Houston Divorce & Family Law Attorney Blog : Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

If you want to know what real clients really say about Collaborative Law, here's your opportunity.  The following is a link to videos hosted by the Collaborative Law Institute of Texas' web site.  The videos were made by actual clients who completed the process and desired to share their collaborative divorce experience so that others may benefit.

http://collablawtexas.com/the-collaborative-law-approach

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The issues of same-sex marriage and termination of such marriages may be dealt with in Texas sooner that this commentator expected. Thursday, October 1, 2009, Dallas Judge Tena Callahan ruled that the state’s ban on same-sex marriage violates the equal protection clause of the Constitution. Texas Attorney General Greg Abbott filed a petition in intervention, which was denied by the judge. Abbott’s office indicated the State would seek an appeal of Judge Callahan’s decision. For more information, see today’s Houston Chronicle and The Dallas Morning News.

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In many states, a new and quickly growing area of family mediation is marital mediation.   Marital mediation is a process of assisted negotiation designed to preserve a marriage in ways not attempted by family therapy. The process uses family mediation skills to help couples negotiate new terms for their marriage. Marital mediation is not couples therapy or marriage counseling. There is no diagnosis, assessment or treatment of an illness or disability in the hopes of solving marital problems or achieving a better relationship. Through a dispute resolution approach, marital mediation provides the building blocks and a firm path to a happier and more satisfying relationship and marriage. 

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My colleague, Dick Price, wrote a fantastic piece about "mean" lawyers.  I find Dick's insights helpful and valid whether one is in the midst of family law case or general civil litigation. 

Dick's words of wisdom follow:

Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.

1. What is the client's overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There's no right or wrong answer. It just helps the lawyer to know what the target is.

2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there's no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.

3. What "mean" actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered "mean" in some circumstances. Within that limited category, what would the client want?

4. How does the client think "meanness" will advance his/her cause? Some clients don't realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?

5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, "mean" isn't cheap. The attorney's fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the "tit for tat" strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.

Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don't need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can't afford or won't want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.

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All of the courts of Montgomery County have approved a Standing Order regarding children, pets, property and conduct of the parties that will apply in all divorce cases and in most SAPCRs. The order became effective March 15, 2009, and will likely eliminate the need for attorneys to request temporary restraining orders in Montgomery County in the future.

To obtain a copy of the Standing Order, please utilize the following link to the Montgomery County website: http://www.co.montgomery.tx.us/dcourts/standingorder.pdf

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On Friday, April 3, 2009, the Iowa Supreme Court declared unconstitutional a 1998 state law limiting marriage to one man and one woman. Iowa is now the 3^rd state in the U.S. to legalize same-sex marriage. The other two states are Massachusetts and Connecticut. 

The Iowa Supreme Court Opinion cited a constitutional duty to ensure equal protection under the law – “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”

Though this is a victory for advocates of same-sex marriage, there are many unanswered legal questions that remain, such as what happens when same-sex couples relocate to another state that does not recognize their marriage, or what happens when and if the couple wants to divorce. 

For more information on same-sex marriage and domestic partnerships across the country, see the story in The Houston Chronicle. 

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Today’s post in Lipman’s State Your Case column highlights an important consideration for spouses who decide to separate and part ways without first seeking divorce or a post-marital property agreement. 

Just because a married couple separates does not mean that their finances are also separate. As long as the parties remain married, they accumulate community assets and liabilities. 

The lady in today’s column had been separated from her spouse for 22 years. During that period of separation, she purchased a home. Even though her husband’s name is not on the deed, the husband can claim a community property interest in the home. This was probably a huge shock and unintended consequence. 

 

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When courts order that a parent(s) have supervised visits with a child, it is usually for good reason. Depending on the circumstances, the court may permit (or the parties may agree with the court’s approval) that visits be supervised by another family member, one of the parents, or a third party agency. 

A recent story from The Houston Chronicle discusses the abduction of a child during a supervised visit arranged by the child’s conservators. The child’s conservators likely presumed that a restaurant like Chuck E. Cheese was a safe place to allow the child interaction with her parents. However, the child’s biological parents took the five year old child during the supervised visit. Thereafter an Amber Alert was issued. 

While the SAFE Program through the Harris County Victim’s Assistance Center is not the most ideal setting to visit with one’s child, it is designed to prevent tragic situations like this one. Whether you are a custodial parent or managing conservator seeking to have visits with a child’s parent(s) supervised, the SAFE Program can assist.   

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It’s that time of year again – the seemingly long stretch between the New Year and April 15^th. If you’re like me, you keep putting off until tomorrow what you should be doing today – that is organizing your documentation to prepare the income tax return. Then you find yourself strung out on Red Bull and fretting with the latest version Turbo Tax asking why you wasted all that time. The only two certainties in life are death and taxes, so let’s get it in gear!  The tax preparation that is. 

As a family law practitioner I do not offer tax advice, and recommend that my clients seek counsel from a CPA or tax attorney, especially if they have complex issues. 

Another useful resource is IRS Publication 504 - Divorced or Separated Individuals. Though the current version on the IRS’ web site is for preparation of one’s 2007 return, the information is still helpful and though provoking. 

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In my family law practice, an increasing number of people ask me about Collaborative Law. While some clients are delighted about having a mental health professional (MHP) on the team, other clients express apprehension over the role of the MHP. 

The MHP’s role is NOT to analyze the parties or children, provide therapy, give legal advice, diagnose, or solve mental health issues of the parties or the parties’ children.  

The MHP is a 3^rd party neutral on the collaborative team. His/her job includes:

1.      keeping the parties (and counsel) focused on the defined objectives and goals;

2.      facilitating communication;

3.      managing the emotions of the parties; and

4.      working preventatively.

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As a family law attorney, I have a thick skin, and not a lot gets to me. The story about Ja'Shawn Powell, however, raises my blood pressure.  I plan to keep an eye on this story through the AP and Houston Chronicle.

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In light of the troubled economy, it follows that child support obligors will experience difficulties in staying current on child support obligations. In fact, this was the theme of an article in today’s Houston Chronicle in Lipman’s State your Case column. 

The parent stated he was one of hundreds of people laid off from his job, and he has been unable to find other employment. As a result, the parent is unable to make any child support payments. The parent asked whether he could get his child support payments lowered or suspended until he finds work. 

Though Lipman’s answer (which was “Maybe”) is a good one, I would go a little farther in my commentary. 

Before a judge grants a motion to reduce an obligor’s child support, he/she must find that it is in the child’s best interest. Think for a minute or two about how you would argue that. It’s tough to say that providing the custodial parent with less money to support the child meets the best interest standard. Additionally, the court will want to know what assets are available to provide for the child, such as savings accounts and/or assets that can be liquidated to provide support. 

The prevailing attitude of many judges is that parents meet obligations to support their children. If that means your child eats before you do, then so be it.   

My comments are not intended to discount the plight of folks having legitimate financial difficulties. I merely suggest that you be elegantly prepared before asking the court, a caseworker at the Texas Office of the Attorney General, or the custodial parent to consider a reduction. Be prepared to show that you cannot pay for your rent/mortgage, car note, and other essential items. Be prepared to show how you’ve tried to gain other employment. Be prepared to show that you are attempting to pay something every week. Something is better than nothing. Be prepared to demonstrate that you are making an effort, and that you are sacrificing to meet child support obligations. 

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In the present economic climate, singles and married couples alike are having difficulty with retirement.  Even diligent savers are astonished when they reviews their quarterly 401-k statements.  Now imagine, that you and your spouse are approaching retirement, and a divorce is on the event horizon.  An article on CNBC titled Don't Let Divorce Derail Your Retirement provides some helpful tips on dividing up shrinking assets and planning for the future. 

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Houston attorney, Michael Hiller, is the creator of a new area of family law called Reconciliation Law (TM).  In early January 2009, Mr. Hiller, with other Houston area family attorneys, will create a new practice group trained in this philosophy of law. 

To learn more about this practice area, tune in on Sunday, December 21, 2008 from 1:00 p.m. to 2:00 p.m. to hear Mr. Hiller discuss this new frontier in family law.  He will be interviewed by Barry Kilgore on KSEV 700AM Radio. 

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Folks who have business or jury duty in the Harris County District Courts Monday, September 15, 2008, should be advised that the courthouses are closed all day. As of the time of this posting, the District Clerk has not posted any information on activities for the rest of this week.

I drove by the Family Law Center and the new Harris County Civil Courts building. Both appear to have weathered the storm with only minor damage. 

For more information on the district courts you may call 713-755-5749 or visit the web site at http://www.justex.net/Default.aspx  if you are fortunate enough to have power. 

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During the last week in Houston, two young children died after being left in hot cars by their caretakers. I can only imagine the agonizing guilt one would experience as a result. Busy lives, multi-tasking, and/or a change of routine can lead to accidentally leaving a little one in his/her car seat, but the hot Houston summers are unforgiving.

Area experts advise simple steps to prevent this deadly mistake, including:

1. Put your purse, briefcase or work ID badge in the back of the car next to the baby seat;
2. Keep a stuffed animal in the front seat of your car as a reminder that the baby is in the back;
3. Tape a note to the steering wheel of your vehicle;
4. Instruct your child’s day care center to call you if your child does not report at his/her regularly scheduled time;
5. Install an alarm device to the car seat that activates an alarm on your key chain after you are a certain number of feet away from the vehicle. 

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My colleague at prenuptialagreements.org posted a great blog story about how pre-marital (a/k/a pre-nuptial) agreements are beneficial to prospective spouses. The excerpt from his story follows:

A preenuptial agreement is an agreement between two people that deals with the financial consequences of their marriage ending.

