Texas Family Law Blog:
Common Questions when considering divorce:
Grounds for Divorce
A divorce may be granted on one or more "fault" or "no fault" grounds expressly set out in the Texas Family Code. Most divorces are founded on the no-fault ground of "in supportability" (i.e. incompatibility), which can be granted to either spouse if that spouse feels that the marriage has become insupportable because of discord or conflict in personalities which makes any reasonable expectation of reconciliation impossible.
Domicile & Residence
At least one spouse must have been "domiciled" in Texas for six months and a "resident" of the county where the suit is filed for ninety days, before the petition may be filed. The terms "domicile" and "residence" have different legal meanings, which can be explained to you if need be.
Property & Debts
Types of Property
In the context of divorce law in Texas, all property, both real and personal, is characterized as two different types of property; (1) "separate property" and (2) "community property".
Separate Property
"Separate property" is property either (1) owned or acquired by a spouse before marriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. It is the date of acquisition and the source of the property that control, not how it is eventually paid for. For example, if one spouse owned a house or car before marriage, it will be characterized at the time of divorce as that spouse's separate property, even if it was paid off in whole or in part during marriage.
A gift includes, for example, any Christmas or birthday gifts from one spouse to another during marriage (even if purchased with community funds). If a gift or inheritance goes to both spouses (e.g., wedding gifts), then each spouse has an undivided fifty percent interest in that one piece of separate property.
Community Property
"Community property" is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage. It is important to remember that a marriage legally endures even after your separation (whether before or after the divorce petition has been filed) will be characterized as community property. This is true even if the property is not physically received until after marriage. For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement, this will be characterized as community property.
Unlike separate property, a court has the authority to divide community property in any manner that it deems to be "just the right" (as discussed in more detail below.)
Debts and Liabilities: Taxes
Debts and liabilities incurred before marriage, if still in existence at the time of divorce, shall remain in the debt of liability of the party who incurred it. Debts incurred during marriage will be divided by the court between the parties at the time of divorce. One spouse may be required to assume a debt incurred solely by another spouse during marriage. Although not an absolute rule, the general rule of thumb is that, following the filing of the divorce petition, courts are usually going to award a debt to the spouse who incurred the debt during separation. Decisions will also need to be made regarding contingent liabilities, such as past income tax liabilities which may arise in the future if the parties are audited, as well as tax liabilities for the year of divorce.
Division of Property & Debt
The parties, by settlement or a court after trial, will divide all existing property and debts. While the parties may be in agreement to make any type of division that they want (e.g., give to husband certain of wife's separate property, agree to alimony, etc.), a court during litigation does not have such flexibility but is bound by the rules of law set out above with reference to property and debts. Also, these rules serve as the primary basis to guide the parties and their attorneys in reaching a settlement (see discussion regarding settlements below).
Basically, a court may give each party his separate property and separate debts, and then may divide the community property and debts in a manner that the court deems to be "just and right." This may be an approximate 50/50 division of the net community estate or a division which gives one of the spouses a disproportionately larger share of the community property (e.g., 60% to Spouse A, 40% to Spouse B). Contrary to popular belief, the courts are not required to divide property 50/50.
Alimony
"Alimony" is spousal support, that is, funds paid by one spouse to and for the support of the other spouse. Texas was the only state in the nation in which a court had no authority to order alimony to be paid after the final divorce. However, in 1997, the Texas legislation made provisions for very limited "alimony" which requires extensive proof of inability to support oneself. It is best to talk with your attorney about the availability of alimony in your case, as each case differs greatly. Also, the parties may, by agreement (i.e., contract), provide for alimony to be paid after the final decree of divorce is entered. The party paying alimony may deduct these payments from that party's income to gain a tax benefit, while the alimony recipient must declare these payments as income.
Children
If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, possession and support of the children after the divorce. A "child" is any minor who was born or adopted by the parties. Once a child turns eighteen, the court's jurisdiction over the adult child ends (with several exceptions regarding child support, which is discussed below).
Conservatorship
The Texas Family Code speaks in terms of post-divorce "conservatorship" of children, meaning the legal status between the children and their parents after the divorce as it relates to controlling the children's lives, having possession of and access to the children, and supporting the children.
