Am I Eligible For Spousal Support In Texas? – Alimony

Divorce is one of the most emotional proceedings in Texas courts. What can make divorce an even more emotional happening is the possibility of supporting an ex-spouse, oftentimes in addition to the division of community property and the payment of child support. This can be overwhelming for the spouse that is ordered to pay spousal support or maintenance. However, this may be a just and right solution to the ex-spouse who is unable to earn enough income due to barriers created during the marriage. Spousal support, or what the Texas statute refers to as spousal maintenance, is a fortunate solution for ex-spouses. What is spousal support and who is eligible? Let’s discuss. FAMILY LAW ATTORNEYS (832) 410-8935 What is Spousal Support or Spousal Maintenance? Chapter 8 of the Texas Family Code defines ‘maintenance’ as, “an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.” The Code states that the award of spousal maintenance would oblige one spouse to make periodic payments from future income to support the other spouse. Who is Eligible for Spousal Support or Spousal Maintenance? An ex-spouse is not automatically eligible for spousal maintenance. Chapter 8 of the Texas Family Code also outlines who in fact may apply for and receive spousal maintenance. Section 8.051 of the Code states, In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses […] the court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:  the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:          (A)  within two years before the date on which a suit for dissolution of the marriage is filed; or(B)  while the suit is pending; or  the spouse seeking maintenance: (A)  is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an  incapacitating physical or mental disability; (B)  has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or (C)   is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs. In short, the court will consider whether the spouse seeking maintenance will lack sufficient property — including  the spouse’s separate property–on dissolution of the marriage to provide for the spouse’s minimum reasonable needs....
Read more

source http://www.houstondivorcelawyerformen.com/eligible-for-spousal-support-in-texas/

Guardian Ad Litem vs. Attorney Ad Litem

Protecting the interests of a ward, or proposed ward is a Texas court’s primary interest. In order to protect those interests, the court may appoint individuals with distinct duties to represent a ward or proposed ward. Two of those individuals are called a guardian ad litem and an attorney ad litem. What are their roles and who do they differ? Let’s see. CALL (832) 410-8935 – DIVORCE ATTORNEYS What is a Guardian Ad Litem? To best understand the role of a guardian ad litem, it is best to look to the Texas Family Code for a definition. Section 107.001 of the Code defines a guardian ad litem as, A person appointed to represent the best interests of a child.  The term includes: (A)  a volunteer advocate from a charitable organization described by Subchapter C who is appointed by the court as the child’s guardian ad litem; (B)  a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests; (C)  an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or (D)  an attorney ad litem appointed to serve in the dual role. TRENDING TOPICS Best Interests of the Child | Retroactive Child Support | Temporary Restraining Order Duties of a Guardian Ad Litem According to Section 107.002 of the Texas Family Code, a guardian ad litem may: conduct investigations: review medical records, medical care, and school records; interview the ward or proposed ward –4 years old or older in an appropriate manner – and individuals with knowledge of the ward’s history; consider the ward’s expressed objectives; encourage settlement and the use of alternative forms of dispute resolution; and any other duty ordered by the court. A guardian ad litem is also entitled to receive copies of pleadings; attend court procedures; participate in case staffings by the Department of Child Protective Services; review and sign orders considering the ward or proposed ward; testify in court proceedings to the best interests of the ward; and the bases for the guardian ad litem’s recommendations to the court. Although the guardian may attend court proceedings, this is not to be confused with representing the ward or proposed ward’s legal interest. In sum, the guardian ad litem’s purpose is to push for a ward or proposed ward’s best interest. The guardian will push for the ward or proposed ward’s best interest without representing the ward in a legal manner. What is an Attorney Ad Litem? In order to represent a child, ward, or proposed ward’s legal interests, the court will often appoint an attorney ad litem which the Texas Family Code defines as, “an attorney who provides legal services to a person, including a ward, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” (For a more in-depth discussion see Attorney Ad Litem Article). Duties of an Attorney Ad Litem According to Section...
Read more

source http://www.houstondivorcelawyerformen.com/guardian-ad-litem/

What Does “Best Interest Of The Child” Mean?

