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/