All marrying couples have a "prenuptial agreement" - it is known as "divorce law." However, a lot of people are unhappy with the way divorce law works, and prefer to take control of their lives, rather than leave it in the hands of the government. In these cases, it makes a lot of sense to get a customized prenup.

Getting a prenuptial agreement is particularly important in these 8 cases:

1. You are much wealthier than your partner. A prenuptial agreement can ensure that your partner is marrying you for who you are, and not for your money.

2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is payable.

3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family are cut off.

4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and don't want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.

5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenup can ensure that your spouse does not become an unwanted partner in your business.

6. To prevent your spouse from overturning your estate plan. A prenuptial agreement can ensure that you estate plan works, and, for instance, ensure that a specific heirloom remains in your family.

7. You are much poorer than your partner. Just as a prenuptial agreement can be used to protect a spouse who is well off, a prenup can also be used to ensure that the partner who is weaker financially is protected.

8. If you plan to quit your job to raise children. Quitting your job will negatively impact your income and your wealth. A prenuptial agreement can ensure that the financial burden of raising the children is shared fairly by both partners.

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Because of real estate market woes, many of my family law clients are finding it more difficult to sell their homes as quickly as they hope, for the price they hope to obtain, or to simply refinance. Apparently, reality TV shows are feeling the housing market woes as well. The Learning Channel begins airing a new reality TV show called “Hope for Your Home” on Saturday, August 9, 2008 at 7:30 p.m. CDT (check your local listings for time and channel). Unlike shows such as Flip that House or Trading Spaces, this show is aimed at assisting homeowners increase the value of their property so that they may sell or refinance. Though some of the episodes discuss harsh realities people don’t want to hear, in order to get the house sold you’ve got to get that reality check.  For more information, visit the article published in today’s Wall Street Journal. 

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Family courts, in determining a the obligor parent’s child support, look to specific data including the obligor’s most recent pay stubs and two previous year’s tax returns. This data usually provides an accurate indicator of the obligor’s net monthly resources. After the net monthly resources are determined, a multiplier is applied based on the number of children before the court, and if applicable, the number of the obligor’s children who are not before the court (i.e., children from previous marriage). 

While some obligors have a fixed salary, their income may have significant fluctuation, and may be less predictable. Examples include sales reps who work on commission, real estate agents, persons who regularly work overtime, and the self-employed. In those circumstances merely looking at a 2-3 recent pay stubs or recent tax returns (especially if the obligor hasn’t filed a tax return for several years) may not provide an accurate picture of the obligor’s net monthly resources. Under such circumstances, there is case law supporting averaging the obligor’s income for calculation of child support. A recent opinion pending publication by the Texas 14^th Court of Appeals supports this approach. 2008 WL 1838023; Swaab v. Swaab, -- S.W.3d -- (Tex. App. – Hou. (14^th Dist.), no pet history). There is authority which supports averaging a parent’s income for as long as a ten year period to determine retroactive child support. See In re Sanders, 159 S.W.3d 797, 801 (Tex. App. – Amarillo 2005, no pet.). 

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Though Houston is reportedly one of the areas least affected by the economic downturn, the city is not without its share of troubles. The quandary of what to do with the house has always been an issue in divorce cases, but my practice is encountering an increasing number of people in financial turmoil with respect to the house. Selling property and dividing proceeds was a good option for couples where neither could afford to stay in the house alone. Selling is still an option, but with the mortgage lending crisis and surplus of available homes, no one can predict how long the house will remain on the market.   

Unless you and your spouse are on exceptionally good terms during the divorce, usually someone has to move out. Before deciding on who stays and who goes, consult a real estate agent and educate yourselves on optimum ways to stage a house so it is appealing to potential buyers. For more information on realtors in the area, visit the Houston Association of Realtors.

Remember – if you and your spouse signed the deed of trust then you’re both responsible for the mortgage note regardless of who remains in the house. The court cannot make the mortgage lender remove either party from the agreement. Even though you may despise your soon-to-be ex, it’s in each party’s interest to make sure the house is sold and for the best possible value. 

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Everyone knows that the leading cause of marital discord revolves around money– mainly the lack of it and how it is spent. One of the most helpful and low- to no-cost financial counselors is Dave Ramsey. Mr. Ramsey takes a tough love approach to helping people become debt free and create financial stability by offering such sage advice as “Act your wage.” Mr. Ramsey does not offer any quick fix solutions, so be ready to work. Though you may not agree with all his views or implement all of his advice, I guarantee you will learn by listening to the radio show, viewing the on-line resources, or even attending a local workshop. Who knows – getting a handle on the financial issues might even save your marriage. 

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If you anticipate a separation or impending divorce it is a good idea to revisit your estate plan. Most individuals' principal assets include their home, life insurance, retirement funds, bank accounts and securities.

Though unpleasant to consider, think about what could happen if you die before filing for divorce or during the divorce proceeding itself.

If you have a will, consider executing a new will or codicil bypassing the soon-to-be ex-spouse and leaving your share of the community estate to the children in trust, or other individuals. You may also wish to change designated beneficiaries on any life insurance policies. Because many retirement plans are subject to ERISA, it is unlikely that you will be permitted to change your beneficiary designation(s) without your spouse's consent.

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Thanks to a 3 year $850,000 grant from the U.S. Department of Justice, the Houston Police Department Family Violence Unit and Houston Area Women's Center will receive additional support in identifying and assisting victims of domestic violence. The Harris County District Attorney's Office Family Criminal Law Division will provide training to HPD officers, dispatchers, and others who work in the HPD Domestic Violence Unit. The goal is to assist officers identify people who are eligible for protective orders and to fund protective order clinics at several locations around Houston where domestic violence victims may start the process of obtaining a protective order.

A Harris County resident who has been a victim of domestic violence can obtain a free protective order through the DA's Family Criminal Law Division, but the DA will not get involved if there is a divorce suit pending.

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Most of the time I roll my eyes when entertainment commentators feel the need to report on celebrity divorces, property disputes, and custody issues since Hollywood is so far removed from the reality of the average person. 

Recently, Christie Brinkley's divorce trial has been receiving lots of media attention.  Since coverage spotlighted the use of a child psychologist in making a custody recommendation to the court, this may be somewhat instructive on the role of experts in custody cases.  For more information on the divorce and custody dispute, visit Newsday.com. 

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With cohabitation on the rise and marriage on the decline according to national figures, it follows that self-help guides to living together are available for quick reference.  One such book is The Good Girl's Guide to Living in Sin released on June 1, 2008.  Another resource is Shacking Up:  The Smart Girl's Guide to Living in Sin Without Getting Burned.  Though these guides are not a substitute for seeking legal advice in your jurisdiction, they bring up practical ideas that should be discussed with your mate before comingling the CD and DVD collection. 

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According to data collected in a national study, between 1995 and 2005 the marriage rate in the United Stated declined by approximately 20%.  More couples nationally, and across the globe, are electing to cohabitate rather than marry.  According to an article from the June 9, 2008 USA Today by Sharon Jayson, a more in depth study regarding marriage will be released this week.  The article cites various reasons for the shift away from marriage such as economic uncertainty, convenience, and uncertainty about long-term relationships.

 

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Question: I receive Worker's Compensation benefits from a job accident I had. Does this amount count in my income for calculating child support?

Answer: Yes, benefits received from worker's compensation is considered as income for the purposes of child support determination. Texas law includes income from all sources to determine a parent's child support obligation. About the only benefits not included are TANF.

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More and more people are posting intimate details about their private lives on-line for the world to see. I’m sure somewhere someone is conducting a sociological study about this phenomenon. In fact, this topic might be my cousin’s doctoral dissertation! 

At any rate, it appears that one popular site for ex’s to purge emotional bile can be found at exboyfriendjewelry.com. This site was established by two entrepreneurs, Meghan Perry and Marie Perrry, to help jilted women sell engagement rings and other baubles given by their cheating husband or boyfriends. The site is so popular that People Magazine featured a write-up about the pair in the May 26, 2008 edition.  The sales site, along with its ex-boyfriend blog is a cross between E-Bay and Craig’s List meets Jerry Springer. 

Give it a look in your free time. Who knows…you might find a real bargain. 

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Since the Third Court of Appeals in Austin, Texas released its opinion May 22nd the news media has been blasting non-stop.  Rather than limiting your perspective to what the commentators tell you, why not read the opinion for yourself? 

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Assuming that you are appointed as the managing conservator with the exclusive right to receive and disburse child support for the benefit of your children, the court will order your husband to pay child support regardless of his employment status. Even if your husband is unemployed, the law presumes a parent can at least work 40 hours per week at minimum wage. The court will likely inquire into why your husband left his job and the timing of that decision. If the court finds that he is intentionally unemployed or underemployed, then the court may determine the child support obligation based on his previous employment. 

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Under Texas law, a court may annul a marriage if a party to the marriage was at least 16 years old but under 18 years old at the time of the marriage, and the underage party did not have parental consent or court-ordered permission to marry. The court has discretion in whether it will annul an underage marriage. In exercising its discretion, the court must consider the circumstances relevant to the parties – for example, whether the wife is pregnant. 

A parent, guardian, individual with a court-ordered relationship, or individual acting as next of friend to the child may seek an annulment of the child’s marriage. Time is of the essence in filing such a petition for annulment whether the petitioner is the parent, guardian or next of friend. A parent or guardian will not be permitted to seek an annulment of the marriage once the child reaches the age of majority (18). An individual filing the suit as next of friend to the minor child must bring the suit within 90 days from the date of marriage, or such as suit is barred. 

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Frequently our office receives questions pertaining to geographic restrictions imposed by a final decree of divorce.  Unless the parents agree to another arrangement, the primary conservator of the minor children is restricted by court order in where he/she may live with the children.  Usually, when parties divorce in Houston, the primary parent is limited to Harris county, Texas and the contiguous counties -- meaning the counties that are directly touching Harris County.  This is actually a very broad area as the contiguous counties include Brazoria, Fort Bend, Waller, Montgomery, Liberty, Chambers, and Galveston counties. 

