Divorce, property, and prenuptial agreements.  Texas is a “community property” state.  This means that all property and debts owned by married persons in Texas are presumed to be the property of both the husband and wife.  Both property and debts must be divided in the event of a divorce.  If you have property that was acquired before the marriage, or through a gift or inheritance, or with funds from separate property, then that property will not be considered “community property.”  That property is considered “separate property.”  However, you will have to prove that it is “separate property” with documentation that shows it was acquired separately.  Often a prenuptial agreement can help a couple avoid many of these issues in the event of a divorce.  ATexas family lawyer can help you with preparing a prenuptial agreement or with identifying and protecting “separate property” in the event of a divorce.

Divorce and children. If you are going through a divorce and you have children, in addition to dealing with dividing up your property you will also have to make arrangements regarding the custody of your children, child support, and visitation schedules.  In fact, in 2005 the Texas Legislature began requiring the addition of a “Parenting Plan” in the Final Decree of Divorce.  The “Parenting Plan” includes the conservatorship rights of the parents, the visitation schedule, the child support arrangements, and also provides for other issues that may affect the children in order to minimize the risk of future disagreements.  During your divorce proceedings the court may appoint a “Parenting Coordinator.”  The Parenting Coordinator is an impartial third party whose job it is to meet with the parents and assist them in reaching agreements regarding their children.

The court has jurisdiction to make orders regarding the custody, visitation and support arrangements for children until they reach the age of eighteen or graduate from high school (whichever occurs first).  However, in certain circumstances that jurisdiction can be extended if the court determines that the child has a physical or mental disability that exists prior to the child’s eighteenth birthday and the court determines that the child will not be capable of self support.

Visitation arrangements can have many variations as parents are usually free to agree to whatever schedule works for them.  However, if parents cannot agree, child custody will probably follow a schedule that was developed by the Texas Legislature.

The court is responsible for awarding custody in a way that is best for the children’s interests.  Often, courts award joint custody.  However, even when the court does this it must still designate a parent who has the authority to determine the location of the children’s primary residence.  This parent is called the Primary Joint Managing Conservator and referred to as the “custodial parent.”   In some rare circumstances one parent may be determined to be the Sole Managing Conservator.  This generally occurs only if: (1) the other parent has been absent from the children’s lives; (2) there is a history of physical, psychological, or sexual abuse or neglect by the other parent; or (3) there is a history of extreme conflict between the parents over educational, medical or religious values.  In these situations a Sole Managing Conservator has the sole right to make certain decisions regarding the children’s lives, such as educational and health matters.

Child support. Generally, the custodial parent has the right to receive child support on behalf of the children.  The amount owed depends on the income of the non-custodial parent and the number of children for whom the non-custodial parent has a duty to support.  If there is only one child of the marriage and no children outside the marriage, child support will be probably be set at 20% of the non-custodial parent’s net income.  No parent may be required to pay more than 50% of his or her net earnings to fulfill all of his or her child support obligations.  The percentages are adjusted slightly when the non-custodial parent has other children from outside the marriage for whom the non-custodial parent must also pay child support.  There are other factors such as the medical needs of the child and the ability of the parents to contribute that can affect child support.  That is why it is best to seek the assistance of an experiencedTexas family lawyer.

Adoption. A Texas family lawyer can also assist you with making arrangements for adopting a child in either a closed or open adoption or with navigating issues regarding the paternity and support of a child.

If you need assistance in any of these areas contact Russell Amsberry for a legal consultation.

The Results of the Litigation Can Mean More Liability for the Insurer

Where a claims professional has denied a claim and there is subsequent litigation, there are three possible findings a court can make regarding the decision of the claims professional: (1) the determination was wrong and unreasonable; (2) the determination was reasonable but wrong; or (3) the determination was correct.

