terminated that alimony."

Silverwolf did not appear in court Tuesday and has declined to talk about the divorce. His lawyer, Gregory Nevins, said the language of the divorce decree is clear and firm — Roach agreed to pay alimony until his ex-wife dies or remarries.

"Those two things haven't happened," said Nevins, a senior staff attorney with the national gay rights group Lambda Legal.

Arnold found fault with several of Roach's legal arguments and noted that appeals courts have declined to legally recognize a sex change in Florida when it comes to marriage. The appellate court "is telling us you are what you are when you are born," Arnold said.

An Ohio appeals court ruled in September 2004 that a Montgomery County man must continue to pay alimony to his transsexual ex-wife because her sex change wasn't reason enough to violate the agreement.

Roach, who has since remarried, said he has been unable to convince state and federal lawmakers to tackle the issue. He said he will continue to fight.

The case is the second transsexual rights showdown in Pinellas County in less than a week. On Friday, city commissioners voted 5-2 to fire Largo's city manager, Steve Stanton, after he announced he was a transsexual.

Source- A.P.

Do It Yourself Divorce- Think Twice

The following is a story from the Los Angelas Times and was picked up here locally by the Houston Chronicle. The traps of "Do-It-Yourself" Divorces are no less here in Texas than in California. Caveat Emptor! Buyers Beware! Scams are everywhere. If you are seeking a divorce, you absolutely should invest at least in a short consultation with an attorney experienced in divorce before you attempt to do anything on your own. Good attorneys (like myself) will not try to hustle you into an expensive divorce if you can't afford it and you can do it for yourself. However, our courts are incredibly "non user friendly". More often than not you will wind up paying fees twice: once to try to do it yourself, and then again to finally hire a lawyer to fix the mess you made. The old adage is very true: "Anyone who attempts to represent themselves in court has a fool for a lawyer."

LOS ANGELES - When Yanic Chan and Vanessa Van split up in 1995, they could not afford a lawyer. So, like thousands of other people without money, they filled out the divorce paperwork themselves, with help from a friend and courthouse staff.

In November 1997, Van went to the Riverside County Courthouse to enter a final judgment. "The clerk put the stamp on it," Van said. "I asked, 'Everything finished?' She said 'Yes.' "
Chan returned to his native Cambodia, fell in love and married again. Then, in 2006, he tried to bring his new wife to this country. That's when Van and Chan got a nasty surprise, one that court officials fear could be awaiting thousands of other former California couples: Their divorce had not gone through.

Driven by rising legal fees, a shortage of legal-aid lawyers and a do-it-yourself philosophy, about 80 percent of people in California handle their own divorces.
Accidental bigamyMany of them are not quite as divorced as they think they are. Some, like Chan, are even accidental bigamists.

Tens of thousands of others have some understanding that their divorces are not done. But stumped by complex paperwork and court procedures and unable to afford thousands of dollars for attorneys, they simply let their cases languish.

Court officials suspect the problem is vast. In Los Angeles County, perhaps more than one-third of all divorce petitions filed have not been finalized, according to Kathleen Dixon, who heads the Los Angeles County Superior Court's programs for self-represented people.
Officials don't have statistics because they don't monitor cases to make sure they are finished.
One Los Angeles County Superior Court judge, Mark Juhas, found that about one-third of the roughly 3,600 divorce cases filed in 2001 and 2002 and assigned to his courtroom remained open. Some of those couples may have reconciled, but Juhas suspects that many more are stuck or may even think they are divorced when they are not.

At one legal services center in the Van Nuys district of Los Angeles, officials say they see 20 people a month who wrongly thought they were divorced.

"They come in screaming," said Norma Valencia, a paralegal at the center operated by Neighborhood Legal Services. "They say, 'You don't understand my situation. I want a divorce right now.' "

In California, getting divorced takes at least three steps: filing divorce papers, serving them upon the spouse, and then writing and processing a judgment with the court. The process can be more complicated if there are children, or fights over assets. A divorce cannot become final until at least six months after the papers are served.

Increase in trendIncreasingly, across California and the nation, people are handling their own civil court matters. In San Diego County, one of the few counties where statistics are available, 46 percent of people represented themselves in divorces in 1992, but by 2000 that figure had climbed to 77 percent.

One reason: increasing fees for lawyers combined with decreasing legal-aid services for poor people, said Richard Zorzo, who coordinates a national network of organizations working on self-representation.

