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Updating your will after a divorce is smart planning

If you have need a best suitable service your Child Law experience, Updating your will after a divorce is smart planning with the great process!

Kingwood Divorce Attorney: Have you ever heard a friend or family member’s divorce horror story? I’m sure you know what I’m talking about. This person will tell you in no uncertain or unspecific terms just how bad their experience was with a divorce. Something went totally wrong and they lost their house, children, vehicle or something in between. After that they’ve been forever scarred by the experience and are now intent on telling every person they know about the terrible outcome. Timing does not matter to this person. You could have been going through your own divorce and this person wouldn’t have hesitated for a second to tell you just how bad things were for them and how bad they could be for you.

Most divorces, thankfully, don’t live up to the horror stories that we hear sometimes from those well-meaning but misguided friends and relatives. The fact is that most people do not enter into a divorce seeking to take their spouse for all they’re worth or to rip their children from their spouse. Most folks want a fair outcome the allows them to close out one chapter in their lives and move on to another.

That’s not to say, however, that your divorce will be pain or drama free. That’s also not to say that there are not divorces where things go haywire at certain points of the case. In fact, I can point to one issue that can come up at the very end of your divorce that can cause a great deal of grief for you. I’m talking about not updating your will after your divorce has been completed.

Today’s blog from the attorneys with the Law Office of Bryan Fagan, PLLC, we will discuss the topic of how and why to update your will at the conclusion of your divorce. Of all the things to be anxious about in terms of a divorce case, I think this one ranks pretty highly on the list. Seeing as how it is a topic that we do not discuss around here I wanted to fix that right away.

Of all the concerns associated with a divorce, planning your estate may not rank that highly…

…but it should. Undoubtedly there are a ton of issues associated with a divorce case that could motivate you to take action and do something about them. Saving money for your post-divorce life, doing what you can to build a stronger relationship with your children or even do some thinking about what direction you want your life to take after the divorce. This is on top of the planning that goes into your divorce itself.

Notice that I did not include estate planning on that list. I can’t think of a more dry topic than estate planning when it comes to the law. True, it is an essential part of any responsible adult’s life. Being in a position to be able to take care of yourself and your family in your golden years is a privilege that those who put some thought into their lives can achieve. But, still- it is not excited and probably doesn’t seem incredibly important when your family structure is undergoing a major overhaul.

With all of that said, you should take the time and effort to update your will after you have gotten a divorce. Note- if you do not have a will you need to create one after your divorce without exception. Even if you have little or no money you need a will. Your family will thank you. If you fail to update your will when you die (and the last time I checked, every one of us will eventually pass on from this life) your assets can be split between people in ways that you would not prefer. This is especially the case when one of those people is your ex-spouse.

Take these steps to update your life and prepare yourself for your golden years

The Woodlands Divorce Attorney: There is no doubt that as you get older, peace of mind is a characteristic that most of us would pay money to have. Peace of mind comes from knowing that you have done whatever you can to benefit your family and yourself to the highest degree possible. Taking some basic steps to update your will immediately after your divorce can go a long way towards providing you with that peace of mind.

Here are two tips that I would tell any client of ours to undertake in relation to their will in a post-divorce setting:

> Update who is designated as a beneficiary under documents outside your will. You may be scratching your head at this point and thinking to yourself, “Did this lawyer just spend a million words telling me about how to update my will and then once he gets to the advice section he talks about something else?” Well, I suppose that’s exactly what I’m doing. The fact is that many assets that could be relevant in your life will pass outside of a will to beneficiaries that are named in bank or insurance company paperwork.

Specifically, I have retirement accounts like 401(k)s and Individual Retirement Accounts (IRA) in mind. In order to name a new person that you want to be able to inherit these assets whenever you pass away you will need to contact your bank or insurance company. Many retirement accounts are governed by federal laws that mandate that the person running your retirement plan, usually called a plan administrator, must pay money in your account to the named beneficiary upon your death.

Don’t allow your ex-spouse to inherit money from you or receive life insurance proceeds when you die unless that is what you want to happen.

> Don’t just update your will- start a new one. Take your old will and run it through the paper shredder as soon as your divorce has been finalized. If it is more rewarding you can burn it or physically tear it up. I don’t care what disposal method you choose- just make sure that you get rid of all old copies of your will.

As long as we’re here we may as well note that a will’s purpose is to name a person (called an executor) who will handle any matters associated with your estate when you pass away. A will also designates where and to whom certain pieces of property will end up at the time of your death. Naming new beneficiaries is a good plan for your new will.

Creating a new will allows you to check that box and move on

Your life after your divorce will involve you running around a little bit in the immediate time period after your case concludes. You may be looking for a new place to live, figuring out how to plan for the arrival of your children in your new home and doing normal paperwork activities like filing documents you had pulled for your attorney. Again, this is not fun and may not impact your life one bit for a long time. However, it is responsible and necessary and I suggest you do all of these activities.

Updating your will should be a part of this post-divorce checklist that many people seem to have in their minds. If you are motivated, consider creating Powers of Attorney documents that give relatives or friends the authority to make decisions, typically financial and medical, for you if you become incapacitated or otherwise able to make those decisions independently of others. Just like with a will- if you have old documents you should tear those up and create new ones now that your divorce is finalized.

Questions about divorce? Contact the Law Office of Bryan Fagan, PLLC

Spring Divorce Lawyers: If you have any questions about divorce in Texas please consider contacting the attorneys with the Law Office of Bryan Fagan, PLLC. We represent clients from all across southeast Texas and we would be honored to provide the same service to you and your family. Our licensed family law attorneys offer free of charge consultations in our office six days a week. We will take the time to answer your questions and address any concerns that you may have … Continue Reading

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Important post-divorce issues related to health insurance for Texas residents

If you have need a best suitable service your Child Law experience, Important post-divorce issues related to health insurance for Texas residents with the great process!

Divorce Lawyer in Spring TX: When you and your spouse got divorced you likely set forth in your final decree of divorce the requirement that you and he split 50/50 any uninsured costs related to medical expenses. That sounds all good and well in theory, but in practice it can be extremely difficult to manage when your ex-spouse refuses to pay these sums.

An enforcement lawsuit is the typical response to a situation like this. Essentially you would hire an attorney to file a lawsuit that cites the specific section of your divorce decree where your ex-spouse is obligated to pay their share of these uninsured costs. You would then seek some sort of penalty for their failing to do so- usually money judgments that can total up to $500 per violation, in addition to actually paying back the amount that is owed.

Child Support Orders cover medical expenses as well

To be sure what your Final Decree of Divorce states on this subject you should take out your copy of your Final Decree of Divorce and flip to the section that deals with Child Support. In addition to child support, provisions regarding health insurance are included. Most divorce decrees mandate that parties split uninsured medical expenses 50/50. The party who pays the costs up front would be reimbursed by the other parent.

As a side note, I am sometimes asked by parents how they can better remember to both request and pay for these sort of costs. It is easy to either forget to tell your spouse about them or to forget to pay them after having the money requested. So what I will tell clients to do is to put a reminder into their cell phone that tells them to either submit unpaid bills to their ex-spouse at the end of each month or to make payments for those unpaid bills before the end of the month.

The Office of the Attorney General collects payments for child support in Texas

The Office of the Attorney General (OAG) is the state agency that facilitates the payment of child support in Texas from the payor ex-spouse to the payee ex-spouse. It is probable that if your ex-spouse is current on their child support that they would not offer you any assistance in trying to win back money from medical bills that have not been paid.

Getting a court order enforced in Texas

Unfortunately the option that you need to pursue should your ex-spouse not pay child support on time and in the full amount ordered is to file an enforcement lawsuit. You can attempt to recover money owed to you in either medical support or child support and collect fines of up to $500 per violation of the court order. Enforcement cases are also partial criminal cases which means that your ex-spouse runs the risk of serving time in jail for not paying child support.

The process for beginning an enforcement case is similar to that of starting a divorce. You would file your enforcement lawsuit and have it served upon your ex-spouse. He or she would respond to the lawsuit with an Answer. Most enforcement cases are heard before judges where you both will be able to submit evidence to allow a judge to make a decision on how to rule.

How rights and duties are divided up in a Texas divorce

Spring TX Divorce Lawyer: When we consider the division of rights and duties between you and your child’s other parent it should come as no surprise that these are the issues that are among the most contested in any divorce. Basically, all rights as to a child in a Texas family law case are divided up as such:

-exclusively the right of one parent or the other

-the right of both you and your ex-spouse; subject to the agreement of the other

-a right that you and your ex-spouse hold independently of each other

Many rights are shared with your ex-spouse where neither of you can make a decision without the agreement of the other. This can prove to be a difficult part to manage because essentially you and your ex-spouse may be in a position where you are unable to move forward with a decision because your ex-spouse does not agree with you. Issues relating to school and medical care come to mind as especially frustrating in this regard.

If you and your ex-spouse are not able to agree on how to handle a particular issue related to your child there are two outlets for most divorced parents. The first is that in some Final Decrees of Divorce there is a neutral, third party appointed as a tie-breaker who can make the final call on a decision that has stymied you and your ex-spouse. The other option is the far less desirable one- go to court for the judge to play tie breaker.

Independent rights held by you and your ex-spouse

Usually you cannot just make a decision for your child even if your Final Decree of Divorce says that you can. In actuality you will likely need to provide some notice to your ex-spouse of an issue and your intention to make a decision regarding it. This allows your ex-spouse to at least have some say in the matter and to allow you both an opportunity to talk through decisions that each of you are lawfully able to make on your own.