1. Wrong and unreasonable. If a court finds that a claims professional’s denial of coverage is wrong and unreasonable, the insurer will be exposed to additional contractual liabilities. These exist in addition to the benefits wrongly withheld. In certain, extreme cases, this includes punitive damages.
2. Reasonable but wrong. If the court finds the decision of the claims professional reasonable but wrong, the insurer will also likely end up owing more than the amount due for the underlying claim. Such a decision will also greatly decrease the insurer’s ability to control costs associated with the claim.
3. Correct. If the court finds that the claims professional’s denial was a correct decision, the insurer will still have been subject to secondary costs. This includes the costs to employees defending the litigation and additional legal costs. Contrasted with many insured individuals, whose lawyer often handles the claim on a contingency fee basis, the insurer’s incentives are often to settle the claim due to the downside risks involved.

If you have had a claim denied by your insurance provider and are interested in discussing your particular case, call Russell Amsberry, an experienced San Antonio employment attorney, today for a free initial consultation.

Wills and trusts. A Texas estate planning lawyer can assist you with preparing a will or a trust.  A will is a legal document that transfers your property to selected beneficiaries upon your death.  InTexas you can prepare a will if you are of sound mind and at least 18 years old or have been lawfully married or a member of the armed forces.  In your will you can distribute your property, select a guardian for your minor children and/or name an executor or personal representative to manage the probate of your will and the distribution of your property after your death.  A will must go through a legal process called probate.  This process is time consuming and can eat into your estate, thus leaving less than you intended to your beneficiaries.

A better way to transfer your property upon your death is a trust.  A trust is a legal document that provides for the care of your spouse or children in the event of your death.  The benefits of a trust are that it does not need to be probated, it minimizes taxes, and it protects your estate against creditors, thus preserving it for your beneficiaries.  Other ways to avoid probate and still transfer your assets to your beneficiaries are insurance, gifts, joint ownership of property and joint bank accounts.

Incapacity documents. A Texas estate planning lawyer can also assist you with other important legal documents that provide for your care in the event that you become disabled or incapacitated.  An attorney can assist you with preparing an advance health care directive.  This is a document that explains how you want your health care managed if you become too ill to speak for yourself.  Your attorney can also assist you with preparing a “power of attorney.”  A “power of attorney” is a legal document that appoints someone to manage your property and sign legal papers for you if you become unable to take care of your own affairs.

There are also several important medical documents that aTexasestate planning attorney can help you prepare.  These include: (1) a medical power of attorney; (2) a directive to physicians and family or surrogates; (3) a declaration for mental health; and (4) an out-of-hospital do not resuscitate order.

A medical power of attorney allows you to give authority for making your health care decisions to someone if you become too ill to make the decisions for yourself.  A directive to physicians and family or surrogates is a document that allows you to indicate if you want life-support treatment and what kind of life-support treatment you want if you become terminally ill and near death or suffer an irreversible debilitation condition.  A declaration for mental health allows you to indicate the type of mental health treatment you do or do not want to receive if a court later finds you lack capacity to make those decisions.  An out-of-hospital do not resuscitate order is a document that states that you want your medical providers to withhold CPR or other life-saving attempts to revive you if your heart and breathing stop.  You can ask your doctor to sign this document.

If you are interested in learning more about your estate planning options, contact Russell Amsberry for a legal consultation.

There are two types of coverage included in a standard CGL policy: 1) personal injury and 2) bodily injury. Personal injury, within the realm of the insurance world and specifically in the case of a CGL policy, means any damage to a person’s character, reputation, and position in the community as a result of libel or slander. Basically, the phrase “personal injury” refers to all injuries other than bodily injuries.

Bodily injury is any physical injury suffered by any individual who is on your firm’s premises as a result of an injury that you could be held legally responsible for. A CGL policy will pay for the compensatory damages.

If your firm’s insurance company has denied or unreasonably delayed payment of a claim against your commercial general liability insurance policy, contact experienced San Antonio employment lawyer Russell Amsberry to assist you in obtaining the insurance coverage you are entitled to receive. The initial consultation is free.

Employment Discrimination & Sexual Harassment

Unless there is an employment contract, Texasemployees are presumed to be “at will.”  This means that the employee can quit at any time for any reason and the employer can fire the employee at any time for any reason, except for an illegal reason.  When an employer fires or alters the terms or conditions of an employee’s employment for illegal reasons, that is considered illegal discrimination.  The illegal reasons for firing or refusing to hire a person are: the employee’s age, race, sex, religion, national origin, disability, or pregnancy.  It is also illegal for an employer to consider those characteristics with regard to promotions, job assignments, and wages.  It is also illegal to retaliate against an employee who has filed a claim for discrimination or made a complaint to human resources about discrimination.

