After Hurricane Katrina, 20,000 people with claims to heirship property with “cloudy” title faced difficulty getting government aid to rebuild, because they couldn’t prove they owned their homes.

What is heirship property and cloudy title?

If someone dies without a will and if a deed to his or her property does not expressly include joint tenancy with survivorship language, issues may arise as to who should have title to that property, as well as the percentage of each person’s ownership interest. Such property is often referred to as heirship property. Because there is no clear paper trail documenting who owns the property, lawyers call this a “clouded” or “cloudy” title.

Lots of low-income families don’t have access to the legal help they need to pass title to their homes. One study that looked at over 1000 homeowners in low-income communities in Texas found that 90% of them didn’t have wills, mainly because of cultural norms and lack of information. In addition, people in these communities don’t necessarily go through a bank when buying or selling a house, where you have documentation and oversight over the passage of title.

Rebuilding after disaster

After Hurricane Katrina, some 20,000 homeowners found it difficult to convince the government to give them the funds to help them rebuild. Similarly, thousands of Texans after Hurricane Ike in 2008, Rita in 2005, and Dolly in 2003 faced the same problem.

What do Houston residents face as they try to rebuilt after Harvey?

The barriers are not high to get FEMA relief, which is the first level of assistance for families trying to get immediate assistance to repair their homes. For example, home ownership can be shown simply by providing evidence that the family has a track record of paying taxes.

It is the longer-term disaster recovery assistance that helps families whose homes have been destroyed and can’t be rebuilt or who need a lot of funding to rebuild them that has large barriers.

Case study

Years after Hurricane Katrina in 2005, New Orleans Legal Assistance Director Mark Moreau estimated that thousands of people with title problems still were being deprived of money to rebuild.

In 2008, 80-year-old Alice Cousin was still living in a house that was unrepaired after the ravages of Katrina . Her parents bought the house in the 1940s, and the title to the house remained in their name. The family didn’t change the title when Cousin’s parents died. When Cousin applied for government money to fix the house, she was turned down by the state-run Road Home Program, which funnels federal Katrina aid to homeowners for rebuilding.

Cousin was told that to get the money, she had to prove she owned the home or get a power of attorney from all of the other heirs. According to law, Cousin and a dozen or so nieces and nephews have a claim on the house. Although most of the relatives signed over their shares in the house to Cousin, one nephew, living in California, was initially holding out. Eventually, the Road Home Program gave Cousin $18,000 to repair the home. Cousin died in 2013.

How to prevent heirship property problems

What can families use to prevent such title problems? A simple solution is a Transfer on Death (TOD) deed. It has been adopted by about 20-plus states, including Texas. The TOD deed became codified in the Texas Estates Code, chapter 114 in 2015. With a TOD deed, an individual may transfer his or her interest in real property to one or more beneficiaries, with the transfer being effect at the transferor’s death. The TOD deed must be recorded before the transferor’s death in the deed records of the county where the real property is located. The TOD deed can also be revoked if the transferor changes his or her mind.

We are now in the peak of the Atlantic hurricane season, with category-five Hurricane Irma brewing in the Atlantic just barely a week after Hurricane Harvey devastated Houston.

It is amazing that a simple inexpensive document can prevent so much future heartache and worry.

Cloud photo by Anandu Vinod

Released in 1979, the movie Kramer vs. Kramer is a cultural benchmark, a snapshot of the fractured American family, and a must-see for anyone interested in family law.

Ted Kramer is a successful guy who is speeding his way to the top at his advertising agency. When the movie begins, Ted has just been handed his agency’s most valued new account, cementing “one of the five best days” of his life.

He is surprised then, when he returns home, that his wife, Joanna, is determined to leave because she doesn’t “know who she is” anymore. She is deserting Ted not only with an entire ad presentation to prepare for the next day but also with their six-year-old son, Billy, to take care of.

Right away we’re close to choosing sides and laying blame: How can she walk out on her home and child? But what we’ve already seen of Ted makes it fairly clear why she might have decided to walk out. She may be leaving the family, but he’s hardly been a part of it. Harassed, running late, and taking his son to school on the first day after his wife has left, he asks Billy: “What grade are you in?” Answer: first. Ted didn’t know.

Over the next 18 months, we see Ted and Billy settle into a routine, but Ted’s work is suffering because of home stresses. When Joanna returns, having found a new well-paying career and a therapist, and demands custody of her son, they enter into the brutal court battle that gives the film its title. As their respective attorneys sink to surprising lows to fight their custody case, Ted and Joanna are shocked with their lawyers’ brutality with the other.

Although our sympathies do tend to be with the father—mainly because we have watched him change—we are basically just acting as witnesses to the drama. The movie has encouraged us to realize that these people are deep enough and complex enough, as all real people are, that we can’t assign moral labels to them.

I won’t tell you the ending, because I don’t want to spoil the film for you if you haven’t see it. I would like to share a few insights into two cultural and legal issues about divorce at that time.