Consider, the example of being able to consent to surgery for your child that involves an invasive procedure. In most final orders a requirement will follow that you need to provide written notice of the procedure to your ex-spouse at least 14 days in advance of having the procedure done. Specifics like the information for the doctor and location of the surgery along with contact information are often included as well. Unfortunately it is not always the case that your ex-spouse will consult with you before making a decision of this sort.

Having the right to designate the primary residence of your child

The right that is the most fought over in a divorce is without a doubt the right to make the decision as to where the primary residence of your child should be. There are two ways that this is typically done in a Texas divorce. The first is that either you or your child’s other parent would be named as the parent with this right. The other parent would be given visitation rights under the order. Most divorcing parents settle this issue on their own without going to trial, although in some cases parties will have this issue decided by a judge.

The other way that this issue can be settled is by parents agreeing with one another that neither will be declared as the parent with the ability to determine the primary residence of your child. Instead of a formal designation such as this there will be inserted a geographically restricted area in which your child is able to reside. It may be within a certain school district or another area that you and your ex-spouse can agree upon. I have had clients who, along with their spouse, agree that a certain school district is preferable to any other in their area and will agree to have a geographic restriction inserted that unless and until additional modifications the parties shall not reside outside of that school district.

Questions on rights and duties for your child after a divorce? Contact the Law Office of Bryan Fagan, PLLC

Spring Divorce Lawyer: If you have any questions after hearing read today’s blog post or are seeking clarification on anything that you’ve read please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We work alongside folks just like you in our community and take a great deal of pride in being able to help them.

Our licensed family law attorneys offer free of charge consultations six days a week where your questions can be answered and your problems can be addressed by a practicing family law attorney. We thank you for your time and interest in reading today’s blog post and we hope to have you back tomorrow as we continue to discuss relevant family law issues in Texas … Continue Reading

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A Houston area example of a Bill of Review's impact on a Family Law case

On the off chance that you have require a best reasonable Texas Divorce Law encounter, A Houston area example of a Bill of Review’s impact on a Family Law case with the immense procedure!

Family Lawyers Houston: Yesterday’s blog post dealt with the issue of what a Bill of Review is and how it can be used in a family law case in the event that you had a negative judgment against you that was not due to any wrongdoing or negligence on your part.

This is a topic that requires a little background information to know what is going on, in my opinion, so I would recommend that you go back and read yesterday’s post before moving on to today’s.

With that said, while a Bill of Review may be a foreign term to many of you, in reality it is a legal mechanism that allows you to tell your story to a judge when you had been denied that opportunity previously. Today we will look at an actual story involving people from the Houston area and how their lives were impacted by the filing of a Bill of Review.

Grant v. Grant- Two Marriages and Two Divorces

Let’s meet our cast of characters before we discuss the exciting world of the Bill of Review. The Grants were a married couple that were actually married and divorced two times. Their first marriage occurred in 1994 and the Wife filed for divorce in 2010. As many people do during a divorce, the Grants continued to live together during the divorce case.

Here is where our case gets a little interested. As it happened, the Husband was convicted of a federal crime during the divorce case (unrelated to the divorce) and was sentenced to serve three years in prison. With this in mind, both Husband and Wife wanted to get their divorce case completed before Husband was shipped off to federal prison.

A trial notice was sent to Husband by certified mail (who was under house arrest at the time and was not represented by an attorney) but he did not show up for the trial date.

Ultimately, as it happens when one party doesn’t appear for a trial, the judgment was much more favorable to the Wife and the Husband was none too pleased when he found out. After this, Husband began to serve his prison term as scheduled.

The Grants remarry and our story continues

Approximately one year after their divorce, with Husband still serving time in prison, the Grants decided it would be a terrific idea to remarry one another. After this marriage Wife ended up selling some of the property that she was awarded in the first divorce.

To that point, Husband would still contend that the property was rightfully his separate property and he lost out on it only because he claims to never have received notice of the first divorce trial date.

As luck would have it, our parties divorced again in 2015. The parties had their second Final Decree of Divorce entered by the court, at which point the Husband filed a Bill of Review in regard to the first Decree that awarded the Wife property that he asserted was rightfully his separate property.

The Grants’ Bill of Review Hearing

Family Lawyer in Houston: Husband argued that he was put in a position to lose the property to his now ex-Wife due to his never having received notice of the first trial date.

Wife argued that he did have notice (as provided in the certified letter sent to him by Wife’s attorney) and that he could have gotten permission to leave the house as he was under house-arrest at the time. Husband argued further that Wife did not mention the trial date to him one time, this despite their continuing to live in the same home together throughout the divorce. Husband’s arguments fell on deaf ears and the court sided with Wife.

Husband was not to be denied (again) and appealed the decision of the trial court. The Court of Appeals out of Houston required that Husband prove that the judgment was rendered as a result of fraud committed against him. Husband was prepared for this requirement and argued that:

> Wife had misled him by never mentioning the trial date to him, again despite living in the residence together

> Wife had provided the court their home address for sending him correspondence when in actuality the prison address would have been more appropriate as far as providing a last known address. This was important as the judgment was sent to an address where he was not living and caused him to not respond in time to file a motion for new trial

The court did not buy the second argument being made by Husband. They asserted that Husband did not prove that Wife had purposely misled the court as to his actual address.

This left the Husband to need to prove extrinsic fraud in order to win his Bill of Review petition. Extrinsic fraud is necessary to prove when the Bill of Review is not filed within four years of the judgment being signed. Again, the court did not find that fraud was at issue here and as a result Husband left court twice divorced and property-less in regard to the property that was awarded to Wife in their first divorce.

The Law Office of Bryan Fagan, PLLC- Advocates for Southeast Texas families

Houston Family Law Lawyer: This story involved people that live in our area and went through quite a journey through our legal system here.

While their circumstances are certainly unique – the standards applied to them are the same that will apply to you and your family in a southeast Texas divorce. Having experienced and assertive representation can reduce the occurrence of mistakes and mishaps with your own divorce or child custody case.

The Law Office of Bryan Fagan, PLLC prides itself on representing individuals and families throughout southeast Texas. If you have questions about a particular issue in family law please do not hesitate to contact our office today. A free of charge consultation is only a phone call away, where your questions can be answered by one of our licensed family law attorneys … Continue Reading

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Parental Alienation- What is it and what does it mean for my Texas Family Law case?

On the off chance that you have require a best reasonable Texas Divorce Law encounter, Parental Alienation- What is it and what does it mean for my Texas Family Law case? with the immense procedure!

Family Lawyers in Houston: In a recent 14th Court of Appeals decision out of Houston, a Mother appealed the final order of a trial court that awarded the Father a modification in child custody case. This case presented a unique set of circumstances that I thought would be interesting for you all to read about in one of our blog posts.

Let’s introduce the parties and their particular circumstances before we discuss what happened in the Court of Appeals.

Background of the Duffey Family

The case that we are going to discuss is Duffey v. Duffey (No. 14-16-00144-CV). The case involved a Mother, Father and two children. The parties began their journey through our legal system in 2010 when Mother and Father got a divorce from one another.

The Final Decree of Divorce that came out of that case resulted in Mother being appointed the Sole Managing Conservator of the two children.

Father became merely a Possessory Conservator who had supervised visitation. There is a presumption in Texas that appointing parents Joint Managing Conservators is in the best interest of the children, but in this instance the father had a history of committing family violence which trumped that presumption and resulted in Mother being named the Sole Managing Conservator of the children.

Two years later, in 2012, an allegation was made against the father that he touched one of the children inappropriately. Mother made a call to the Department of Family and Protective Services and started taking their other child to therapy.

Child number two made an allegation during one of her therapy sessions against the father and the therapist was duty bound to contact the Department as well. As Child Protective Services began to investigate the allegations, Father was allowed to continue with his supervised visits.

Mother files a Modification and Father follows suit

Based on the aforementioned information, Mother filed a Modification in order to further restrict the contact the her ex-Husband would have with their children. Father filed a countersuit alleging that he had not been able to see his children over the prior year due to the Mother not allowing him contact with the children.

He alleged that it was only recently that he was able to have supervised visits with the children through a hosting facility for supervised visitation called Guardians of Hope.

Throughout the dual-modification case, Mother was contacting law enforcement about the allegations made against Father. She also took the children to a new therapist who also contacted the Department about what the children were saying about their father.

Ultimately when all of the investigations were concluded, there were no findings made against Father and the cases were closed.

Based in large part on the failure of the Department’s investigations to lead to any findings against the Father, Mother decided to have her case against the Father dismissed. However, Father’s modification case was still active and that case went to trial in front of the same judge who heard their divorce case.

The trial had extremely favorable results for the Father. Not only was he named as a Joint Managing Conservator of the children along with Mother, but he was granted the exclusive right to determine the primary residence of the kids.

This meant that essentially he gained a tremendous amount of rights and duties over the children while also gaining the right to have the children live with him primarily instead of Mother. On top of all of this, Mother was ordered to pay Father’s attorney fees and was on the hook for child support moving forward.

An appeal by Mother concludes our story

Family Law Attorneys Houston: Mother disagreed with the decisions made by the judge and she appealed the case. Let’s walk through two of the more relevant issues that Mother presented and discuss what the Court of Appeals did in response to each.

Issue No. 1

Mother argued that during the trial the Father had answered a question whereby he basically admitted to sexual abuse against their daughter. The situation was that during the trial, Father’s attorney asked him why he thought the Mother had filed the modification in first place.

Father stated that it was due to his having done something to the daughter. However, father also testified that he did not harm or abuse the daughter and as a result the Court of Appeals did not believe there to be enough evidence to support this argument. The Court of Appeals ruled that the trial court did not make an error in this regard.