Many times in legal proceedings that include children, the term “best interest of the child” arises. This term is most prominent in suits affecting the parent-child relationship. What is considered the best interest of the child and when is it important? Let’s discuss. CALL THE DIVORCE ATTORNEY IN HOUSTON (832) 410-8935. What does “Best Interest of the Child” Mean? The best interest of the child is one of the most monumental considerations by the court when a child is involved. Section 153.002 of the Texas Family Code states, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Factors to Determine the Best Interest of the Child The Texas statute is very vague on what exactly this very monumental standard means. The Code does not list a set of factors to help courts determine the best interest of the child. In instances like this, where statutes are lacking in definitions, courts and legal professionals look to legal precedent set by previous cases that attempted to answer this question. Legal precedent has set the following as factors the courts may consider in determining the best interest of the child. These factors include, but are not limited to: What the child actually desires Present and future emotional and physical needs of the child Present and future emotional and physical danger to the child The ability of each each individual seeking custody to parent the child The income and home environment of each individual seeking custody Programs available to each individual seeking custody that may aide in promoting the best interest of the child Any history of family violence of each individual seeking custody The future plans set for the child made by each individual seeking custody The ability of each individual seeking custody to maintain stability in the child’s life Any act or omission of an act from each individual seeking custody that may potentially harm the child What Weight does a Child’s Preference have? The Texas Family Code allows a child of a certain age to make a determination in writing of that child’s preference to a certain situation. Section 153.009 of the Texas Family Code states: “In a nonjury trial or at a hearing, on the application of a party, the  amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.  The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.” This section states that a child over 12 years of age may be interviewed in the judge’s chambers to determine the child’s wishes. However, it is monumentally important...
Read more

source http://www.houstondivorcelawyerformen.com/what-does-best-interest-of-the-child-mean/

Retroactive Child Support – Back Child Support in Texas

Oftentimes, many parents believe that unless a court order is given, child support payments do not need to be paid. These parents are mistaken and will be unpleasantly surprised with retroactive child support. This article will discuss what retroactive child support means and how is it determined. CALL THE HOUSTON DIVORCE EXPERTS AT (832) 410-8935 What is Retroactive Child Support? Retroactive Child Support occurs when a parent who should have been making child support payments, prior to the date the court order was established, fails to do so. Two statutes in the Texas Family Code discuss retroactive child support: Section 154.009 and Section 154.131. Back Child Support in Texas Section 154.009 of the Texas Family Code states, (a) The court may order a parent to pay retroactive child support if the parent: has not previously been ordered to pay support for the child; and was not a party to a suit in which support was ordered. (b)  In ordering retroactive child support, the court shall apply the child support guidelines provided by this chapter. (c)  Unless the Title IV-D agency is a party to an agreement concerning support or purporting to settle past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support that the agency may request. (d)  Notwithstanding Subsection (a), the court may order a parent subject to a previous child support order to pay retroactive child support if: the previous child support order terminated as a result of the marriage or remarriage of the child’s parents; the child’s parents separated after the marriage or remarriage; and a new child support order is sought after the date of the separation. (e)  In rendering an order under Subsection (d), the court may order retroactive child support back to the date of the separation of the child’s parents.   As outlined above, the court may order a parent to pay retroactive child support if the parent had not been ordered to have done so before. Note, according to this section, if an agreement to pay child support had been halted and later on needed to be reactivated, retroactive child support may also kick in. This will be better illustrated through an example. Suppose child support payments were halted due to a new marriage; when that marriage ends, the need for child support will be reactivated. The court then may order retroactive child support initiating at the date of separation. Factors Considered in Ordering Retroactive Child Support The court will consider many factors in rendering an order for retroactive child support. These factors are outlined in Section 154.131 of the Texas Family Code which states, (a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered. (b)  In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether: the mother of the child had made any...
Read more

source http://www.houstondivorcelawyerformen.com/retroactive-child-support-back-child-support-in-texas/

Temporary Restraining Orders in Texas, Harris County

Circumstances arise in which parties are in need of immediate protection from certain individuals. Fortunately, the Texas Family Code provides an immediate response to potential danger and provides protection to a party, a child, or property. This protection comes in the form of a Temporary Restraining Order (TRO). What is a TRO and what does it do? Let’s discuss. Need help now? If you are in danger, then contact the police. If you need to speak to a family law attorney call (832) 410-8935. What is a Temporary Restraining Order? A TRO serves the purpose of restraining a party from a specific behavior that is prohibited by the TRO. Section 6.501 of the Texas Family Code outlines about 23 behaviors that a TRO can be issued to restrain. In short, the court states upon filing of a suit for the dissolution of a marriage, the court may grant a TRO without notice to the adverse party for the “preservation of the property and for the protection of the parties as necessary”. The TRO can prohibit one or both parties from – including but not limited to— the following: Communication or threatening the other party with the intent to annoy or alarm the other party. This includes placing anonymous phone calls repeatedly to offend or annoy the other party; Intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party or threatening either party with imminent bodily injury; Threatening the other party or a child of either party with imminent bodily injury; Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party; Falsifying a writing or record; Refusing to disclose important information to the other party or court; Refusing to disclose the amount or location of certain property; Intentionally damaging or destroying or tampering with property to create substantial loss or substantial inconvenience to the other party; Selling or transferring property of either party unless authorized by the court; Incurring debt; Withdrawing money from any financial institution or spending money in either party’s possession; Withdrawing money for any purpose from a retirement plan or life insurance policies; Entering a safe deposit box of either party; Changing or altering the name of a beneficiary of a life insurance policy; Canceling, altering, or failing to renew all insurance policies; Opening mail or communication addressed to the other party; Signing or endorsing the other party’s name on any negotiable instrument, check, or draft; Taking any action to terminate or limit credit or charge credit cards in the name of the other party; Destroying, disposing of, or altering any financial records of the parties; Destroying, disposing of, or altering any e-mail, text message, video message, or chat message or other electronic data relevant to the subject matter of the suit for dissolution of marriage; Deleting any data or content from any social network profile used or created by either party or a child of the parties; Terminating...
Read more

