Kamis, 31 Maret 2011

Texas Common Law Marriage


Common law marriage is recognized in a few states, and Texas happens to be one of them. Texas defines it as an informal marriage, rather than common law. Houston divorce lawyers are experienced in both traditional and informal marriage dissolutions and can answer any questions you have on this subject. A Houston divorce lawyer understands this unique law and how it is applied in Texas.

Under section 2.401 of the Texas Family Code, an informal marriage can be established either by registering with the county without having a ceremony, or by meeting 3 requirements showing evidence of an agreement to be married; living together in Texas; and representation to others that the parties are wedded.

In order to register an informal marriage, a declaration approved by the bureau of vital statistics must be signed. Each party must provide proof of age and identity, and state that they are not related to each other in any way. Finally, they must agree to the printed declaration and oath found in section 2.402 of the Family Code. It reads:

"I SOLEMNLY SWEAR (OR AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE) WE AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED TOGETHER AS HUSBAND AND WIFE AND IN THIS STATE WE REPRESENTED TO OTHERS THAT WE WERE MARRIED. SINCE THE DATE OF MARRIAGE TO THE OTHER PARTY I HAVE NOT BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS TRUE AND THE INFORMATION IN IT WHICH I HAVE GIVEN IS CORRECT."

Even if you don't register with a county in Houston, a couple may have a common law marriage if they meet these three requirements:

1. The man and woman agree to be married

2. The man and woman cohabitate in Texas

3. The man and woman hold out to other parties that they are married

Informal nuptials are recognized under Texas law the same as if the couple were formally wedded. This means that common law couples may need Houston divorce lawyers to help them legally end the relationship. Both partners are responsible for debts as well as care and support of any children from the marriage. Therefore, it is important to discuss a possible separation with a Houston divorce lawyer.

A new provision of the Family Code was added In 1995 that states either partner in a common law relationship has two years after separating to file an action to prove that the nuptials did exist. However, even if the time has expired for you to obtain a legal divorce, other measures can be taken to get orders for payment of child support and visitation for children. You should talk to a Houston divorce lawyer about your options.

There are two ways to end an informal marriage. If there have been children or if property and debts remain undivided, you will want to seek advice from a Houston divorce lawyer about a traditional divorce. However, if there are no children or contested property, you can separate; and under the new law, if neither person affirms that a marriage existed within two years of the date when the parties stopped living together in Texas, then it is assumed that the parties never entered into matrimony in the first place. While this does not automatically mean that the matrimony never existed, it does mean that the burden of proof falls on the person trying to prove there was a legitimate common law marriage.

When an informal marriage does exist; either person can file for a formal divorce. It is always advisable to hire a Houston divorce lawyer if there are contested issues involving property, finances or children. In formal divorce proceedings, matters such as child support, child custody, and property division will be decided by the court. Thus, it is important to seek the counsel of an experienced Houston divorce lawyer.

Same-Sex Common Law Marriage

In the state of Texas, common law marriage is recognized when two individuals live together and agree that they are "married", refer to each other as "husband or wife", and perform actions that are typical for married couples (such as filing a joint tax return). Under these conditions in this state, you could be legally eligible for this type of marriage determination. However, it is important to understand that even though the state of Texas identifies common law marriages, there is no similar process for common law divorces. This particular endeavor has its own set of rules and a couple cannot be simply divorce by stating it publicly or living apart.

If you choose to dissolve your marriage, you will still need to divide your assets and make determination regarding child support and child custody. Because this process can often be very complicated and time-consuming, you may want to consider hiring an attorney to help you through this process, as it will need to be done in a legally-recognizable manner. Consult with a lawyer today to answer any questions you may have regarding this procedure.

The following provisions may be said about common law divorce:

  • Either spouse in the marriage has 2 years after you separate to file an action to prove that your marriage did indeed exist.
  • You must have separated after September 1, 1989.
  • You are still responsible for assets, debt, and the care of your children.
  •  In order to make sure that your spouse is legally responsible for what is owed to you, a divorce is preferred, rather than a legal separation or annulment.

If you experienced any form a spousal abuse in your common law marriage, there are provisions that can protect you under the law, such as requesting a protective order. These rights are still applicable for common law spouses as they are for spouses who obtain marriage licenses. Regardless of your marital status, you still may want to consult with a lawyer to make sure that you receive all of the funds to which you are entitled and your partner upholds his or her end of the custody determination.

