Social Media to deny alimony or grant 60/40 split

 

A trend has emerged in the context of Texas Family Law to refer to the opposing spouse’s social media accounts in search of “smoking guns” and obtain an edge. This practice has provided unbelievable evidence and is seen primarily in cases where the Parties’ estate is substantial and one party seeks alimony from the other. Alimony is an exceptional remedy in Texas, other than temporary. It is governed by Chapter 8 of the Texas Family Code.

Alimony is limited to the following circumstances:

Spouse from whom sought was convicted of a crime involving family violence within 2 years or during the pendency of the case
Marriage lasted 10 years and spouse lacks sufficient resources to meet their minimum reasonable needs
Spouse is unable to care for self due to incapacitation due to physical or mental disability
Spouse seeking required to spend substantial time caring for their child due to a physical or mental disability
Spouse seeking clearly lacks earning ability in the labor market adequate to meet their reasonable minimum needs, defined by Section 8.054
Factors considered in determining alimony include: resources, comparative wealth, education, skills, duration of marriage, contribution as homemaker, physical and emotional condition, ability of payer to fund alimony and child support, BAD ACTS of a spouse (adultery), marital misconduct, efforts to find employment and/or job training. As one can see, alimony can be an uphill battle, particularly considering property divisions being roughly equal, aside from personal property.

Two ways in which social media is commonly used is to negate disability and demonstrate marital misconduct. In one case, the wife was denied alimony based on her alleged disability where Facebook photos showed her water skiing. In countless others, affairs are discovered through discovery of emails, text messages, Twitter, online dating services, and other social networking sites. While not a Texas case, many Courts agree with Largent v Reed, 2001 WL 5632688 Pa. Com. Pl. This Court ruled that Facebook offers no expectation of privacy. In a South Texas case I litigated, the Judge shockingly allowed the Plaintiff’s extravagant lifestyle to be paraded in front of the jury in a personal injury case, where wealth is in admissible to prove liability.

Word of warning to social media users: never forget that anything you write or post can and likely will be used against you. With high stakes, can you really afford it? [wpResize]

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Primary Custody in Texas

Parents frequently asked “How is primary custody determined by the Courts?” The term “primary custody” is commonly used jargon to describe the Parent with the exclusive right to designate the child’s primary residence, since parents will be deemed Joint Managing Conservators in most cases (“JMC”). Joint Managing Conservator denotes the fact that both parents have the same rights and duties, with the exception of the parent who will provide the child’s residence. The Texas Family Code contains a rebuttable presumption that it is in the best interest of the child to have both parents co-parent and Courts rely upon the

Standard Possession Order in most cases.

Circumstances that might cause a Court to deviate from a Standard Possession Order or Joint Managing Conservatorship incude: prior family violence towards any member of the family, whether either Parent has a history of abuse or neglect (both of which would prohibit a JMC), whether the Parents can peacefully co-parents, and other factors that might render a Parent unfit to serve as JMC. See Tex. Family Code § 153.004. The factors generally considered include:
The parent’s ability to give first priority to the child’s welfare;
The parent’s ability to reach shared decisions in the child’s best interest;
The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
The parent’s role/participation in the child’s rearing;
Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and
Where the parents live in relation to one another.
See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts, demonstrates lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

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