Equal Pay for Equal Work

Men and women doing the same work are entitled to earn the same pay.

A federal law, the Equal Pay Act (EPA, 29 U.S.C. §206), requires employers to pay all employees equally for equal work, regardless of their gender. It was passed in 1963 as an amendment to the Fair Labor Standards Act.

Although the Act protects both women and men from gender discrimination in pay rates, it was passed to help rectify the wage disparity experienced by women workers because of sex discrimination in employment. And in practice, this law has almost always been applied to situations where women are paid less than men for doing similar jobs.

To successfully raise a claim under the Equal Pay Act, you must show that two employees, one male and one female:

• are working in the same place
• are doing equal work, and
• are receiving unequal pay.

However, if the employer can show that the wage disparity has a legitimate basis -- for example, that the higher earner has more seniority or more experience -- the claim will be defeated.

Who Is Covered

Virtually all workers are covered by the Equal Pay Act, which regulates the conduct of the state, local and federal governments and most private employers.

Determining Equal Work

Jobs do not have to be identical for the courts to consider them equal. If two employees are actually doing the same work, it doesn't matter if their titles or job descriptions differ. What counts is the duties they actually perform. In general, the courts have ruled that two jobs are equal for the purposes of the Equal Pay Act when both require equal levels of skill, effort and responsibility and are performed under similar conditions.

There is a lot of room for interpretation here, of course. But the general rule is that if there are only small differences in the skill, effort or responsibility required, two jobs should still be regarded as equal. The biggest problems arise where two jobs are basically the same, but one includes a few extra duties. It is perfectly legal to award higher pay for the extra duties, but some courts have looked askance at workplaces in which the higher-paying jobs with extra duties are consistently reserved for workers of one gender.

The EPA requires more than equal wages. If employees do equal work, they are also entitled to equal fringe benefits, such as insurance coverage, pensions and the use of company equipment. And the EPA applies to forms of compensation other than wages, including vacation time, profit sharing and bonuses.

The EPA and Title VII

The Equal Pay Act was passed one year before Title VII of the Civil Rights Act. Both laws prohibit wage discrimination based on gender, but Title VII goes beyond ensuring equal pay for equal work, as it bars discrimination in all aspects of employment, including hiring, firing and promotions. In addition, Title VII broadly prohibits other forms of discrimination, including that based on race, color, religion and national origin.

In cases where both Title VII and the Equal Pay Act apply, the Equal Pay Act offers two potential advantages:

• You can file a lawsuit under the Equal Pay Act without first filing a complaint with the Equal Employment Opporunity Commission (EEOC).
• Unlike Title VII, the Equal Pay Act does not require proof that the employer acted intentionally when discriminating. That can make an Equal Pay Act case easier to win in court.

However, Title VII boasts one major advantage: You can win more money in a lawsuit under Title VII. Under Title VII, you can ask the judge or jury not only for the wages you lost, but also for compensation for your pain and suffering (compensatory damages). The Equal Pay Act does not provide these remedies -- although in some cases you can ask for double the amount of wages you lost.

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Electronic Monitoring

Privacy laws pertaining to telephones, voicemail, email and Internet use.

Advances in technology now make it possible for employers to keep track of virtually all workplace communications by any employee -- on the phone and in cyberspace. And many employers take advantage of these tracking devices: A recent survey of more than 700 companies by the Society for Human Resource Management (SHRM) found that almost three quarters of those companies monitor their workers' use of the Internet and check employee email. According to a study by the American Management Association, businesses offering financial services -- such as banks, brokerage houses, insurance firms and real estate companies -- are most likely to monitor their workers' communications.

Whether all this monitoring is legal depends on what type of communication the employer is trying to eavesdrop on, how reasonable it is for the employee to expect the communication to be private and the employer's reason for listening in.
Phone Calls

Employers may monitor business phone calls -- that is, employee conversations with clients or customers -- for quality control. Some states have laws that require employers to inform the parties to the call, either by announcement or by signal (such as a beeping noise during the call), that someone is listening in. Federal law, however, allows employers to monitor these business calls unannounced.

An exception is made for personal calls. Under federal law, once an employer knows that a call is personal, the employer must immediately stop monitoring the call.
Voicemail Messages

The law hasn't given a firm answer to whether employers may listen to employee voicemail. Most likely, employers have the right to listen to employee voicemail messages -- especially if the employer has a work-related reason.