Common Law Divorces in Texas

In the state of Texas, common law marriage is recognized when two individuals live together and agree that they are "married", refer to each other as "husband or wife", and perform actions that are typical for married couples (such as filing a joint tax return). Under these conditions in this state, you could be legally eligible for this type of marriage determination. However, it is important to understand that even though the state of Texas identifies common law marriages, there is no similar process for common law divorces. This particular endeavor has its own set of rules and a couple cannot be simply divorce by stating it publicly or living apart.

If you choose to dissolve your marriage, you will still need to divide your assets and make determination regarding child support and child custody. Because this process can often be very complicated and time-consuming, you may want to consider hiring an attorney to help you through this process, as it will need to be done in a legally-recognizable manner. Consult with a lawyer today to answer any questions you may have regarding this procedure.

The following provisions may be said about common law divorce:

    * Either spouse in the marriage has 2 years after you separate to file an action to prove that your marriage did indeed exist.
    * You must have separated after September 1, 1989.
    * You are still responsible for assets, debt, and the care of your children.
    * In order to make sure that your spouse is legally responsible for what is owed to you, a divorce is preferred, rather than a legal separation or annulment.

If you experienced any form a spousal abuse in your common law marriage, there are provisions that can protect you under the law, such as requesting a protective order. These rights are still applicable for common law spouses as they are for spouses who obtain marriage licenses. Regardless of your marital status, you still may want to consult with a lawyer to make sure that you receive all of the funds to which you are entitled and your partner upholds his or her end of the custody determination.

'Maxims of Common Law' Are Ignored in Family Court

Courts make determinations in law and in equity. By 'in law' is meant following a specific law - constitutional law, state law, etc. By 'in equity' is meant determining what is 'fair' to do where now law specifically rules. An example is determining how to distribute the assets in a divorce among the husband and wife.

Common law refers to the myriad of decisions made by judges and appeals courts. Maxims of Common Law are 'guiding truths'. Adhering to them helps judges make fairer decisions. They're ignored in family court determinations since fairness is a wholly secondary issue. This article overviews what these maxims are.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

* represent 'self-evident' truth - as mentioned in our Declaration of Independence when it referred to 'all men' as being created equal.

* serve to guide judicial determinations in the same way that 'axioms' guide the analysis of mathematical determinations

* promotes fair dealing and unbiased justice - a clearly essential issue in the purpose of courts

Courts, primarily established to enforce the principles of common law, are bound by common law rules of equity that should be grounded in the never-changing maxims. This grounding serves to restrain the court's wanton discretion in equity law determinations.

Examples of Maxims:

Let's take a look at some examples to see the nature of maxims -as self-evidently fair. Here's an important one:

*The certainty of a thing arises only from making a thing certain.

This implies that the court should seek clear proof of allegations made against someone and not rule on just the allegations or weakly supported ones. Family court ignores these maxims all the time.

*The safety of the people cannot be judged but by the safety of every individual.

Laws which supposedly protect the safety of some people at the expense of other people's rights violate this maxim. A clear example of such a violation is present day domestic restraining order laws which are rampantly and unjustly imposed upon so many fathers.

*Law is unjust where it is uncertain or vague in its meaning.

Laws should be clear so that one knows precisely when he's breaking such a law. Remember the violation of laws brings consequences on those who violate them. Vague laws are considered unconstitutional. An example of vague standard of law is the 'best interest of the child' standard - used to unjustly deny fit fathers custody of their children.

*The Burden of Proof lies on him who asserts the fact -not on him who denies it.

This is based on the fact that you can't prove a negative. Courts that force people to prove a negative are examples of kangaroo courts. Family courts jail fathers when they can't prove that they don't have money to pay!

*No one should be believed except upon his oath.

This simply means that anyone who will give testimony must be sworn in. That way he can be charged with perjury - which is a felony (a serious crime) - if he can be found to be intentionally lying. No 'swearing in' means no perjury and no penalty for lying.

*Perjured witnesses should be punished for perjury and for the crimes they falsely accuse against him.

This is the bottom line of enforcing honesty in court testimony. Unfortunately perjury is almost never punished -allowing the degradation of court integrity - so obvious in family court.

