New Jersey Lawsuit Filed Against Wife in Boxer Gatti's Death

Legal wrangling over the estate of deceased boxer Arturo Gatti -- and an ongoing argument over how he died -- is continuing with a new lawsuit filed in New Jersey on behalf of his 5-year-old daughter.

Attorney Anthony Pope filed a wrongful death lawsuit Sept. 9 in Middlesex County against Gatti's wife, Amanda Rodrigues Gatti, who is not the child's mother. Rodrigues was married to Gatti at the time of his death, which occurred on a trip to her native Brazil in July 2009.

The suit, filed on behalf of Gatti's daughter, Sofia Bella Gatti, and her guardian and biological mother, Erika Rivera, seeks damages and restraints on Gatti's New Jersey assets. It also claims that Rodrigues "did violently bludgeon and asphyxiate the decedent resulting in his death," according to court papers.

The enormously popular Gatti, who had a fervent and loyal fan following and fought many of his most memorable matches in Atlantic City, had retired in 2007 with a 40-9 record and two world titles in his 16-year professional career.

It is not clear who is representing Rodrigues in the New Jersey case. A lawyer for Rodrigues in a previous, related case in New Jersey said he no longer represents her. Two phone messages left for attorney Pierre-Hugues Fortin were not returned. He is reportedly representing her in a separate, but related civil case in Canada over who should inherit Gatti's fortune.

Rodrigues was 23 at the time her husband was found dead in an apartment the couple had rented in the posh seaside resort of Porto de Galihnas in northeastern Brazil. The couple, who friends and family said had a tumultuous marriage, had arrived there a few days before Gatti's death for a second honeymoon, bringing along their son, who was 10-months-old at the time.

Rodrigues was initially detained as a prime suspect, with Brazilian authorities saying at the time she was "unquestionably responsible" for her husband's death, and had strangled him with her purse strap as he drunkenly slept.

But the final report of their investigation concluded after an autopsy that Gatti had committed suicide by hanging himself with a handbag strap from a wooden staircase column in their apartment. Rodrigues was released, and said she planned to sue for unlawful imprisonment.

Since then, Rodrigues has been battling Gatti's family over his estimated $5.6 million estate in a civil case in Canada, where he was raised, and New Jersey, where he lived for much of his career and made most of his earnings. At issue is the validity of a pair of wills that differ on how the estate should be divided.

Many of Gatti's family members and supporters, including his former trainer, have refused to believe the scrappy, gregarious, 37-year-old junior welterweight champion nicknamed "Thunder" took his own life.

A second autopsy was done in 2009 at the request of the boxer's family in Canada. Michael Baden, former chief pathologist for the New York state police and host of the HBO show "Autopsy," observed the procedure on behalf of the family and said coroners didn't rule out homicide as a cause of death.

Gatti's former manager Pat Lynch hired a private investigator and a panel of forensic evidence experts, who released the findings of their 10-month investigation on Sept. 7, concluding Gatti's death was a homicide.

"Without a shadow of a doubt, Arturo Gatti was murdered," said Anthony Pope, who is representing Sofia Bella Gatti and her mother in the wrongful death case they brought against Rodrigues. "The evidence points clearly to complicity on behalf of his wife."

Published by Associated Press

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John Bujak has filed for divorce; wife asks judge to separate bankruptcy proceedings

The wife of former Canyon County Prosecutor John Bujak has asked a bankruptcy court judge to separate her case from her husband's.

Pepper Bujak's attorney filed a motion on Friday. The request comes after John Bujak filed for divorce in July and the couple is "estranged," according to court documents.

In an affidavit filed by Pepper Bujak, she contends she is seeking to separate bankruptcy proceedings because her husband will no longer assist her in the case. She also contends that she shouldn't face prolonged litigation involving hundreds of thousands of dollars sought from the couple because it relates to her husband's actions.

Pepper Bujak also claims her husband asked her to lie to court officials about a Rolex watch. In an affidavit, she claims her husband failed to include the watch on an inventory of assets, later sold the watch and still has half of the proceeds.