Issue No. 2

Mother argued that in appointing the Father Joint Managing Conservator, the court had made an error.

The Court of Appeals noted that the trial court had laid out multiple reasons as to why it was in the best interests of the children for the father to be named a Joint Managing Conservator. As the Court of Appeals determined that there was sufficient evidence to back up these reasons, this point was overruled as well.

How parental alienation figures into our discussion is that the trial court agreed with Father’s assertions that Mother had been keeping the children from Father to an unreasonable extent and alienating them from him.

The allegations of sexual abuse were determined to be unfounded and without merit. While the children were attending counseling sessions, Mother did not follow the recommendations of the counselors. The Court of Appeals found that there was sufficient evidence to support the lower court’s decision that parental alienation did occur.

Questions about parental alienation and its effect on a family law case? Contact the Law Office of Bryan Fagan, PLLC

Houston Family Law Lawyers: If you have experience parental alienation and would like to bring these actions to the attention of a court, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. Our office offers free of charge consultations where your situation can be addressed with one of our licensed family law attorneys. Consultations are always free of charge and are available six days a week … Continue Reading

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The effect of divorce on children: Helping your family maintain stability

If you want to related guideline confidentiality Texas Child Law experience, So you can better suggestions in The effect of divorce on children: Helping your family maintain stability

Family Lawyers Houston: If you are a parent who is going through a divorce then you will find that your case will be quite different from a divorce that does not feature two parents.

Parents understand that their actions have a direct and often disproportionate effect on the lives and well being of their children. With this in mind, it’s possible that in the weeks and days leading up to your considering a divorce your biggest concern laid not with paying for an attorney or deciding what to do with the family home, but in breaking the news of the divorce to your children.

Without belaboring the point too much, your children will certainly be affected by your divorce no matter how stressful or stress free the process actually is. If we take into consideration the fact that your child has probably been exposed to more bickering and fighting at home than you would probably like it is no wonder that you may want to minimize any unnecessary stresses early and often during the actual divorce.

What is it about the divorce that will most likely bother your children the most?

Do you think that not seeing you or your spouse as frequently that will potentially harm your children the most? What about the aforementioned exposure to fighting between you and your spouse? From my perspective it is neither of these things. What can be potentially damaging to your children is the ever-present reality for your children that you and your spouse are fighting and in the middle of a conflict that will not be settled any time soon.

Seeing you and your spouse engaged not just in verbal arguments but deep seated quarrels over the fundamental issues of your family can be especially damaging to them. Often times, just moving forward with a divorce and removing the long term issues that have led to the arguments can be of great relief to your children.

Becoming familiar with the Best Interest of your children

I think on a general level every parent would, if asked, say that he or she operates and makes decisions that are in the best interest of their children. Even if you are engaged in a bitter divorce case with your spouse it is unlikely that you would let the animosity you are currently feeling towards him or her boil over and affect your relationship with and parenting of your children.

This may be the saving grace for your divorce, in all actuality. If you are able to place the interests of your children before those of yourself then you will have eliminated much of the stress that your children will experience during the case.

This means that blaming your spouse for the breakup of your marriage, criticizing their parenting skills or questioning their motivations for taking particular actions should all be avoided while the divorce is ongoing. You or your spouse no longer living in the martial home will go a long way towards decreasing the opportunities for these potentially problematic interactions to occur as well.

My last point on this subject has to do with making this sort of decorum the norm for the remainder of your life. Every divorce decree in Texas will have some sort of provision included that bars you or your spouse from making derogatory comments about the other parent in front of your children. With this future in mind, you might as well start practicing this sort of behavior now so that it becomes second nature to you after the divorce has been finalized.

Avoid alienating behavior

Family Lawyer in Houston: The prohibition of derogatory language directed at your ex spouse ties in nicely with my next piece of advice on how to help your children from feeling the brunt of the divorce’s emotional hardships. If your or your spouse’s behavior towards the other begins to effect your children’s perception of the target of your negative language, then you may be in a situation where parental alienation is occurring.

Basically, if you or your spouse are becoming emotionally or physically disconnected from your children due to one of your actions or words then this can be quite damaging to your children.

What exactly am I talking about here? Some examples of alienating behavior include manipulating your child into believing falsehoods about your spouse, purposefully ignoring requests by the other parent to speak to the children while in your care, or displaying rash and aggressive behavior towards your spouse.

All of these actions, whether intentional or not, can be construed as alienation. Not only will this sort of behavior negatively affect your children but it will draw the ire of your judge as well.

Mediation as a means to solve issues

Utilizing a family law mediator, rather than the court, to solve the issues of your divorce is good method to avoid the sort of behavior that can harm your children’s psyche during your divorce.

The reason for this is mediation is extremely effective in settling cases and eliminating the need for protracted litigation and/or negotiation between you and your spouse. The less time that has to be spent discussing the issues that are the most divisive means more time to spend parenting and softening the blow of the divorce on your children.

You and your spouse, no matter how upset you are with one another know what is best for your children much more so than a judge would. For this reason, if you can put aside your issues with one another for a short mediation session then a more desirable outcome should follow for you, your spouse and your children.

The Law Office of Bryan Fagan, PLLC: Family focused attorneys for southeast Texas

Houston Family Law Lawyer: If you have questions about divorce, family or your children please do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. Our licensed family law attorneys are available six days per week to meet with you to answer questions and listen to your concerns during a free of charge consultation. We represent clients across southeast Texas and would be honored to do the same for you … Continue Reading

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Christmas Visitation Essentials for Texas Parents

If you want to related guideline confidentiality Texas Child Law experience, So you can better suggestions in Christmas Visitation Essentials for Texas Parents

Family Lawyers in Houston: As we approach the Holiday Season, many of you reading this blog may be about to experience Christmas or other holiday after a divorce. Whereas before you were used to and were able to experience sharing memories together with your children throughout the holidays, your life now is going to be different in that regard.

This does not mean that you or your children are never going to share memories around the Christmas tree or the dinner table again, however. It does mean that you need to be aware of the changes to both your life and your children’s. It also means being cognizant and respectful of the need for your ex spouse to be able to enjoy the holidays with your children as well.

If your divorce decree was created by a Texas court then you know that either you or your ex spouse was named the parent with the exclusive right to designate the primary residence of your children. This means the children live with that parent during the school week and likely attend the school that is zoned to that home.

In contrast, the parent who does not have the exclusive right to designate the primary residence of the children has visitation rights throughout various times of the year. Typically that means the first, third and fifth weekends of each month with a Thursday night “dinner date” to break up each week. If you are the parent with visitation rights to your children you should also remember being able to have your children for one month during the summer- either four weeks consecutively or two two-week increments broken up during the summer holiday. With the semester having concluded at your children’s school Christmas break is here. Let’s discuss what this means for you and your family.

Christmas Vacation Visitation for you and your family

For starters, unless you and your spouse agreed otherwise in your Final Decree of Divorce, neither you nor your ex-spouse will be able to have your children both on Thanksgiving and Christmas. You will have Thanksgiving in odd years and Christmas in even years and your wife will have the opposite, or vice versa. I have seen parents who understand that because of work schedules or other considerations, one parent or the other cannot take advantage of an extended summer break and will therefore provide in the Final Decree of Divorce that the parent with the difficult schedule can have the children on both Thanksgiving and Christmas. This is extremely rare and it unlikely to be what your Final Decree orders you to do.

If you are the parent who is able to have the children on Christmas this year, then you are able to keep the children with you from 6:00 p.m. on the day school lets out until noon on December 28th. On the other hand, if this is your ex-spouse’s year to have the children on Christmas then you will be able to have the children with you from noon on December 28th until 6:00 on the Sunday prior to school resuming for the Spring semester. Next year, those roles flip and you would be able to have the children on Christmas.

The Texas Family Code does not have to be the Code for your family’s holidays

Family Law Attorneys Houston: If the above guidelines for Christmas and holiday visitation seem tedious and suffering for lack of flexibility then I would agree with you. The fact is that the Texas Family Code lays out the above “rules” as set forth by our Legislature as being the most fair and balanced method of dividing up one of the most important and cherished times of the year. However, if you and your spouse were able to arrive at an alternative arrangement during settlement negotiations for your divorce then your divorce decree will reflect that settlement. Hopefully the arrangement you’ve worked out is more flexible and suits your family better than what the fall back provisions in the Family Code state.

Many families have traditions and events that do not necessarily coincide with the above dates. For instance, if your family celebrates Christmas every year on December 29th because of conflicts due to work or other obligations then a December 28th drop off/pick up date for an exchange of the children probably doesn’t work that well for you. It is ideal to have worked out these issues prior to your divorce being finalized so that you and your spouse (and your families) know what to expect around the Holidays.

However, you and your ex-spouse are still able to work out agreements on the fly even if your Final Decree states otherwise. If an agreement can be reached between the parents in advance of the holidays then it is absolutely the best move for your families to work with each other. If you believe an agreement has been reached to modify the upcoming holiday schedule as laid out in your Divorce Decree then I would advise you to get those changes in writing where both you and your ex spouse sign off on them. This “agreement” is not a binding contract necessarily but it does exhibit that both of you willingly entered into a compact that will govern holiday visits. If you utilize My Family Wizard you have the benefit of getting that agreement date and time stamped to further legitimize the agreement.

The Holidays are when family comes first

Houston Family Law Lawyers: Even if you and your spouse parted ways on no so great terms, it is my sincere belief that if you adhere to your divorce decree and what it orders for visitation around the Holidays both of you can have fulfilling and happy experiences with your children. In the event that either of you needs the other to be a little more flexible with your time I would make sure any agreement is in writing and clear about drop off/pick up times, locations and other details. Remember- you both are doing this for your children’s benefit.