If your employer has ever led you to believe that voicemails are private, however, then you might have a legitimate complaint if the employer listens to your voicemail.
Email Messages

Employers are generally free to rummage through employees' email messages -- as long as they have a valid business purpose for doing so. If the company takes steps to protect the privacy of email (by providing a system that allows messages to be designated "confidential" or creating private passwords known only to the employee, for example) -- or if a company states in its policies that email is private -- a worker might have a stronger expectation of privacy in the messages covered by these rules and therefore stronger legal protection if the employer reads private emails. But most courts to consider the issue have decided in favor of employers, particularly if the company has a policy that restricts computer use to official business only.

Legality aside, the truth is that many employers now routinely monitor email their employees send and receive. Some email systems copy all messages that pass through them; others create backup copies of new messages as they arrive. Workers who logically assume their messages are gone for good when they delete them are very often wrong. Treat your email system at work as you should your business phone. Strictly limit your communications with family and friends. And do not send a message if you would be uncomfortable having a co-worker or your employer read it.
Internet Use

Employers are within their legal rights to keep track of the Internet sites visited by their workers. Some employers install devices that block access to certain sites (for example, those with pornographic images) or limit the time workers may spend on sites that are not specified as work related.



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Don't Embellish or Lie During the Application Process

It may help you get the job, but you may pay for it later.

Many applicants try to increase their chances of landing a job by embellishing -- or downright lying about -- their experience or credentials. Although this may help them get the job, it is a risky strategy for a number of reasons.

Most obviously, if the employer ever finds out about the falsehoods, the employer can fire the offending individual immediately. And that person might have a more difficult time landing the next job with the black mark of a termination on his or her record.

And there is an additional, more sinister consequence: If the employer ever treats the individual unlawfully -- for example, terminates the individual's employment because the individual is a woman or is Latino -- the employer can escape liability by pointing to the lies and embellishments and saying the individual never should have been hired in the first place. Courts agree, reasoning that employees who lied to get a job cannot later come to court and claim the employer did them wrong.

The employer tactic is called the After-Acquired Evidence Theory. Conduct that has been held sufficiently serious to be admitted as after-acquired evidence has included:

* falsifying company records
* failing to list a previous employer on a resumé
* failing to admit being terminated for cheating on timecards
* failing to reveal a prior conviction for a felony
* lying about education and experience on a job application
* fabricating a college degree during an interview, and
* removing and copying the company's confidential financial statements.

If you did lie on your job application or resumé, however, you may not be completely out of luck. Your employer can use the misinformation as a defense only if it was truly related to your job duties or performance. The employer must be able to show that you would have been fired -- or not hired in the first place -- if he or she had known the truth. Proving this type of second-guessing may not be easy.



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Discrimination Based on Sexual Orientation

Measures are emerging to protect gay and lesbian workers from discrimination in the workplace.

Although women, minorities, people older than 40 and people with disabilities now enjoy an umbrella of state and federal protections from discrimination in the workplace, gays and lesbians have, for the most part, been left out in the rain, at least at the national level. There is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector -- although federal government workers are currently protected from such discrimination.

At the state level, however, there is more cause for hope. Thirteen states have laws prohibiting sexual orientation discrimination in both private and public jobs: California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Wisconsin. The District of Columbia also prohibits sexual orientation discrimination in both the public and private sectors. In addition, eight states have laws prohibiting sexual orientation discrimination in public workplaces only: Colorado, Delaware, Illinois, Indiana, Montana, New Mexico, Pennsylvania and Washington.

If you are gay or lesbian and your state does not have a law that protects you from workplace discrimination, you may still be protected by city and county ordinances. There are at least 124 cities and counties that prohibit discrimination in the workplace on the basis of sexual orientation -- from Albany, NY, to Ypsilanti, MI. In addition, some enlightened companies have adopted their own policies prohibiting such discrimination.

If there are no specific laws protecting you from sexual orientation discrimination, you may still have other causes of action. Depending on the exact nature of the discrimination, you may be able to sue your employer -- or your co-workers -- on a number of legal theories that apply to everyone, including gay men and lesbians:

* intentional or negligent infliction of emotional distress
* harassment
* assault
* battery
* invasion of privacy
* defamation
* interference with an employment contract, and
* wrongful termination.



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Asserting Your Rights in the Workplace

Learn how to handle a conflict with your employer to protect your rights and get results.