Canyon County commissioners contend John Bujak owes them around $300,000. At issue is a $598,000 annual contract for the county prosecutor's office to handle misdemeanor prosecutions for the city of Nampa. That contract, initiated in 2009, sparked considerable controversy and litigation, with commissioners claiming Bujak unlawfully kept about $300,000 in Nampa payments he had promised to the county. The flap led to Bujak's resignation.

Bujak filed a $25 million tort claim against the county in March.

Commissioners say they agreed to let Bujak contract privately with Nampa to provide services through the county prosecutor's office, but Bujak assured them he would share the profits from that contract by using Nampa's payments to cover all non-personnel expenses for the entire prosecutor's office, not just the resources used for Nampa cases. Bujak made similar comments to local media, saying he expected to personally profit by no more than $50,000.

Bujak' s claim says county commissioners "extorted" him to resign and sign the Nampa contract over to the county by threatening to sue him "to collect moneys they knew were not legally due" and prosecute him for "misappropriation of government funds knowing full well that no crime had been committed."

Bujak conteds county officials made false statements about him and met "behind closed doors" with his wife in an attempt to influence her testimony and actions.

Printed By Idaho Statesman

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FAMILY LAW: Same-sex marriage — be careful what you wish for

Recently, New York became the sixth and largest state to recognize same-sex marriage. If the current trend continues, more and more states will legalize it.

But, before we go any further, a disclaimer: It is not my purpose to opine as to whether this legislation should be enacted by a state. Certainly, all divorce lawyers, from strictly a business point of view, should support such legislation. As the joke goes, the leading cause of divorce is marriage. This article does not seek to editorialize, but only to outline on the legal ramifications and discuss the pros and cons of the different means of ending relationships.

The status quo

Same-sex couples have the same rights — or lack of rights — as opposite-sex couples who cohabit.

Under Wisconsin law, cohabitants may bring a civil unjust enrichment claim upon termination of the relationship. Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987); Lawlis v. Thompson, 137 Wis. 2d 490, 405 N.W.2d 317 (1987).

Unlike maintenance, where the parties were married, in a cohabitation, performing household services does not give rise to claim for reimbursement. Rather, services must be linked to an accumulation of wealth or assets during the relationship. Waage v. Borer, 188 Wis.2d 324, 525 N.W.2d 96 (Ct. App. 1994). There must be proof of specific contributions that directly led to an increase in assets or accumulation of wealth. Ward v. Jahnke, 220 Wis. 2d 539, 583 N.W.2d.656 (Ct. App. 1998).

The remedies that can be sought are limited to the equivalent of property division. Unlike the termination of a marriage, where maintenance may be available to a non-working spouse, Wisconsin does not allow a "palimony." So, for example, if one member of the couple took on the traditional "homemaker" role during the cohabitation, any increased earnings of the other partner cannot be compensated.

The process for ending a nonmarital relationship is significantly different, as well. In a marriage, even if there is no maintenance and the property division can be worked out informally between the parties, the legal process of divorcing is still necessary. While many parties in these circumstances can proceed pro se, the forms can be daunting and the process confusing. On the other hand, a cohabitating couple can simply separate and no legal process is required.

Where there is disagreement (not uncommon when the emotional levels escalate) when the union ends, the divorce process is well recognized with forms widely available. However, a cohabitation lawsuit is a civil case, without standard forms and processes. As a result, if lawyers are needed in a cohabitation case, the cost may be significantly higher, as drafting pleadings is more expensive than simply completing forms. In addition, jury trials may be available, which could significantly increase the costs.

Property division

Property division also differs significantly between the two processes. For married couples, depending on the state, there are typically community property or equitable distribution statutes that create a template for "who gets what." Absent such statutory schemes, the property division can be more difficult to ascertain. For example, absent the availability of QDROs for dividing retirement plans, equal divisions of property may be impossible without incurring significant tax ramifications.

Couples with children

When same-sex couples have children, the legal analysis is more complicated. If the couple is married, certain presumptions generally apply and courts could award custody and placement based on a standard analysis (with no fear of being accused of gender preference!). Absent recognition of a marital status, however, biology becomes critical. Typically, where one partner is the genetic parent, the other partner, absent an adoption proceeding, does not have the legal presumptions available to a married spouse. Rather, the non-biological partner may have to petition for visitation based upon the relationship with the child.