source http://www.houstondivorcelawyerformen.com/temporary-restraining-orders-in-texas-harris-county/

Grounds For Annulment

The terms annulment and divorce are oftentimes confused. Although, at first glance, these terms might seem similar, they are actually very distinct. In short, a divorce occurs to end a once valid marriage; an annulment occurs to end a marriage that was never valid.  In order to determine whether or not a marriage is valid, it is important to review the grounds for annulment. Contact our Texas Family Law Attorneys Today (832) 410-8935. Grounds for Annulment in Texas Chapter 6 of the Texas Family Code allows an annulment in the following circumstances: annulment of marriage of a person under age 18; under the influence of narcotics; impotency; fraud, duress, or force; mental incapacity; concealed divorce; marriage less than 72 hours after issuance of license; and the death of party to voidable marriage. Annulment of Marriage of Person Under Age 18 Section 6.102 of the Texas Family Code states, “The court may grant an annulment of a marriage of a person 16 years of age or older but under 18 years of age that occurred without parental consent or without a court order as provided by Subchapters B and E, Chapter 2.” It is important to note that the suit to annul a marriage under this section may not be filed by a parent or guardian of a person after the 18th birthday of the person. Annulment of Marriage Made Under the Influence of Alcohol or Narcotics Section 6.105 of the Texas Family Code states, The court may grant an annulment of a marriage to a party to the marriage if: at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended. Annulment of Marriage Due to Impotency Section 6.106 of the Texas Family Code states, The court may grant an annulment of a marriage to a party to the marriage if: either party, for physical or mental reasons, was permanently impotent at the time of the marriage; the petitioner did not know of the impotency at the time of the marriage; and the petitioner has not voluntarily cohabited with the other party since learning of the impotency. Annulment of Marriage Due to Fraud, Duress, or Force Section 6.107 of the Texas Family Code states, The court may grant an annulment of a marriage to a party to the marriage if: the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force. Annulment of Marriage Due to Mental Incapacity Section 6.108 of the Texas Family Code states, (a)  The court may grant an annulment of a marriage to a party to the marriage on the suit...
Read more

source http://www.houstondivorcelawyerformen.com/grounds-for-annulment/

Annulment Marriage vs. Void Marriage

The dissolution of marriages is a common happening in Texas Courts. Dissolution could occur through proceedings such as divorce or annulment. A marriage may also be considered completely void. What is the difference between a marriage dissolved by annulment and a marriage that is voided? Let’s see. If you are considering a divorce in the Houston area, then contact our family law attorneys at (832) 410-8935. Texas Marriages Dissolved by Annulments Chapter 6 of the Texas Family Code allows an annulment in the following circumstances: annulment of marriage of a person under age 18; under the influence of narcotics; impotency; fraud, duress, or force; mental incapacity; concealed divorce; marriage less than 72 hours after issuance of license; and the death of party to voidable marriage (See Grounds for Annulment Article). In short, an annulment occurs to end a marriage that was never valid to begin with. Void Marriages in Texas Annulments and void marriages are oftentimes confused. However, Section 6.201 through 6.206 of the Texas Family Code describes the instances in which a marriage can never occur. These instances will automatically make a marriage a void marriage. Under the Texas Family Code, a marriage is void [never occurred] if: consanguinity exists; a marriage is entered into when either party is already married; marriage with one party being a minor; marriage entered into when either party is a stepchild or stepparent. Consanguinity Section 6.201 of the Texas Family Code declares a marriage void due to consanguinity if, one party to the marriage is related to the other as: an ancestor or descendant, by blood or adoption; a brother or sister, of the whole or half blood or by adoption; a parent’s brother or sister, of the whole or half blood or by adoption; or a son or daughter of a brother or sister, of the whole or half blood or by adoption. In short, blood relatives are off-limits in Texas. Marriage During Existence of Prior Marriage Section 6.202 of the Texas Family Code declares a marriage void if, “entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.” If this circumstance exists, the Texas Code declares that the later marriage that is void under this section, becomes valid when the prior marriage is dissolved, and the new spouses live together as husband and wife. Marriage to a Minor Section 6.205 of the Texas Family Code declares a marriage void if, “either party to the marriage is younger than 16 years of age, unless a court order has been obtained under Section 2.103.” Marriage to a Stepchild or Stepparent Section 6.206 of the Texas Family Code declares a marriage void if, “a party is a current or former stepchild or stepparent of the other party.” Annulments vs. Void Marriages Void marriages are brought through a legal proceeding called a “suit to declare a marriage void”. In this proceeding, the court will look to...
Read more