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At times in my family law practice, a family member will call me seeking a reference for another area of law such as DWI or criminal defense. I do not practice in those areas of law myself so I typically refer them out to another attorney.  My next door neighbors are Houston DWI lawyers and criminal defense specialists which have members on staff that are board certified in those areas. The Grant Scheiner Law Firm, PC is a great source if you are looking for assistance in those areas.  Link: Grant Scheiner Law Firm, PC

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It is a common misconception that either party can simply tear up, shred, or otherwise destroy a premarital agreement to nullify it. To properly revoke the premarital agreement, both parties must execute a written agreement (using the same formalities as in executing the pre-marital agreement) to property revoke. 

It does not matter if one or both of the parties is certain to have destroyed all the copies.  Usually the attorneys for the husband and wife retain an executed copy. If the revocation of the premarital agreement is not handled properly, either party may seek to enforce pre-marital agreement.

Before attempting to revoke or amend a pre-marital agreement, it is best to seek assistance of a licensed attorney familiar with such agreements.

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Texas voters overwhelmingly approved a constitutional amendment prohibiting marriage between individuals of the same sex, and about 43 other states also prohibit same sex marriage. However, nine other states recognize civil unions, and in 2004 Massachusetts approved provisions allowing same sex marriage.

The questions are (1) if same sex partners can marry or enter into civil unions in certain states, how can these marriages and unions be undone; and, (2) what is the impact if the parties relocate to other states? These are not easy questions to answer, as an April 15, 2008 article in The Houston Chronicle noted.

Same sex couples married in Massachusetts are finding that other states will not permit them to seek dissolution. Additionally, couples who later relocated to another state find that if they do not meet the domicile and residency requirements under the Massachusetts family code, the state will not permit dissolution suits to move forward. While this may seem to be an unnecessary road block, the state has a legitimate interest in denying relief to parties who are not domiciled in the state. There are also constitutional considerations – the court can only adjudicate a matter if it has jurisdiction over the parties and issues. According to sources at The Houston Chronicle, to establish domicile in Massachusetts one must reside there for at least 12 months.  

Though same sex marriage and civil unions are hot topics, they recognized by a minority of US jurisdictions. With a highly mobile society, many of couples will find themselves relocating from the states where they entered into the marriage or union, and perhaps seeking assistance under the law to terminate the relationship. It is just a matter of time and parties making a constitutional argument. At some point laws of the various states (Texas included) must address issues of division of property, conservatorship and custody in same sex marriages/unions.

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During the divorce process many women find themselves in uncharted financial territory.  Sometimes, the husband is the individual in the marriage who takes point in managing the the budget, taxes, investments, estate planning and/or retirement planning. 

If this is describes your situation and you are in the midst of a divorce, now is the time to get a handle on financial issues. 

Fortunately, there is a not-for-profit organization in the Houston area to assist women going through this life changing event.  For more information, visit www.texaswife.org or contact Texas WIFE at (713) 599-1225.

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With the present credit pinch and looming economic downturn, people are looking for an asset they may liquidate or borrow against to ease money woes. Often, this asset is an individual’s retirement plan. An article published in The Houston Chronicle on March 17, 2008 by Shannon Buggs provides excellent insight about the ups and downs of using a 401(k) plan. For a complete text of Ms. Bugg’s article, visit: http://www.chron.com/disp/story.mpl/business/buggs/5621877.html.

From the perspective of dividing assets upon divorce, there is another factor the article did not address, and that is what to do with a loan against a 401(k) plan. Before the plan administrator will make a division, the issue of the outstanding loan must be addressed. For instance: Will the plan participant take his/her portion of the 401(k) subject to the loan? Will the loan balance be deducted equally from each party’s portion? Or, will some other formulation be implemented in the division?

Before taking making important decisions about borrowing against or liquidating a 401(k) account, make sure to obtain all the information you can from your plan administrator, discuss your options with a financial planner, and know the consequences for taking such action. 

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When couples divorce, often the largest asset subject to division is the home. When the home is subject to a mortgage, often the party awarded the home must refinance the note into his/her name in order to absolve the other spouse of financial responsibility. I saw a disturbing story on the CBS News Early Show just this morning about a California woman who refinanced her home following her divorce. When she refinanced her home 2 years ago, the mortgage lender suggested she use an interest only adjustable rate mortgage (ARM). This type of mortgage is reportedly one of the most nefarious lending tools. The consumer now owes more on her home than she did two years ago, and worse yet, the balance owing is more than the value of the home if she could sell it. 

The moral of this story – when refinancing be VERY careful, analyze all documents with care, ask questions, and do not sign on the dotted line if you do not have a good understanding of the financial transaction. Some consumers feel awkward asking questions, or even asking for a second explanation. Take a firm stand and insist that your mortgage lender explain the terms to you for any instrument you sign.

For more information on the mortgage crisis, visit: www.cbsnews.com/sections/i_video/main500251.shtml

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According to data collected by the American Academy of Matrimonial Lawyers (AAML), 88% of the country’s divorce lawyers cite an increase in the number of contested divorce cases using electronic data as evidence in the past 5 years. 

Though e-mail is the most frequently used form of electronic evidence, other forms of data used in divorce proceedings includes text messages, instant messages (IM), internet browser history, social networking site information, photos from camera phones, toll tag, and data from vehicle and stand alone GPS devices. 

Technology has become so ingrained in our daily lives that it follows us to the courthouse in family matters.

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Federal law allows states to collect income tax refund checks from parents who are behind in their child support. If you and your spouse filed a joint federal tax return, and all or part of refund was intercepted to pay for your spouse’s past-due child support, you may be an injured spouse and may be eligible to file an Injured Spouse Claim with the I.R.S. You can make an injured spouse claim if you are not legally obligated to pay the past-due child support, and if you made and reported income and payments, such as federal income tax withheld from your wages or estimated tax payments. During the tax year, if you were a resident of Texas, a community property state, you are eligible to file for an Injured Spouse Claim even if you did not report any income and payments on your tax return. You can make an Injured Spouse Claim by filing IRS Form 8379. For each year that you meet the conditions of an injured spouse, you can file IRS Form 8379 with your joint tax return or amended joint tax return, or you can file it afterwards by itself.

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In Texas premarital agreements are valid contractual agreements that allow prospective spouses to amend the “default” marital property rules, but premarital agreements are not recognized by all US states. This is an important factor to consider in today’s mobile society.

At the time this post was written, 27 states recognize pre-marital agreements in some form. The states include:

Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois

Indiana Iowa Kansas Maine Montana Nebraska Nevada New Mexico North Carolina

North Dakota Oregon Rhode Island South Dakota Texas Utah Virginia Wisconsin

In 2008, states considering recognition of premarital agreements include Mississippi, Missouri, South Carolina and West Virginia.

For more information on the Uniform Premarital Agreement Act, visit http://nccusl.org/Update/uniformact_factsheets/uniformacts-fs-upaa.asp

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A parent or conservator may petition the court to order reasonable periods of electronic communication during the time when the child is not with that parent or conservator. Effective September 1, 2007, the Texas Legislature added Section 153.015 (“Electronic Communication with Child by Conservator”) to the Texas Family Code, which allows the court discretion to supplement a conservator’s possession and access to a child by ordering contact via telephone, e-mail, instant messaging or webcam. When considering whether to award electronic communication, the court will examine what is in the best interest of the child, whether electronic equipment necessary to facilitate the electronic communication is reasonably available to all parties, and any other factor the court considers appropriate. Section 153.015 of the Texas Family Code applies to a Suit Affecting the Parent-Child Relationship filed before, on, or after September 1, 2007.

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Credit Freeze – One Method for Protecting Your Credit Before and During Divorce

Prior to and during divorce credit cards often become a hot button issue. Though family law litigants represented by counsel likely have injunctions preventing either party from opening new accounts or spending beyond what is specifically permitted in temporary orders, that is no help to individuals going through the process pro se (without counsel).

An article in The Houston Chronicle on December 10, 2007 entitled Leaving Identity Thieves Out in the Cold, discusses new tools for combating credit fraud perpetrated by identity thieves. What if your spouse (or soon to be ex) is that “thief”? 

One option is to apply for a credit freeze. A credit freeze prevents anyone from taking your social security number or other personal information and opening an account in your name. Fees to initiate a credit freeze are anywhere from $5-$10 and must be initiated with each of the three major credit bureaus (CSC, Experian, and TransUnion). If you need to “thaw” your credit to apply for a new card, car loan, home loan, refinance, etc., then you must request for a specific creditor to be able to access your credit file. This, too, may require a nominal fee. 

Though a credit freeze is an effective tool to prevent identity theft, it is not for everyone. For instance, if you are starting out and establishing your credit, this is not the best option. In that situation, you might opt for a fee-based credit monitoring system where alerts are sent to you when an inquiry is made to the credit bureau. 

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When parents are divorcing it’s not uncommon for communication to become tense. The most common mistake I see people make is to use their children as “messengers” for topics such as child support, unpaid bills, school activities, and when and how pick-up and drop-off will be accomplished. We’ve all heard the phrase “Don’t shoot the messenger!” Think about this and imagine how your child feels. 

If you and your spouse are not yet at the place where you can have a civil conversation, but must still communicate, try using e-mail. That provides you both with a communication tool that can be used at a safe distance without the tension of face-to-face or over the phone awkwardness. However, be nice in those e-mails and assume they could be the next court exhibit. 