Wisconsin has recognized that courts have jurisdiction in equity to act in the best interests of a child by ordering visitation where the petitioner has had a parent-like relationship and a significant triggering event justifies state intervention. In re Custody of H.S.H-K, 193 Wis.2d 649, 533 N.W.2d 419 (1995). There appears to be little difference in Wisconsin between "visitation" and "placement." Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W. 2d 159.

Still, the law and practice regarding custody and visitation between opposite-sex partners is better developed — and therefore easier to access — than where the couple is of the same gender.

Debt allocation

The debt allocation differs significantly as well. For a married couple, any debt incurred during the marriage may allow the creditor recourse against either couple under Chapter 766. No such recourse would be available if the couple were merely cohabitants. Of course, this is an advantage to certain partners — and disadvantage to others.

The legal ramifications extend well beyond family law — marriage affects health insurance eligibility, Social Security rights, inheritances, hospital visitation, worker's compensation benefits, consent for medical treatment and much more. Some of these benefits can be extended by a domestic partnership law enacted by an individual state. Others, particularly those involving federal law like retirement plan divisions and Social Security benefits, cannot be extend without amendments to existing federal law.

Notwithstanding the increasing number of states extending such rights, don't hold your breath for the federal government to change existing law in today's political environment.

No perfect solution

For all of the benefits of marriage, a same-sex couple would be required to incur all of the detriments of divorce if the relationship fails. On the other hand, absent recognition as being married, substantial benefits are not available.

Trying to have one's cake and eat it, too (e.g., domestic partnerships or civil unions) may leave one quite hungry as the middle road does not extend the full panoply of rights, either.

To some proponents of same-sex marriage, it doesn't matter. They want the same treatment under the law as heterosexual couples, notwithstanding any attendant costs. For a personal philosophy, that's perfectly valid. From a legal viewpoint, however, the saying that comes to mind is: Be careful what you wish for.

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Trusts can offer families benefits

BY LAURA ISENSEE

Many people asked attorney Richard Lewis to set up a trust because they hope they can save money on taxes.

Unfortunately, as the saying goes, nothing is certain but death and taxes. For most people, a trust won't save on their final tax bill, Lewis said.

But trusts — typically revocable living trusts— can offer other benefits. Among them: avoiding the often time-consuming and expensive legal process of probate court; protecting your assets if you become incapacitated and managing assets for children who can't handle money themselves.

"What made these living trusts very popular is the cost of probate. The beauty of the trust is that everything that goes into the trust avoids probate," explained Lewis, who practices near Dadeland Mall.

Probate courts have a special task in the judicial system to distribute the assets of someone who has died, enforce wills and provide oversight. However, the process can be costly and take time, especially with recent budget cuts to the court system. Also, trusts provide privacy; the inventory of assets outlined in a trust are not a public court record.

Attorneys and financial planners agree trusts become very important if someone becomes incapacitated.

"As someone gets older and they may have Alzheimer's or dementia or another health condition that makes them incapable of handling their affairs, a will is going to do no good there. In those situations a trust is going to be very valuable," said Dan Tasciotti, a certified financial planner and president of the Estate Planning Council of Greater Miami. A certified financial planner is not an attorney.

Other factors in whether a trust might be a good financial move: the size of the estate and family dynamics. Tasciotti said that there is no one-size-fits all plan and that what makes sense for a large estate may not make sense for a smaller one. He said probate court is not always a horror story, and for some families it might prove the best oversight for the distribution of assets.

If someone considers setting up a trust, a good first step would be to speak with a professional, such as an accountant, attorney or financial planner, who usually would set up a trust. Planners warn against relying on online documents, which may not fit someone's specific situation.

As one moves through the process, it's important to remember a trust is only good if someone has designated a good trustee. If and when the original trustee dies or is determined to be incapacitated, a successor trustee named in the trust takes over managing the assets.

Children or other relatives can serve as trustees. Banks and other professionals can also be hired to manage and administer the assets in a trust, although they charge management fees that usually are a percentage of the trust's assets, which can run into the thousands of dollars.