If you have any additional questions regarding Christmas/Holiday visitation with your children please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our office represents clients across southeast Texas and would be honored to do the same for you. After the holidays, if your visitation schedule does not end up working out for you one of our licensed family law attorneys can answer your questions about possibly modifying your divorce orders as well … Continue Reading

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How to Tell Your Spouse You Want a Texas Divorce

If you have need a best Law service, You can get better suggestions from How to Tell Your Spouse You Want a Texas Divorce with the great process!c

Houston Family Law Lawyer: If You are ready to take the next step and move on with your life without your spouse, one of the challenges ahead is how to tell your spouse you want a divorce. Having “the I want a divorce conversation” can be awkward.

For many people, it is not an easy conversation, but it is an important step in your journey ahead. Some people choose to break the news before and others after they have talked to a Houston divorce lawyer. Many people are unsure of:

> what they say or > how they should say it

I have represented people who were the ones who had to break the news and others who felt like the divorce bomb came out of nowhere. People told me “things had been bad for a while but over Christmas he seemed like a changed person I really thought things were turning around then…”

In either scenario, there is often pain. Is there a best way to tell your spouse that you want a divorce?

5 Tips for Telling Your Spouse That You Want a Divorce

> Have a Conversation > There is a time for everything > Keep your Children out of It > Choose your words & Avoid Fighting > Consider including your Spouse in Decisions

Have a Conversation

As a Houston divorce lawyer, I have worked with clients who have felt like the divorce came out of nowhere. No one looks forward to having an awkward conversation that could result in an argument or cause pain.

However, sometimes difficult conversations are necessary. There are exceptions if you believe that telling your spouse could result in danger to yourself or your children. In such a case, you and your attorney can work out how to let your spouse know.

Generally, it is a bad idea in most cases to handle this by:

> Walking out the door and never going back > Breaking the news by getting your spouse served > Sending a Text message, email, or letter

That does not mean you do not prepare for the divorce and protect yourself prior to having the conversation. “You can read more on divorce preparation in our blog article 6 things You Need to Know Before You File for Divorce in Texas.”

You may think you are doing your spouse a favor by distancing yourself from the relationship. However, from the conversations I have had most of my clients did not see it that way. If you have made your decision that you want a divorce, tell your spouse.

There is a time for everything

Family Lawyer in Houston: Do not rush telling your spouse you want a divorce. It is a good idea to set aside some to break the news. DO NOT:

> Tell your spouse in front of the children > When you are rushing out the door to work > When there is a bunch of people around

Divorce may have been on your mind for months or years. This may be a surprise to your spouse and they will need time react and process your news. If the conversation is shortened because your spouse leaves that is fine. You just need to be ready to give your spouse a conversation if that’s what is needed.

Keep your Children Out of It

You should avoid having the divorce conversation around your children. Your children may be an important reason for the divorce. This however, does not mean you need to make them a part of the conversation.

This true even if your kids are adults. They might no longer technically be children that does not mean you stop being a parent. You do not have to bring them into the awkwardness of your divorce conversation or make them feel like they must choose sides.

Choose your Words & Avoid Fighting

People have told me they are not sure what they should say to their spouse to let them know. For some it has helped:

> To have talking points > Some people Try to get straight others by leading up the point by > saying how you have noticed that we’ve been drifting apart. You may want to practice your conversation in advance

There is a good chance you will not have a perfect breakup which you sometimes see in the movies. Even if you think your spouse will take it well there is no guarantee.

You should consider your spouse’s point of view with what you are about to say. How, would you feel or want to be told. Even though you are telling your spouse you want a divorce does not mean the conversation must turn into a fight.

Your spouse may want to discuss the situation, or argue about your conclusion and want to reconsider. You should:

> Listen > Remain calm, even if your spouse wants to fight > Do not blame your spouse > Do not say purposely hurtful things to your spouse > Do not try and push your spouse’s buttons > Take responsibility > Do not bring up or flaunt any new relationships you have > Be honest do not lead your spouse on that there is hope if there is no hope > Be prepared to call a time out if you need one

Let your spouse know you plan to be fair during the divorce process. This conversation may set the tone for the entire divorce. If you say things that scare or upset your spouse you should not be surprised if the divorce escalates and becomes messy.

Consider including your Spouse in Decisions

Family Lawyers Houston: It may not be possible to include your spouse in any of the decisions regarding the divorce. However, in the cases I have handled where it has gone the most smoothly the lines of communication remained open and the spouses could talk about how they were going to:

> Pay bills > divide property > divide debts > Handle visitation > Make decisions regarding the child > Support

Once you’ve told your spouse you want a divorce, call your Houston divorce lawyer so they can proceed with the divorce process. Your lawyer can also help you determine the if you should move out of your marital home, work out child custody arrangements, and discuss any questions you have regarding property division … Continue Reading

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Why do divorces cost so much in Texas?

If you have need a best Law service, You can get better suggestions from Why do divorces cost so much in Texas? with the great process!c

Divorce Houston: Maybe the most common complaint I hear from people in my life about attorneys is that they cost too much money to employ. I’m not breaking new ground in discussing this issue but since it’s a common enough concern about people I think it’s valuable to have a discussion on it. So, really, why do divorces cost so much money?

You get what you pay for

The truth of the matter is that beyond the age old maxim, “You get what you pay for”, it remains a fairly universal truth that if you get a number of estimates for a product or service and you choose the most inexpensive one that you may be disappointed with your purchase. This is no different in the realm of a Texas divorce.

In addition to having a lawyer retained to argue for you in a courtroom, family law attorneys act as equal parts counselor, advocate, and therapist. With that said, the more your attorney is involved in your case the more your case will cost you. Family law attorneys typically bill by the quarter hour or similar increment. This means that for every phone call made to the attorney or court appearance, your attorney will be billing you.

How to keep costs down?

How then can you avoid your attorney having to run up your tab? The simple answer is to avoid conflict as much as possible during the divorce process. Now, I understand that this isn’t always something that is in the cards. Emergencies happen and unforeseen circumstances do arise that necessitate your attorney going the extra mile for you and your family. For the most part, however, the more you and your spouse argue over the children, the house, finances and/or anything in between, it’s the attorneys making money.

The advice I can provide on how to avoid these issues is straightforward. If you are able, work out issues with your spouse directly rather than using the attorneys as intermediaries. Again, if you and your spouse are not on speaking terms this won’t be an option. If you are though (and I’ve found most divorcing spouses to be) then it’s simpler to cut out the middle men/women (attorneys) and negotiate directly on the issues with your spouse.

Attorneys can help if peace talks fail

Houston Family Law Attorneys: Attorneys are terrific as fall back options if talks break down. Attorneys are great to efficiently manage your case and ensure that it progresses towards a resolution. Attorneys do not own your case though. You do. I will begin most any initial conversation with a client with something along the lines of, “I look forward to working with you on your case.” The operative phrases in that previous sentence are “with you” and “your case”. I want the client to take ownership of the decisions made.

To sum it all up- it’s a great idea to hire an attorney for your divorce case. Attorneys are professionals who have been through the process many times and are able to provide you with advice that help you in a difficult time in your life. However- this doesn’t mean that you have to take out a second mortgage on your home to afford one. By reasonably working with your soon to be ex spouse on the pressing issues, you can minimize your case related expenditures and maximize your peace of mind. The attorneys with the Law Office of Bryan Fagan, PLLC are eager to speak to you about how our office can assist you and your family in a divorce situation. Contact us for a consultation- free of charge! … Continue Reading

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What exactly should you talk to your attorney about?

Spring Divorce Lawyers: When a person decides to hire our office to represent him or her in their divorce I always do my best to make that person feel comfortable with our office and with me as a person if I am assigned to their case. Even though you just paid money to have a relationship with our office and to have us advocate for you, your children and your rights in a divorce, I do not have the mistaken belief that you are automatically ok with disclosing every detail of your personal life to us. It takes trust and time to develop a relationship where you feel comfortable as a client telling me all of the important information that could impact your divorce case.

It isn’t that lawyers are nosey or want to judge your personal life. Not at all. Rather, a divorce is an inherently personal matter that requires a great deal of communication about issues that are very personal to you. Your attorney didn’t make up the rules or the system of law in our country, we just operate under those rules the best we can in an attempt to help you achieve your goals. At the end of the day it is you, the client, who holds the cards that can help you succeed or fail in your divorce.

Today’s blog post from the Law Office of Bryan Fagan, PLLC will cover the subject of what is, and what is not, advisable when it comes to speaking to and communicating with your attorney. There is information out there that you will be eager to share with your attorney. There is information out there that you will not be eager to share with your attorney but is important nonetheless. Finally, there is information that you have knowledge of that you do not need to bring to your attorney’s attention. We will do our best to go through each category and provide you with tips and tricks that can help strengthen your case and your relationship to your attorney during a divorce.

Sharing is caring when it comes to your divorce attorney

For starters, if your attorney has asked you for some information on a particular subject you ought to do as you are asked and provide it to him or her. Obviously if you have a question about why that information is important you should ask your attorney and your attorney should be able to provide you with a response justifying the request. Once your questions have been answered go about the business of obtaining the documents or information your attorney has asked you for. I understand that this will take some effort on your part but remember that your attorney is on your team. This is not busy work for the sake of doing busy work. It is helping you prepare a case that can help you to minimize the length of your divorce and to help you accomplish your goals, as well.