source http://www.houstondivorcelawyerformen.com/annulment-vs-void/

Service Of Process For Divorce In Texas

There are six main steps in the divorce process in Texas: filing a petition for divorce; formally notifying the non-filing spouse of the divorce; agreeing to temporary orders; learning about assets and debts through discovery; negotiating a final settlement; and finalizing the divorce. This article will focus on the second step – formally notifying the non-filing spouse of the divorce. The process in which divorce documents are to be served are outlined in the Texas Family Code and the Texas Rules for Civil Procedure. Considering Divorce? Houston Divorce Attorney (832) 410-8935 Obtaining the Proper Documents After filing a proper petition for divorce and retaining an attorney, the next step would be to formally notify the non-filing spouse of the divorce or properly serving the divorce documents to that spouse. This step is monumentally important in order for the rest of the divorce process to go smoothly. When filing a divorce petition, the local district clerk will be able to provide a citation form (a one-paged document). That document should be attached to the very front of the petition. The citation form provides instructions of relevant deadlines and subsequent steps to the non-filing spouse. It is important to note that the state of Texas provides distinct forms depending on whether the spouse lives in the same county in which the petition is filed, or elsewhere. It is greatly important to indicate to the local district clerk the county in which the non-filing spouse lives. Also, the clerk will provide, upon request, a copy of the Information for Service of Process document. This form will be completed with the information that would indicate the physical appearance and location of the non-filing spouse. Serving the Spouse When all proper documents are gathered, it is then appropriate to present the documents (which include the citation and the Information for Service of Process form) to the sheriff. It is important to note that the location of the sheriff must be in the county in which the non-filing spouse resides. It is then the duty of the sheriff to search for the non-filing spouse as by the information provided in the documents. Generally, the sheriff will then locate and present the non-filing spouse with the documents. Upon service, the filing-spouse will receive a receipt in the mail declaring that the non-filing spouse has been served. This receipt should then be filed with the court. What if the Non-filing Spouse is not Located? There are situations in which the sheriff will be unable to locate the non-filing spouse for service. This scenario is common – oftentimes, the non-filing spouse will be aware of an oncoming divorce and will attempt to avoid it for as long as it is possible. In this circumstance, the filing spouse will be able to file what is called a “special motion” with the court. The filing spouse will then be able to obtain special permission from the court to serve the spouse through other means. The judge will be able to provide...
Read more

source http://www.houstondivorcelawyerformen.com/service-of-process-for-divorce-in-texas/

Texas Homestead Law

Homestead protection laws in Texas are designed to help people in the event of a foreclosure, death of a loved one, or any change in economic circumstances that an individual may face. What is a homestead and who is entitled to a homestead protection? Let’s see. What is a Homestead? In order to discuss homestead protections, one must first understand what a homestead is. In the legal field, a homestead is defined as the house, outbuildings, and adjoining land owned and occupied by a person or family as a residence. Chapter 41 of the Texas Property Code differentiates homesteads as being urban or being rural. The Code states determines if the homestead is urban or rural based on the following: (a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single, adult person, not otherwise entitled to a homestead, shall consist of not more than 10 acres of land which may be in one or more contiguous lots, together with any improvements thereon. (b)  If used for the purposes of a rural home, the homestead shall consist of: for a family, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or for a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon. (c)  A homestead is considered to be urban if, at the time the designation is made, the property is: located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision; and served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality: (A)  electric; (B)  natural gas; (C)  sewer; (D)  storm sewer; and (E)  water. (d)  The definition of a homestead as provided in this section applies to all homesteads in this state whenever created. Note, Texas no longer provides a homestead exemption to businesses exclusively; instead, the statute allows the urban classification to apply to both home and businesses. Texas courts have repeatedly determined that the homestead lies on the intent of how the individual plans to use the property even though the individual does not necessarily have to reside on the property. Texas Homestead Protections Now that it is established what a homestead is, it is proper to discuss what protections it extends. Establishing a homestead extends the following protections: Creditor Protection before and after death; Special occupancy rights for surviving spouses and minor children; and Tax Savings. Creditor Protection Before and After Death According to the Texas Constitution and Section 270 of the Texas Probate Code, the homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for the exceptions listed by...
Read more