The code expressly sets out a nonexclusive list of the rights, privileges, duties and powers of the parents. In a nutshell, these rights and duties may be categorized into 3 areas; (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children. Conservatorship orders divide these various rights and duties among the parents after divorce.
a. Conservators
The Code refers to 2 types of conservators: (1) the managing conservator(s) and (2) the possessory conservator. These terms are confusing, because the "managing" conservator is, generally speaking, the primary custodian of the children, while the "possessory" conservator is not the primary custodian of the children (the "possessory conservator" merely has some "possessory" rights to the children, e.g., visitation).
b. Managing Conservator(s)
A "managing conservator" is generally given all the rights, privileges, duties, and powers of a parent, to the exclusion of all others, including the other parent, except as otherwise ordered by the court. In short, the managing conservator is the primary custodian of the children, and (1) has the right to make all the most of the major decisions governing the children's lives, (2) has the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children. As discussed below, there are now 2 types of managing conservators, "sole managing conservatorship" and "joint managing conservatorship."
c. Possessory Conservator
A "possessory conservator" is generally given (1) only a handful of rights and duties to make decisions for the children, which can be exercised only when the children are actually in the physical sessions of the possessory conservator, (2) the right to certain limited times of possession of the children (often referred to "visitation rights"), and (3) the duty to pay the managing conservator child support for the benefit of the children.
d. Joint Managing Conservatorship
The law presumes that it is in the best interest of the child or children that both parties are to be "joint managing conservators" of the children. This is true, whether or not the parties agree to the joint appointment. Thus, both parents are, jointly, managing conservators, and neither is a possessory conservator. Joint managing conservatorship is often agreed to by both parties. While a court is not required to appoint joint managing conservatorship, even when the parties request it, the party who does not want a joint managing conservatorship must prove to the court that a joint managing conservatorship is not the best interest of the children.
Possession of and Access to Child (e.g., Visitation)
The managing conservator and the possessory conservator or the joint managing conservators will be given certain exact times of possession of and access to the children. Usually, 1 parent is considered to be the "primary parent" or the parent with primary possession of the child and has the child at all times except for those times of possession given to the other parent, while the other parent (e.g., possessory conservator) is given certain court-ordered times of possession of and access to the children (sometimes referred to as "visitation rights").
The legislature has by statue adopted what is referred to as a "Standard Possession Order". Basically, the Standard Possession Order gives the noncustodial parent the right to possession of the children on every other first, third, and fifth weekend (Friday through Sunday), every Thursday evening during the regular school term, and one-half of all holidays. Excluding the time that the children are asleep or in school, the schedule gives the non-custodial parent about 47% of the quality time with the children. For many reasons, judges rarely vary from this Standard Possession Order and only do so under unusual circumstances (e.g., child is under 3 years of age).
Child Support
The parent who does not have primary possession of the children or who has less physical possession of the children than the other parent, generally, is required to pay financial child support to the primary custodial parent for the benefit of the children. Although this can take many forms, child support usually consists of periodic (e.g., monthly) payments to the custodial parent. The legislature by statue has adopted Child Support Guidelines. Basically, the child support under the Guidelines will be based upon percentages (based on the number of children) of the support payer's "net resources" (as defined in the Guidelines). For example, the guidelines require the payer to pay 20% of his "net resources" for one child, 25% for two children, etc. Most courts generally follow the guidelines in the usual absent circumstances. Also, the Family Code requires that, if the support payer is a salaried employee, the payer's child support (or a portion thereof) be withheld from his wages by his employer and paid directly to the custodial parent. Although this can be waived, it rarely is. At the present time, the fees from a wage withholding order are being first sent through the State Disbursement Unit in San Antonio and then forwarded to the payee (the person entitled to receive child support).
Other, "child support" is also required in the form of health insurance for the children, orders requiring the payment of uncovered medical expenses, etc. Child support is due until the child turns eighteen or thereafter, until the end of the school year in which the child graduates from high school.
If a child is mentally or physically impaired to the extent of requiring continuous care, child support may be ordered to be paid indefinitely past the child's 18th birthday. If this is the case with any of your children, be sure to inform your attorney.
Do Children have a choice or a voice concerning which parent they want to live with?