"The number one thing is honesty," Lewis said. He added it's also important to look for someone who understands financial investments.

"Even if they're honest, if they don't know what they're doing, it's not good," he added.

There are some disadvantages with trusts. For example, if someone sets up a trust, but does not transfer the title of their assets into the trust, or transfers only a portion of their assets into the trust.

"If they don't, then they don't avoid probate," said Richard Milstein, a lawyer who specializes in elder law at the Miami office of Akerman Senterfitt.

Milstein also recommended that people still write up a last will and testament to transfer any extra assets to their trust.

"It's like belts and suspenders," Milstein said. "It's extra protection — sometimes more than you need."

Milstein said a trust is not just an option for senior citizens. It can also be advantage for younger people in their 20s and 30s if they have assets — like a condo or a home — they want to leave to their loved ones or charitable groups.

Perhaps the best thing about a revocable living trust: the word revocable.

"You can amend it. You can change it," Milstein said. Even end the trust. "It's a fluid document," he said.

A GUIDE TO UNDERSTANDING TRUSTS

•  Trust: This is a legal entity that can own property. Similar to a will, it gives instructions on who will manage your affairs if you become incapacitated or die.

•  Revocable living trust: An agreement that determines how a person's property is to be managed and distributed during his or her lifetime and also upon death. It normally involves three parties: the settlor, the trustee and the beneficiaries. A trust is classified as a "living" trust when it is established during the person's life. A "revocable" trust is flexible. It can be changed, amended, even cancelled during the maker's lifetime. Generally, once the grantor of a revocable trust becomes incapacitated or dies, the trust becomes irrevocable.

•  Irrevocable trust: This kind of trust cannot be changed. It does provide some benefit for estate and tax planning, because the assets of an irrevocable trust are not part of a person's estate. That means those assets are not taxed for estate tax purposes. The grantor of the irrevocable trust has to give up ownership and control of the assets so that it is not considered part of the decedent's estate. This saves the beneficiaries from having to pay estate taxes on the assets. An irrevocable trust also protects the trust assets from certain creditor lawsuits.

•  Settlor: This is also called a grantor, trustmaker, creator or trustor and refers to the person who creates the trust and usually provides the funding for the trust.

• Trustee: The person who holds title to the trust property and manages it according to the terms of the agreement. The trustee can be a family member or a professional hired to manage the trust. With a living trust, many trustmakers choose to be their own trustee and manage the trust's assets, until they can no longer do so.

•  Successor trustee: When the trustmaker is no longer able to continue because of incapacity or death, the successor trustee, named by the settlor, steps in.

•  Beneficiary: The person or entity that will receive income or principal from the trust.

•  Guardian: While a guardian often refers to someone appointed by a judge to take care of a minor child, a guardian can also be appointed by a judge to care for an adult who is incapacitated. Trusts often contain clauses in which a court-appointed guardian does not have jurisdiction over the trust's assets.

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Untying the Knot in Japan

On a Saturday night in Tokyo's Asakusa district, a woman in a floral kimono and a man in a boxy dark suit silently waited side by side. First, one black rickshaw pulled up to them. Moments later, another cart arrived. With a small nod to each other, the couple moved to board their separate chariots en route to the night's main event: their divorce ceremony.

As he rolled through the dim residential side streets behind his ex-wife, Fumikazu sat low, clasping and unclasping his hands, keeping his eyes on his shoes. The divorce ceremony — a new, niche ritual for commemorating failed marriages in Japan — wasn't his idea. Although the couple formally ended their three-year union in 2008, his ex-wife, Atsuko Saiki, recently met a new man and plans to remarry in the fall. She heard about these ceremonies online and wanted closure.

So she called Hiroki Terai, Tokyo's pioneering divorce planner and a man of good cheer. "Ever since I was little, I wondered, If you have a wedding ceremony, why not have one to mark your divorce?" he explained to me with a smile.

Terai has performed nearly 100 ceremonies over the last two years, at a little more than $700 a pop. But since the earthquake in March, he has received over 200 inquiries a month, as couples, Terai says, began to "reassess their priorities." Some of the ceremonies have been conducted in restaurants or in secular wedding locations on butsumetsu: unlucky days of the month associated with Buddha's death, when few brides dare schedule their big day. Sometimes there are 30 guests, representing each of the couples' families. Sometimes there's a buffet. When there are slide shows of the marriage, it's not unheard of for divorcing couples to reconcile.