Depending on the size of your employer, the state in which you live and your profession, you may be entitled to certain legal protections in the workplace, including:

* the right not to be discriminated against on the basis of your race, national origin, skin color, gender, pregnancy, religious beliefs, disability or age (and in some places, marital status or sexual orientation)
* the right to a workplace free of harassment
* the right to be paid at least the minimum wage, and an overtime premium for any hours worked over forty in one week (or, in some places, over eight hours in one day)
* the right to a safe workplace
* the right to take leave to care for your own or a family member's serious illness, or following the birth or adoption of a child, and
* the right to some privacy in personal matters.

1. Talk to Your Employer
The first thing to do is talk to your employer. An intelligent discussion can resolve most wrongs, or at least get your differences out on the table. Most companies want to stay within the law and avoid legal tangles. Unless you work for a truly uncaring and antagonistic employer, chances are that your problem is the result of an oversight, a misunderstanding or a lack of legal knowledge.

Here are a few tips on how to present your concerns to your employer:

* Know your rights. The more you know about your legal rights in the workplace, the more confident you will be in presenting your problem.
* Stick to the facts. Before meeting with your employer, write a brief summary of what has gone wrong and your recommendation for resolving the problem. It might help to have someone more objective, such as a friend or family member, review the facts and brainstorm with you about possible resolutions. Make sure not to leave any important facts out.
* Don't be overly emotional. Dealing with a workplace problem can be stressful, but unfounded accusations and emotional outbursts won't help you get your point across. Practice your presentation ahead of time to make sure you can remain professional and calm.
* Decide the next steps. Before finishing your discussion with your employer, come to some agreement with your boss as to what will happen next. Will the company investigate the problem? Will your boss talk to your co-workers or supervisor? Will evaluations, job responsibilities or reporting relationships be changed?

2. Follow Up With Your Employer
Once you have spoken to your employer, make sure to follow up on the meeting. If your employer promised to investigate the matter or talk to other employees, check back to find out the status of those actions. After a few weeks have passed, schedule another meeting with your employer to discuss what progress has been made in resolving your problem.
3. Document the Problem
If talking things over with your employer does not resolve the dispute, or if your employment situation seems to be headed downhill, protect yourself by gathering documentation. Take notes of key conversations and events, including the time, date and names of others who were present. Gather documents that might support your side of the story, such as company policies, offer letters, performance reviews, memoranda, correspondence or employee handbooks.

Be careful, however, to collect only those documents you have legitimate access to. Taking or copying confidential documents -- even if they are related to your dispute -- could get you fired and could compromise your legal claims.

If your co-workers saw or heard any of the incidents that contributed to the problem (such as a verbal performance review, a harassing comment or a search of your workspace), ask them to write down what they saw and heard in signed, dated statements.
4. Don't Miss Legal Deadlines
If your employer doesn't seem to be taking your complaint seriously, or you are demoted or fired, you will have to consider whether to take legal action. The law sets deadlines (often called "statutes of limitations") for filing certain types of claims or lawsuits, ranging from several weeks to several years. If one of these deadlines applies to your case, you will have to think sooner rather than later about whether to go to court.



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Arbitration Agreements With Your Employer

Employers are increasingly asking workers to give up their rights, so watch what you sign.

In a growing trend, employees are giving up their right to sue their employers in court over issues such as wrongful termination, breach of contract and discrimination. How are they doing this? By signing documents called arbitration agreements. When employees sign these agreements, they are promising to pursue any legal claims against their employer through arbitration, rather than through a lawsuit. That might sound simple enough, but if you look closer, you’ll see that agreeing to arbitrate means giving up a lot -- it could even mean the difference between winning or losing your case.
The Disadvantages of Arbitration

You may wonder why you should care where your claims get heard as long as they are heard somewhere, be it in arbitration or a court of law. An arbitration differs from a court case in several ways, and many of these differences tend to work against employees.

Most important, an arbitration is heard by a private citizen -- often a retired judge -- who is paid by one or both sides to listen to evidence and witnesses. That means you won’t have a jury hear your story -- and juries are usually more sympathetic to employees than are arbitrators.

Also, the arbitration process limits the amount of information each side can get from the other. In employment cases, this generally hurts the employee, because the employer is usually the one in possession of all the documents and information relating to the employee’s case.