Piggybacking on the previous paragraph, most attorneys will ask you to submit a questionnaire type form that requests basic information about you, your spouse, your children and various other subjects related to your divorce. If you have a specific question about this form by all means address those questions to your attorney. However, once your questions have been answered you should answer each question to the fullest extent of your ability. These questions are basically your attorney’s way of tapping you on your shoulder to tell you that this information is necessary to their representing you. Don’t make it like your attorney has to pull teeth to get the answers. Sit down with the television off and your phone put away and answer the questions.

What’s more, if you have information that your attorney needs you should consider organizing it and synthesizing it yourself rather than relying on your attorney or their staff to do so for you. First of all, if you learn more about your case in doing these things then that is the ultimate benefit for you. Second, if you can do the work yourself it means that your attorney’s office does not have to. That saves time and also money in that time equals money as far as an attorney is concerned. Going about your divorce with a do it yourself attitude can help you develop some familiarity with your case and can prevent unwanted delays. Remember- although your attorney should be providing you with a certain level of attention, your case is not the only one your attorney has.

Skeletons in your closet? Let those bones out for the sake of your divorce

The Woodlands Divorce Attorney: If you have a criminal history or have been involved in a CPS investigation do not wait until the day of a hearing or mediation to tell your attorney about it. We were all more excited to turn over our report cards to mom and dad when there were “A’s” aplenty written down. We weren’t so excited when a few “C’s” wound up on the report. My point is you may not be enthusiastic when you tell your attorney that you had a DUI last year with your child in the vehicle but your attorney needs to know this so that he or she can formulate a plan to overcome that bad-fact.

An example of this scenario is a case I had last year involving a young man and his two children. Now, this was not a divorce case but will illustrate my point nonetheless. In this particular case our client was attempting to cause the return of his children to Texas after their mother had up and left the state without his knowledge. We had attempted to negotiate some sort of settlement with the other side but were unsuccessful prior to a temporary orders hearing.

The day of the hearing the opposing attorney takes me aside and brings up the fact that my client was living in a home with his mother and a few relatives. This came as no surprise as the client told me about his living arrangements early in our relationship. What he failed to tell me was that one of those relatives was an uncle who has a history of committing sex crimes against minors. This was a bombshell that my client verified was true.

When I asked him why he didn’t tell me about this he said that since it was a “big house” and his uncle lived on the first floor of the home he didn’t think it was important to tell me. Keep in mind that we were at the hearing to tell the judge that the children were better off living with my client in his home because there was a built in support system with numerous relatives living in the home and also close by. A sex offender in the home blew that strategy out of the water. My client was in a position where going before a judge was not a viable option so we settled on temporary orders that day in order to have my client remove himself from the home prior to a trial/mediation date.

Be wise when you call your attorney with a question

Your attorney should be able to answer any question you have about your case. Don’t assume that because you don’t understand something that it is your fault. It is likely that your attorney did not explain the issues well enough.

With that said, be wise about calling your attorney for every question that you have during any given week. Remember that every call you have with your attorney costs you money. It is fine to pay money for legal advice but it is not wise to call your attorney fifteen times a week with questions. Rather, write down your questions and see when your attorney is available to take your call during the way.

How not to talk to your attorney will be the subject of tomorrow’s blog post

Kingwood Divorce Attorney: We will begin tomorrow’s blog post by discussing how not to talk with your attorney and what subjects need not be involved in your relationship. After that, we will get into particular aspects of your divorce case and how to approach each.

If you have any immediate questions about today’s blog post topic or any other in family law please do not hesitate to contact our office. We offer free of charge consultations six days a week with a licensed family law attorney … Continue Reading

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Best practices in your Texas divorce: Debts

Family Lawyers in Houston:I can count on one hand the number of people that have come in to meet with me for a consultation who have asked me about debts that they and their spouse have. Debt is a common attribute of married life for most people in our country. Student loan debt, credit card debt, mortgage debt- we Americans never met a loan we weren’t eager to take out and pay interest on. Not all debt is created equal, mind you, but as a whole we should be more concerned with debt than we probably are.

As we discuss property much more than debt in the context of a divorce, I think it is time that we devote an entire blog post on the best practices on how to handle debt in your divorce. I’m not telling you that you should be leaping off your rooftop at the thought of having to pay interest on a loan. I’m not telling you that you need to go into your divorce with the mindset that you have to negotiate away all of your debt (hint: you won’t be able to, most likely). What I am saying is that you need to be aware that debt is impactful on your life and therefore should be recognized as such within your divorce.

Do not stop paying your debts during your divorce (unless suggested otherwise by your attorney)

If you are falling behind on your car payment already, and now you are faced with the prospect of hiring a divorce attorney it may have crossed your mind that you have an option to simply not pay your car payment until it is decided which person in your divorce will be responsible for it. This is not a good plan for you to follow. You should continue to make payments on whatever debts you have.

It is likely, first of all, that any debt in your name will continue to remain yours after the divorce. So any fleeting thoughts of your debt being transferred to your spouse is unlikely. With that said any arrearages in payments that accrue over the course of your divorce will be your responsibility moving forward. Your credit will be sunk and the interested owed will only increase. Bad situation that is avoidable.

An exception to this general piece of advice is that if the debt is not in your name but has been one that you are making payments on for your spouse you may be advised by your attorney to not pay on the debt. For instance, if a car that your spouse drives that is in her name is being paid by you and your income you may not want to pay the debt. If a judge orders you to do so that changes things.

Do not pay anymore than the minimum payment on a particular debt

Part two of our general piece of advice that you should be paying debt during the divorce as scheduled is that the payments that you make should be no more than the minimum. The reason for this is that debt can be used a negotiation tool in the divorce and there is little sense in paying off a debt early when you don’t know if you will even get credit for doing so. If you pay off a car loan during the divorce your spouse may even argue that you were wasting community resources in doing so.

I understand the hesitancy to let a debt hang around. I am no fan of debt and in my personal life I take out as little debt as humanly possibly. However, if you have debt active then you should simply save up money (if able) to pay down the debt after your divorce. This does not hurt you in the long run and keeps your payments current in the short-term.

Keep documents handy of your debt payments

Houston Family Law Lawyer: This is more or less a general rule that could be applied to any area of your divorce but I am applying it to your debt load. If you are making payments on a debt of some sort then you need to document your having done so in case your spouse attempts to argue that you have not been staying current. When you make a payment and the website gives you an option to print for your records a statement showing the payment having been made do not ignore that suggestion. You can print to PDF and save an electronic version so you don’t have stacks of paper taking up space in your office or desk drawer.

Keep your spending in check during your divorce

It is tempting to do a little retail therapy during your divorce and buy that television, dress, suit or other expensive item that you’ve had your eye on and to justify doing so in the name of making you feel a little better in the face of your difficult divorce. After all- you’re going through a lot and you’ve earned that dress for having done so, right? Wrong.

First of all you may be violating a court order in spending a ton of money on items that are not necessities. Check with your family law attorney on whether or not your temporary or standing orders bar you from spending money on items like this. If they do then you have one more reason to stay the course and not spend your money.

A huge increase in your credit card debt makes it much more difficult to split that debt up in your divorce. Suppose that the majority of debt incurred on that particular credit card account was your spouse’s. Then, one day you up the debt number by a couple thousand dollars. The debt previously could have been shifted over to your spouse in the final orders. Now, your spouse may be less willing to agree to this sort of clean split and may require you to pay a portion of it or cause you to lose an asset in exchange for your spouse to pay the totality of the debt.

Be careful what you use your credit card to spend money on

Finally, I will point out that credit card statements are commonly requested in discovery. This means that if you are spending money on items that are not related to your divorce, your children or your work then you will likely have to account for those in negotiations or in court. Obviously spending via a credit card means that there will be a paper trial that is created. It would be surprising to me if your spouse did not find out about what you spend your money on via discovery.

The best course of action, in my opinion, is to do little in the way of your credit card during a divorce. See if you can live on cash as much as possible. Cut your spending to the bone. Only use your credit card when you have to. As stated earlier, pay the monthly minimum payments on the card and no more. If you have an inkling to pay off the credit card then you should talk to your attorney before you do so.

Ultimately credit cards are neither good nor evil- they simply exist. If you use the credit card responsibly then your results will that the card offers you no particular harm. However, if you use the credit card as a method of escapism from your divorce, or fall behind in payments you could find yourself not only in trouble with the creditor but also your spouse.

Social media and Digital Security best practices- tomorrow’s blog post topics from the Law Office of Bryan Fagan, PLLC

Family Lawyer in Houston: Stay tuned tomorrow as we shift gears to the digital realm to discuss how you should treat online and social media accounts during a divorce. These are areas where people tend to get lulled into a false sense of security where their bad behavior is believed to be done in secret. Don’t let this happen to you. Read our blog tomorrow to learn more.

In the meantime if you have any questions regarding family law in Texas please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. One of our licensed family law attorneys will be happy to schedule a free of charge consultation for you to discuss your issues with us … Continue Reading

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The steps to take in order to win spousal maintenance in a Texas divorce

If you have need a best suitable service your Child Law experience, The steps to take in order to win spousal maintenance in a Texas divorce with the great process!

Family Attorney Houston: When it comes to issues that people have the most questions about, I think spousal maintenance is probably one of the most popular. If you are going through a divorce it is likely that the thought has crossed your mind as well.

How could you wind up receiving a sum of money from your spouse after your divorce has been finalized? On the other hand- how could your spouse put you on the hook for payments to him or her? No matter what side of the fence you are seated on you should be aware of what the relevant laws in Texas are and how they can affect you and your family moving forward.