If e-mail is still too hot to handle, another option is software found at www.ourfamilywizard.com. This site allows parents to manage children’s issues, school activities, calendars, and expenses. The site offers a tour and a range of plans. If you’re at your wit’s end, this might be a tool that can help you.

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One question that I am frequently asked is whether or not an ex-husband or ex-wife can "garnish" a new spouse's wages or assets for back child support.  The answer is NO!  If the obligor parent remarries, his/her new spouse is not liable for current or back child support payments.  In fact, the courts cannot consider the wages of a new spouse in calculating child support.

There is, however, one caveat.  If you and your spouse file taxes jointly and you expect an IRS refund check, the Texas Office of the Attorney General is entitled to divert your spouse's portion of the refund to satisfy a child support arrearage.  If you think this might be a problem for you and your spouse, speak to your tax advisor about filing separately. 

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When involved in a suit affecting the parent child relationship, Texas law requires that children have health care coverage. Health insurance coverage continues to rise at an alarming rate, so it is important to know what the law considers to be reasonable. 

In September 2007, the Texas legislature amended the family code to define reasonable cost as follows: “…the cost of health insurance coverage for a child that does not exceed 9% of the responsible parent’s annual resources.” Tex. Fam. Code Section 154.181 (e). 

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Effective January 1, 2008, Texas judges will have another tool to combat domestic violence. That tool is a powerful one – the denial of bail to an accused if he/she violates a protective order or is charged as a repeat domestic violence offender (misdemeanor and felony). 

Texas Representative Joe Straus, III of San Antonio authored House Bill 3692, which was approved as a state constitutional amendment by 84% of Texas voters in November 2007.  

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According to the Texas Probate Code, an incapacitated person includes:

a minor (e.g., a person under the age of 18);

an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs; or

a person who must have a guardian appointed to receive funds due the person from any governmental source.

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Texas guardianship law has come a long way in recent years. The code sections formerly spoke of persons under guardianship as “lunatics and idiots,” and stripped the ward of many fundamental rights, such as the right to vote. 

Fortunately, Texans no longer refer to incapacitated persons in such terms, and the role of the guardian is designed to be limited to only those functions to protect the ward’s well-being. In fact, the statute encourages the court to design guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person. 

There are two kinds of guardianship – guardianship over the person (e.g., medical and educational decisions) and guardianship over the estate (ward’s finances). Generally speaking, guardianship matters are heard in courts with probate jurisdiction, such as statutorily created probate courts. In Houston/Harris County we have four probate courts to hear guardianship matters. 

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One of the recurring questions I receive from clients deals with child support and visitation, and it goes something like this – “I pay child support but the other parent doesn’t let me see my son/daughter. Do I still have to pay child support?” The answer is always, yes.

While it seems unjust to be denied access to your child despite the fact that you pay child support, that is not a basis to withhold support.  First, visitation and child support are mutually exclusive issues, and second, withholding support only hurts the child. 

If the custodial parent is denying access to the child, you may seek to enforce your existing court orders allowing possession and access to your child, or you may file suit to request possession and access, known as a SAPCR (Suit Affecting the Parent-Child Relationship). 

Remember, it is also unlawful for a custodial parent to deny possession and access based on the other parent owing back child support. 

 

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Many employees have access to pre-tax savings devices called Medical Savings Plans or Medical Savings Accounts. Through such plans, an enrolled employee participant may designate a portion of his/her pre-tax income to be deposited in an account designated for health care. One of the benefits is lowering the employee’s taxable income.  Another benefit is saving for large ticket items such as annual deductibles, surgeries, braces, or other medical services which may not be covered by an insurance carrier.

I used to dislike such plans because withdrawing funds for reimbursement was too burdensome and paper-work intensive for the tax benefit. However, I have heard that many medical savings plans are much more user friendly these days, offering access to the deposited funds through a debit card.  

For older children who take themselves to dental appointments or to the orthodontist, this may be a great vehicle for paying and tracking the child’s medical expenses. 

For more information on such plans, speak to your human resources department or your CPA to learn more about the tax benefits. 

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Besides just sending the other parent receipts for your child’s medical expenses, you should consider writing a brief cover letter to explain what you are sending. This does not have to be typed or fancy. 

A sample letter could be as follows:

*Date*

VIA USPS First Class Mail

VIA USPS Certified Mail, Return Receipt Requested - *certified mail number*

Dear *Parent*:

Enclosed please find receipts for *child’s* medical expenses for the month of *month and year.* My total out-of-pocket expense was *$*. Your portion (*%*) is *$*. 

Please let me know if you have any questions. 

Regards,

*Your name*

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One of the many points of contention for divorced parents is the children’s medical expenses. However, with a little advance planning and organization, much of this controversy can be avoided. 

Whether you are the primary custodian or the non-primary custodian, the starting place is your final decree of divorce. Your decree should include a section that spells out the provisions for health care. Within that section should be precise language stating how co-payments, out of network services, and uninsured medical expenses are to be handled between the parents. Your decree may differ, but usually, the parents split the cost of any medical co-payments, prescription drugs, and uninsured medical bills. 

After reviewing your decree to understand the rules, the next step is to keep good records. If you take the child to the doctor, always request a receipt that clearly shows the cost for the office visit or service, the amount of the co-pay remitted (if any), and the amount to be submitted to the insurance carrier. If you are the parent who took the child to the doctor, then keep a copy of your canceled check or credit card statement to show payment was made. 

An area where I see many of my own clients go off track is notification of the other parent. Do not rely on just verbal notification to obtain reimbursement, and above all do not make your children the messenger that one parent owes the other. Also, do not keep a backlog of these bills and/or send them on a sporadic basis. Instead, provide copies of the billing statements, prescription receipts, etc. to the other parent on at least a monthly basis so he/she knows what was provided and how much he/she must pay. If you anticipate difficulty in getting reimbursed for medical expenses, then it is critical to send copies of all documentation via USPS First Class Mail and via USPS Certified Mail, Return Receipt Requested. If the other parent does not pick up certified mail, and if the regular mail was not returned to sender for a bad address, then the presumption is that the parent received the bills. This is very important evidence should you need to file an enforcement action against the other parent.

To reiterate, the keys are:  (1) knowing the rules established in your divorce decree, (2) keeping good records, (3) communicating effectively, and (4) maintaining proof of those communications.    

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Recently I learned that it’s standard operating procedure for banks to retain customer account records for only seven years. Some clients have child support obligations that run up to 18 years, so the moral of this story is not to rely on the bank for proof that you paid child support. Be a geek and wear both a belt and suspenders!   

It’s rare to get a bank statement with your actual canceled checks anymore, but most banks at least provide scanned images. Hold onto these records in your safe deposit box or place where you keep important documents until after your final child support payment is made and an account audit shows a zero balance.

Just this month a client who religiously paid child support (directly to his ex-wife rather than the registry), was served with an enforcement action after his child graduated high school. After pouring through years of canceled checks and statements, we ended up proving the majority of the payments were made. But, it put the client in a bad position to scramble for old documents on short notice. 

The other moral to the story is not to make child support payments directly to the custodial parent. 

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One way clients get off track with child support is by making informal payments to the custodial parent, rather than making payments through the local child support registry, or the Texas State Disbursement Unit (SDU). 

It is hard to say “No” when the custodial parent requests or demands child support money on the spot (often in the presence of the child) to buy him/her a new pair of soccer cleats, a cheerleading uniform, etc. However, to keep yourself on track with the SDU, just say NO – unless you’re okay with never getting credit for the payment.

When the obligor pays cash directly to the custodial parent, there is no method for that payment to be accounted for by the SDU – even if the custodial parent provides you with a receipt. For all practical purposes, it’s as if that payment never occurred. 

Later on, if the custodial parent seeks enforcement of child support through the Office of the Attorney General or through a private attorney, there is no proof the obligor made those cash payments. When I explain this to clients, they feel cheated and upset, often citing the “do right” law. Unfortunately, these clients don’t appreciate the formalities of evidence and the legal system. What is acceptable in the every day world fails to meet legal standards in court, and that’s what counts in child support enforcement actions. 

If the custodial parent needs extra cash for child related expenses that crop up, it’s best to make an extra payment through the local registry or SDU. That way, the parent’s child support account is promptly credited with the money, and there is an official record of the payment. 

Of course, there are times when child related expenses can’t wait. Just beware that if you pay child support outside the SDU, be prepared not to receive any official credit for it in court. 

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When a family court sets child support, the parties’ and their attorneys are responsible for establishing an account with either the local child support registry or Texas Child Support State Disbursement Unit (SDU) in San Antonio, Texas. A central purpose is to provide a neutral third party to monitor the obligor’s payments and report arrearages to the Office of the Attorney General. While many of my clients groan about paying child support through the SDU (or through wage withholding) rather than directly paying the custodial parent, I remind them that the account eliminates future disputes between the parents, if used properly. 

Child support registries and the SDU are run by humans, and as we know, humans are subject to making mistakes. Whether you are the child support obligor or obligee, I highly encourage you to request an audit of your child support account at least every two years. This is as important as checking the accuracy of your credit report on a regular basis. 

If an error is made in the account, it is far better to clear it up sooner rather than later. Little is as frustrating as pouring over pages of child support history and trying to reconcile obligations, credits, missed payments, and interest charges. 

Another quick check is to review your pay stub deductions. If you are the obligor parent, verify that your employer is deducting the correct amount from each check. If the employer is not deducting enough, it is ultimately the obligor’s responsibility to make sure the proper amount is paid. 

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In the Houston area the Harris County Child Support Registry, Office of the Attorney General, and Harris County Domestic Relations Office enacted the FOCAS Program.  FOCAS stands for Focus on Collections and Services.  A main objective of the FOCAS program is to monitor the collection of child support obligations from the non-custodial parent and to contact him/her if he/she falls behind in child support payments. 