Finally, an arbitration usually cannot be appealed, making arbitration awards more final than court verdicts. This means that if the arbitrator makes a decision that you think is unfair or wrong, you won’t get a second chance before an appellate court -- a second chance that you might have gotten had you gone to a court trial.
The Advantages of Arbitration

An arbitration does have some advantages over a court trial. Arbitrations are less formal than court trials, and this informality can make the process easier for all involved, especially employees who are not used to litigation. Also, arbitrations tend to be resolved more quickly than court cases.
Read All Documents Carefully

It may seem ridiculous, but employees often sign arbitration agreements unintentionally. How can this happen? Some employers bog down new employees with tons of paperwork to fill out on their first day, and some employees, in turn, sign documents without reading them.

Although most employers are straightforward and present the arbitration agreement to employees openly in a separate contract, others bury arbitration agreements in other documents, such as an employment contract, a hiring letter or an employee handbook. When you sign a contract, letter, handbook acknowledgment form or any other document from your employer, you agree to all the terms of the document -- even the ones that you may not have read. This is a particular problem with handbooks, which might be hundreds of pages long.

How can you protect yourself from unwittingly signing away your rights? Don’t sign any document acknowledging you’ve read something unless you actually have read it and understood it completely. And don’t sign any document that says you agree to the terms unless you have read all of the terms and do in fact agree to them.
The Risks of Refusing to Sign

If your employer asks you to sign an arbitration agreement, you can refuse, but you may be putting your job in jeopardy if you do so. Except in very limited circumstances, an employer can rescind an employment offer if a prospective employee refuses to sign the arbitration agreement. And an employer can fire an at-will employee who refuses to sign one. Therefore, declining to sign the agreement could jeopardize your job.

Sometimes, however, employers will negotiate this point, especially if they are more excited about the employee than they are about arbitration. If you are a highly sought after prospect, or if you are a valued employee in your company, your employer may allow you to refuse to sign rather than give you up.

Another option is to agree to sign -- but only if you can negotiate a fairer agreement (see immediately below).
Making the Agreement Fair

If your employer won’t let you outright refuse to sign, it may allow you to negotiate certain terms of the agreement to make it more fair to you. Although an employer may not agree to your requests, it is not likely to fire you for asking. Negotiating your agreement to arbitrate is no different from discussing your salary. The employer is negotiating for its best interest, and it is your duty to negotiate for your own best interest.

You may have to consult with an attorney for help negotiating the fairest agreement possible. Here are some points to negotiate to create a balanced arbitration process:

* Choice of arbitrator. You should get as much say in choosing the arbitrator as the employer. Given the power of the arbitrator, and given the fact that you probably won’t get to appeal the arbitration decision, you will want to have rights equal to those of your employer in selecting who the arbitrator will be. You and the employer should have the right to reject at least one arbitrator without having to give a reason.
* Disclosure of information. Any potential arbitrator should have to disclose any information regarding business and personal interests to ensure she is not biased in favor of the employer. For example, the arbitrator should not be someone who is a stockholder in the company. You and the employer should have the right to reject any arbitrator who has a conflict of interest.
* Costs of arbitration. Because the employer is the one who wants to use arbitration -- something that must be paid for -- the employer should have to pay for the costs of the arbitration.
* Remedies available. Make sure that you can receive through arbitration all of the remedies that you would have gotten if you had filed your claim in a court of law. For example, the agreement should not prohibit you from seeking punitive damages or damages for emotional distress.
* Attorney representation. You should have the right to be represented by an attorney throughout the arbitration process.

You Can Still Ask for Help From the Government

If you sign an arbitration agreement and your employer discriminates against you, you can still complain to a government agency, such as the federal Equal Employment Opportunity Commission (EEOC) -- and the agency can decide to sue the employer in court on your behalf. This is because the arbitration agreement only applies to you; it doesn’t apply to an agency that helps you.



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Age Discrimination

State and federal laws protect workers from poor treatment based on their age.

Stereotypes about older people abound in our culture, but employers are not allowed to indulge in them when making workplace decisions. A number of state and federal laws prohibit employers from discriminating against employees and applicants on the basis of age.

The Age Discrimination in Employment Act

The federal Age Discrimination in Employment Act (ADEA -- 29 U.S.C. 621-634) is the major federal law that prohibits employers from discriminating against employees and applicants who are 40 years of age or older on the basis of their age.