March 10, 2010
The Texas Legislature made many revisions to the Texas Family Code during the 81st Legislative Session. Formerly, children age 12 and older could file a written designation stating which parent he or she would prefer to live with. While this preference was not binding on the court, the judge would consider it among other factors. Under the recent changes to the Family Code, if the child wishes to express a preference, the child must speak to the judge in chambers rather than submitting a written designation.
October 16, 2009
The Attorney Client Relationship:
An important aspect of any case is the attorney client relationship. The core facts and the cause of the action will obviously be of the utmost importance, but an unhealthy attorney client relationship can undermine even the strongest case. A mutual respect must be provided yet earned at the beginning of a case.
A client selects an attorney for various reasons (reputation, referral, previous representation, etc.) and a respect of the attorney’s abilities is or should be high on the list. An attorney should never accept a client if they do not respect the case, the facts, but also the client as an individual. If at the first moments of a case there isn’t respect for a client, the case is on the road to ultimate failure.
Most divorce cases can last three (3) to twelve (12) months. With a case of such length the emotions for a client can vary from great peaks to deep valleys. t is imperative that an individual avoids such an emotional rollercoaster. A key ally in maintaining an emotional even keel is a strong foundation found in your relationship with your attorney. Your attorney should be available to you at moments when you need emotional support and they should prevent you from getting to emotionally high as well.
I practice with the belief that I should be available via email and cell phone at all reasonable hours. An attorney needs to let their client feel secure in the feeling they are united in the pursuit if the client’s goals. A client who feels they are alone will soon question their attorney’s commitment to the case.
October 13, 2009
Establishing paternity:
Unlike the mother, whose identity is generally known at the time a child is born, the father's identity may not be known. Paternity is the area of law (or the name of the lawsuit itself) that deals with establishing the parentage of the father. Generally speaking, the law “presumes” that a man is the father of a child when:
1. the child is born during or before the 301st day after the date the parties are no longer married
2. in the case of an “attempted” or “invalid” marriage (i.e. – an annulment) under Texas law, the child is born during such marriage or before the 301st day after the date the marriage is terminated or declared invalid
3. there is a marriage after the birth of the child together with other additional evidence of fatherhood as set forth in the Texas Family Code.
This may be rebutted by either an “adjudication” (a Court order) or, when the presumed father files a valid denial of paternity and another person files a valid acknowledgment of paternity. However, if you are not a “presumed” father then you would need to “establish” your fatherhood – through the process known as “paternity.”
Under Texas’ version of the Uniform Parentage Act, a father is “established” by either the signing of a valid acknowledgment of paternity or an adjudication by a Court. When there is a question as to paternity, usually the Courts resort to genetic testing. If you have serious questions about whether you are actually the father of a child, then you should:
1. not sign or agree to sign anything,
2. immediately seek and obtain the advice of an attorney
3. through that attorney, arrange for genetic testing to be performed.
Similarly, if you believe you are the father of a child and want to establish paternity, immediately seek the advice of an attorney and attempt to obtain an order for genetic testing. In such circumstances, the alleged father should understand that only when legal paternity is established will that person have the legal rights and the ability to demand possession and access to the child (otherwise known as “visitation rights”).
October 12, 2009
Community Bank Accounts:
At the outset of a divorce, should you clean out the joint account or should you refrain from cleaning out the joint account, (just to see the account cleaned out by your ex)? Either way the funds are still considered community property. Suppose there is $10,000 in the account. If you take the $10,000, your spouse will be pointing fingers, and you may well live to regret what can be perceived as an act of bad faith. But if you do nothing, can you trust that your spouse won't take all the funds?
If you feel like you must take some action, rather than doing nothing, you might consider withdrawing $5,000 (half the balance) and placing it into a separate account solely in your name. Your spouse will then have much less reason to play the blame game, but you also pre-empt your spouse from unfairly secreting all of the joint funds without your knowledge.
October 1, 2009
Considerations When Executing Your Will
In re Estate of Romancik, 281 S.W.3d 592 (Tex. App.—El Paso 2008, no pet. h.): Testator signed page three of his will but did not sign the prior pages. The will left his entire estate to Mother. Wife claimed that Testator’s signature on page three was insufficient to demonstrate that he had testamentary intent with respect to the prior pages. Both the trial and appellate courts rejected Wife’s claim holding that the document reflected Testator’s testamentary intent.