source http://www.houstondivorcelawyerformen.com/homestead-protections/

Reporting Child Abuse

Sometimes, it is difficult to draw a line between child abuse and disciplining a child. Other times, it is not as difficult. Luckily, Texas outlines what it considers child abuse and the proper guidelines to report it. What does Texas Consider Child Abuse? The Texas Family Code is far from vague on what it defines as child abuse. Chapter 261 of the Family Code lists abuse as: mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning; causing or permitting the mental or emotional injury; actual physical injury that results in substantial harm to the child; failure to make reasonable effort to prevent action from another person that causes injury to the child; sexual conduct that harms the child’s mental, emotional, or physical welfare; failure to make reasonable effort to prevent the sexual conduct; compelling or encouraging a child to engage in sexual conduct; encouraging, permitting, causing, or engaging in photographing, filming, or depicting of a child in obscene or pornographic content; harming the child through the use of a controlled substance; encouraging a child to use a controlled substance; causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child; allowing the sexual trafficking of a child; or neglecting a child. Reporting Child Abuse Now that child abuse is defined, it is appropriate to discuss who is obliged to report it. Chapter 261.101 of the Texas Family Code states dictates the persons required to report any suspected child abuse and at what time: (a)  A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. (b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. The Code goes on to state that a professional may not delegate the duty to make a report to anyone else. It is important to note that under the Texas Family Code, there lies no exception to the duty to report for, “any individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or healthcare facility that provides reproductive services.” When in doubt, if there is any suspicion of child...
Read more

source http://www.houstondivorcelawyerformen.com/reporting-child-abuse/

Community Property vs. Separate Property in Texas

States all over the United States have different laws for dividing property. Texas, happens to be what is called, a “Community Property State”. What does being a community property state mean? What are the differences between community and separate property? Courts use a simple method to differentiate the two types of property—they look at the exact time the property was acquired. What is Separate Property? Separate property is property acquired by an individual before the marriage, or, during the marriage if acquired by gift, devise or descent, or agreement. Examples of separate property include: income earned or property owned by either spouse before the marriage; any property acquired by gift or inheritance; and damages for a personal injury claim for a physical injury sustained. It is important to note that any damages awarded for a physical injury claim is separate property, even if the injury was acquired during the marriage. This is because the injury was sustained by one spouse, not both. One spouse cannot benefit from the other spouse’s physical pain. What is Community Property? In Texas, there is a rebuttable presumption that property is considered community property if the property was acquired during the marriage. This presumption can be rebutted by the methods of tracing, testimony, and documentation. Examples of community property include: income by either spouse during the marriage or property purchased with the income; real estate purchased during the marriage; and interest or capital gain earned on both separate and community properties. Tracing Property It is important to note that property acquires its classification as separate or community property at the time the property is acquired, this is called the “Inception of Title Rule” (See Inception of Title Article). Courts use the tracing method to trace back the origin of the property to the time it was acquired to determine its classification. For example, if a home is purchased by an individual before the marriage, sells the home during the marriage, and with the funds from the sale buys a car during the marriage; the car will remain separate property. The courts will trace the funds back to its original form; therefore, because the home was separate property (purchased before the marriage) at the time it was acquired, the new car will be separate property even if it was purchased during the marriage since it was purchased with separate property funds. Note, however, it is important not to commingle different types of property. Otherwise, it might be increasingly difficult for the courts to trace the property at the time of division. Can Property be both Community and Separate Property? Oftentimes, funds are commingled enough to make it difficult to trace the classification of a certain property. This is best illustrated with an example. Suppose a home was purchased during the marriage and the down payment was paid with separate property. Although the home would be considered community property, the down payment would still be considered separate property. Through the method of tracing, the down payment could...
Read more

source http://www.houstondivorcelawyerformen.com/community-property-texas/

Inception of Title Rule – Texas Divorce Attorney

How does the court decide the classification of property upon its division? States differ on answering this question, however, Texas is a community property state that has adopted the inception of title rule. Call (832) 410-8935 to speak to a family law attorney in Houston. The Community Property Presumption In Texas, there is a rebuttable presumption that all property owned by either spouse at the dissolution of a marriage is considered community property. According to Tex. Fam. Code Sect. 3.003(a) the statute states: “Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” This presumption may be rebutted by clear and convincing evidence to the contrary. The Inception of Title Rule Oftentimes, to rebut the presumption that a property is community property, courts will look to the character of the property at the time the person first acquires an interest in the property—this is referred to as the inception of title rule. In general terms, property acquired before the marriage is considered separate property. While, property acquired during the marriage – unless by gift, decent, or devise—is considered community property. It is monumentally important to note that once a character of property is acquired, that character does not change even if the form of the property changes. That sounds like a mouthful, but let’s illustrate with an example. Consider a man purchases a home with his separate property before the marriage. If the man sells the home during the marriage and purchases a car with the same funds of the sale, the new car will remain his separate property. This is so because of the inception of title rule. The first home was purchased with the man’s separate property; the fact that the man bought the car during the marriage does not automatically make the car community property because it was purchased with funds that where characterized as separate property at the time of acquisition. Bottom line is, the form of the property does not change its character. How does the Court Determine the Character of the Property? The court uses a method called tracing to determine the character of the property at the time of its acquisition. Tracing means tracing the funds back to the time it was originally acquired from its current state. (See Community Property vs. Separate Property in Texas Article).