The ADEA protects workers from age discrimination in every phase of the employment relationship, including help-wanted ads, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments and termination. The ADEA does not cover discrimination in benefits and early retirement, which are addressed by a different law (see below).

The ADEA applies to all private employers that have 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.

Not only does the ADEA prohibit employers from discriminating against older workers in favor of those who are younger than 40, it also prohibits employers from discriminating among older workers. For example, an employer can't hire a 43-year-old over a 53-year-old simply because of age.

State Laws

Many state laws also prohibit discrimination on the basis of age. Although some of these laws essentially mirror the federal law and only protect people older than 40, other laws are broader and protect workers of all ages.

State laws tend to apply to employers with fewer than 20 employees, so your employer might have to comply with your state law even if it isn’t covered by the federal law.

Discrimination in Benefits and Early Retirement

The federal Older Workers Benefit Protection Act (29 U.S.C. § 623 and following) makes it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Like the ADEA, this act only protects people who are at least 40 years old.

Under this law, an employer cannot reduce health or life insurance benefits for older employees, nor can it stop their pensions from accruing if they work past their normal retirement age. The Act also discourages businesses from targeting older workers when cutting staff.

In addition, the Act prohibits employers from forcing employees to take early retirement. An early retirement plan is legal only if it gives the employee a choice between two options: keeping things as they are or choosing to retire under a plan that makes the employee better off than he or she was previously. This choice must be a genuine one; the employee must be free to reject the offer. In addition, if either choice makes the employee worse off, the offer violates the Act.

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Four Tips to Save Money in Your Divorce Case

1. Have a Clear Written Fee Agreement

Most experienced and effective divorce attorneys charge by the hour and require an advance retainer (or deposit) that is paid at the beginning of the case. Fees and expenses will be charged against the retainer until it is exhausted, at which point the client will be responsible for any additional sums incurred.

Clients will sometimes seek an attorney who will represent them on a flat fee basis, thinking that this will save them money. The problem with this arrangement is that the attorney has no incentive to do anything beyond the bare minimum. The client often feels like his case is being ignored, the attorney often feels like the client is intentionally trying to take up as much of his time as possible, and they may both be right.

Whether you hire a lawyer on an hourly or flat fee basis, it is extremely important that you get a written fee agreement that makes clear the terms of the representation, including whether any retainer is refundable, how often you will receive statements, the attorney’s hourly rates, etc. You should get and keep a copy of this fee agreement.

2. Don’t Mistake Your Divorce Lawyer for Your Therapist

Divorces are extremely emotional. Because your divorce attorney is (or at least should be) firmly in your corner, talking to him can be a very reassuring experience. This person understands your side of the situation and it feels good to talk to someone who sees the righteousness of your position. Because it makes you feel better you get into the habit of calling often, almost daily.

Unless you have more money than you know what to do with you should NOT fall into this trap.

Remember that every time you call your lawyer the clock is ticking and you are getting billed by the hour. Think of it as a very expensive cab ride. As soon as you get in the cab, the meter starts running. It works the same with a lawyer, as soon as you are on the phone with him the meter is running and you are getting charged.

This does not mean you should never communicate with your lawyer. On the contrary, you should communicate with your attorney anytime you need legal advice on your case. But before you pick up the phone make a list of questions or issues you want to discuss and limit your conversation to these points without wasting time ranting about the unfairness of the situation.

3. Don’t Use Your Attorney to Negotiate a Division of Personal Items

Arguing about which party deserves the blue sofa or the bread maker is not a good use of attorney’s fees. As much as possible, you should try to resolve these issues with your spouse. Ideally, if you and your spouse have already separated, you could divide these items by agreement and exchange them before the case has been completed.

Then (when it is time to finalize the divorce) the provision in the agreement and/or Final Decree, would simply state that each party keeps all personal effects (furniture, clothing, electronics, appliances, kitchen equipment, etc.) in that party’s possession. This can save a great deal in fees by avoiding debates over property that has very little market value.

4. Don’t Throw Away Dollars Trying to Save Nickels

This is extremely important. People will often be very frugal about hiring an attorney and think they are saving a lot of money by hiring a lawyer for a small flat fee or by hiring someone who is inexperienced but will work cheaply.

This is a mistake.

Your goal should be to reach a reasonable settlement as quickly as possible. In order to reach this goal you will need an effective lawyer who sincerely shares that objective with you. That lawyer will then use his experience and skills to help you reach that objective.

