Democracy Created, Supported, and Protected by the Constitution of the United States Must Be Defended

January 25th, 2012

Democracy created, supported, and protected by the Constitution of the United States must be defended regardless of whether you are a Libertarian, Republican, Democrat, or whether you align yourself with any other party supporting your personal beliefs. We must all protect the core values that have flowed since America began from our freedoms protected by separation of the legislative, judicial, and executive branches of government. Each branch protects us from the tyranny that can be imposed upon us by one, absent the beautiful balance over time by each branch of government gatekeeping for the other branches.

As an associate member of the American Board of Trial Advocates (ABOTA), I am deeply concerned that many expected and prominent contenders in the 2012 elections have stated that if elected they will disregard Supreme Court rulings with which they disagreed, eliminating entire courts removing judges from office if they dislike their rulings, and will direct United States Marshals to apprehend judges and compel them to submit to congressional questions about their rulings.

The TEX-ABOTA opposes all attempts to undermine the independence and integrity of the judicial and has therefore passed a resolution regarding this issue. The resolution of the Texas Chapters of American Board of Trial Advocates has resolved as follows:

The Texas Chapters of American Board of Trial Advocates is strongly opposed to any proposed governmental action or policy that would undermine the constitutional structure of three separate and independent branches of government, including any governmental action or policy that would: (1) ignore Supreme Court rulings; (2) eliminate courts or remove judges from office because of their rulings; and (3) force judges to face congressional questioning regarding their rulings.

Every extremely conservative or irrevocably committed left-winged person in this country has at one time or another, from their prospective, extremely benefited or felt personal extreme detriment from a ruling of a county, state, federal district court, federal district appellate court, or the Supreme Court of the United States.

Can you imagine how an ultraconservative person would feel if a left-wing Democratic president undermined a Supreme Court ruling that abortion is illegal?

Can you imagine how a left-wing democrat would feel if a conservative president could undermine and reverse a Supreme Court ruling that employees have no rights of recovery when terminated from employment due to racial or gender related discrimination?

The issue to consider is not what a court orders, renders, or adjudicates on a particular matter of concern to you in your life. The issue is whether we should have courts of law or a government whose arbitrary decisions controls your life depending on who happens to be in power at any particular time in the future.

For my part, I’m going to take my chances with democracy based on checks and balances as opposed to an existential political belief of any given ruler, executive, or body based on one particular moment in time.

Mark Nacol, Attorney
Board Certified in Civil Trial Law by the Texas Board of Legal Specialization
Nacol Law Firm P.C.

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Time is Ticking On New Texas Mistaken Paternity Law: September 1, 2012

January 22nd, 2012

Now it is time for “fathers” or men who have been paying child support for children who are not their biological children to assert their rights.

Texas new law, Texas SB785, permits men who have been ordered to pay child support, without genetic testing, to request genetic testing in order to determine whether they are the genetic parent of the child.

But the clock is ticking. If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012.

After September 1, 2012, a man must file a petition to determine genetic parentage no later than the first anniversary of the date on which he becomes aware of facts indicating that he is not the child’s genetic father.

In order to file for relief under this new law, the man must have signed an acknowledgement of paternity or failed to contest paternity in the previous proceeding because of a mistaken belief that he was the child’s father based on misrepresentations that led him to that conclusion.

If the man knew he was not the father at the time he signed the acknowledgement of paternity or the previous court order, the new law does not apply.

If the genetic testing concludes that the man is not the child’s genetic father, the court shall render an order terminating the parent-child relationship and terminating the man’s obligation for future child support.

The new order, however, does not affect the man’s obligations for child support or child support arrearages accrued before the date of the order. However, the accrued obligations are not enforceable by contempt proceedings.

If the court order states that the father listed on the birth certificate is not the biological father and the information can be removed from the birth record, then the birth certificate can be revised as well.