Also a factor, he said, is a "Home Depot philosophy of people feeling they can do things on their own." But the legal system wasn't organized with a do-it-yourself approach.

Juhas said the problem was brought home to him a few years ago, when a couple came before him on a routine matter. They had filed for a divorce a few years earlier, and both husband and wife had since remarried. Juhas said he looked down at their file and then back up at the couple. "I said, 'Do you realize your judgment was never entered?' "

Luckily for the couple — and their new spouses — Juhas finalized their divorce without invalidating their new marriages.

Can a Catholic Attorney Be a Divorce Attorney?

Disclaimer: I have no moral authority. The only justification for the following opinion are my many hours of internet research, and soul searching and praying on this topic. I do not evangelize in my practice of law and I respect every person's choice on the topic of religion. I also believe in the necessity of the separation of church and state to allow our government to act for all the people regardless of religion or creed. However, I like everyone, daily struggle to reconcile my vocation with my religion, and I have seen very little about this topic written about from the attorney's perspective. Therefore, in the hope that others may benefit from these thoughts, I have decided to make this post.

In 2002, John Paul II advised Catholic attorneys that they should refuse to take civil cases that promoted divorce. Many people took that to mean that a Catholic attorney could not participate in any divorce actions. This simply is not true, and was not the message of the Pope.

Catholic attorneys should not become involved in civil matters that encourage or promote the division of the holy institution of marriage. However, Catholic attorneys, who take cases in which they act in good faith and moral purity, are merely promoting a peaceful and just resolution to disputes. Good Catholic divorce attorneys who allow themselves to be guided by the Holy Spirit, will find ways to counsel their clients towards a more Christ-like solution to their clients relationship problems. A good Catholic attorney should first and foremost guide his client toward reconciliation with their spouse and should not take any case in which he or she feels that so engaging will destroy a remaining chance of reconciliation. Furthermore, the faithful Catholic attorney should use every opportunity that presents themselves in the divorce process towards seeking reconciliation.

Beyond that I believe that Catholic attorneys can and should engage in the practice of divorce and family law. These Catholic attorneys may become the only voice of moral wisdom for a client who finds themselves in a confusing secular system of family courts. They may be the factor that will prevent a painful process from becoming descending into a vengeful winner-take-all battle that keeps Christ's love from entering the hearts of the clients. They may be the only rational voice for the best interest of the children of divorce- who are innocent victims caught in the middle and sometimes their welfare is forgotten about by embattled spouses.

It must be remembered that Catholic divorce attorneys are only dissolving the legal civil bonds. They cannot ever destroy the Holy bonds which tie a married couple together. A Catholic attorney can assist a party in ending the civil bonds that have tied them to another if the reasons are just- such as to obtain child support, or effect a just division of property so a spouse who is no longer being financially support can survive. Remember that the Catholic Church does not forbid a married man and woman to live apart if living together becomes destructive to them. The civil divorce only dissolves the legal and financial bonds. It can never dissolve the holy bond.

However, Ia Catholic attorney sins if they knowingly use their powers to obtain a divorce for unjust and sinful reasons such as so a client can marry another person or so they can otherwise commit adultery or other sins.

The following is an excerpt from the Catholic Encyclopedia which summarizes the duties of the Catholic Divorce Attorney:

"From the Decree of the Holy Office, 19 December, 1860, in answer to the Bishop of Southwark, it is clear that in England an attorney may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority a Catholic attorney may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which now therefrom. "

Pistol Packing Preacher's Wife

"A preacher's wife was arrested after police say she pulled a gun on her husband because she allegedly was upset over text messages he had sent to a member of a church youth group. Tammy Estes surrendered to law officers at the Pentecostal Church of God in Newport after a brief standoff at the church Sunday evening. No one was injured. She was taken to the Jackson County Detention Center. She was expected to be arraigned Monday. Police say a church service had just begun when Estes pulled a gun on her husband, preacher Larry Estes, about 7 p.m. According to congregation members, she was upset over messages Larry Estes allegedly exchanged with a youth group member and she demanded he admit infidelity."