How easy is it to get spousal maintenance ordered by a judge?

Let me start by telling you that most divorces in Texas do not end up going before a family court judge. The vast majority of cases wind of settling before a trial. Be it in mediation or in informal settlement negotiations between you and your spouse the odds that you and your spouse go before a judge and have a good old fashioned divorce trial are slim to none.

Television and movies would make it appear that every single lawsuit that is filed goes to trial. Your friends and relatives may have also told you horror stories about divorce trials that have gone wrong. Block out their stories, and instead focus on the likelihood of your case going to trial as being very, very low.

With that said, spousal maintenance is by definition ordered by a judge in a divorce trial. The order to pay spousal maintenance is made against the will of either you or your spouse. However, be aware that just because a judge can order that spousal maintenance be paid either by you or to you, it is not a slam dunk that it will occur.

Even if you are ordered to pay spousal maintenance the amount that you are on the hook for is not likely to be a huge sum of money. First of all, a judge cannot order you to pay money that you don’t have. Second of all, the law limits the amount of money that you would be responsible for paying on a monthly basis. There are limits to how much and how long you have to pay spousal maintenance for. There are also conditions that can go into place after the divorce that can eliminate your need to pay at all.

A pretty common question that I often field in consultations is whether or not you can receive maintenance from a person that you were never married to. As it has become more common to live with and have children with a person that you did not marry this is increasingly becoming a relevant question. The answer is that there is no way that you can receive spousal maintenance from a person that you were never married to.

What is the basis for the limits on spousal maintenance?

Divorce Attorneys in Houston: Texas was one of the last states in the country to create a law that allows for the payment of spousal maintenance as ordered by a judge. The circumstances that allow for spousal maintenance to be ordered are quite limited, on top of the hesitancy with which most judges in Texas order spousal maintenance.

If you are in a position where you believe that you may have to pay spousal maintenance at the conclusion of your divorce you can take solace in the knowledge that spousal maintenance, if ordered, does not last forever and there is a limit to how much you can pay per month.

One of the key reasons, in my opinion, why the law in Texas is fairly restrictive when it comes to the ability of judges to award substantial amounts of spousal maintenance is that our state is known as a community property state. This means that all property at the time of divorce is presumed to be jointly owned by both you and your spouse and is therefore subject to division in the divorce.

Even if you have never worked a day in your marriage you have just as much of a claim to any of that community property as does your spouse. Think about real estate, personal property, income, bank accounts, investment, retirement accounts- these are all examples of community property that you have a right to even if you did not contribute one dime.

In many states, the property is divided up according to which spouse went out into the world and earned the property. Texas is not like that. You are not thought to be less of an owner of that big 401(k) just because your name doesn’t appear on the account or because your income never contributed to its growth.

For these reasons, the law in Texas is more restrictive when it comes to spousal maintenance because it is thought that because the state allows the “non earning” spouse a great chance at retaining as much of the community estate as possible, their need for additional sums of money are not as great.

Self-sufficiency is the goal of temporary spousal maintenance

It should not surprise you that our state’s laws are based on the idea that it is better for you to be able to provide for yourself and your family rather than to rely on another person or the government. Call it self sufficiency, call it bootstrapping, call it the American spirit of hard work. It is best for you to be able to go out and find work after your divorce than to be reliant on payment from your ex-spouse.

Spousal maintenance payments are temporary and help you to get back into the job market, earn a certification, go back to school for a short time, etc. Once you have done what you have to do in order to be more attractive in the jobs market the spousal maintenance should have just about run its course. Of course, lawmakers realize that by receiving any amount of money you could be disinclined to go out and find work at all. That is another reason why the laws restrict how much spousal maintenance you can receive and for how long you can receive it.

Can you agree to some form of payments to be made with your spouse?

Yes, you can settle on some type of payments to be made from you to your spouse or vice versa after your divorce has concluded. There are no requirements that you be married for ten years or for the duration/amount of the spousal maintenance if you and your spouse agree to this outside of a trial.

The agreement to pay alimony is like a contract made between you and your spouse and the law treats it as such. Keep in mind that whatever you write into your final decree of divorce when it comes to alimony will be what a court reviews if you or your spouse need to file an enforcement or modification lawsuit in the future.

I would tell you that knowledge of the laws regarding court-ordered spousal maintenance can help you to be able to create workable settlement terms for your agreed to alimony. For instance- how long do you want the alimony to last? How much should you stand to receive per month? How is your ex-spouse supposed to pay you? These are all details that you need to work out in case one of you needs to go back to court for any issue related to alimony.

Questions about spousal maintenance or contractual alimony? Contact the Law Office of Bryan Fagan, PLLC

Houston Divorce Attorneys: The attorneys with the Law Office of Bryan Fagan, PLLC appreciate your interest and time in reading through today’s material on spousal maintenance and contractual alimony. If you have any additional questions or seek clarification on anything that we wrote today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys … Continue Reading

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How long can spousal maintenance be ordered in a Texas divorce?

If you have need a best suitable service your Child Law experience, How long can spousal maintenance be ordered in a Texas divorce? with the great process!

Divorce Attorneys Houston: If you have been away from our blog for a little while then you probably missed the first few installments of our blog posts that cover the subject of spousal maintenance. Specifically, we have touched on the factors that lead a judge to award spousal maintenance to a party and issues that surround that topic. I would highly suggest that you go back and read those blog posts in order to get a better understanding of this topic before picking up with today’s blog.

In today’s blog post from the Law Office of Bryan Fagan, PLLC we will discuss the topic of how long spousal maintenance can be ordered to be paid in a divorce trial. Keep in mind that the rumors that you’ve heard when it comes to spousal maintenance are likely to be embellished and very much not true. Be careful about what you pay attention to and stick with us on this topic in order to learn information that could be critically important to your own divorce.

A judge will order spousal maintenance to be paid for the shortest time possible that will allow for a person to earn sufficient income in order to meet their expenses. Spousal maintenance is not a payment that is used to help you live a lifestyle that you had previously been accustomed to living or anything of that nature.

If you are disabled or otherwise unable to work, or you are responsible for the daily care of a child who is disabled then these factors can increase the years on which you can receive spousal maintenance payments. It is only under these circumstances that a judge can order spousal maintenance to be paid for an indefinite length of time. Often times a judge will create an order that requires the parties to return to court on a semi-regular basis to review the circumstances of each party and to determine if a continuance of the spousal maintenance is necessary.

In all other circumstances, you would be able to receive spousal maintenance for a maximum of ten years. This would be if you and your spouse were married for thirty or more years. For marriages that lasted between twenty and thirty years, the limit to the payments would be seven years; Between 10 and 20 years you would be looking at no more than five years of spousal maintenance. You can receive spousal maintenance for up to five years if you were not married at least ten years only if your spouse committed act(s) of family violence against you.

How can you hold your spouse accountable if he or she does not pay you the maintenance?

A big concern many people have as their divorce is closed out is what can be done after a divorce has been finalized as far as ensuring that their ex-spouse abides by the terms and orders contained in the final decree of divorce. It would be easy, these folks argue, for their spouse to listen to the order for a few months or even a few years and then to argue that a circumstance has changed or to simply stop paying according to the order. What can be done in order to enforce a alimony order?

Unfortunately getting a judge to order that spousal maintenance be paid to you for any length of time is just the first step in this process. It is all too common when it comes to this issue that you will have to come back to court in order to have your rights protected in an enforcement lawsuit. The remedies that are available to you are to hold your ex-spouse in contempt of court (for violating a court order). He or she would then be on the hook to pay a fine or face a period of time in jail.

If you were to need to file an enforcement suit against your ex-spouse he or she can always argue that the amount that he or she pays to you on a monthly basis needs to be reduced or completely eliminated based on a change in circumstances that have come to exist in your life and/or theirs. For instance, a reasonable request like this could be based on your going back to school, earning a degree and now being in a position to go out into the work-force and provide for your minimum reasonable needs without the assistance of spousal maintenance.

Additional defenses that your spouse could employ at an enforcement hearing for spousal maintenance

Divorce Attorney in Houston: As we touched on a moment ago, you can seek contempt findings against your ex-spouse for his or her violation of the court’s orders on spousal maintenance. His or her failure to abide by the court’s orders do have defenses, however, that can be offered in a hearing before a judge.

For instance, he or she can argue that they had an inability to pay the spousal maintenance. He or she may have lost their job or had another unforeseeable circumstance occur that makes their payment of spousal maintenance nearly impossible. A court would then look to other sources of funds that could be sold or borrowed from in order to meet their spousal maintenance obligation. If a judge determines that no such source exists and that he or she had no other way of obtaining the funds then he or she would be able to avoid being held in contempt of court.

When does spousal maintenance come to an end?

Earlier in this blog post, I laid out the length of time (largely based on the length of your marriage) that you can be paid spousal maintenance. However, there are other circumstances that can come into play which can lead to an order of spousal maintenance being paid to cease sooner rather than later.

If your ex-spouse passes away or you do then the order becomes void. If you remarry then your ex-spouse no longer is responsible for making spousal maintenance payments. A trickier situation than either of these two circumstances is when you begin to cohabitate with another person with whom you are engaged in a dating/romantic relationship. I have seen parties on either side of this issue go to great lengths to either prove that a person either is in or is not in a situation like this.

What can happen if your ex-spouse is found to lack the resources to pay spousal maintenance?