But notice that I said a “reasonable” settlement, not just any settlement. If the other side cannot be convinced to settle the case on reasonable terms it is imperative that your lawyer be skillful and confident enough to effectively try your case.

Someone who is learning on the job, or is simply unprepared, can cost you a great deal of money. So don’t cheat yourself out of dollars in an attempt to save nickels.



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Post-Divorce Alimony in Texas

Overview

This article provides a brief overview on Texas law concerning post-divorce alimony in Texas. Laws differ from state to state and individual circumstances vary, so you should consult with a qualified family law attorney in your area for specific advice on your particular situation. Additionally, this article deals only with post-divorce alimony. It does not address temporary alimony, which is provided for under a different provision of the Texas Family Code.

Two Kinds of Alimony: Contractual and Court Ordered Maintenance

There are two kinds of post-divorce alimony in Texas: contractual alimony and court ordered maintenance. The Texas Family Code also provides authority for the court to order temporary alimony which occurs while a divorce is pending. However, temporary alimony is outside the scope of this article and will not be addressed.

Contractual Alimony

Contractual alimony is based on an agreement between the parties in their divorce decree. For tax purposes, contractual alimony is normally deemed income to the receiving party and is deductible from the income of the paying party. Since contractual alimony must be based on an agreement of the parties, there are no limits to the possible amount or duration of the alimony.

Court Ordered Maintenance

Court ordered maintenance is provided for by Texas Family Code Chapter Eight. Although actually awarded in only a small percentage of Texas divorces, the court has the right to order one spouse to pay the other post-divorce maintenance in either of two circumstances:

1. The payor spouse either received deferred adjudication or was convicted of a crime constituting family violence within two years of the filing of the divorce case, or

2. The parties have been married at least ten years and the receiving spouse has some kind of financial limitation (disability, unable to work because caring for the party's child, or lacks earning ability to meet minimum reasonable needs).

The monthly amount of court ordered maintenance is capped at the lesser of: a) $2,500 or b) 20% of the monthly payor's gross income.

The maximum duration of court ordered maintenance is three years. The only exception is when maintenance is ordered as the result of a disability, in which case the duration can potentially extend indefinitely.

Considerations

Where there is a large disparity in incomes alimony can sometimes be used as a useful settlement tool. Since alimony is generally taxable to the receiving party and deductible to the paying party it can be often structured so that it is advantageous to both parties.

For example, a party in a high tax bracket can agree to make monthly alimony payments in exchange for a more favorable property division. If the receiving party is in a lower tax bracket, the overall income tax paid could be significantly lower than what it would be otherwise.

Another factor to consider is how rarely Texas trial courts order maintenance, absent an agreement. The statute allows for maintenance only when the specific statutory circumstances have been proven. There are several appellate cases that have reversed trial court decisions ordering maintenance when the requesting party did not provide sufficient proof that the standard had been met.

In cases where there is a large amount of community property, one of the most effective arguments in attempting to defeat a maintenance claim is that the requesting party will have ample resources to provide for their needs since the party will receive a significant amount of assets from the division of property.

Another common argument used to defeat a maintenance claim is that, during the pendency of the divorce, the requesting party has not made significant attempts to either obtain employment or obtain training that would allow the party to obtain employment.

As an example, lets take a divorce case where the wife is requesting maintenance on the grounds that the marriage is longer than ten years and that she lacks the earning ability to meet her minimum reasonable needs.

If, the case has been pending for several months and at the time of trial she has still made no effort to obtain employment or improve her job skills, it will be a difficult claim to succeed upon. The court is unlikely to find that she is "unable" to meet her reasonable minimum needs and more likely to believe that she is unwilling to take the necessary steps in order to provide for her own support.


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What Issues Must be Resolved in a Houston Divorce Case?

If you live in Houston and need a divorce, hopefully you can conclude your Houston divorce case with all issues resolved by agreement. Contested divorce cases and trials can be expensive, exhausting, and are often unnecessary.

People sometimes wrongly assume that their divorce will be "uncontested" because neither spouse wishes to remain married. The reality is that there are usually several other issues that must be agreed to (or decided by a judge) before a divorce can be finalized. The following is a brief outline of a few areas that must be addressed in a Houston divorce case. It is not exhaustive and you should consult with a competent Houston divorce lawyer about your particular situation.