Divorce in Film: the Hays Code

The Motion Picture Production Code, commonly known at the Hays Code, was a set of film industry moral guidelines that was applied to most U.S. films from 1930 to 1968. Under the Code, divorce was rarely, if ever, portrayed on screen because “sanctity of the institution of marriage and the home shall be upheld.”  If divorce was portrayed, it must be only for sound reasons, as a last resort, and never lightly or flippantly. As a result, films during the Code years used annulment, had happy endings where couples got back together, and had bad marriages ending in death (if by murder, then the murderer was always punished under the Code’s “compensating values” rule).

Today, there is no Hays Code. Instead, since in 1968, movies are rated under the following system: G for general audiences, M for mature content, R for restricted (under 17 not admitted without an adult), and NC-17 (originally X) for sexually explicit content.

Kramer vs. Kramer was one of the first major movies to depict realist divorce after the Hays Code.

The “Tender Years” doctrine

Until the 19th century, English family law gave custody of the children to the father after a divorce, mainly because women had few individual rights and obligations. In 1839, the Custody of Infants Act gave some discretion to the judge in a child custody case and established a presumption of maternal custody for children under the age of 7 years with financial support from the fathers. In 1873, Parliament extended the presumption of maternal custody until a child reached 16. Fathers could only gain custody if they could prove that the mother was unfit.

In the United States, the tender years doctrine was gradually replaced toward the end of the 20th century. Legislation of most states now advocates the seemingly gender-neutral “best interests of the child” doctrine of custody. That said, some judges still firmly believe young children belong with their mothers.

Long-time New York attorney Raoul Felder about divorce law after the movie. “Suddenly I had fathers in my office asking for custody of their children,” he said. “Kramer vs. Kramer challenged the long-held notion that mothers should automatically be awarded full custody of their children. The film marked the beginning of the standard that’s become commonplace today, that the court places the child’s best interest over the presumption that mothers are automatically deserving of custody.”

A Texas state representative has again submitted a bill in the 2017 legislative session that would strike “insupportability,” or “no fault,” as grounds for divorce. Under the bill, because a no-fault divorce would not be available, a couple who wants to dissolve their marriage peacefully will have to live separately for 3 years before filing for divorce. This bill has been submitted before but has never made it to a vote in the state legislature.

History of no-fault divorce

In a no-fault divorce, a family court can grant a divorce without requiring a showing of wrongdoing by either party.

California was the first state to pass a no-fault divorce law, which was signed by Governor Ronald Reagan and came into effect in 1970. Perhaps Reagan was inclined to sign the law because his first wife, Jane Wyman, had unfairly accused him of “mental cruelty” to obtain a divorce about 20 years earlier. By 1985, every state but one had adopted some form of no-fault divorce. The remaining state, New York, passed its no-fault divorce law in 2010.

What parties did before no-fault divorce

Before laws allowing no-fault divorce, spouses who wished to get divorced had to create legal fictions to bypass the statutory requirements. Three main methods were used:

1. “Forum shopping”—One spouse would move to a state where no-fault divorce was available, stay there long enough to become a resident, and then file for divorce there.
2. “Collusive adultery”—Both sides deliberately agreed that the husband would be discovered committing adultery with a “mistress” obtained for the occasion. The judge would convict the husband of adultery, and the couple could be divorced.
3. “Cruelty”—Wives would regularly testify that their husbands swore at them, hit them, and generally treated them terribly.

Reno Divorce: A forum shopping example

Many have heard of a “Reno divorce.” By 1909, Reno had earned the title of “divorce headquarters” because it required only a 6-month residency. Over the next 20 years, Nevada keep decreasing its residency requirement until in 1931, to help secure the state’s economic health through the Great Depression, it dropped the requirement to a mere 6 weeks.

Another advantage of divorcing in Nevada was the ability to immediately marry someone else without a waiting period.

Wallis Simpson: A collusive adultery example

A well-known version of “collusive adultery” is the story of how Wallis Simpson got her divorce from her husband Ernest so she could marry Edward VIII, then the King of England and later the Duke of Windsor.

In 1936, both the Anglican Church and English law only recognized adultery as a legitimate ground for divorce. Ernest was “discovered” in a hotel bedroom with a recruited friend of Wallis. Ernest gave the friend the nickname Mrs. Buttercup Kennedy to protect her identity.

Wallis Simpson in 1936

Wallis then filed for divorce on the grounds that Ernest had committed adultery. She was granted a decree nisi, which meant that if no party objected to the divorce it would be granted in 6 months. This compulsory waiting period was mandated because English law refused to accept divorce by agreement. There were other possible difficulties as well in this particular case: Only an “innocent” spouse was entitled to divorce, and some people suspected that Wallis had been the King’s mistress, or at any rate that she had had several other lovers.

Wallis left England and did not see Edward VIII during the 6-month waiting period in an attempt to prevent further investigation. After the 6 months, the divorce was granted, Edward VIII abdicated, and Wallis became the Duchess of Windsor.