If we go back to your divorce trial, in order to have spousal maintenance awarded in the first place you must show that your spouse is able to make the payments. Even if your situation merits spousal maintenance to be paid it cannot be ordered if your spouse lacks the financial wherewithal to make the payments and meet his or her own minimum reasonable needs. If he or she cannot do so then you may be in line to receive a greater than fifty percent share of your community estate in order to make up for the inability to order spousal maintenance to be paid.

Ultimately you need to decide whether the “spousal maintenance hill” is one that you are prepared to run up and die on, so to speak. Is this the most important issue in your case? Will it affect your ability to successfully parent your children? Will it require you to go to a trial based on this issue alone? Will the benefit of possibly receiving spousal maintenance outweigh the increased cost and time associated with a trial? These are factors that you need to consider before you jump head first into this arena.

Contractual alimony will be discussed in tomorrow’s blog post

Houston Family Attorney: As we wrap up the topic of spousal support, tomorrow we will discuss how you can negotiate contractual alimony with your spouse. This option allows you to receive post-divorce support from your ex-spouse without ever having to go to a trial.

In the meantime, if you have questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys are available six days a week to discuss your case with you and to answer any questions that you might have in a comfortable, pressure-free environment … Continue Reading

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Can I Revoke or Set Aside a Mediated Settlement Agreement in a Texas Divorce?

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Houston Family Law Attorneys: A while back, a fellow attorney asked me some questions about whether a Mediated Settlement Agreement (MSA) could be revoked or set aside in a Texas Divorce. I have also debated this question before with other attorneys. Most family law attorneys in Texas know that in most circumstances, revoking or setting aside an MSA is very difficult.

Recently, I had a chance to revisit this topic because a fellow attorney had a case where the opposing party was trying to set aside an MSA. It had been some time since I last looked into the question, so I started looking at whether there was any new case law on the subject.

Relevant Facts

My friend told me the parties had attended mediation with a mediator to settle their divorce. On that date, a Mediated Settlement Agreement was entered into and signed by all parties, their attorneys, and the mediator.

Later, the wife changed her mind, fired her old attorney, and hired a new one who filed a motion to set aside the MSA. Husband wanted the Mediated Settlement Agreement to stand and filed a motion to enter the final decree based on the MSA.

Wife’s Argument on Why the MSA Should be Set Aside

Wife argued that the MSA should be set aside because:

> The mediator was not an attorney and thus illegally acted as an attorney. > The MSA required that drafting disputes for the order would be resolved by the mediator through arbitration. > If the mediator acted as an arbitrator, that would involve the unauthorized practice of law.

Requirements for Mediated Settlement Agreement

For a Mediated Settlement Agreement to be valid and binding, the agreement must:

> provide, in a prominently displayed statement that is in boldfaced type or in capital letters or underlined, that the agreement is not subject to revocation; > be signed by each party to the agreement; and > be signed by the parties’ attorney, if they are present at the time the agreement is signed (Tex. Fam. Code §6.602(b)). If these requirements are met, the agreement is valid and a party is entitled to judgment on the agreement (Tex. Fam. Code §6.602©).

In addition to these requirements, Texas Courts have recognized that in order for a Mediated Settlement Agreement to be valid, the dispute must have been mediated by a valid mediator (Lee v. Lee, 158 S.W.2d 612, 614 (Tex. App. – Fort Worth, 2005)).

In the case that we are discussing there was:

> A third-party mediator between the two parties to an agreement; > Both parties and their attorneys signing off on the agreement; and > A prominently displayed agreement that it was not subject to revocation.

Thus, the requirements of Section 6.602(b) and those in Lee had been met.

Is Mediation the Unauthorized Practice of Law?

Divorce Houston: The wife also argued that the Mediator acted illegally by engaging in the unauthorized practice of law because they mediated the divorce while not licensed as an attorney in the state of Texas.

The practice of law is defined under Section 81.101 of the Texas Government Code as:

“…the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court, as well as a service, rendered out of court, including giving advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.”

While this language may seem broad enough to encompass acting as a mediator within the practice of law, thus requiring an active bar license, the Professional Ethics Committee for the State Bar of Texas recognizes that mediators do not engage in the practice of law simply by mediating disputes between parties.

“Under the Texas Disciplinary Rules of Professional Conduct, mediation does not constitute the practice of law but instead constitutes action as an ‘adjudicatory official’.” – Texas State Bar Ethics Opinion No. 583, September 2008.

The Texas Rules of Professional Conduct include both arbitrators and mediators within the definition of the adjudicatory official. Additionally, the Texas Rules of Professional Conduct Rule 1.11(b) state: “a lawyer who is an adjudicatory official…” Applying principles of judicial interpretation and statutory construction, this distinction illustrates that a lawyer and an adjudicatory official are not synonymous.

Therefore, Texas law does not require either mediators or arbitrators in Texas have an active bar license nor does it state that by mediating or arbitrating a case without an active license in Texas, the person doing so is practicing law.

For example, in Ethics Opinion 583, the attorney not only mediated the case but also prepared the final decree and other divorce documents for the parties. Id. The Committee determined that the attorney had engaged in the unauthorized practice of law in that case, not because they had acted as a mediator, but because the attorney provided legal services in addition to serving as the mediator. Id. It is thus implied that had the attorney in that opinion solely served as a mediator, they would not have been engaging in the practice of law at all.

Here, the parties did not dispute that the Mediator was acting as a mediator in this case. Part of Wife’s contention lies in the possibility of her serving as an arbitrator at some point in the future. However, as the above-cited ethical opinion demonstrates, neither role constitutes the practice of law without more action having been undertaken by the mediator, whose only job was to serve as the third-party mediator … Continue Reading

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A divorce in Texas: From temporary orders onward

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Family Lawyers Houston: In yesterday’s blog post from the Law Office of Bryan Fagan, PLLC we covered the initial phases of a divorce in Texas and what you can expect within them. Today we will pick up where we left off by discussing more about the temporary orders phase.

Temporary orders within your Texas divorce

Generally speaking, the temporary orders phase of your divorce occurs after your Petition has been filed and your spouse has had an opportunity to file an Answer. Many counties in Texas require that you and your spouse seek mediation prior to going to see a judge about establishing temporary orders. What exactly is covered in a typical temporary order in Texas?

Temporary orders will ensure that you and your spouse have some ground rules in the areas of your marital residence- as in, who will get to stay in the house and who has to leave. Additionally, temporary orders will decide which one of you will pay what bill and who will be the primary conservator (temporarily at least) of your children. The primary conservator is allowed to determine the primary residence of the kids.

Whichever spouse is not the primary conservator will be awarded visitation time on a regular basis in most situations. Finally, the use of and access to the property will be decided in temporary orders. The actual division of property will occur prior to or during a trial.

Temporary orders tell you what you can and cannot do

It may seem awkward or unnatural to submit yourself to another person’s rules when you are an adult, but essential that is exactly what you are doing when you are involved in a divorce. Your personal theories of how an adult should conduct him or herself and your behaviors become less important and instead you are expected to follow a fairly rigid set of rules set forth by a judge. However, keep in mind that this stage is preparing you for life after your divorce when you will be living under your final decree of divorce until your children reach the age of 18 and all property issues are sorted out.

Basic injunctions are put into place during the temporary orders phase of your case that restricts your ability to do things like harm your spouse physically, harm their property, waste community resources like income or go into debt. As I mentioned a moment ago you and your spouse will also become acclimated to seeing your children based on the orders contained in your parenting plan. Temporary child support will likely be paid from whichever spouse does not live with the children to the primary conservator.

Information gathering during temporary orders: Discovery During the sometimes long period of time in between the filing of your divorce and the conclusion of your case, your attorney and that of your spouse will be assisting each of you in collecting evidence that may be relevant to your case.

The ultimate purpose of collecting this potential evidence is for use in a trial. However, keep in mind that most cases do not go all the way to a trial but instead settle in mediation. What you are collecting this evidence for is to give both you and your spouse equal knowledge of the facts and circumstances of your case. This will allow for more coherent settlement negotiations and in a perfect world will decrease the possibility of your divorce ending up before a judge.

Your spouse and you will likely exchange requests for discovery during this phase of your case. Information, documents, and statements from each of you regarding your children, your property, your finances and a host of other subjects will be hashed out in this section.

If digging through the computer and file cabinets for documents sounds tedious- it’s because it is. You can get a jump on this process by collecting tax returns, bank and retirement statements, etc. before your spouse even asks you for them. Some of the information that the other side seeks will be protected and does not have to be provided. Your attorney will make the decision on what you should respond to in these discovery requests and what does not need to be answered.

My general advice when it comes to responding to discovery requests is to be as helpful and thorough as possible. Don’t think of this as a “partner” activity from high school where you can do 20% of the work while your attorney can do the other 80%. I suppose that your attorney can do 80% of the work, but it’s going to take him or her more time to do it and you will be billed for every minute that your attorney spends asking you questions about documents or responses that you have provided. If you can be thorough and timely in your collecting documents for him or her you can manage costs easier and get past this stage faster.

Even if you do not get asked by your attorney to turn in more documents or better clarify responses to questions asked of you, the opposing attorney will look at incomplete answers or requests for documents as you trying to hide the ball. You will likely be asked to turn in more complete information one time by the opposing attorney before you are asked to attend a court hearing where the attorney will tell the judge that you and your attorney need to be compelled (forced) to turn over relevant information that has not been turned in yet.

Inventory and Appraisement

Family Lawyer in Houston: A document that you are required to file during your divorce is known as an Inventory and Appraisement. This form will list all property that you and your spouse own (separate and community) and the debts that you both are responsible for.