In Texas sexual harassment of employees by an employer is illegal.  Sexual harassment comes in three forms: (1) direct sexual conduct; (2) “quid pro quo”, and (3) hostile work environment.  Direct sexual conduct occurs when an employer or supervisor makes direct sexual advances or statements to an employee or subordinate.  “Quid pro quo” harassment occurs when an employer or supervisor offers to exchange job-related benefits for sexual conduct.  A hostile work environment is created when the employer maintains an overly sexual work environment.  If you have experienced any of these situations in your place of work you should contact an experiencedTexasemployment lawyer.

Wages & Overtime

In Texas, employers must pay their employees in full, on time and on regularly-scheduled paydays.  The FLSA governs the minimum wage inTexas, making it $7.25 per hour.  The FSLA also has certain regulations regarding how many hours of overtime non-exempt employees must work.  The FSLA requires employers to pay non-exempt employees not less than one and one-half times their regular rate of pay for all hours worked in excess of 40 in a workweek.  Employees who are exempt from the FSLA include executive, administrative and professional employees, outside sales employees, skilled computer professionals, employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers and switchboard operators, seamen employed on foreign vessels, employees engaged in fishing operations, employees engaged in newspaper delivery, farm workers on small farms and casual babysitters.  This list of exempt employees is not exhaustive and, unfortunately, sometimes it can be difficult to determine if you are an exempt or non-exempt employee.  That is why it is important to contact aTexasemployment lawyer if you think your employer is not paying you a proper wage or refusing to pay overtime.

Family Medical Leave Act

Under the FMLA eligible employees may take up to twelve weeks of unpaid medical leave with continued medical benefits.  When they return to work, their original position must be restored to them.  In order to be considered “eligible,” the employee must have worked for the same employer for the previous 12 months and must have worked at least 1250 hours in the previous 12 months.  The twelve weeks of leave can be used for many things such as: (1) to recover from childbirth and care for a newborn; (2) to care for the employee’s spouse, child, or parent who has a serious health condition; (3) a serious health condition that makes the employee unable to perform the essential functions of his or her job; (4) the placement with the employee of a child for adoption or foster care and to care for the newly placed child.  Employers may not retaliate against employees who take time under the FMLA.  If you think your rights under the FMLA have been violated it is imperative that you contact aTexasemployment lawyer to discuss your options.

If your employer has violated your rights under any of these important laws contact Texas employment lawyer Russell Amsberry for a consultation.

If you, as a member of what the law deems a protected classification, were harrassed in your place of employment, you should think about filing a discrimination claim. ASan Antonioemployment lawyer may be able to help you collect damages.

If you are a woman, you may have been subject to harassment that targets all of your gender. An example is where your boss only yells at the female employees but never at the male ones.

Far more typical is if you were exposed to conduct of a sexual nature. The threshold element in proving a sexual harassment claim on this basis is to demonstrate you were “subjected to sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature.”

Many types of conduct may be deemed sexual harassment. Some examples include:

• Any unwanted sexual advance. Such an unwanted advance may be verbal or written; it may either be as direct as an unwanted proposition or as subtle as a proposition that is delivered suggestively.
• In what is known as quid pro quo, sexual harassment includes: (1) offering employment perks in exchange for sexual favors or (2) conversely, retaliating against one who has rejected sexual advances.
• In what may be termed visual conduct, displaying items or posters, as well as sending e-mails or using screensavers that are sexually suggestive is not permitted, nor is leering or making any gestures that may be interperted as sexual in nature.
• Verbal abuse, such as graphic comments about one’s body, sexually degrading words used in speaking of another person, or writings that are obscene or suggestive, are forms of sexual harassment.
• Conduct that is physical in nature, such as any form of unwanted touching and including physically impeding another’s movements may be considered sexual in nature.

Many other forms of sexual harasssment are possible, and a consultation with an experienced San  Antonio employment lawyer will help you to understand your rights. Call San Antonio employment layer Russell Amsberry today for a free initial consultation.