Tonight, though, the couple opted for the simplest option: a private ceremony with just one guest (a friend of Atsuko's who asked to remain anonymous), held in what Terai calls his House of Divorce: an abandoned old residence with no power, no plumbing and peeling paint. "It's a building which represents a husband and wife's relationship — about to collapse," Terai explained.

As the rickshaws pulled up outside the building, Terai rushed inside to set up candles that provided the ceremony's only light. He then led the couple, who have a 5-year-old son, behind a small table at the back of the room and commenced a bullet-pointed explanation of why the couple's relationship faltered, information he gathered from separate interviews with them.

"Over the course of their marriage, the couple's lifestyles began to diverge," he began, straining to read in the dark. "They had different values, especially when a number of the husband's hidden debts came to the surface." Atsuko stared at the ground.

"They also did not share the same taste in hobbies," Terai continued.

He then invited the couple to offer short statements. Fumikazu (who requested that I not use his last name) spoke first, disputing none of Terai's synopsis. He apologized for running late earlier in the evening. At first he was skeptical about the ceremony, he said, "but I see it's a way to mark a new life." When Atsuko took her turn, she simply expressed her hope that today represented a break from the past.

Terai motioned Atsuko's friend to step forward, and she did, hesitantly. "I was surprised to be asked to speak," she said, facing her friend, "but I wish you happiness in your new life." She then quickly retreated back into the dark.

Finally, Terai brought out a large hammer with a head shaped like a frog and placed Atsuko's wedding ring on a table. He instructed them to hold the hammer together and pound down on the band at the count of three. The first blow knocked the ring onto the ground, where Terai scoured the cement floor with the aid of a tea candle. The second attempt was a success, squashing the ring into an oblong shape. Terai showed it to Atsuko's friend, who nodded her satisfaction.

Bowing, the couple left the House of Divorce and walked toward the nearby Sumida River, where they used to watch fireworks. Earlier in the evening, crowds lined its banks to release candle-lit lanterns into the water as a tradition of Obon, the festival to remember the souls of the dead.

Terai dropped the battered wedding band into a lantern that bore handwritten messages from the couple. Atsuko wrote: "So that our son may grow up well." Fumikazu wrote: "Let us remain friends." Terai lighted the candle inside the lantern and dropped it into the river with a flourish. But instead of gliding into the great beyond, it spun clumsily back and forth, tarrying in the water directly beneath the couple.

"Don't be a silly loser," Terai groaned, leaning nearly half his body over the railing and scolding the lantern for not drifting away.

For the first time all night, Atsuko started laughing. "It's just like life," she said, "always back and forth."

 

By Paige Ferrari

 

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Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

In my last post, I discussed a few interesting cases in which Facebook pages was used or scrutinized by the family courts. In particular, these were cases in which Facebook postings or pages were used – sometimes in unexpected ways – as a source of evidence as to character, motivation, or the truth of allegations in a family law dispute.

In some other cases, however, Facebook and other social networking sites have also been used by spouses or family law litigants in more direct and nefarious ways: i.e. as a vehicle for getting revenge on a separating spouse, or as a means of surreptitiously getting around an unfavorable order or direction from the court.

 

As these cases illustrate, this is never a good idea, since this type of conduct is also taken into account by family courts when deciding family law and related matters.

For example, in a B.C. case called Nesbitt v. Neufeld, the father and mother had been involved in an ugly and protracted family law battle, in an attempt to resolve legal matters relating the young child they had together.

The father was a family doctor, though not practising. Against the advice of the court, he opted to represent himself throughout the litigation. The mother was a successful businesswoman. At some point, she had given him one of her old home computers, which contained some of her private correspondence. The father used the information he found on those computers to defame the mother: for example, he sent e-mails and photos from her dating profile to the Rotary Club where she was an active member. The photos were of her and their daughter, and in his letter to the Rotary Club the father cast aspersions on her for using the child's photo and luring "potential pedophiles" via the dating site, commenting that "it must be difficult for someone at her age and with her personality to attract men".