The FOCAS program's services also include locating the non-custodial parent, enforcing existing child support orders, enforcing medical support orders, and even collecting child support through the interception of IRS tax refunds. 

For more information on FOCAS, visit www.hcdistrictclerk.com/Child_Support/focas.aspx

 

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My office receives at least 5-6 telephone calls or e-mails each week from individuals with serious family law problems who cannot afford to retain an attorney.  I commit myself to taking on at least 3 pro-bono cases each calendar year in the family law and/or probate because I believe attorneys should give back to their community, and for the personal satisfaction I feel in helping someone who would otherwise have gone without legal help.  Many of my colleagues take on pro bono cases, but unfortunately, we cannot assume pro bono cases for everyone who contacts us.

Fortunately, there are other sources of assistance for individuals needing legal assistance.  One such organization is the Houston Volunteer Lawyers Program (HVLP).  HVLP takes cases involving bankruptcy, consumer law, family law, property, tax, wills and probate, and HIV/AIDS issues. 

The HVLP office is located at 712 Main Street, Suite 2700, Houston, TX 77002.  Their phone number is (713) 228-0735. 

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Whether you are the party paying child support (the obligor) or the party receiving child support (the obligee), there are times when you will need to obtain information on your account, such as a history of payments, or if there is an amount in arrears. 

To contact the Harris County local child support registry, you may visit the ground floor of Family Law Center located at 1115 Congress, Houston, TX 77002 between the hours of 8:00 a.m. and 4:00 p.m. Monday through Friday, contact them by phone at 713-755-607, or visit the web site at www.hcdistrictclerk.com/FAQ/faq.aspx#CS

I highly recommend visiting the web site before making a trip downtown.  You may be able to take care of your issue(s) on-line.  If you must go to the office, the web site will give you an idea of what information and/or documents you should take with you before going to the Family Law Center. 

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If you’re a divorced or divorcing parent you know that the Standard Possession Order addresses the “major” holidays such as Thanksgiving, Christmas, and both Mother’s and Father’s Day. However, the Standard Possession Order is blueprint from which parents and their attorneys may build a custom plan for the family. Remember, long after the ink is dried on the divorce orders, you, your child, and ex spouse have to live with the order – so take the time to ask for the things important to you. 

If you have young children and you enjoy watching them dress up for Halloween and participate in carnivals or school activities, ask your attorney to include this in your parenting plan. Parents can either share responsibilities for Halloween, or trade-off Halloween just as divorced parents do with Thanksgiving (i.e., primary conservator to has child for Halloween in even numbered years, while possessory conservator has child in odd numbered years). 

Over the years, many parents have asked me to add special provisions to the Standard Possession Order, such as Halloween, Easter, and special holidays for other religious groups. 

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The Wills, Trusts, and Estates Professor's Blog posted a timely story on an update to the Texas Probate Code that deserves examination.  It will be interesting to see the results of this legislation in the Houston-area probate courts.

The 2007 Texas Legislature added Probate Code § 47A to authorize a court, under certain circumstances, to deem a decedent’s current marriage void for lack of mental capacity even after the decedent has died.  Acts 2007, 80th Leg., ch. 1170, § 4.01.  This section was designed to “undo” marriages entered into due to the actions of conniving and/or abusive caregivers.

1.  Types of Voidable Marriages

a.   Proceeding pending at time of death

If a Family Code proceeding to void a marriage based on lack of mental capacity is pending at the time of death (or if the court has been asked to do so in a pending guardianship proceeding), the court may declare the marriage void despite the death of the decedent.  The court must apply the same standards as for an annulment under the Family Code.

b.  Proceeding not pending at time of death

If a proceeding to void a marriage based on lack of mental capacity is not pending at the time of death, the court may nonetheless deem the marriage void under the following circumstances:

The decedent entered into the marriage within three years of the decedent’s death.

An interested person files an application to void the marriage on the basis of lack of mental capacity within one year of the decedent’s death.

The court finds that the decedent lacked the mental capacity to consent to the marriage and understand the nature of any marriage ceremony that might have occurred.

The court does not determine that after the date of the marriage, the decedent gained the mental capacity to recognize the marriage relationship and actually recognized the relationship.

2.  Result if Marriage Deemed Void

The surviving partner of the void marriage is not considered as the decedent’s surviving spouse for any purpose under Texas law.  For example, the surviving partner would not be able to receive an intestate share of the estate or claim homestead rights.

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The Houston Area Women’s Center (HAWC) has provided services to women and children in crisis since 1977. Included among the many services the center provides are: 24/7 hotline for domestic violence and sexual assault; 125 bed shelter; counseling; educational outreach; advocacy; and youth services. Assistance is available in both English and Spanish.

If you need assistance, the hotline numbers are as follows:

Domestic Violence - 713-528-2121

Sexual Assault – 713-528-7273

For more information on the Houston Area Women’s Center, visit their web site at www.hawc.org. 

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Recent news stories about the safety of children's toys and other products prompted me to make this blog post.  US toy manufacturers have had to recall popular children's toys contaminated with lead paint, and more recently, certain baby cribs were recalled. 

A good source of information is the Consumer Product Safety Commission.  www.cpsc.gov

For more information, refer to the story from Saturday, September 22, 2007 in The Houston Chronicle, which can be found at www.chron.com/disp/story.mpl/ap/business/5155882.html

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Last week, the Family Law Prof Blog posted an interesting update on the status of same sex couple adoption in Maine.  I pass this on for those interested in the topic.

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child.  The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result.  "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree."  In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to  broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA  (Maine Supreme Court August 30, 2007)
Opinion online (last visited August 30, 2007 bgf)

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Now that we're past Labor Day, Houston area students are back in school, which can provide some additional stress for co-parenting in a divorced household.  The Houston Chronicle has introduced a new blog to keep parents in touch with what's going on in area schools.  For more information, visit blogs.chron.com/schoolzone/2007/08/introducing_parents_cheat_shee.html.

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The Federal Office of Child Support Enforcement provides an excellent informational web site to assist parents and child conservators locate parents who have failed to meet their child support obligations. With the advent of the information age and data sharing among states and the federal government, tracking down child support evaders has gotten more efficient. For more information, see http://www.acf.hhs.gov/programs/cse/newhire/  

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In Texas public policy dictates that children should have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and provide a safe, stable and non-violent environment for the child. Further, it is the policy of this state to encourage parents to share in the rights and duties of raising their children – even after the parents have separated or dissolved their marriage. 

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Section 101.016 of the Texas Family Code defines “Joint Managing Conservatorship” as the sharing of the rights and duties of a parent by two parties, ordinarily parents, even if the exclusive right to make certain decisions may be awarded to one party.

Under Texas law it is presumed that the best interests of a child is served if the parents are appointed Joint Managing Conservators (JMCs) so long as doing so would not significantly impair the child’s physical health or emotional well-being. For instance, if a court finds that one of the spouses has a history of domestic violence, then the JMC presumption would be rebutted.

Even though Texas courts generally award joint managing conservatorship, one parent over the other is usually given the primary right to designate the child’s residence based on a geographic restriction, such as Harris County and the surrounding contiguous counties. 

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Though Collaborative Law, in comparison to traditional divorce litigation, is relatively new, many clients are not familiar with the process.  Nancy Crevier, of the Newton Connecticut Bee provides a compelling case for going collaborative.  To view this article, visit:  http://www.newtownbee.com/Features.asp?s=Features-2007-07-12-12-47-37p1.htm.

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Due to new rules requring persons traveling from the US to Mexico, Canada, the Caribbean and South America to have a passport, child support registries across the country have seen an uptick in collections.  According to a recent article published in the New York Times, the US State Department will deny a passport to a parent who owes $2,500 or more in unpaid child support.  When a child support obligor needs to travel for business or pleasure, it's amazing how quickly the obligor can come up with the money.  For more information, see the New York Times article at http://www.nytimes.com/aponline/us/AP-Passports-Child-Support.html?ex=1187841600&en=34cd324319326e6a&ei=5070&emc=eta1. 

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To compare child support obligations in all 50 states, Guam and Canada, visit the following web site:  http://www.supportguidelines.com/main.html. 

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After the ad litem is appointed by the court, he/she is required by statute to: (1) interview the child in a developmentally appropriate manner if the child is four years old or older; (2) interview each person who has significant knowledge of the child’s history and condition; (3) investigate the facts of the case to the extent the attorney ad litem deems appropriate; (4) obtain and review copies of relevant records pertaining to the child; (5) participate in the litigation as the other attorneys do; (6) take any action consistent with the child’s interests that considers necessary to expedite the proceedings; and, (7) encourage settlement and the use of dispute resolution. 

Additional duties of the ad litem include eliciting the child’s goals of representation, advising the child, provide guidance to the child, and represent the child’s expressed objectives if the ad litem determines that the child is competent. 

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In divorce cases where the parents cannot come to an agreement over custody issues, the court often appoints an attorney to represent the child. When parents are in turmoil, sometimes they are unable to put aside personal differences.  The court appoints an ad litem to provide legal services to the child, and the ad litem has the duties of undivided loyalty, confidentiality, and competent representation. 

An ad litem attorney usually charges the same or similar hourly rates as the attorney for each parent. When the court must appoint an ad litem, the parties are required to pay the costs for this representation. In the Houston area, the cost for this attorney could be anywhere from $1,500 to $5,000 depending on the complexity of the custody case. In very limited circumstances, ad litem attorneys are available through volunteer organizations. 

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The legislature approved a new section to the Texas Family Code (Section 154.016) and Governor Perry signed it into law on June 15, 2007. This new section of the code takes effect September 1, 2007.

The new section authorizes a family court to order a child support obligor to obtain and maintain life insurance to satisfy the unpaid child support obligation owing for the child’s benefit in the event the obligor dies. 