*Every home is a castle; though the winds of heaven blow through it, officers of the state cannot enter.

This is from English common law which made a man's home sacrosanct. It should still be true. It requires officers to have warrants to enter a home. A warrant is permission from a judge based on good cause to enter a home.

*No man should profit by his own wrong or, He who does not have clean hands, cannot benefit from the law

This is self-evident. An extreme case is the child that pleads mercy because he's an orphan - but only because he murdered his parents.

*He who uses his legal rights harms no one.

But, fathers are routinely punished by seeking their rights in family court.

*No one is punished unless for some wrong act or fault.

But forced into the noncustodial status for doing no wrong would be considered punishment by any reasonable person.

*It's natural that he who bears the charge of a thing, should receive the profits.

If you have all the obligations for something but none of the benefits, then you are a slave.

Fathers who go to family court observe clear violations of these maxims all the time. Such violations mean that there is a tyranny taking place

Sabtu, 05 Maret 2011

Drug and Device Law

Don't get us wrong. We're delighted to practice drug-and-device law. It's an important, interesting, and dynamic field, and we'd never think of abandoning it. At cocktail parties people gather around and chat with us about the latest mass tort. (We hang out with a nerdy crowd.) By contrast, the ERISA, tax, and structured finance lawyers linger in the corners alone, staring glumly into their chardonnay.

And yet, law school geared us up for a very different array of cases. We were looking forward to helping folks sort out who got to keep the fox carcass. For that matter we figured that animals would figure in lots of our matters: the mouse in the soda bottle, the surprisingly and suddenly pregnant cow, and the sheep pitched overboard in the storm. And we thought we'd be dealing with an even odder menagerie of people, including the hapless lady concussed at the train station and the extraordinarily frisky old guy in Florida. We were even ready to navigate the Rule in Shelley's Case.

Truth be told, if we ever really did encounter those old legal chestnuts, we'd risk serious malpractice, like the William Hurt character in Body Heat. One of our few fond memories of law school is recommending that movie to our trust-and-estate professor because its action hinged on the Rule against Perpetuities. He made the mistakes of taking our advice and taking his wife to the theater. Professor and spouse were both disappointed and astonished by the film's focus on the carnal rather than the legal.

Dang it all, couldn't we please handle some trover and replevin, for old times' sake?

Well, it turns out that we can. We blogged a little more than a year ago about the case of Hunt v. DePuy Orthopaedics, No. 03-900 (RWR), 2009 U.S. Dist. LEXIS 61644 (D.D.C. July 20, 2009). Plaintiff in that case underwent hip replacement surgery in 1994, and that surgery apparently didn't work out so well. In 1999, Plaintiff underwent a repair surgery during which the original implant was removed. After the 1999 surgery, a DePuy representative received permission to take the original implanted hip device. In 2003, Plaintiff asked for return of the explanted hip. DePuy did not return the hip. Later that year, Plaintiff sued DePuy for breach of express warranty (that the hip would last "25 years to life"), breach of implied warranty, and - ta da! -- replevin.

We don't know why Plaintiff wanted her old artificial hip back. As evidence for the warranty claims? Or maybe it's like when the auto mechanic replaces your fan belt and gives you the old one in a big ziplock bag, just to prove that he really did install a new one. Does anybody keep those old parts?

Plaintiff abandoned (remember that word) her express warranty claim, so the court dismissed it. The federal court then decided that D.C. substantive law on the statute of limitations applied to the implied warranty and replevin claims. The four year statute of limitations for breach of implied warranty began running on the date of the surgery -- January 10, 1994 -- so the 2003 claim on that theory was time-barred.

The statute of limitations for replevin was three years. At first blush then, it looks like the replevin claim was also time-barred. But replevin is an action "brought to recover personal property to which the plaintiff is entitled, that is alleged to have been wrongfully taken or to be in the possession of and wrongfully detained by the defendant." D.C. Code section 16-3701. According to Plaintiff, Defendant "wrongfully detained" the hip starting in 2003, when DePuy declined Plaintiff's request for return of the hip. Thus, the replevin claim eluded the statute of limitations and was the only claim Plaintiff had left.