source http://www.houstondivorcelawyerformen.com/inception-of-title-rule/

Who Gets Retirement Benefits In A Texas Divorce?

Division of property is a complicated issue under the circumstances of a divorce, not to mention when the property being divided is retirement benefits. So who gets retirement benefits in a divorce? Let’s see. Article published by the Texas Divorce Attorneys (832) 410-8935. Assuming there is no prenuptial agreement, here is a breakdown of how division may occur. What are Considered Retirement Benefits? In order to discuss the division of retirement benefits, it is first beneficial to know what exactly is considered a retirement benefit. Retirement benefits are: 401(k) accounts, deferred compensation accounts, individual retirement accounts (IRA), and other retirement savings plans. How are Retirement Accounts Characterized? Like other property, the characterization of retirement accounts depends on whether the contributions by either spouse were made before or after the marriage. Consequently, all contributions made to the retirement account made before the marriage are considered separate property of the spouse who made the contributions. Similarly, all contributions made to the retirement account by either spouse are considered community property (See Community Property vs. Separate Property in TX Article).  It is irrelevant whose name is on the account at the time of contribution or division. Note, courts value each retirement plan at the date of the divorce instead of valuing the retirement plan at its actual value. Who gets the Retirement Benefits in a Divorce? After understanding what counts as retirement benefits and how these benefits are classified, the question can then be answered—who gets the retirement benefits in a divorce? Well, it depends. Generally, it is proper to consider two main factors, at what time were the benefits acquired (before or after marriage) and what contributions did each spouse make to the retirement benefits? Once these two questions are answered, then it would be clear to determine what each spouse will receive. Multi-state Retirement Benefits Many times, married couples will move from state to state throughout their marriage. Texas courts will determine the character of the retirement benefits in accordance with the laws of the state or residence at the time the retirement benefits are accrued. Let’s illustrate this with an example. Suppose a couple lives in a state that is a common law state (different than Texas) for five years during the marriage. The retirement benefits accrued during those five years will be classified under the laws of the common law state instead of the “just and right” division that is applied under Texas jurisdiction courts.  

source http://www.houstondivorcelawyerformen.com/retirement-divorce/

Texas Prenuptial Agreements, a/k/a Premarital Agreements

Marriages often join two individuals who promise their lives to each other– for better of for worse. Oftentimes, for worse comes sooner than the couple expected. Fortunately for these couples, Texas laws outline the concept called premarital agreements that could protect the assets of each spouse.  What does the Texas Code say about this? Let’s see. Houston Family Law & Divorce Lawyers (832) 410-8935. What is a Premarital Agreement? Chapter 4 of the Texas Family Code defines a premarital agreement as, “an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.” The spouses can create this agreement to protect the property of each spouse. The Code defines property as, “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.” Premarital Agreement Formalities Now that a premarital agreement is defined, the next question should be, how is one formed? Chapter 4 Texas Family Code states, “a premarital agreement must be in writing and signed by both parties.  The agreement is enforceable without consideration.” What can be in the Content of the Premarital Agreement? The state of Texas if very specific as to what can be included in the premarital agreement. The Code states, (a) The parties to a premarital agreement may contract with respect to: the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;  the modification or elimination of spousal support; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement; and any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. (b)  The right of a child to support may not be adversely affected by a premarital agreement. This statute is very lenient on what can be done in terms of each spouse’s separate property and community property, with the agreement of both spouses. Spouses can contract that each spouses’ separate property is to remain separate property even if the property is accrued during the marriage. Unenforceability of a Premarital Agreement It is important to note that premarital agreements will become effective upon marriage and Chapter 4 Texas Family Code allows for the agreement to be amended or revoked by, “a written agreement signed by the parties.  The amended agreement or the revocation is enforceable without consideration.” What makes a premarital agreement unenforceable? Chapter 4 of the Texas Family Code states, a) A premarital agreement is not...
Read more