Yahoo News Link to Article

Police Interference with Parent's Visitation Rights Did Not Violate Parent's Substantive or Procedural Due Process

The United States Court of Appeals for the Ninth Circuit examines the constitutional interests at stake when police act in visitation disputes. The case involved an ongoing custody and visitation dispute. Father had sole custody of the son and Mother had visitation rights. Police were regularly called upon to intervene when the parent's transferred the child. In this case, Father came to pick up son from Mother and Mother insisted that she had a week of additional visitation time. Father then called the police to assist in retrieving his son. Mother alleged that Father knew the police officer that was called and that he and the officer had conspired to deprive her of visitation. The district court found sufficient factual questions regarding this alleged conspiracy to deny defendant's motion for summary judgment.

In reversing the district court, the court of appeals acknowledged that Mother had a liberty interest in her visitation with her son, but held that the officer's acted reasonably in interpreting the custody order and the deprivation of one week of visitation did not rise to the level of a federal constitutional violation.

The court noted the prudential considerations supporting this holding: "In so holding, we are mindful that this case arises in the intersection of several fields of law where federal courts have shown the greatest hesitation in creating new federal mandates. We will not disregard this justifiable caution lightly. Substantive due process vindicates those interests which are fundamental and, contrary to [Mother’s] theory, may not to be used as a font of tort law to be superimposed upon whatever systems may already be administered by the States.... If every custody dispute, including ones only concerning a weekend or even an hour of visitation, can give rise to a federal claim necessitating federal interpretation of a state custody order, federal courts could rapidly become de facto family courts. Such a result is not permitted by Supreme Court jurisprudence."

The court noted the fact-specific nature of its holding: "We need not hold that visitation rights will never give rise to a substantive due process claim.... We need not reach the question whether interference with a lengthy visitation period or repeated interference with shorter periods may give rise to a cognizable substantive due process claim. We need not decide here whether interference that affects the existence of visitation rights altogether, rather than discrete instances of visitation, might give rise to a viable claim. Nor need we reach the question whether custodial parents may bring suit. "

As to the procedural due process analysis, the court concluded that no pre-deprivation hearing was required in enforcing this visitation order, as Mother could have sought to have the order clarified at an earlier time and the state's interest in promptly enforcing these orders was significant.

Justice Silverman wrote separately to note his disagreement over the court's statement that “'a single instance of visitation, of a single week in duration', is not a fundamental right.... Even though a non-custodial parent may have visitation “only” every other weekend, to some parents that weekend is the moon and the stars." However, under the circumstances of this case, given the reasonableness of the police officer's actions, he agreed that the district court should be reversed.

Brittain v. Hansen, 9th Circuit No. 03-57012 (June 22, 2006)

Source: Family Law Prof Blog

Service of Process While In Texas for Divorce Mediation Can Establish Personal Jurisdiction

If you live in Texas and voluntarily attend mediation in another state prior to a divorce case being filed, you may get slapped with service papers while attending the mediation. Also if you live in another state and come to Texas for a mediation, you may get slapped with a Texas lawsuit while here.

Although the Texas ADR Statute protects the confidentiality of the proceedings, there is nothing to protect the parties to a mediation (or any other persons present) from being approached by a process server and personally served with notice of a suit. Certainly a process server cannot trespass on private property, but you can be caught walking to or from the mediation site.

In addition, presence in the State of Texas for the purposes of mediation does not protected a person from "in personam" jurisdiction. The Court will likely consider your presence in the State of Texas for the purpose of mediation as grounds that you have submitted yourself to Texas jurisdication, and you are subject to lawsuit in this state. If this happens, you could not claim that the State of Texas does not have jurisdiction over you..even if you live in another state.

I am aware of no Texas statutory or case law on this exact point, but a recent Washington State case favored the trend that there are no protections from personal service for mediation.

Recently, the Washington Court of Appeals discussed the propriety of asserting personal jurisdiction on the basis of personal service of process on a divorce litigant while they are present in the state for a divorce mediation.

The court rejected the approach of those states that require the defendant be warned that he might be served with process when entering the state for settlement negotiations and held that the Washington court properly had personal jurisdiction over husband on the basis of the personal service and the fact that the couple had owned Washington property during the course of the marriage (though they resided in Ohio).

In re Marriage of Craze, 2006 Wash. App. LEXIS 1279 (June 19, 2006).

Therefore, if you are seeking to avoid having to attend a divorce, (or any other lawsuit) in a state other than where you live, be very wary before voluntarily entering the state to attend a mediation.