At this point, Bexis/Herman offered their Solomonic advice to settle the case. No, they didn't suggest that the old hip be sawed in half. They suggested that the defendant either return the explanted hip or tell plaintiff if it no longer existed. Easy-squeezy. That would be that.
But that wasn't that.

Last week the court granted summary judgment on the replevin claim, reasoning that because plaintiff had waited four years to bring her claim, she had effectively abandoned the hip. Hunt v. DePuy Orthopaedics, Inc., 2010 U.S. Dist. LEXIS 78536 (D.D.C. August 4, 2010). We'll get to that abandonment theory in a moment. We still have to wonder why Defendant didn't follow our advice. Was it worried about some sort of spoliation? Did it want to hold on to the old hip, the way Philadelphia's fabulous Mutter Museum keeps various medical oddities in display cases and drawers? We just don't know.

Of course, that's a persistent problem with outsiders commenting on legal disputes. Most of the time, we know only what we read in the papers -- or F. Supp. or F.3d -- so we might not be getting the whole story. Anybody who's worked on a litigation and then seen the facts recited in an opinion -- or worse, a newspaper -- knows how much the public story and the reality can diverge. But even if a published opinion has an element of fiction to it, it’s a fiction that we must respect. That, after all, is why tomatoes are vegetables. Nix v. Hedden, 149 U.S. 304 (1893). So we won't let a little epistemological humility stop us from thinking that our advice for settling the Hunt case should have been followed. (And the advice was free! Hmmm, maybe that's why. After all, you get what you pay for.)

We see the abandonment theory about as often as we see replevin cases. A jury consultant once told us that every drug-and-device case follows the romance novel story of (1) you seduced me, (2) you lied to me, (3) you injured me, and (4) you abandoned me. But that's a different abandonment. Of course it's not that unusual for parties to abandon some legal theories on appeal.

There is statutory abandonment, such as abandonment by a bankruptcy trustee under 11 U.S.C. section 554. There is common law abandonment of a variety of legal interests, such as easements, domiciles, or trademarks. One can also abandon all sorts of real and personal property. Under D.C. law, a party can prove abandonment by demonstrating "both an intent to abandon [isn't it miserable when a definition includes the defined term?] and an act or omission that effectuates the intention." Block v. Fisher, 103 A.2d 575, 576 (D.C. 1954). Here, Plaintiff presented no evidence that when she agreed in 1999 that DePuy could take the old hip it was "her intent that DePuy hold the components for safe-keeping until she requested their return in 2003." Hunt, 2010 U.S. Dist. LEXIS 78536, *5. During the four years between the surgery and the filing of the lawsuit Plaintiff never asked for return of the hip, never said the possession should be temporary, and never sought assurance of the hip's safekeeping. The only fair inference is that Plaintiff abandoned the property.

It's hard to argue with the D.C. court's conclusion. In fact, we'd like to see the abandonment theory applied to many more cases. There are MDL's where plaintiffs have gone unheard of, or from, for well more than four years. We're only half-serious here, but there is that half. There's something wrong with a mass tort system that allows thousands of plaintiffs to park their cases in the ether, where they go untested for the life of the litigation. It's that sort of thing that quickens our nostalgia for Pierson v. Post or Rose the Second of Aberlone. 

Rabu, 02 Maret 2011

'Maxims of Common Law' Are Ignored in Family Court

Courts make determinations in law and in equity. By 'in law' is meant following a specific law - constitutional law, state law, etc. By 'in equity' is meant determining what is 'fair' to do where now law specifically rules. An example is determining how to distribute the assets in a divorce among the husband and wife.

Common law refers to the myriad of decisions made by judges and appeals courts. Maxims of Common Law are 'guiding truths'. Adhering to them helps judges make fairer decisions. They're ignored in family court determinations since fairness is a wholly secondary issue. This article overviews what these maxims are.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

* represent 'self-evident' truth - as mentioned in our Declaration of Independence when it referred to 'all men' as being created equal.

* serve to guide judicial determinations in the same way that 'axioms' guide the analysis of mathematical determinations

* promotes fair dealing and unbiased justice - a clearly essential issue in the purpose of courts

Courts, primarily established to enforce the principles of common law, are bound by common law rules of equity that should be grounded in the never-changing maxims. This grounding serves to restrain the court's wanton discretion in equity law determinations.