Moral: Although not legally required, it may be prudent practice to have the testator initial (sign) each page of the will to demonstrate that the testator intended each page to be a part of his will.
September 24, 2009
Enforcement:
Any time there is a Court Order that requires someone to do something, whether it be pay child support, surrender the child or children for Court-Ordered possession and access, or perform various other acts, there is the potential that they will not (or cannot) do it. When the party decides not to do what the Court orders, the other party may have the ability to file a Motion for Enforcement, or what is also sometimes called a Motion for Contempt.
One of the most commonly filed actions for Enforcement of a Court Order is for child support. An action for enforcement is usually combined with a request that the Court reduce the amount of child support to Judgment. Once the Judgment is rendered, then ordinary collection remedies will apply – along with various other statutory collection remedies that only apply in child support cases.
Another commonly filed Motion for Enforcement concerns Court-Ordered possession or access to a child or children (“visitation”). If the custodial parent is not allowing the child visitation with the other parent, then the non-custodial parent may be able to file an Enforcement action. The non-custodial parent will want to be sure that they have explicitly demanded (preferably in writing with Certified Mail and Regular Mail delivery) visitation with their child on the days that the Court has ordered possession. Once there is a continuing pattern to the custodial parent’s behavior, then the non-custodial parent may want to file an Enforcement Action.
The Court’s powers of contempt may include jail and/or the payment of fines or penalties, including attorney’s fees. You will want to consult an attorney about the filing of any of these actions.
September 18, 2009
Three Costly Mistakes to Avoid When Hiring a Divorce Attorney:
Did you know that when facing a divorce, one of the most important decisions you make is choosing which lawyer to hire? Unfortunately, too many people make the wrong choice and the consequences can be disastrous.
Mistake #1: Hiring a generalist.
Solution: Hire a specialist. Ask the prospective divorce attorney whether they specialize in family law. If at least 70 percent to 80 percent of their practice is not focused on divorce and family law issues, you should go elsewhere.
Mistake #2: Hiring a lawyer that bills you by the hour.
Solution: Seek out a lawyer who will represent you on a fixed fee (a.k.a. a flat fee) instead of billing you by the hour.
Mistake #3: Hiring a lawyer to represent you solely because they have a reputation of being the meanest lawyer in town.
Solution: Find a lawyer who is assertive when he/ she need to be, compromising when it benefits your long-term best interests, and always aware of the many different consequences his/her actions have on you and your family.
September 17, 2009
Mediation is a non-binding Alternative Dispute Resolution procedure for the settlement of disputes. "Non-binding" means that you control the outcome and you are not required to settle your case. Although there is a trained mediator who "facilitates" the proceedings, there is no Judge making a decision or imposing his or her will upon you. The mediator is neutral and will remain impartial in the proceedings, meaning that they do not take "sides." You retain control as to whether, and, if so, under what terms, the case settles. The matters discussed at the mediation are confidential, so you cannot generally subpoena the mediator to testify and you cannot use what one party says at the mediation against them in Court. In a typical mediation, if the parties are not able to settle their case, then the parties still have the ability to go to the Judge for a decision.
Mediation has been a very successful method for resolving disputes in divorce and other family law cases. The only condition is that the parties (and their attorneys) must genuinely intend to put forth a good-faith effort to settle their disputes. Most mediators also do not take mediation cases when there have been allegations of domestic violence during the relationship. In most divorce and family cases, the reality is that the parties know each other very well and -- despite what is commonly said during these highly charged cases – they have the ability to resolve their disputes peacefully and fairly if both sides are willing. The legal proceedings are no different, except you can’t control the outcome of the legal proceeding and you can control the outcome at mediation. Additionally, when there are children involved, the parties will have to deal with one another for many years after the legal case ends. Therefore, the amicable settlement of the dispute is very important.
Another realistic observation that can be made from successful mediations is that the parties are much more likely to comply with a settlement that is reached by agreement, than with a Court's order that is arbitrarily imposed upon a party.
