Monday, November 26, 2012

Why it is so important to have a legally valid Donor Contract or Gestational Agreement

Family law is a complicated area of law, even when the subject is a nuclear family in which the two people involved are both biological parents of the children in the family. However, even more complications can arise when venturing into areas of law that are different from what most people in our society have come to think of as “the traditional family”. Specifically I am speaking of situations involving assisted reproduction, surrogacy, gestational agreements, and donors.
There are many available options for people who want to become parents. While technology and societal acceptance has led to an increase in options (and a willingness to use them), the law has not really caught up yet.
If you are involved in, or are considering, an alternative situation, you should be completely educated and aware of the risks, and of your rights. A situation that may seem simple can create heartache if not properly prepared.
The biggest risk comes from situations in which “everyone is friends” and so it is thought that there is no need for a legal agreement and no need to use a doctor or clinic. Here are the most common:

  1. A woman desires to have a child and a male friend agrees to be the donor. They both agree orally in advance on all the details of what will happen when the baby arrives. Often, the man will agree not to be involved in any way and the woman will promise not to seek child support. They draft an informal agreement (which is later found not to be legally binding) or they decide not have a written agreement at all, because they “trust each other”
  2. A woman agrees to bear a child for a friend (or couple). She plans to give the baby to the person (or couple) after the birth and promises to “sign away” her rights.

Those are the common situations, now here are the potential problems:

  1.  
    1. No matter what the situation, and how good and trustworthy the involved parties are, people change their minds. They do so for all kinds of reasons, and having a child brings out some of the deepest emotion that humans experience. (see this article from the Houston Chronicle, Sept 20, 2012, showing just such a situation, “Court may define what a mother is”).
    2. It isn't just up to the adults who are involved. The child will have rights, the biological parents have rights, and unless a court agrees to terminate someone's parental rights, it will not happen. The two people who are the biological parents (plus their mates and families) may well end up bound to each other for at least 18 years, like it or not! A judge can order child support, even if one parent doesn't want to pay it and the other parent doesn't want to receive it!

What to do?

First of all, an oral agreement is just not going to be enough. You will need to find out what your options are in the scenario that you are planning. Hopefully, you will have a consultation with a Texas family law attorney before trying to conceive so that you can be certain that you are doing everything possible to make sure that your agreement is within the law, and will be likely to be upheld by a judge. Certainly two people can get together and conceive, but what happens afterwards may be completely out of their control. Why take that chance?

In looking for an attorney, you should seek a Texas family law attorney who is familiar with and has experience with alternative family arrangements, sperm donor agreements, and gestational agreements. The attorney should be willing and able to help you deal with the initial paperwork and court filing to completion. If you are dealing with a doctor or agency in a gestational or surrogacy situation, your family law attorney can help you, communicate with the involved health care providers, and draft and file all necessary paperwork at the proper time.

Monday, November 19, 2012

Why you shouldn't wait until after the New Year to Start your Divorce

If you know that divorce is imminent, you may be tempted to wait until after the holidays.  In some cases, that is a wise decision.  However, waiting until January may not be the best decision in other situations. Here are some reasons why it may be best to go ahead and start the process now:

  1. Filing the divorce can curb holiday spending.  If you are worried that your spouse may go overboard at the holidays consider whether or not knowledge of divorce may cause him/her to avoid impulse purchases.   If you live in a Texas county with “standing orders” there are also court orders restricting spending and these orders will apply as soon as the case is filed. (Montgomery county Texas and some other Texas counties have these standing orders). 
  2. You can ask for a court hearing to deal with additional issues and get temporary court orders that will be in effect through the holidays and afterwards. These orders will be more specific than the general “Standing Orders” and will deal with spending money, paying bills, taking care of property, and visitation with the children.
  3. If you are in an abusive relationship, or one in which your spouse is dependent on alcohol or other substances, you may benefit from having an attorney prior to the difficult holiday season. Knowing that you have an attorney, and the case is assigned to a specific court may make your spouse think twice before acting out and will create consequences if s/he does.
  4. All cases, even agreed ones, must be on file at least 60 days in Texas before they are finalized. You can start the “clock ticking” by filing sooner, rather than later.
Every case is different, so you can’t automatically assume that it is a bad idea to get things started prior to the holidays.  Even if you choose not to file the divorce (or choose to file it but not have your spouse served right away), you can see a divorce and family law attorney. At the divorce consultation the family law attorney can tell you about the process, explain your rights, and help you plan for the future.  This can lead to feeling less anxious at the holiday season. The divorce and family law attorneys at the Kalish Law Office in The Woodlands Texas have been representing clients in Montgomery, Harris and surrounding areas for nearly 30 years. 

Monday, November 12, 2012

"Standing Orders" in Texas Divorce Cases

"Standing Orders" are orders that are automatically in effect as soon as a divorce is filed.  These orders are court orders and have all the force of law.  Even though neither party requested them, and even if the opposing party has no knowledge that these orders exist, they are still valid court orders.

Although it may seem unusual or unfair for a person to be held in contempt when that person is not even aware of the court order, this situation is different.  "Ignorance" is no excuse!

The things that the person is forbidden to do contain some "bad things" that should not be happening anyway.  These actions have to do with physical harm, dishonesty, emotional harm, destruction and retaliation.  In other words, a "laundry list" of "bad activitites".  For instance, hiding the children from the other parent, removing the child from the state, consuming alchohol within 24 hours of having the children, making negative and harmful remarks about the other parent to (or in the presence of) the children, becoming physically violent or destructive with spouse, children, animals, pets, relatives, and property, shredding documents, cancelling insurance, hiding property, forging the name of the spouse to a check, cancelling credit cards, withdrawing funds, and so on.  These are the types of things that can get someone in huge legal trouble anytime, and even more so during a divorce.  