He also created a website titled "Wicked Wendy Neufeld", which included material from the family court litigation, the Rotary Club emails, various private correspondence to or from the mother, and information derived from personal knowledge that the father had about her. It included comments that the mother was "mean", "weird" and "sneaky".

Finally, he also created a Facebook page, which was called the "Wendy Neufeld Support Group". It contained material that the court found highly inappropriate, as illustrated by the court judgment:

6. The Facebook Page

39 Though discovered on March 10, 2009, Ms. Neufeld said the Facebook Page was up since October 2008. Under the heading "Recent News", there were a number of sentences reading: "Wendy's mother died a few months ago. Wendy's father died a few weeks ago. Her three tragic divorces. The affair with a married man. The suicide attempts. The boyfriend who got deported back to Egypt for being a male prostitute".

40 I find that Dr. Nesbitt was the administrator and creator of the Facebook Page. Later, in November 2008, he wrote what he called a "eulogy" about Ms. Neufeld's father and posted it on the Facebook Page (Affidavit of Dr. Nesbitt, sworn September 8, 2009, para. 113). Sarcasm is evident throughout the missive. He did this after a consent restraining order had been issued on September 8, 2008 in the family court proceedings prohibiting Dr. Nesbitt from making any more disparaging comments about Ms. Neufeld and members of her immediate family. Dr. Nesbitt had been advised correctly that he could not defame the dead. This did not stop Dr. Nesbitt from annoying those that were still alive.

41 That Ms. Neufeld did not want or need a "support group" is evident. That Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness.

Not surprisingly, the court found that the Facebook page and the so-called "support" page were among the numerous means by which the father published mean and malicious comments about her, as a means of scandalizing and defaming her. Moreover, the fact that the father released the mother's private communications to third parties such as the Rotary Club amounted to a violation of her privacy. Ultimately, he was ordered to pay the mother $40,000 in damages.

In another B.C. case called Bains v. Bains, the mother sought sole custody and guardianship of the two children of the marriage, with supervised access to the father. The father had been an abusive husband throughout the marriage, which abuse resulted in assault and an order for anger management counselling. Among other things, the father began to turn the children against their mother by making derogatory remarks about the mother and her parenting skills in front of the children. He blamed the separating on the mother, told the children that she had ruined their lives and was stealing their money. He was emotionally manipulative, and also listened in on phone calls between the mother and the eldest child, and elicited pity from the children through certain self-centred conduct. He had particularly succeeded in alienating the oldest child, Kiana, from the mother: Kiana started being critical of the mother's financial management and parenting, and stopped being affectionate with her. The younger child showed fewer signs of parental alienation, but still had difficulty sleeping unless he slept in the father's room.

Despite having been ordered not to contact the children except with supervision, the father continued to have secret contact with the oldest child through his Facebook account, which also featured negative comments about the mother. He also used his Facebook "friends" to pass on information to the eldest child. About this conduct, the court wrote:

65 While Mr. Bains has not contacted [the daughter] Kiana directly outside of the supervised visits since supervision was reinstated, he has continued to permit her to access him via Facebook on the internet. He permits Kiana to be a "friend" who is able to read any of his public comments. She also has his password which permits Kiana to see anything Mr. Bains posts on his Facebook account. While Ms. Bains asked Mr. Bains to change his password, and prevent Kiana from accessing his Facebook, he has ignored her request. Although he testified that changing the password would restrict his other friends from viewing the Facebook, "friends" do not normally have access to his password and do not require a password to access his public areas. On his Facebook account Mr. Bains complains of the cost of the trial and makes negative comments about Ms. Bains. While he claimed these are private conversations that Kiana cannot access, Mr. Jespersen testified that with password access Kiana may view anything that Mr. Bains sees and puts on his Facebook. Mr. Jespersen's evidence is reviewed below. He is an expert in computers and has many years of experience with the Internet. Mr. Bains denied that Kiana has his Facebook password; however, he acknowledged that she set up his Facebook and thus would likely have created his password. He also ultimately agreed that with his password anyone can see his private conversations.