source http://www.houstondivorcelawyerformen.com/prenuptial-agreement-texas/

Father – Presumed By Paternity Law in Texas

With modern-day technology, paternity is much simpler to establish. Texas statutes have also outlined the requirement for establishing and rebutting paternity. Let’s take a look. Divorce Attorney? Call (832) 410-8935. Paternity by Texas Law To be a presumed father, Texas law will presume an individual to be the father of a child until that presumption is proved or rebutted. The Texas Family Code outlines specific instances and situations in which the state presumes a man to be the father of the child. According to the Texas Family Code, FAM §160.204, the presumption of paternity is defined as follows: Sec. 160.204. PRESUMPTION OF PATERNITY. (a) A man is presumed to be the father of a child if: (1) he is married to the mother of the child and the child is born during the marriage; (2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce; (3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce; (4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and: (A) the assertion is in a record filed with the vital statistics unit; (B) he is voluntarily named as the child’s father on the child’s birth certificate; or (C) he promised in a record to support the child as his own; or (5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.  Rebuttal Of Presumed Paternity The Texas Code also provides the means in which presumed paternity can be rebutted, “(b) A presumption of paternity established under this section may be rebutted only by: (1) an adjudication under Subchapter G [FN1];  or (2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305.” As the statute states, the paternity may be rebutted by a judicial proceeding; or an Acknowledgment of Paternity singed by the child’s presumed father, determined father, and mother. The Acknowledgment of Paternity should include the presumed father’s denial that he was the child’s father, along with the filing of another person acknowledging paternity and is to be filed with the Vital Statistics Unit. Family Law Attorney (832) 410-8935 Call our office to speak to a family law attorney who can help with paternity matters in the Harris County, Tx area.  

source http://www.houstondivorcelawyerformen.com/presumed-paternity/

Reporting Family Violence in Tx – Houston Domestic Violence Resource

Family violence is a real and present danger to many Texas Citizens. Thus, it is important to know what exactly constitutes family violence under Texas law, what individuals must report family violence, and to what authorities must the violence be reported to. To tackle all of this, let’s dive into the statute. What Is Family Violence According to the Texas Family Code, FAM §71.004, family violence is defined as follows: an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), (H), (I), (J), and (K), by a member of a family or household toward a child of the family or household; or dating violence, as that term is defined by Section 71.0021. It is important to note that this statute does not include the reasonable discipline of a child. Reporting The Family Violence In later sections, the Texas Family Code details which individuals are encouraged to report the alleged violence. FAM §91.002 states, “A person who witnesses family violence is encouraged to report the family violence to a local law enforcement agency.” In §91.003, the Code even goes on to outline instructions to medical professionals who treat an individual for injuries that the medical professional has reason to believe were caused by family violence. The Code states the medical professional shall: Immediately provide the person with information regarding the nearest family violence shelter center; Document in the person’s medical file: (A) the fact that the person has received the information provided under Subdivision (1); and (B) the reasons for the medical professional’s belief that the person’s injuries were caused by family violence; and 3. Give the person a written notice […] completed with the required information, in both English and Spanish.” The Formal Notice To Adult Victims Of Family Violence As stated in subsection (3) of §91.003, a written notice is given to a potential victim. This notice states in part that, “It is a crime for any person to cause you any physical injury or harm even if that person is a member or former member of your family or household.” The form lists the telephone number of a law enforcement facility in which the violence should be reported and the legal rights the victim in order to deter further violence. These rights include asking a local prosecutor to file a criminal complaint against the abuse; applying to a court for an order to protect the victim; consulting with a legal aid office, a prosecuting attorney, or a private attorney. A court can enter an order that: prohibits the abuser from committing further acts of violence; prohibits the abuser from threatening, harassing, or contacting...
Read more

source http://www.houstondivorcelawyerformen.com/reporting-family-violence-in-tx-houston-domestic-violence-resource/

What Is A Putative Marriage In Texas?

The discussion of bigamy in modern-day society has the most negative connotations. Although the Texas Family Code makes it illegal for an individual to have more than one spouse; Texas courts are still battling the continuing emergence of bigamy and what Texas calls a putative marriage. Article published by the Houston Divorce Attorneys (832) 418-8935. Marriages in Texas, Generally According to the Texas Family Code, every marriage in Texas is presumed valid, “in order to provide stability for those entering into the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter.” The Putative Marriage in Texas Oftentimes, situations arise in which marriages become more complicated; for example, in situations where marriages are invalid but at least one party had a good faith belief that they were married. This situation occurs very frequently in Texas courts and is called a putative marriage. Fortunately, Texas implements the Putative Spouse Doctrine to remedy such situations. Good Faith Belief It is monumental that at least one party has a good faith belief that the marriage exists—this is a mandatory prerequisite to be recognized as a putative spouse. Good faith means that at least one party was ignorant to circumstances that prevented a valid marriage. This good faith prerequisite cannot be met by either party claiming to not know the applicable law. The Valid Marriage Presumption The Texas Family Code states, “When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.” The burden of proof is on the party attacking the validity of the marriage. Why the Putative Spouse is Important The existence of a putative spouse will usually emerge upon the probate of will or the division of the estate of a decedent who allegedly had more than one spouse. The division of property might greatly differ if a putative spouse proves to hold a valid marriage. Therefore, it is very important to determine the rightful heirs of an estate, one of whom may be a putative spouse. If you would like to speak to a Family Law Attorney in Houston, then call (832) 410-8935. Trending Topics – Texas Family Law Grounds for Divorce in Texas | Determining Child Custody | Common Law Marriage  

source http://www.houstondivorcelawyerformen.com/putative-marriage/

How Is Child Custody Determined in Texas? Who gets the kids?