Note that the statutory language states that the court may order the obligor to do this – not that the court shall order the obligor to do this. I will be interested to see how Texas courts apply this new section and if there will be a socio-economic demographic less impacted by this addition.

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An old adage says that only two things are certain in life – death and taxes. If you’re required to pay child support under a Texas court order, you’d better make those three things – death, taxes, and child support.

The legislature created a new section to the Texas Family Code – Section 154.015, which becomes effective September 1, 2007. If the parent obligated to pay child support dies before his/her child support obligation terminates, the remaining obligation becomes accelerated and the unpaid child support becomes a claim against the estate. 

Though most conscientious parents want to ensure the stability of the children’s future in the event of their death, it will be interesting to see how the application of this new family code section plays out in both family court and probate court. 

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The 80^th legislative session yielded over 300 changes to the Texas Family Code. Among the many changes which take effect September 1, 2007, this entry deals with when the statutory duty to support one’s child(ren) terminates.

Generally speaking, the child support obligation terminates upon the marriage of the child, the removal of the child’s disabilities for general purposes, the death of the child, the death of the parent obligated to pay support, or if the child is over the age of 18 and is not attending or enrolled in high school. There were two substantive changes to Tex. Family Code Section 154.006. The first change eliminates a termination event, and the second creates a new basis for termination. 

First, as of September 1, 2007, the death of the obligor is no longer an event terminating the duty to pay child support. The obligation to remit unpaid child support, as well as future child support, becomes a debt of the obligor’s estate. Prior to the update, savvy practitioners included language in final orders requiring the obligor parent to obtain sufficient life insurance to cover child support in the event of his/her death; however, this is now addressed by statute. 

Second, once the obligor’s child enlists in the armed forces of the United States, the child support obligation terminates on the date the child begins active service. 

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Spoliation is the improper destruction of evidence. Once evidence is destroyed, it gives rise to the presumption that the destroyed evidence would have been unfavorable to the party who destroyed it – a/k/a, the spoliator. 

When parties are contemplating divorce, or reasonably know that a divorce action will be filed, neither the husband nor the wife should destroy evidence which may be relevant to the case. This would tangible and intangible evidence, including but not limited to e-mails, financial records, diaries, photographs or any data which may be relevant to the divorce suit. When parties first meet with a divorce lawyer, the lawyer should make them aware of spoliation and the potential consequences.

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Research conducted in 2000 by The Bureau of Justice Statistics indicates young adults between the ages of 16 to 24 experience the highest rate of intimate partner violence. Prior to 2001, individuals who were victims of dating violence had little, if any remedy under the law. If the victim and perpetrator had not been married, lived together (informal marriage), or had a child together, the victim was not eligible to seek a protective order.

Realizing the lack of protection for this segment of the population, the Texas legislature responded by adding provisions to the Texas Family Code defining dating violence and providing remedies at law. Section 71.0021 defines dating violence. To qualify for protection under the statute, one must have been in a dating relationship with the alleged perpetrator. A dating relationship means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. Factors that determine the existence of a dating relationship include: (1) length of the relationship; (2) nature of the relationship; and, (3) the frequency and type of interaction between the persons involved in the relationship.

A mere casual acquaintanceship or ordinary fraternization in a business or social context does not qualify as a “dating relationship” under the family code. 

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One of the most frequent inquiries my firm receives come from parents in dire need of child support and medical support, but who cannot afford the services of an attorney. Though my firm takes on a certain number of pro-bono cases each year, unfortunately, we cannot accommodate every request. 

Many parents who contact us do not realize that they may seek the assistance of the Texas Attorney General in collecting child support from the non-custodial parent. To seek services through the Texas Attorney General one may call 1-800-252-8014 or visit the web site at http://www.oag.state.tx.us/cs/parents/apply_services.shtml.  

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During the 80^th Legislative Session, there were some 375 updates to the Texas Family Code. One of the most important revisions impacts the calculation of child support. 

Current statue requires the obligor parent to pay a percentage of his/her net monthly resources for the support of the child(ren). Presently that amount is capped at the first $6,000.00 of the obligor parent’s net resources. Beginning September 1, 2007, the new cap amount will be $7,500.00. 

For example, the maximum child support for two children is presently $1,500.00 per month, but that maximum amount increases to $1,875.00 per month on September 1, 2007. 

The Texas legislature also provided that this amount is to be adjusted for inflation every 6 years. 

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Pets, whether canine, feline, avian, or an exotic, are often treated as members of the family. Some pet owners have gone so far as to create honorary trusts so that their pets would continue to be cared for in the event of the owner’s death or incapacity. However, because such a trust was not for the benefit of a charity or person with legal rights to enforce it, the trust created no enforceable duties. 

Fortunately, for die hard pet lovers, the 79^th Texas Legislature created a new provision under the Texas Probate Code to specifically allow for pet trusts. This provision became effective on January 1, 2006. If you care to read up on pet trusts, the statute (“Trust for Care of Animal”) can be found at Section 112.037 of the Texas Probate Code.

To find out more about planning for your pet’s future, you can contact the Humane Society of the United States at www.hsus.org/petsinwills.

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Though some U.S. states and foreign nations recognize civil unions between same sex couples, Texas is not one of those jurisdictions. In fact, Article I Section 32 of the Texas Constitution prohibits same sex marriages. 

Despite this provision in the Texas constitution, same sex couples form family units and require legal protection just as heterosexual couples. Unfortunately, the Texas Family Code sections dealing with marriage, separate property, community property, spousal support and divorce have no application to same sex couples. Therefore, it is important for same sex couples to create their own protections by expressing their intentions, agreements and expectations in a written contract.  

The answer is found in contract law. Same sex couples may tailor their individual solutions through the formation of an enforceable contract. Such contracts are generally referred to as domestic partnership agreements. A domestic partnership agreement is as unique as the couple it serves, but the agreement should at least address the following: (1) identify the parties to the agreement; (2) identify the property at issue and ownership of that property; (3) contemplate the potential for dissolution of the relationship through a break up; (4) contemplate the death of either party; and, (5) dispute resolution options such as mediation, arbitration, collaborative law, and litigation, if necessary. 

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In some divorce cases, even after the divorce decree is signed, high levels of conflict and animosity remain between the parents. These are the parties who cannot seem to stay off the court’s docket and continue to seek official intervention for all kinds of matters even after the case is closed. Unfortunately, legal pleadings, motions and hearings will do nothing to solve the underlying problems. 

Where such circumstances exist, the court on its own motion, or on the motion of one the parties may, appoint a parenting coordinator. The parenting coordinator is an individual who serves as a non-judicial referee between the parties and acts as a third party neutral. This concept is similar to mediation. He/She will meet with each parent individually and the children (if age appropriate) before attempting to work with the parties to fashion a solution. 

A parenting coordinator is usually trained in family dynamics, mental health, children’s issues, adolescent issues, and communications. The coordinator’s job is to assist the parties come to an agreement.   A parenting coordinator’s recommendations are not final or binding until both parties and the court accept the agreement. The costs for a parenting coordinator ranges based on the individual’s education and level of experience, but it is certainly less expensive than an endless barrage of motions and attorney’s fees.

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Juggling home, work, and children’s school and outside activities can be challenging even for the nuclear family, but trying to manage as a divorced family imposes even more difficulties – especially in terms of communications where relationships are strained.

Keeping a family calendar is an excellent way to keep organized. The same tool can be even more beneficial for families in transition. 

On-line resources may provide assistance to keep everything straight. 

www.sharekids.com

www.calendar.yahoo.com

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In family law cases where custody of a minor child is disputed, the family court may order a social study investigation. The objective of the investigation is to assesss the needs of the child as well as each parent's ability to meet those needs.

Investigators collection information from actual home visits, interviews with the parents, interviews with the child (when age appropriate), interviews with third party witnesses, school records, medical records, county agency records, and other sources to determine what is in the child's best interest.

A written report is filed with the family court in approximately 60 to 90 days after assignment. The report includes the investigator's recommendation as to which parent may provide the most nurturing, stable environment. The recommendation of the Investigator will be taken into consideration by the court when making a decision in the case.

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Child support payments are a matter of public record.  To obtain a report summarizing child support payments in a Harris County case, you may use one of the following methods:

By Mail

Send a self-addressed stamped envelope to :
Harris County Child Support
1115 Congress, Room 10
Houston, TX 77002-1927

A cause number must be included with the request.

In Person

You can request one in person at 1115 Congress, Room 10. You can pick up a payment history printout Monday through Friday between the hours of 8:00 a.m. and 4:00 p.m. at the inquiry window.

Internet site -- apps.jims.hctx.net/childsupport/

 

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If you are the obligor (the party ordered to pay child support), it is very important that you send your payments to the correct place on a timely basis.  Whether you send payment in the form of a check or money order, it is crucial that you include the cause number and/or account number.  Failing to provide that information may result in a delay of your payment being posted, or it may result in the payment being sent back to you for more information. 

Mail payments to:

Texas State Disbursement Unit
PO Box 659791
San Antonio, Texas 78265

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Parents with minor children who rely on timely payment of child support have another option besides waiting on a check from the Texas State Disbursement Unit.  Parents receiving child support have the option of receiving payments electronically deposited into a debit card account.  For more information on how to qualify for this service, please visit this web site:  www.hcdistrictclerk.com/child_support/Texas_Debit_Card.aspx

 

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Now that school is out for the summer, airports around the nation see a sharp rise in the number of children traveling alone to visit the non-custodial parent.  It is important for both parents to be aware of the airline's rules and regulations regarding unaccompanied minors -- or UM's as the airline personnel call them.  Though common sense should dictate how children traveling alone are handled, each airline's policies will be a little different.  Since September 11, 2001, airline travel rules have changed dramatically, and the same holds true for youngsters traveling alone.