In the end, the mother was successful in obtaining sole custody and primary residence of the children; the father was awarded supervised access. The court considered the Facebook page as evidence that the father was alienating the children from their mother, and was indirectly exposing them to disparaging comments about her. About the use of Facebook in particular, the court wrote in its order:

(c) Mr. Bains shall have no other contact with the children, directly or indirectly, or through other persons, and this prohibition specifically includes contact by telephone or cellular telephone, via the internet, and through any third party via any of these means of communication. Mr. Bains shall immediately change his Facebook password to ensure Kiana has no access to his account and he shall immediately remove her name from his list of "friends" so that she is not able to read messages on his public wall. Mr. Bains shall also immediately advise all of his adult friends to cease contacting Kiana by any means, including via the internet and cellular telephone. If Mr. Bains breaches this term of the order, Ms. Bains is at liberty to unilaterally terminate the supervised access to Kiana described in paragraph (b), subject to Mr. Bains' right to apply to the court to reinstate this supervised access and I remain seized of any such application.

Clearly, when adjudicating on family matters courts are now being forced to deal with the use of Facebook and other similar cites in their decision-making, and must address the extent and nature of future use in their family law orders.

By Russel Alexander

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Spousal Maintenance: Cases Filed on or After September 1st, 2011

Generally speaking, until September 1st, 2011 spousal maintenance was only available for up to three years. However, the 82nd Texas Legislature modified the spousal maintenance statute significantly beginning with any and all cases filed on or after September 1st, 2011.

Below is a summary of the modifications which should be immediately taken into consideration by spouses considering divorce – as filing before September 1st, 2011 or after could have a significant impact on a claim for alimony.

(1) Alimony Available for up to 5 Years

(a) Family Violence: Alimony will now be available for up to five years if the marriage was of a duration of 10 years or less and a spouse from whom maintenance is sought was convicted or placed on deferred adjudication for a criminal offense that constitutes an act of family violence (see Tex. Fam. Code § 71.004);

(b) Marriage of 10 Years – 20 Years: Alimony will now be available for up to 5 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 10 years, but not more than 20 years.

(2) Alimony for up to 7 Years

Alimony will now be available for up to 7 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 20 years, but not more than 30 years.

(3) Alimony for up to 10 Years

Alimony will now be available for up to 10 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 30 years or more.

(4) Maximum Amount of Payments Increases from $2,500 to $5,000

The legislature modified the amount of alimony as well, increasing the maximum from $2,500 to $5,000. Of course, the amount of the payment remains the lesser of the $5,000 or 20% of the spouse's average monthly gross income. Further, the legislature added specifics on what forms of revenue are included in "gross income" – which includes just about any source of income "actually being received" and is very similar to determining income for child support.

Gross Income includes the following:

(a) All wages and salary;
(b) Interest, dividends, and royalties;
(c) Net rental income; and
(d) "All other income actually being received" from severance, retirement benefits, pensions, trust income, etc …

However, gross income will NOT include the following:

(a) Return of principal or capital;
(b) Accounts receivable;
(c) Federal public assistance benefits;;
(d) TANF benefits;
(e) Payments for foster care of a child;
(f) VA disability benefits, and
(g) Foster care but does not include VA
(h) Supplemental security income (SSI);
(i) Social security benefits and disability benefits; or
(I) Worker's compensation benefits

(5) Suits for Overpayment of Alimony Added

The legislature has now added a provision to allow for suit to recover overpayment of an obligor's spousal maintenance obligation. Provided an obligor is not in arrears at the time of the suit for overpayment, an oblige can be required to return any overpayments made that exceed the amount of the alimony or spousal maintenance ordered by the Court. This is true regardless whether the payments were made before, on, or after the date the alimony obligation terminated.

In the event a spouse fails to comply with an order to return any overpayments ordered by the Court, except where "good cause is shown", the Court is required to make the oblige spouse pay all attorneys fees and costs of court.

It is worth noting that although this provision takes effect on September 1st, 2011 it applies to any spousal maintenance Order rendered on, after, or before September 1, 2011.

            by Bill Frink

            For more information on these matters, please call our office at 305 548 5020.

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