Child Custody is a sensitive issue handled by the Texas Family Courts. Texas courts will always prefer a joint managing conservatorship between the parents, however that may not always be the case. Let’s dive in to what factors the court considers while determining child custody. Speak to a Houston Divorce Attorney at (832) 410-8935. Types Of Child Custody Texas courts refer to parents as conservators. The Texas Family Code outlines the following custody categories: Sole Managing Conservatorship in which one parent makes all important decisions in the child’s upbringing; and Joint Managing Conservatorship in which both parents make all important decisions in the child’s upbringing. A family law judge will decide on the type of conservatorship unless the parents can agree on a custody plan; the plan will have to be approved by the court after being reduced to a written agreement. Appointing Managing Conservators Section 153 of the Texas Family Code describes whom may serve as a conservator of the child: (a)  In a suit, except as provided by Section 153.004, the court: may appoint a sole managing conservator or may appoint joint managing conservators; and if the parents are or will be separated, shall appoint at least one managing conservator. (b)  A managing conservator must be a parent, a competent adult, the Department of Family and Protective Services, or a licensed child-placing agency. (c)  In making an appointment authorized by this section, the court shall consider whether, preceding the filing of the suit or during the pendency of the suit: a party engaged in a history or pattern of family violence, as defined by Section 71.004; a party engaged in a history or pattern of child abuse or child neglect; or a final protective order was rendered against a party. As described above, the court will consider any factors that indicate family violence, child abuse or neglect, and whether a protective order was rendered against either parent. Although Texas courts tend to favor the appointment of a joint managing conservatorship in order to encourage an amicable relationship between the child and the parents, the court considers various factors that may deviate from a joint managing conservatorship. Best Interest Of The Child It is unlikely to discuss child custody in Texas without discussing the “best interest of the child”. Section 153.002 of the Texas Family Code states, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” This is the single most important factor considered in Texas Courts. Other Factors Considered In Determining Child Custody Texas Family Courts will also give great weight to the following while deciding child custody: past parental involvement in the child’s life; the cooperation of parents with each other; household stability of each parent; continuity of the child’s life prior to divorce; the age of the parents; distance in geography between parents; past abuse; and the child’s wishes. It is important to note that the...
Read more

source http://www.houstondivorcelawyerformen.com/child-custody-texas/

What is Common Law Marriage In TX? See Also…Informal Marriage

When marriage is discussed, a religious ceremony and a civil proceeding may come to mind. Texas, however, recognizes an additional category of marriage—a common law marriage—what the Texas Family Code defines as an Informal Marriage. It is important to note that in Texas, there is no distinction between a Common Law Marriage and an Informal Marriage. Need a Family Law Attorney in Houston? Call (832) 410-8935 for a no obligation consultation over the phone. What is a Common Law Marriage or an Informal Marriage in Texas? Section 2.401 of the Texas Family Code sets out criteria which a couple must meet in order to be recognized as having a common law marriage. These criteria are as follows: (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:  a declaration of their marriage has been signed as provide by this subchapter; or the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. (b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. (c) A person under 18 years of age may not:  Be a party to an informal marriage; or  Execute a declaration of informal marriage under Section 2.402. (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable. In short, in order to have a valid common law marriage, there must be an agreement to be married; the couple must have lived together in this state as husband and wife (the statute is vague on what constitutes living together); and the couple must have represented to others that the marriage exists (for example, the couple must behave as a married couple in public). What are the Implications when Divorcing? Establishing that a common law marriage exists is monumental in Texas, especially in the event of a divorce. The Texas Family Code states, if a couple meets the criteria as having a common law marriage according to Subsection (a)(2) as stated above and the couple has ceased to live together, it is presumed by Texas Courts that no agreement to marry had existed. Couples may choose to separate and move on as if the marriage never occurred. However, just like a formal marriage, a divorce in a common law marriage allows the Family court to deal with matters such as current and future property division of the spouses and assigning rights in child custody proceedings.  These matters make it extremely...
Read more

source http://www.houstondivorcelawyerformen.com/common-law-marriage-texas/