Examples of Maxims:

Let's take a look at some examples to see the nature of maxims -as self-evidently fair. Here's an important one:

*The certainty of a thing arises only from making a thing certain.

This implies that the court should seek clear proof of allegations made against someone and not rule on just the allegations or weakly supported ones. Family court ignores these maxims all the time.

*The safety of the people cannot be judged but by the safety of every individual.

Laws which supposedly protect the safety of some people at the expense of other people's rights violate this maxim. A clear example of such a violation is present day domestic restraining order laws which are rampantly and unjustly imposed upon so many fathers.

*Law is unjust where it is uncertain or vague in its meaning.

Laws should be clear so that one knows precisely when he's breaking such a law. Remember the violation of laws brings consequences on those who violate them. Vague laws are considered unconstitutional. An example of vague standard of law is the 'best interest of the child' standard - used to unjustly deny fit fathers custody of their children.

*The Burden of Proof lies on him who asserts the fact -not on him who denies it.

This is based on the fact that you can't prove a negative. Courts that force people to prove a negative are examples of kangaroo courts. Family courts jail fathers when they can't prove that they don't have money to pay!

*No one should be believed except upon his oath.

This simply means that anyone who will give testimony must be sworn in. That way he can be charged with perjury - which is a felony (a serious crime) - if he can be found to be intentionally lying. No 'swearing in' means no perjury and no penalty for lying.

*Perjured witnesses should be punished for perjury and for the crimes they falsely accuse against him.

This is the bottom line of enforcing honesty in court testimony. Unfortunately perjury is almost never punished -allowing the degradation of court integrity - so obvious in family court.

*Every home is a castle; though the winds of heaven blow through it, officers of the state cannot enter.

This is from English common law which made a man's home sacrosanct. It should still be true. It requires officers to have warrants to enter a home. A warrant is permission from a judge based on good cause to enter a home.

*No man should profit by his own wrong or, He who does not have clean hands, cannot benefit from the law

This is self-evident. An extreme case is the child that pleads mercy because he's an orphan - but only because he murdered his parents.

*He who uses his legal rights harms no one.

But, fathers are routinely punished by seeking their rights in family court.

*No one is punished unless for some wrong act or fault.

But forced into the noncustodial status for doing no wrong would be considered punishment by any reasonable person.

*It's natural that he who bears the charge of a thing, should receive the profits.

If you have all the obligations for something but none of the benefits, then you are a slave.

Fathers who go to family court observe clear violations of these maxims all the time. Such violations mean that there is a tyranny taking place

Common Law and Statutory Law Compared


It is widely misunderstood that one must file a copyright with the Copyright Office in order to secure a copyright. While acquiring a registration does indeed have its advantages, a registration within the Copyright Office is not required to secure rights. Instead, under common law, a copyright is automatically created when it is fixed in a tangible form for the first time. As long as it is an original work of authorship, you may claim ownership and protection and even place a copyright notice, including the "small c with a circle" symbol, on the particular work. Although a notice is not required any longer, should one desire to use it, it is important to follow the convention of using the © symbol followed by the year of the first publication of the work followed by the owner of the copyright and the work.
While creating and maintaining common law copyright protection is beneficial, the Copyright Act, a federal statute, provides additional benefits and protection rights to an owner. The most commonly recognized rights are the ability to sue within federal court, the ability to recover statutory damages up to $150,000.00 for willful infringement, and the ability to recover attorneys' fees. However, in order to receive these benefits, the copyright must be registered with the Copyright Office at the Library of Congress. While the time of filing for registration may affect which statutory damages are available, one must receive registration or be refused registration in order to proceed with an infringement lawsuit in federal court. Therefore, for a relatively small price, it is advisable to seek registration for all original works of authorship at the time of, or prior to, publication of the work. In addition, creating a public record of the work claimed, establishing a prima facia evidence of the validity, and other benefits make registration well worth the cost. With the ability to use online filing, there is no excuse for failure to register a copyright for whatever kind of work, including literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial graphic and sculptural works, motion pictures and other audio-visual works, sound recorders, and architectural works.
Ultimately, people must remember that as soon as an original work of authorship is fixed in a tangible form and published, a copyright exists. However, under statutory law, and practically speaking, having a copyright registration with the Copyright Office will provide the additional benefits and advantages should the need to enforce it arise.