Even if the parent-child relationship is terminated, the man may request the court to order periods of possession or access to the child following the termination. The court may order periods of possession or access to the child only if the court determines that denial of possession or access would significantly impair the child’s physical health or emotional well-being. The law directs the court to focus on the child’s well-being, not on the man’s desire to continue seeing the child.

If you have been paying child support due to a mistaken belief that you were the father, the time to act is now. Remember the clock is ticking! If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012. If you wait to file for relief, you will be barred! Contact an attorney now!

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Preparing for a Texas Divorce

January 13th, 2012

Preparing for a Texas Divorce:  Part 1 – Assets

Preparing for a divorce is painful no matter the circumstance.  Before you get into the tangle of the Texas divorce process, you can reduce the expense, stress and conflict many people face by making sure you are prepared.  Planning ahead allows you to make sound decisions and start preparing for your life post-divorce, and may also help you avoid post-divorce pitfalls. Below is a list of items you may want to gather before counseling with an attorney.

Documents

  1. A Listing of all Real Property, address and location, including (include time-shares and vacation properties):
    1. Deeds of Trust
    2. Notes
    3. Legal Description
    4. Mortgage Companies (Name, Address, Telephone Number, Account Number, Balance of Note, Monthly Payments)
    5. Current fair market value
  2. Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, work interests, and producing and non-producing oil and gas wells.
    1. Name of mineral interest
    2. Type of interest
    3. County of location
    4. Legal description
    5. Name of producer/operator
    6. Current market value
  3. Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
    1. Name of institution, address and telephone number
    2. Amount in institution on date of marriage
    3. Amount in institution currently
    4. Account Number
    5. Names on Account
  4. Publicly traded stock, bonds and other securities (include securities not in a brokerage, mutual fund, or retirement account):
    1. Number of shares
    2. Type of securities
    3. Certificate numbers
    4. In possession of
    5. Name of exchange which listed
    6. Pledged as collateral?
    7. Date acquired
    8. Tax basis
    9. Current market value
    10. If stock (date option granted, number of shares and value per share)
  5. Closely held business interests:
    1. Name of business
    2. Address
    3. Type of business
    4. % of ownership
    5. Number of shares owned if applicable
    6. Value of shares
    7. Balance of accounts receivables
    8. Cash flow reports
    9. Balance of liabilities
    10. List of company assets
  6. Retirement Benefits
    1. Exact name of plan
    2. Address of plan administrator
    3. Employer
    4. Employee
    5. Starting date of contributions
    6. Amount in account on date of marriage
    7. Amount currently in account
    8. Balance of any loan against plan
  7. Insurance and Annuities
    1. Name of insurance company
    2. Policy Number
    3. Insured
    4. Type of insurance (whole/term/universal)
    5. Amount of monthly premiums
    6. Date of Issue
    7. Face amount
    8. Cash surrender value
    9. Current surrender value
    10. Designated beneficiary
  8. Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned)
    1. Year
    2. Make
    3. Model
    4. Value
    5. Name on title
    6. VIN Number
    7. Fair Market Value
    8. Name of creditor (if any), address and telephone
    9. Persons listed on debt
    10. Account number
    11. Balance of any loan and monthly payment
    12. Net Equity in vehicle
  9. Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
  10. Household furniture, furnishings and Fixtures
  11. Electronics and computers
  12. Antiques, artwork and collectibles (including works of art, paintings, tapestry, rugs, crystal, coin or stamp collections)
  13. Miscellaneous sporting goods and firearms
  14. Jewelry
  15. Animals and livestock
  16. Farming equipment
  17. Club Memberships
  18. Travel Award Benefits (including frequent flyer miles)
  19. Safe deposit box items
  20. Burial plots
  21. Items in any storage facility
  22. A listing of separate property (property prior to marriage, family heir looms, property gifted)
  23. Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, etc.):
    a. Name of entity, address and telephone number
    b. Account number
    c. Amount owed
    d. Monthly payment
    e. Property securing payment (if any)
    f.  Persons listed as liable for debt

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