Children Issues

In cases with minor children of the marriage the Divorce Decree must address conservatorship (sometimes described as custody) of the children and identify which party will have the exclusive right to establish the children's residence. The Decree must also state whether the children's residence will be restricted to a particular geographical area.

The Decree must also identify (usually in very great detail) exactly what the non-custodial parent's visitation schedule will be. The most common visitation schedule in Houston Divorce Decrees is based upon the Standard Possession Order as detailed in the Texas Family Code. However, this is not a mandatory schedule and, if it is shown to be in the best interest of the children, the Court can deviate from this schedule. People are frequently stunned at the amount of detail in the visitation portion of the Decree, but this level of detail is necessary in order to satisfy the Court and to ensure that the Order can be enforced in the future, if necessary.

Except in the most unusual cases, a case involving minor children will also require the non-custodial parent to pay child support to the custodial parent. In the vast majority of cases, the amount of child support is based on the payor's income. Additionally, the non-custodial parent will usually be the person responsible for carrying health insurance on the children.

Property and Debt Issues

In a Houston divorce case the division of any assets or liabilities of the parties must be resolved, either by agreement or trial. In a very simple case where the parties own no significant assets, owe no significant debts, and have already separated and divided their personal effects (furniture, electronics, clothing, etc.), the parties might, for example, decide that they will each keep the personal effects in their possession and the accounts and assets held in that party's name, and each will be be responsible for the debt held in that party's name. Generally, this type of property division will only be fair and effective in the simplest of cases. Even then, additional work may be necessary to ensure that the property is correctly titled. For example, a vehicle awarded to one spouse may need to have the title transferred solely into that spouse's name.

For people who have assets such as a home, pensions, 401k or other retirement accounts, other financial accounts or business interests, as well as people who have significant debts, the property division can be a more complicated matter.

While most people ultimately resolve their Houston divorce case by agreement prior to trial, in nearly all cases you are well advised to consult with a competent Houston divorce lawyer for advice on the best way to resolve your particular situation. The brief outline above is designed merely to bring some of the more significant and common issues to your attention. It is by no means exhaustive and you should consult with a Houston divorce lawyer about your specific situation.



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Houston Family Law Attorney or Online Divorce Forms?

When should you hire a Houston family law attorney and when is it okay to use an online divorce form website to save a little money? This article will provide a few pointers to help you decide whether to do it yourself or retain a Houston family law attorney.

What Does it Mean to Use an Online Divorce Form Website?

Essentially, using an online form website in your Houston family law case means that you will represent yourself - you are acting as your own attorney. All of the online divorce form sites have disclaimers making it clear that they are not your attorney and that they are just preparing documents on your behalf. While it is your constitutional right to act as your own attorney, there are some significant risks involved that should be evaluated before you take the online route.

Additionally, you have to evaluate the particular website you are dealing with. Most are national sites that offer forms that they claim will work in any state. However, every state has different laws. In other words, a California Divorce Decree will not look exactly like a Texas Divorce Decree because the laws of the two states are not identical. So with an online divorce you are basically getting a generic form that may or may not work in your jurisdiction.

What if You Have Children?

While many of the divorce form sites claim to offer forms that address the necessary provisions regarding children (conservatorship, support, visitation, etc.), it is very risky to use these generic forms when you have children. You must remember that your divorce forms are being prepared using online software that simply fills-in-the-blanks with your answers to very simplistic yes/no or multiple choice questions. These answers may not necessarily fit your situation or you may not fully understand the question.

This is where a competent lawyer can make a big difference. A lawyer will learn more about your situation and find out exactly what your documents need to say, instead of just the boilerplate language that the divorce website's software spits out. If you have children, you should take the safe route and hire an experienced Houston family law attorney.

What if You Own Property?

Many of the divorce form sites also claim to offer forms that will deal with the most complex of property divisions. But when it comes to dividing any property beyond personal effects (clothes, furniture, etc.), it is risky to rely solely on generic divorce forms. If you or your spouse own real estate, vehicles, 401k accounts or other retirement accounts, or have any other financial assets or liabilities, an online divorce form will not necessarily protect your interests.

A competent Houston family law attorney would be able to, first, analyze your situation and determine what property division is in your best interest, and second, ensure that all the assets awarded to you were properly transferred and the titles correctly recorded on your behalf.