Many airlines will not allow children under the age of 5 to fly alone.  Others do not permit children between certain ages to travel on flights that have stops, layovers, or that require equipment or crew changes. 

We all want to get the best travel deal available, but when booking a flight on-line, over the phone, or through a travel agent, be sure to mention that your child will be traveling alone and the age of the child.  Additionally, if your child has any special needs (medical or physical) it will be important to talk to the airline about this.

Additionally, there will be forms to fill out before the child is permitted to board the flight.  The airlines are pretty good about publishing policies and procedures for UM's on their web sites.  There is also a web site devoted specifically to unaccompanied minors, which can be found at unaccompaniedminor.net/.  This site has links to all the major airline web sites and UM's.

Have happy and safe travels.

 

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Generally speaking, neither party to a divorce in Texas may marry a third party before the 31st day after the date the divorce is decreed.  However, if the parties wish to remarry each other, there is no waiting period .  Further, if either party can show good cause, the party may receive a waiver of the waiting period.  See Tex. Fam. Code Sections 6.801 and 6.802.

The purpose of the waiting period is to curtail impulsive remarriage.  However, this is easily defeated if a recently divorced person travels to another state. 

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Texas law provides that a county clerk may not issue a marriage license if either applicant is under 18 years of age.  See Tex. Fam. Code Section 2.101. 

However, if an applicant is between the ages of 16 and 18 years of age, the county clerk shall issue a marriage license if parental consent is given.  A parent must provide consent through a written declaration on a form supplied by the county clerk in which the person consents to the marriage and swears under oath that the person is the parent or a judicially designated conservator of the minor. 

Knowingly providing consent under false pretenses is a Class A Misdemeanor in Texas. 

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When a couple applies for a marriage license in Texas, the general rule is that the marriage ceremony cannot take place during the 72 hour period immediately following the issueance of the marriage license by the county clerk.  However, there are some exceptions to this rule which involve members of the U.S. armed forces, U.S. Department of Defense Employees, and persons who request a waiver of the waiting period. 

A bill which passed in the Texas House and Senate during the 80th legislative session would provide another exception for couples who complete an 8 hour pre-marital education course and can provide a certificate of completion not more than one year before the date teh marriage license application is filed with the clerk.  House Bill 2685 is awaiting Governor Rick Perry's signature.

 

 

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House Bill 180, also known as the "covenant marriage" bill failed to pass during the 80th Legislature's regular session, which closed just after Memorial Day weekend.  The bill would have created two classes of marriage.  Couples would have been required tochoose between a covenant marriage, where obtaining a divorce would require more procedural hoops, or a regular marriage.  The bill was purportedly drafted to reduce the number of divorce filings in the state's civil courts. 

 

 

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Sometimes in child custody cases, the court may order one parent’s periods of possession and access to be supervised. A judge may order supervised visits if there is a history of family violence, child neglect, child abuse, if a parent has an active substance abuse problem, or other compelling reasons found by the court.

In some instances, the court may order the visitations occur at a facility such as the SAFE Program through the Harris County Victim’s Assistance Center.

While the parent ordered to have supervised visits through SAFE may feel shame, resentment or anger, it is important that he/she honor the court’s order and establish a positive history. 

Some advantages to consider about visiting your child through a program such as SAFE are that you will not have to interact with the other parent at all, which eliminates a great deal of hostility and anxiety. Drop off and pick up is facilitated by staff members. The time spent at the SAFE program is an opportunity for the child and parent to have fun together by talking, playing games, or participating in group activities. Unlike the custodial parent, the parent visiting through SAFE doesn’t have to hound the child to complete his/her homework assignments, do chores, or other mundane tasks associated with parenthood. Finally, supervised visitation through the SAFE program provides a venue for you to interact with your child where you may establish good history which will be reported to the court by un-bias third parties. The staff members who facilitate the program note how the visits are going and if the parent shows up. This history may provide future evidence to the court that supervised visits are no longer necessary. 

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Unfortunately, family violence is a reality in our society. It afflicts men, women, and children regardless of age, race, and socio-economic status. Often victims are too afraid or ashamed to ask for help. I encourage persons who are victims of domestic violence to seek help as soon as possible. 

Often the abuser controls financial resources, so the victim feels helpless to seek assistance. In that vein, I direct persons to the Texas on-line protective order kit. 

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During the divorce process, parents often find themselves at odds over numerous issues. Unfortunately, many children find themselves in the middle of a war zone. This is precisely why standard injunctions included temporary orders specifically forbid the parents from making disparaging remarks about the other parent in the presence of the children, or within earshot of the children. 

Courts and family law judges are sensitive to the best interest of the children, which does not include the exposure to derogatory statements about either parent, or other family members. Judges tend to be very protective of children during this process, and if the court finds evidence of deliberate efforts by either parent to alienate the children from the other parent, there can be serious consequences up to and including jail time. Court orders have teeth, and family judges have been known to bite when parents are behaving badly. 

Examples of deliberate parental alienation include: preventing the children from spending time with the other parent; urging the children to disrespect the other parent; making comments in front of or near the children that would cause the children to lose respect for the other parent; name calling; instigating arguments in front of the children; and subtle behaviors such as throwing away an otherwise appropriate gift the parent gives a child. 

Tensions run high during divorce, and these tensions can continue even after the divorce is final. If you have children, learning to co-parent with your Ex is crucial to the well-being of your children. Even if Mom and Dad no longer live together, they never take off their team jerseys as parents. 

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Couples who are avid about saving for retirement, or who have been married for a long period of time, often have significant assets in 401-K accounts. At the time of divorce, the deposits each spouse made into his/her 401-K during the marriage is community property subject to just and right division. Employer matching made during the marriage is also community property, provided that the employee is fully vested in the plan. Whether couples have agreed on how to divvy up these accounts or if the court makes a division, that is far from the end of the story.

401-K and pension plans are governed by the Employee Retirement Insurance and Security Act (ERISA), a federal law. 401-K and pension plans are administered by a plan administrator. No matter what the text of your divorce decree says, the plan administrator must pre-approve a qualified domestic relations order (QDRO) in order to divide the assets between spouses. Having a QDRO kicked back by the plan administrator potentially delays the division of assets and distributions. Therefore, attorneys often outsource the preparation of QDROs to consultants having special expertise in this area. 

Though this is another person on the divorce “payroll,” outsourcing saves time and money because the consultants have experience with various administrators and know what items are likely to cause a QDRO to be rejected. Whatever the flat fee charge for QDRO preparation, it is almost always less expensive than having your attorney charge by the hour to draft a complex document. 

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Susan Robicsek, author of the Bankruptcy Law Network recently posted an important article on balanced budgets and bankruptcy.  Since one of the top reasons marriages end in divorce involves financial strain, I think this article may provide benefit to many folks. 

When you rely on credit cards to cover things that don’t come up every month like car repairs, house repairs or medical issues, you have to recognize that your budget is not balanced. These things will come up and shouldn’t be a surprise when they do. In fact, there is little anyone can do to avoid them.
Maybe you use credit cards to buy groceries, because your paycheck goes to pay your other bills, like your rent/mortgage, car payment and credit cards or other revolving debt accounts.

If you are using credit to cover your living expenses or “emergencies”, you are spending more than you make to cover the things that occur in your life. When you have to borrow to pay for things you can’t afford now, you will pay back more when you consider the interest. So if you couldn’t afford to have something to begin with, why will it be easier to pay back more over time?

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The answer may depend upon which Texas court has jurisdiction over the case. The 14^th Court of Appeals in Houston, Texas and the Amarillo Court of Appeals have differing view points. 

If your case is in the Houston area, there is a tougher standard the custodial parent must satisfy to avoid being held in contempt (i.e., serving jail time for violating of a court order).

A 1995 Houston case requires that the custodial parent “drag the kids to the visiting parent’s car kicking and screaming” or face contempt. See Ex Parte Rosser, 899 S.W.2d 382 (Tex. App. – Houston [14^th Dist.] 1995, no writ). The only exception is if the custodial parent can affirmatively demonstrate his/her inability to compel the child to visit with the parent is involuntary. 

Other appellate courts have held that so long as the custodial parent has the children ready to go for visitation and they refuse, the custodial parent cannot be held in contempt. See Ex Parte Morgan, 886 S.W.2d 829 (Tex. App. – Amarillo 1994, no writ). 

In the realm of visitation drama, there may be instances where a parent: (1) actively discourages or impedes the visitation; (2) is passive about insisting that the child visit the other parent; or, (3) is truly unable to make a child comply with the visitation schedule. If your situation falls into the 1^st category, you run a high risk of behind held in contempt of court. If your situation falls into the 2^nd category, you might rethink your approach. Unless you have legitimately exercised every age-appropriate, reasonable option, the non-custodial parent may prevail in a contempt action. That may mean jail time for the parent who does not make concerted efforts insisting that the child visit the other parent, in addition to other penalties such as court costs and attorney’s fees. 

Of course, parents should exercise some common sense. It is quite different when a 9 or 10 year old digs in his/her heels about visitation. In that case, if there is no legitimate concern as to fitness of the other parent, some discipline is in order. The situation is quite different when a 16 year-old with a busy school and activity schedule decides for him/herself that he/she doesn’t want to spend time with the other parent. 