September 16, 2009
These are the 5 main stages of a typical divorce:
The first stage is the filing of the original petition for divorce and service of that petition on your spouse. Once your spouse files his or her original answer and counter-petition for divorce the second stage of the divorce begins and that is the negotiation of temporary orders. If temporary orders cannot be negotiated by the parties than a temporary orders hearing is held. Once temporary orders are entered (either by agreement of the parties or by court order) you will enter the third stage of a typical divorce and that is the discovery stage. During the discovery stage of a typical divorce both sides send written questions that must be sworn to under oath (interrogatories) and exchange other information including sworn inventories. A sworn inventory is your inventory of all the assets and liabilities that you are aware of, the value of those assets and liabilities, and your characterization of each asset and liability (i.e., whether you believe it is community property or separate property). The fourth stage of a typical divorce usually comes towards the end of the discovery period and that is mediation or some other form of alternative dispute resolution. If your divorce is not settled at mediation you then proceed to the fifth and final stage of a divorce which is a final trial.
September 11, 2009
If you are named the executor of an estate, what do you do?
First, you need to realize that simply being named in the Will as executor does not give you any legal authority to act on behalf of the estate. In order to obtain authority to act on behalf of the estate, you will need to file an application with the appropriate probate court. After notice has been given concerning your application, the probate court will hold a hearing and determine whether you qualify for appointment as executor of the estate. If you meet the qualifications, the court will then sign an order appointing you as the executor and authorizing the issuance of a document called “letters testamentary.”
You will also need to take an oath to uphold your legal obligations as executor of the estate. Now you have the legal authority necessary to gather the deceased’s property and begin the process of contacting banks, savings & loans, mortgage companies, credit card companies, tenants, government agencies, and all other persons to whom the estate owed money or who owed money to the estate. You also have the legal authority to transfer title, sell or otherwise dispose of the deceased’s property, at least to the extent that you are authorized by law and under the Will to do so.
You also have “fiduciary obligations” as a result of being appointed executor of the estate. These are important duties and obligations, which should not be taken lightly. Your attorney and most probate courts will provide you with some guidance concerning your duties as executor, and explaining the consequence of undertaking those obligations.
September 10, 2009
In both Texas paternity cases and other Suits Affecting the Parent-Child Relationship “SAPCR” cases (including Divorces), a Texas court may order “retroactive” child support, or what is essentially back child support for periods of time in the past where child support was not ordered, but where there was a duty of support.
In a Texas paternity case, absent evidence that the obligor knew about the obligation and “sought to avoid the establishment of an Order,” the Court will presumptively limit the award of retroactive child support four years of support. Tex. Fam. Code § 154.131. In setting the amount of retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:
(1) Whether the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;
(2) Whether the obligor (Dad), had knowledge of his paternity or probable paternity;
(3) Whether the award of retroactive support will impose an undue hardship upon the obligor or his family, and
(4) Whether the obligor provided any actual support or other necessaries before the filing of the action.
In ordinary SAPCR cases under Tex. Fam. Code § 154.009 (a), the Texas Courts can order a parent to pay retroactive child support if the parent:
(1) has not previously been ordered to pay support for the child; and
(2) was not a party to a suit in which support was ordered.
It is also significant to note that unless the Texas Office of the Attorney General was “a party to an agreement” which settles past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support when the Attorney General so requests.
September 9, 2009
An annulment can be granted in Texas under some very specific statutory grounds. For instance, if you find out after the marriage that your spouse has recently escaped from mental institution, you can have your marriage annulled. If you got married under duress, or if you were under the influence of alcohol or drugs at the time, you can get your marriage annulled. There are a number of other statutory grounds, including "impotence" (although I've never had anyone seek an annulment on that ground).
The most common ground for annulment is "fraud in the inducement." Simply put, this means that if your spouse used fraud to induce you into the marriage, you can have the marriage annulled if you stop living with him or her as soon as you discover the fraud.
Now what the term "fraud" includes is anyone's guess. A typical situation: spouse "A" who lives in another country induces spouse "B," who lives in Texas, to marry her/him, promising love, affection, undying devotion, etc. As it turns out, all Spouse "A" wanted was to get into the country, and she/he quickly makes it clear that there will be no real marital relationship, and that the only thing spouse "A" really wants is a green card. That seems to me to be a clear case of fraud, and in fact I have had a number of clients come to me seeking annulments under that circumstance.
September 4, 2009
What do I do after my divorce is over?