Conclusion

Using an online divorce form always carries a certain amount of risk. If there are no children from the marriage and no property to divide, then saving a few hundred dollars may be worth the risk to you. But for most people, especially those with children or property, it is essential to hire an experienced Houston family law attorney to handle their case.



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Houston Divorce Lawyer

How to Select a Houston Divorce Lawyer

Selecting a Houston divorce lawyer to handle your family law case is a very important decision. The following are a few criteria for use in helping to decide on the right Houston divorce lawyer.

Experience

Any divorce lawyer you consider should have substantial experience in handling Houston divorce cases. An experienced Houston divorce lawyer will know the tendencies of the various judges in the nine Houston divorce courts and can use this knowledge to your advantage. Additionally, that lawyer should practice primarily in the field of divorce law. Often people will hire a lawyer who practices primarily in some other area, thinking that any lawyer will do. However, divorce law is a very specialized field that requires particular skills and experience in order to have a likelihood of reaching a successful conclusion.

Past Client Testimonials

Perhaps the best way to decide which divorce lawyer to use for your Houston divorce case is to find out what former clients have to say about that lawyer. While divorce is never an enjoyable process, some divorce lawyers have more success at satisfying their clients than others. If you do not know someone that has been a client of that particular divorce lawyer, you should consider asking whether that lawyer has any client testimonials that describe their experience with the lawyer. A good experienced Houston divorce lawyer should have at least a few former clients who are willing to vouch for him or her.

Accessible

When a client becomes dissatisfied with a divorce lawyer, one of the most common complaints is that they were unable to communicate with the lawyer. It is very important that your divorce lawyer be accessible and prompt in responding to your phone calls, emails, and requests for meetings. While you can ask the divorce lawyer to describe their office policy in this area, this is another topic where you can best evaluate the divorce lawyer by hearing what former clients have to say.

Fees

It is vitally important that you have a candid discussion with any prospective divorce lawyer about fees and what you can expect. Typically, an experienced Houston divorce lawyer will require the payment of a substantial retainer up front, against which that lawyer's hourly rate and expenses will be charged. You should find out what that lawyer's hourly rate is, what the upfront retainer will be, whether any portion of the retainer is refundable if it is not exhausted, and how often you can expect to receive invoices that detail the hourly charges and expenses. You also will want to know how detailed and clear the invoices will be. Once again, this is an area where you can get excellent information from those people who have been clients of that Houston divorce lawyer.

Comfortable with the Divorce Lawyer?

While all the above issues are important, there is one final question you should ask yourself before hiring a Houston divorce lawyer. Are you comfortable with that lawyer and are you confident in his or her abilities? If the answer is anything other than a resounding "yes," you should keep looking. Your case is too important to entrust to someone who does not inspire your confidence.



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Dealing With Unsafe Conditions

Steps to take if you think your workplace poses a hazard.

The federal Occupational Safety and Health Act (the OSH Act, popularly known as OSHA) and similar state laws spell out your rights in the event of a workplace hazard. How to deal with the unsafe condition depends on how immediate and serious the danger is.

If You Are in Imminent Danger

If you think your life is in imminent danger because of a workplace hazard, you have the right to refuse to work. You should also call the Occupational Safety and Health Administration (OSHA) immediately at 800-321-OSHA. In the event of an absolute emergency, call 911.

How do you know if an imminent danger exists? All of the following must be true:

• You believe that performing your work poses a real danger of death or serious physical injury.
• Your employer refuses to correct the problem, and
• There isn't enough time to eliminate the danger through other means, such as requesting an OSHA inspection.

In some states, you have the right to refuse to work even if the harm is not life threatening. To find out about your state's law, contact your state labor department.

If You Are Not in Imminent Danger

If the danger is not imminent, the first thing you should do is ask your employer to take care of it. It is possible that your employer doesn't know about the hazard and will deal with the situation promptly. Be sure to document your request -- either by making the request in writing or by writing a little note to yourself with the date that you made the request, the name of the person to whom you made it and a summary of what you and the person said.

If you are afraid to go to your employer, skip this step and complain directly to OSHA or a similar state agency.

If your employer does nothing -- or takes action against you for complaining about the hazard -- your next step is to complain to OSHA or a similar state agency. You can make the complaint in writing or on the Internet at theOSHA website. You can give your name or make the complaint anonymously.

Both federal and state law prohibit your employer from retaliating against you if you properly refuse to work, if you complain about a health and safety violation or if you otherwise assert your rights under these laws.

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