Can the person be held in contempt or have some of these actions be "used against them" in court, even if they have never seen the standing order?  You bet they can!

The above list does not contain everything that is in the standing orders. Also included are such things as:  making withdrawals from checking or savings without authorization of the court or opposing party, entering the motor vehicle that is in the possession of the other party, making changes in withholding for federal income taxes, and spending money on anything other than food, clothing, transportation, medical care and legal expenses. 

It is possible that someone could accidentally violate an order, if they had no idea that a divorce had been filed by their spouse (it does happen).  However, common sense applies and all the circumstances will be considered. 

The best course of behavior to follow is to NEVER do any of the things that are wrong, illegal, harmful or destructive under all circumstances (physical violence, hiding property, hurting any living thing or destroying property), whether or not there is a divorce pending.  AND if you think that there MIGHT be a divorce pending, check further before you do anything "unusual" like making changes in insurance policies or bank accounts or spending money that isn't a necessity.
A Texas family law attorney can help you find out whether a divorce case is on file, and can guide you with advice about how to handle bill paying, child visitation and daily life without violating Standing Court Orders and restraining orders.  If you are getting a divorce it is important that you know about and understand any Standing Orders in Divorce cases that apply in your Texas County.

Kalish Law Office is located in The Woodlands, Montgomery County, Texas.  Kalish Law Office has been providing divorce and family law services in The Woodlands, Texas and Houston, Texas since 1984.  

"Passionate, Professional and Personal. We Make the Difference"

 

Monday, November 5, 2012

Why Your Company Should Have an Employee Handbook

Having a employee handbook helps define your company policy and keeps everyone on track.  The very act of drafting the handbook will help you think through how you are going to handle some situtations that are sure to occur at some point. 

Employee Rules and Relations:

Your employee handbook should state your policy about sick days, vacations, leave (bereavment, disability), holidays, computer and internet policy, client/patient/customer confidentiality, benefits, permitted workplace attire, whether random drug testing may be performed, and how and when performance reviews will be conducted.

Law and Policy:

For instance: Statements about non-discrimination, equal opportunity and your company's no tolerance policy for workplace violence, sexual harassment, drinking on the job, and no illegal drug s on the premises.  Information about what employment rights the employees have under the law (if there are 50 or more employees there should be information about the Family and Medical Leave Act).

What it should NOT contain:

Do not put any sensitive and confidential information in this book.  For instance, there should not be any account passwords in the employee handbook.  The employee handbook should not contain any confidential information regarding your clients. Remember that these employee handbooks are often removed from the office and kept by employees after they leave.  Don't include information that should not leave your office.

What disclaimers should be included:

Disclaimer that says that the handbook is NOT an employment contract, it is for informational purposes only.  Make this disclaimer clear and prominent.   Also state that this handbook may be revised by the employer and will be updated from time to time. 

Have the Employee Acknowledge the Receipt of the handbook:

Have the employee sign for receipt of the book.

Both fhe Texas Workforce Commission and Small Business Association have templates and resources available online to help you write your handbook.

Kalish Law Office - The Woodlands, Texas 

Business attorneys, contract law, business start-up   Since 1984


 


 

 

 

 


 

Thursday, November 1, 2012

Get it in Writing!

We often have clients come to visit us with legal troubles who shake their heads and say, “I KNEW I should have gotten that in writing!”

In some situations, having a contract isn’t just a good idea, it’s a legal necessity!  Under the law in Texas, and in many other states as well, there are some agreements that must be in writing in order to be enforceable.  This law is called the “Statute of Frauds” and it states that certain promises must be in writing and signed by the person who is “charged” with keeping the promise.

The two most common “statute of frauds” problems that we see in our office involve one of the following two situations:

1.       Real estate

2.       Promise to pay debt

Under the law, a contract for a sale of real estate must be in writing to be enforceable.   A lease of real estate for a term longer than one year must also be in writing.  In situations where the parties know each other well, especially as family or friends, it is sometimes tempting to skip the formalities.  However, doing so can leave the situation open for dispute and can leave one or both parties in a vulnerable position.

In cases where someone promises to pay the debt of another, the lender (again, often a family member, friend, co-worker or employer) is vulnerable to being left with a debt that s/he cannot collect.  For instance, a woman offers to lend some money to her boyfriend’s 29 year old son, who needs it for a move that he is making.  Her boyfriend promises to pay her back, and she trusts him, but they break up before that happens.   She cannot enforce the debt against her ex-boyfriend and most likely will be out of luck in collecting from his son as well.

The law also contains a provision that says that any agreement which is not to be performed within one year from the date of making the agreement must be in writing.   This applies to all types of situations.

Although not every situation needs a formal contract, there are some which certainly do.  Other provisions in this law involve the executor/ administrator of an estate agreeing to be responsible for certain payments from his own funds, promises involving marriage or cohabitation, payment of certain commissions, and warranty of cure or results by a health care provider. 

Sometimes people feel that they are being “too picky” or look like they are not “trusting” when they ask for something to be reduced to writing.   A non-threatening way to ask someone to sign a contract or memorandum is to say, “let’s just make sure we are all on the same page”, or “let’s get this in writing so we will both be sure of what we agreed to do later on”, or “ in case something happens to one of us, lets make sure that (our children, spouses, employees, etc.) will understand what we were doing”. 


For transactions in which there is a lot at stake (finances, security, time to be spent, relationships) it is important to know where everyone stands.  Having a consult with a contract attorney (or real estate attorney when appropriate) can help save time and money in the long run.  

Kalish Law Office, The Woodlands, Texas

Business, contract and real estate law Since 1984