After the Divorce Decree is signed the Divorce is over, right? Not necessarily. Some of the most important things occur after the Decree is signed and the divorce has been granted. This is when real property transfers are made – such as a Special Warranty Deeds or Deeds of Trusts to Secure an Assumption. This is also when a Qualified Domestic Relations Order, Child Support Wage Withholding Order, and other collateral orders need to be prepared and signed by the Judge if these have not yet been completed. If you are the recipient of child support, you should also think about getting a file opened with the Texas Office of the Attorney General (OAG) in case your Obligor spouse falls behind in his or her child support. Sometimes it is necessary to think about the transfer of personal property, the payment of attorney’s fees, preparation of federal income taxes, the transfer of personal items, cash payments that may have been ordered, and the transfer of other items such as family photographs and other things of sentimental value that may need to be shared. Finally, this is also a good time to consider updating your wills and other estate planning documents.
September 3, 2009
A lot of times clients come into my office looking for “revenge” during their divorce proceeding. While this is understandable given the amount of emotion involved in any divorce, having your lawyer take an overly aggressive approach with the other side can end up costing you dearly.
In my experience, opposing counsel generally falls into one of three categories. The first type is the attorney who is passive and avoids confrontation at all costs. Obviously, this isn’t the type of attorney you want handling your case. Second is the attorney who is the complete opposite of the first type. Attorneys falling into this category argue for the sake of arguing and take the “tough” approach that some equate with successful advocacy. Attorneys falling into this category often are overly aggressive to the point it costs the client (both in attorneys’ fees and in property division). The final category is composed of attorneys that know when to be aggressive and when to be less than aggressive. Lawyers in this category truly see the forest through the trees and obtain the most favorable outcomes for their clients.
At my law firm, I take pride in knowing when being aggressive is appropriate and when to take a more relaxed approach.
September 2, 2009
In Texas, a court cannot render a final judgment in a divorce suit until at least 60 days after the date the suit was originally filed. However, if the opposing party has been convicted, received a deferred adjudication, or is under an emergency protective order as a result of a finding of family violence, the court may grant the divorce prior to the 60th day after the suit was filed.
September 1, 2009
New Child Custody Laws Enacted:
Earlier this month, Texas Governor Rick Perry signed into law House Bill 1012, which will enact a number of changes to the Texas Family Code as of September 1, 2009. Among the changes include the following:
Clarification of Expanded Standard Possession Orders - Previously, the Texas Family Code allowed parents to elect an expanded time period for weekends of possession so that they could pick up their children from school when the school week ended and drop them off when the following school week began. The Family Code, however, wasn't always clear on the exact method for electing such an expansion of visitation. The revisions enacted by H.B. 1012 clarifies that the default time periods are 6pm on the Friday the child is let out of school and 6pm the following Sunday. The bill also clarifies times of possession when the child's weekend is expanded due to a holiday or by teacher in-service days. Also, the bill clearly defines the manner in which a parent can elect the expanded possession order: they must either file a written request for the expansion or advise the court that they are seeking an expanded order through an oral statement on the record in open court.
Access to a child by an adult sibling - The Family Code has been modified to specifically limit the ability of adult siblings of a child to be awarded access and possession when the adult sibling is separated from the child as a result of actions by Child Protective Services.
Joint Designation of Residence - Prior to enactment of this bill, a parent was awarded the exclusive right to designate the residence of the child. Often, this becomes one of the most hotly contested aspects of child custody litigation. Under this bill, the court will be required to allow the parties to jointly designate the residence of a child. This will help in instances where the designation is seen as more of a wedge between the parents rather than a practical dispute.
August 31, 2009
Estate Planning after Divorce or a Second Marriage
Chances are that you have a Will somewhere that you had drawn up when your children were born. Depending on how long ago that was, you should probably dig it out, review it and then talk to an attorney about updating your estate plan to account for your current family situation. It may be that nothing much has changed. Or you may have gotten a divorce several years back, even gotten remarried but never changed your estate planning documents to reflect these major life changes.
If you have remarried following a divorce or death of a spouse and you have children from the first marriage, you will want to make sure you have your estate plan is in order. If your new spouse dies without their estate plan in order, or your new spouse fails to execute a valid Will, the children from a first marriage (step-children) will share their deceased parent’s estate with the surviving spouse (step-parent). For the couple who have children from previous relationships as well as together, a new Will can clarify how you wish your assets to be distributed amongst your spouse and all of the children.