A case for retaliation is a separate and distinct cause of action. Your San Antonio employment lawyer will require a discovery period in order to gain information about the employer’s alleged conduct. A deposition is necessary and the deposer could as any of the following questions regarding the retaliation you experienced:

History of Filing Complaints:

The deposer may enquire as to your history of filing complaints against this employer or prior employers. A lengthy history of unsubstantiated employee complaints could cast a shadow of doubt as to your credibility and motives for commencing complaints. The deposer may ask for documented history of your complaints.

Whether the Employer Knew of the Complaint:

In order to successfully mount a retaliation complaint, you must prove that the employer was aware that you filed a complaint against him or her and subsequently initiated negative employment decisions to your disfavor. The deposer may ask you whether you are aware that the employer knew you commenced a claim and, if so, how you can be sure that your recent negative work experience was related to the employment claim.

If you are facing a difficult work situation and would like to speak to a San Antonio employment lawyer about your employer, contact Russell Amsberry today at 201-354-2244.

Assistance from a Texas business lawyer is particularly helpful in the following areas.

Establishing a business. One important area of business law is the setting up of a business.  People often think they can do this themselves and save money.  However, it is usually a good idea to have a Texas business lawyer assist you so that you can avoid costly mistakes.  An attorney can assist you with naming your business and claiming a trademark.  Generally, business owners have to file a document called an assumed name certificate.  An experienced attorney can help you determine if and when you need to file this document.  He or she can also help you with: (1) determining which business form (corporation, limited liability company, partnership, etc.) is best for your business; (2) filing and registering the necessary paperwork to start your business; (3) creating contracts, non-disclosure agreements, and buy-sell agreements; and (4) determining if you have a product that will require a trademark.

Contracts and business transactions. A Texas business lawyer can also assist you with preparing any necessary documents for important business transactions and reviewing documents created by others in your transactions.  Completing a business transaction typically involves the preparation and review of contracts and knowledge of the Uniform Commercial Code and other Texas laws.  The types of contracts a business owner may need to have prepared or reviewed in the running of a business are endless: supply contracts, non-competition agreements, shareholder agreements, voting agreements, purchase and sale agreements, sales contracts, franchise contracts, leases and other real estate contracts, insurance contracts, loan agreements, security agreements, software licenses, etc.  A lawyer can either draft these documents for you or ensure that they have been prepared correctly.  A lawyer can also assist you in seeking legal recourse when other parties to the contracts do not adhere to their agreements.

Employer/employee issues. Other important areas where a Texas business lawyer can assist you are employment law (if you have or plan to have employees), litigation (should you get into disputes with your employees or people with whom you do business), and real estate law (should you decide to purchase or lease property for your business).  A lawyer can be helpful in ensuring that you do not violate important federal orTexas laws regarding the rights of your employees.

Commercial real estate. A lawyer can also assist you with ensuring that your purchase or leasing of any real estate for your business is done properly.

Litigation.  Finally, a business lawyer will be crucial in assisting you should you be sued by your employees, business associates, customers, or suppliers.

If you are thinking about starting up a business or already have a business and need assistance in any of these areas, contact Texas business lawyer Russell Amsberry for a legal consultation.

Opposing counsel will ask you very detailed questions, including how you intially became interested in working with your previous employer, and he or she might ask you to specifically describe the application and interview process, as well. For example, he or she will want to know whether or not you submitted an application or a resume for the job. Also, did you put down false information on your application or in your resume? Did you lie during the interview?

Additionally, he or she will want to know what you were told during the application/interview process and whether or not you were given any documentation during the application or interview process. Moreoever, the attorney will want to know if you received an actual job offer, as well as what you were told during the orientation process.

The opposing attorney will also go into specific questions about each of the positions you’ve held with your previous employer. For instance, he or she will want to know your specific job duties and responsibilities for each of the positions you’ve held, as well as information on who your supervisors, subordinates (if any) and co-workers were at the time. The attorney will also want to know about your job performance while working for your former employer, and whether or not you were ever demoted, promoted or disciplined.

If you believe that you would benefit from having the services of a San Antonio employment lawyer to better prepare you for your deposition, please call Russell Amsberry at (210) 354-2244 for a free consultation.