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One very important, and often overlooked, factor to consider as part of your dissolution of marriage is a re-evaluation, (or first evaluation as is often the case) of your estate plan. If there is no plan in place, the laws that will determine how your estate will be divided upon your death change significantly when you are divorced. If there is a plan in place, you will most certainly want to make changes for your future to match the changes in your life today. Below are some very basic points on estate planning from about.com:

If you have assets, no matter what your age, marital status, or financial wealth, you should plan your estate in the event of your death or incapacitation. If you should die without a sound estate plan, someone will be exposed to additional grief and expense. If you become incapacitated, your bills might not get paid. You could also be put on life support which is OK unless you have strong feelings about your life being prolonged artificially if you have no chance for recovery. A little preparation and maintenance could make this difficult time less taxing for those you love and who love you.

There are many reasons to have a sound estate plan but here are eight I feel are most important. If you should die or become incapacitated, a sound estate plan could:

1. save your family thousands of dollars
2. distribute your assets to those of your choosing, not of the government's choosing
3. designate who will raise your minor children
4. make sure someone is authorized to pay your bills
5. avoid conflicts among your family members
6. make sure your assets aren’t divided among your children’s ex-spouses
7. keep your children from frivolously spending the inheritance
8. prevent death taxes.

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The following are some infomative and useful tips on the sale of a residence in divorce from divorcehq.com

For many people going through a divorce their biggest asset is their home or in legal speak, the marital residence. Deciding what to do about the marital residence is often a major issue in a divorce. There are a few different options when it comes to splitting the marital residence.

One option is for one spouse to keep the house and buy out the other spouse's share. Another option is for one spouse to be granted exclusive use for a specified period of time, usually when the youngest child turns 18, after which the house will be sold. Finally, the house can be sold outright with the profits being allocated to each spouse.

Should you sell your house? Hard as it may be this is a decision that needs to be made devoid of emotions. As a practical matter take into consideration whether or not it is financially beneficial to keep the home. If not and you do decide to sell here are a few tips to help you through the process.

Time is money: Put your home on the market as far in advance as possible of purchasing a new one. Remember that when people buy and sell a home there usually is a domino effect. Closing and moving dates have to be coordinated, and the more firmly everyone commits to a window of dates and sticks to them, the better for all involved. Put all agreements about dates in writing, and protect yourself by negotiating financial penalties for failure to live up to the agreement.

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A parent absconding with a child is a frightening thing when it occurs in your own country. However, when a parent abducts a child taking him/her to a foreign country, or wrongfully retains the child in a foreign country, the physical distance is only one of the complexities. 

In 1980, the US and other nations implemented the Hague Convention on the Civil Aspects of International Child Abduction. One of the main purposes is to protect children from the harmful effects of their wrongful removal or retention in a foreign country. In 1988 Congress adopted provisions to implement the protections of the Hague Convention under the International Child Abduction Remedies Act (ICARA). 

If you suspect that your child has been wrongfully removed from your custody and taken to a foreign country, the first things to do after calling law enforcement, are determine whether the country is a member of the Hague Convention, and work with your attorney to report the abduction or wrongful retention to the State Department’s Office of Children’s Issues. You and your attorney would submit an application for assistance under the Hague Convention. Form DS-3013. 

Another preliminary step involves filing a petition for relief in a state and/or federal court with jurisdiction over the child custody action. The legal issue will not be what is in the child’s best interest, but which jurisdiction should hear the matter. For example, which jurisdiction should hear the custody matter – the courts from where the child was taken, of the courts where the child is currently located? There are at least three elements that the petitioning parent must demonstrate: (1) the child was abducted from his/her country of habitual residence; (2) the petitioning parent had custody of the child at the time the child was wrongly removed and/or retained; and, (3) the petitioning parent was exercising his/her custodial rights at the time the child was removed. See 42 U.S.C. § 11603 (e) (2) (A) (West 1998). 

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This spring, the Texas Legislature began considering whether to revise the Family Code to include provisions for the creation and dissolution of a "covenant marriage."  Essentially, when couples obtain their marriage license from the County Clerk's office, they will have to elect whether or not they want a covenant marriage.   House Bill 180 is on the general calendar for May 8, 2007. 

The Texas House Committee's analysis indicates: 

C.S.H.B. 180 amends the Family Code to provide for the creation of a covenant marriage and the collection of applicable fees. The bill provides that applicants for a marriage license select either a covenant or non-covenant marriage license. The bill requires the county clerk to indicate on the marriage license whether the license is for a covenant marriage.

 

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When a marriage ends in divorce, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn't’t have to change is the credit status you’ve worked so hard to achieve.

Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one spouse’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.

The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.

The first step for anyone going through a divorce is to obtain copies of your credit report from the 3 major agencies: Equifax, Experian®, and TransUnion®. It’s impossible to formulate a plan without having a complete understanding of the situation. (Once a year, you may obtain a free credit report by visiting www.AnnualCreditReport.com.)

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According to data from the United States Department of State, since the late 1970's approximately 16,000 children have either been abducted from the United States or prevented by one of their parents from returning to the United States.travel.state.gov/family/abduction/abduction_580.html  The advent of the Internet, e-mail, and a global economy have made international marriages more common.  Therefore, it is likely that international child custody conflicts will increase in the future.

Once a child is taken from the United States, there is a series of complicated procedures that must be undertaken to regain possession of the child.  A great deal also depends on whether the country where the child was taken is a member of The Hague Convention.travel.state.gov/family/abduction/hague_issues/hague_issues_1487.html  Therefore, an ounce of prevention is worth a pound of cure.

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Marriage has become a delicate venture. According to the U.S. Census bureau, about nine out of ten people will marry sometime in their lives, but about half of first marriages will end in divorce. And while some marriages end peacefully, with both sides agreeing to an equal and fair settlement, some do not, and the ensuing process can get quite vicious.

When ex-spouses significantly distrust each other, it is advisable to engage the services of a lawyer, especially if one or both do not understand their household finances and the economic implications of marital settlements. In turn, attorneys often hire CPAs as forensic accountants to help represent the spouse who doesn’t have access to the family’s financial information.

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It is one of the first questions that needs to be addressed, often in an atmosphere of mistrust, hurt and hostility. Nonetheless, a decision must be made. Avoiding the issue will only make the government richer at the expense of the couple.

Ordinarily, joint returns produce a lower tax on the joint incomes of a husband and wife than filing separate tax returns. But in many instances, filing separate returns may actually produce a lower combined federal and state tax. Consequently, separate returns should always be computed. If by filing separate returns, a lower combined tax results, one issue of disagreement can be resolved immediately by the filing of separate returns.

However, when the combined tax liability is less by filing a joint return, several non-tax issues remain. During divorce proceedings a spouse may refuse to file a joint return because of hostility or vindictiveness, or fear of the resulting liability (joint and several) for tax, penalties and interest that is actually due (whether or not correctly shown) on the return.

The price to be paid for not filing a joint return is not only higher tax rates, but loss of some elections, credits, and deductions or exemptions.

Where one party insists, often at the advice of counsel, in filing a separate return at a higher tax cost to the couple, the spouse injured by the separate return filing could be compensated for the additional tax in a property settlement. In effect, this is an insurance premium paid by the spouse seeking protection from joint and several liability. Some judges follow this practice.


SOURCE: DivorceSource

Source for Post: Georgia Family Law Blog.

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Texas marital property has rich history with roots from the Spanish legal tradition.  Texas is also unique in that its marital property rights are constitutionally based.  Article 15 Section 16 of the Texas Constitution defines separate and community property, and the Texas Family Code also provides guidance as to the differences between separate and community property. 

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For Texas parents entering the realm of divorce and custody litigation, the phrase "best interest of the child" will be heard throughout the process.  This is probably the most often quoted phrase in the Texas Family Code.  The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of an access to the child.  See Tex. Fam. Code Section 153.002. 

What does "best interest of the child" really mean, and how are those interests determined?  This seems to be a very subjective standard that could vary from judge to judge.  While that is partially true, case law provides guidance. 

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Common law marriage is legal terminology often casually used in conversation, but persons involved in marriages without formalities may not be aware of the statutory elements, or that the Texas legislature has revised the law several times since 1989.

Information regarding common law marriage is found in the Texas Family Code at 2.401 - 2.402. 

A man and woman may enter into an informal marriage by one of two methods:

• Executing a written declaration as described in Tex. Fam. Code Section 2.402; or
• By meeting a three prong evidentiary test:

1. the man and woman agree to be married;
2. the man and woman cohabitate in Texas;  and,
3. the man and woman hold out to other parties that they are married.

 

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It is not uncommon for grandparents to play an active role parenting and caring for their grandchildren.  This may happen when an adult child returns home after being on his/her own, when an adult child gets divorced, or for a variety of reasons wherein the child's parent cannot be around. 

The significant legal question is when may a biological or adoptive grandparent obtain court-ordered access to his/her grandchild.

 

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In a recent poll of members of the American Academy of Matrimonial Lawyers (AAML), 49% of the divorce attorneys cited an increase in postnuptial agreements during the past five years. Interestingly enough, 58% of the respondents most frequently draw up the agreements as a result of a request made by both parties, rather than it coming from either a husband or wife individually.

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For the millions of couples who face divorce each year, The Smart Divorce offers an alternative to court without giving up getting what you want

Research reveals that how a couple conducts themselves during a divorce has far greater impact on their children than the divorce itself. Compassionate, clear, and comprehensive, The Smart Divorce is the first trade book to introduce a dignified, highly strategic solution to divorce-the collaborative process, a nationally acclaimed approach that is fast transforming how couples dissolve their marriages, divide their assets, and reinvent their post divorce relationships, particularly when they share custody of their children.

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THE COLLABORATIVE LAW PROCESS:
RESOLVING FAMILY DISPUTES WITH
DIGNITY
The court system’s litigation process is often not a
“family friendly” or a “child friendly” environment to
resolve family disputes such as divorce, custody or child
support issues. Parents, spouses, relatives and friends are
sometimes forced to take sides in a courthouse dispute
that pits the parties against each other in a litigation
“war.”

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