To spare your family from litigation related to your estate, you should create or revise your estate plan upon any divorce or remarriage. For that matter, you should have an attorney review your estate plan at least every two to three years to determine if changes in your status or changes in the law require changes to your estate plan.
August 28, 2009
As a family law attorney, I find that child support and how it is calculated in Texas is often misunderstood by my clients. These issues are commonly and routinely dealt with by Texas divorce lawyers, and I thought I would try to take some of the mystery and guesswork out of the subject.
In Texas, the Texas Family Code contains "percentage guidelines" which are legally presumed to be in the best interest of the child.
1 child 20% of Obligor's Net Resources
2 children 25% of Obligor's Net Resources
3 children 30% of Obligor's Net Resources
4 children 35% of Obligor's Net Resources
5 children 40% of Obligor's Net Resources
6 or more children no more than 40% of Obligor's Net Resources
Here is how to determine "net monthly resources". You start with the child support obligor's gross income (by the way, "obligor" means the person who has to pay child support, while "obligee" means the person who receives child support). From the gross income figure, you take out the taxes (FIT, FICA, and Medicare) that would be deducted if the obligor were a single person without any dependents.
There are a number of other considerations, such as the following:
(1) If the child support obligor has other children with someone else, that will affect the percentage guideline amount. For instance, if the child support obligor has one child with one person, and another child with someone else, the obligor would then pay 17.5% of his or her net monthly resources for each child.
(2) The Texas Family Code has a long list of other factors the judge can consider in setting child support below or above guideline amount. I'd say the most common reason judges set child support below guideline is when the parties live in different states, and the obligor spends a substantial amount of money exercising his or her visitation.
August 27, 2009
"Tough times never last, but tough people do"
The decision to get a divorce is never easy. In the current recession, the decision is even harder to make as spouses look at their debts and wonder how they can make it financially without their partner — even if the marriage has become intolerable. As the mortgage payments, credit cards and other bills begin to mount, it is important for people to remember that they have options and staying in a broken marriage does not have to be one of them.
Community Property and Debt
One of the biggest issues in any divorce is how to divide the property. Texas is a community property state. This means that any assets accumulated during the time of marriage are community property and will be divided equitably between the spouses. Even if the property acquired during the marriage is only in one spouse's name, it is presumed to be community property. Certain types of property generally are not considered community property, including any property owned prior to the marriage and any gifts or an inheritance left to only one spouse.
Assets acquired during the marriage are not the only types of community property. Debt incurred during the marriage also is community property. This means that even if the divorce order requires one spouse to pay off a certain debt, the other spouse still remains legally responsible for the debt and the creditor has the right to go after both spouses for repayment of the debt. In some instances, creditors may agree only to go after the spouse named responsible for the debt in the divorce decree, but creditors are not required to do this. Thus, even after the divorce, one spouse has the ability to destroy the other's credit.
August 26, 2009
Please take the time to read these steps if you are considering a divorce:
Step 1- Find the Right Attorney
Step 2- Make an accounting of your finances
Step 3- Make photocopies of all your financial records
Step 4- Prepare a budget
Step 5- Assess the financial accounts
Step 6- Address the credit accounts
Step 7- Avoid additional debt or major purchases
Step 8- Stay put until further notice (you don't have to leave the home)
Step 9- Keep a journal/ diary
Although all of the steps are important, I want to point out step 9 - keeping a journal/ diary. I recommend all my clients, whether going through a divorce or a modification, keep a diary that logs telephone calls and in-person conversations, the date and time of each, and the content of each. I also have clients keep logs of items involving the children - comments the children make about a situation that is at issue, whether the other parent was involved, etc. The more you can give the court specifics about an incident, the more likely your testimony is going to be believed by the court and the better prepared you will be.
August 25, 2009
I've read lots of articles and stories about how divorce rates are on the decline and the reason for the decline is the poor economy. I've been wary of this theory for quite some time given the fact that I haven't seen much of a decline in my own practice. In some cases, I’m busier than ever before, but the issues that people are arguing over are different, meaning that people are fighting over who "has" to keep the house rather than who wants the home. However, I haven't seen much of a decline in the amount of people who are coming in for consultations, after all, the initial consultation is free so why not call and set up anappointment up today?