You will be asked to state an estimate of the value of the property and the amount of any debt. The document is treated as an affidavit- a sworn statement was taken under oath. This is required because if you and your spouse do need to seek a trial, this inventory will be entered into evidence and utilized by the judge to decide a host of issues regarding property division, child support, and spousal maintenance.

Settling on final orders

Once you and your spouse have submitted responses to requests for discovery, the next phase of your case is to attend mediation for final orders. Usually, you and your spouse will have been exchanging settlement offers on a host of issues associated with your children and your property throughout the case. Mediation is an opportunity to negotiate via a professional mediator who can assist you both in coming up with creative solutions to the issues that you all are facing.

Mediation is on the whole very effective and results in the settlement I would estimate is close to 85% of divorces. A half day session (four hours) can help you and your spouse hammer out agreements on a divorce that can save you all time and money.

We will begin tomorrow’s blog with a more thorough examination of what final orders mediation actually is, but the spirit of the day should be compromised. Neither you nor your spouse will likely walk out of mediation feeling like you got everything the way you want it in your final orders. That’s ok. In reality- that’s the sign of a good agreement.

In settling your case and avoiding a trial you are putting the interests of your family first before your own desires for “justice” or “fairness”. As I tell clients all the time: you can search the rest of your life for fairness when it comes to your relationship with your spouse and you will likely never get it.

Mediation, Settling for Final Orders and trial- tomorrow’s blog post topics

Houston Family Law Lawyer: Stick with us tomorrow as we begin to discuss the final stages of a divorce case in Texas. In the meantime, if you have any questions for the attorneys with the Law Office of Bryan Fagan, PLLC please do not hesitate to contact us today. We offer free of charge consultations six days a week with one of our licensed family law attorneys … Continue Reading

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What does a mediation mean to your Texas divorce case?

If you have need a best suitable service your Child Law experience, What does a mediation mean to your Texas divorce case? with the great process!

Family Lawyers in Houston: If you think that you are going to be stuck with a cranky judge issuing a ruling in your divorce it’s time to think again. The vast majority of Texas divorces end not in the courtroom but in a mediator’s office. This may come as a surprise to any of you who have had to endure stories from friends and relatives about their own divorce nightmares- stories that likely climaxed in a heated courtroom drama.

Obviously, your case may be the exception that proves the rule that most cases do not go all the way to a trial. However, the likelihood is that your case will settle and you will avoid talking to a judge at all in your case. Getting to that point, and avoiding mistakes and problems, is the key to this discussion. Hiring the right attorney for you and your family takes research and knowledge of what your goals are and what is best for you. A family law attorney who is experienced in working with clients like you can be the best investment that you ever make.

One of the characteristics that your attorney should embody is a certain degree of experience in helping to select a mediator for their clients. Just what a mediator does and how this person will impact your case is the subject of today’s blog post from the Law Office of Bryan Fagan, PLLC.

Mediation explained

As we just touched on, most divorce cases in Texas settle rather than go to a trial. Most settlements occur in mediation. Whether it is by court order or by mutual agreement, you and your spouse would hire a third party attorney/mediation to intercede into your case to help you all reach a settlement. The mediator can also be selected by the judge if you and your spouse cannot agree on a person.

A mediator is an attorney, and usually, one who is experienced in family law cases. In certain circumstances, your attorney may suggest an ex-judge who heard cases in family law courts. The mediator may have a relationship with your attorney but he or she will not favor you or your spouse. They are neutral and independent. Their role is to help you and your spouse negotiate and settle any outstanding issues in your case. A mediator’s experience trying cases in front of your judge will be important because he or she will be able to give you a neutral opinion on what a judge is likely to do given any individual scenario in your case.

Mediation sessions for most divorces typically last approximately four hours. A full day session will not be likely but can be done if your case has a particularly large amount of issues. The costs of mediation are split between you and your spouse and are not (usually) included in your attorney’s fees. You will be paying your attorney to be present with you at mediation and will pay the mediator as well. This may seem like a lot of costs, but keep in mind that the alternative is the weeks-long preparation for a trial that could last more than one day.

What the mediator cannot do

Family Law Attorneys Houston: The mediator is not there to weigh the strength of your argument and that of your spouse on a particular issue and then make a decision in favor of one of you. The mediator is not an arbitrator, in other words. The mediator is independent and has no force or legitimacy within your case in anything other than helping you and your spouse reach a settlement. Their fees do not go up or down depending on whether or not your case settles.

What the mediator does do is be honest with you about the relative strength of your positions. As in, you can expect a mediator to tell you if your argument regarding dividing up the marital assets will either do well or go down in flames with the judge. Before that, the mediator will get a sense of who you are, what your goals are and what you believe that the mediator needs to know. He or she will then leave the room where you and your attorney are seated and go to the room where your spouse and their attorney are and do the same with them.

Acting like a ping-pong ball, the mediator bounces back and forth between the rooms to communicate settlement offers and help you all problem solve your issues. Unless you give the mediator permission to, he or she cannot disclose anything you say in your room to your spouse. For instance, a mediator cannot be called as a witness to tell the judge anything that you or your spouse told him or her during the mediation session.

Where cases go if they don’t settle- trial

For every ten divorce cases that are filed in Texas, I would say between one and two of them end up going all the way to a trial. The reasons why your divorce may not settle can vary. The circumstances themselves may make it very difficult. You or your spouse (or both of you) may have a mindset that a settlement is not possible. In which case your likelihood of going to trial skyrocket.

What you have seen on television and in the movies suggests to you that a trial is a situation where anything goes, mud will be slung and problems only get worse. That is not the reality of the situation. The reality is that a trial is rarely observed by anyone beyond you and your spouse. Galleries full of people whispering and gasping at the various turns of events are quite rare. A friend or family member may sit in the gallery and watch the proceedings but even this does not occur with all that great amount of frequency.

Your attorney and you likely would have spent a great deal of time preparing for your trial. You and your spouse will testify about issues related to property and your children. There may be other witnesses who will testify for and against you. Evidence will be offered by each attorney and whatever evidence makes it into the record will be available for the judge to weigh when he or she arrives at their decision(s).

At the end of your trial, the judge will issue his or her rulings on all of the issues submitted to the court. Once this happens either your attorney or your spouse will take those orders and put them into a final order called a Final Decree of Divorce. This is an important step because you will want to make sure that everything put into the mediated settlement agreement (MSA) comes out in the Final Decree. If something happens years from now and requires your return to court in order to hold your spouse responsible for violating the order you will need the relevant order to be clear and otherwise able to be followed.

Prove Up Hearing

Most courts in Texas require that you or your spouse attorney a brief, uncontested hearing known as a prove-up hearing with your attorney in front of the judge.

Basically, the judge needs to make sure that you understand what you signed your name to. Your attorney will ask you a series of yes/no questions where you will answer each of them “yes.” Once the judge is satisfied that your children are taken care of and all property is divided that needs to be he or she will grant your divorce.

Questions on divorce? Contact the Law Office of Bryan Fagan, PLLC today

Houston Family Law Lawyers: If you have any questions about your own divorce, then please contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys. We take a great deal of pride in representing the people who live in our community achieve whatever goals they may have. It would be an honor to help you and your family do the same. We hope that the past few blog posts on divorce have been interesting and have taught you a thing or two in the process … Continue Reading

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The benefits of a Texas premarital agreement

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Family Law Lawyer Houston: In my years of practicing family law, I have found that so much of the practice involves helping clients understand what reality is versus their perception of reality. For example, if you are like most people that I have spoken to about today’s blog post topic, you may believe that premarital agreements (or prenuptial agreements as they are commonly known) practically guarantees that a divorce will occur for whatever couples agree to one. After all- why sign an agreement that discussing dividing up property upon divorce if a divorce isn’t likely from the very start?

That is the widely held notion. In reality, premarital agreements are often times the smartest thing a couple can agree to prior to their marriage. It offers people peace of mind in order to be sure that they know how what will happen should a divorce occur. You are able to negotiate with a person who is about to enter into a marriage with you, instead of negotiating with a person who is eager to end your marriage. The atmosphere and stakes couldn’t be any more different. What’s more- I am not aware of anything that tells us that couples that agree to premarital agreements are any more likely to end up getting divorced.

Of course, what your personal circumstances are may vary somewhat with most people’s experiences regarding premarital agreements. With that said, let’s discuss this topic a little further in today’s blog post from the Law Office of Bryan Fagan, PLLC.

What a premarital agreement can be

A premarital agreement is not designed to be a one-stop shop for all your premarital needs. The agreement’s confines are specifically laid out in the Texas Family Code as far as what can and what cannot be included in the document.

You are able to detail the rights and obligations of you and your spouse to be for specific pieces of property- both personal and real property. This is regardless of when the property was acquired or where it is located. For instance, your or your spouse to be’s ability to sell or lease a piece of real estate can be covered by this document. Finally, how the property will be treated upon a future divorce can certainly be covered by a premarital agreement.

The key part of premarital agreements is that you and your spouse can choose how to designate a piece of property- as either community or separately owned. This can be a big deal because the law in Texas is that there is a presumption that all property owned by you and your spouse at the time of a divorce is considered to be community property. This means that if you intend to argue that a piece of property is your separate property you must ordinarily provide evidence to a court to prove this assertion of yours.

Under a premarital agreement, however, you and your spouse can set aside the laws of Texas and designate items as being either community or separate property based on your own wishes. This is a powerful tool available to you that otherwise would not be available to you in a courtroom. If your divorce case were to make it that far, a judge would be forced to apply the community property laws of Texas to your case.

On top of that, a premarital agreement can dictate the terms of how a piece of property is managed and controlled during your marriage and can specify whether or not spousal maintenance is to be paid after a divorce. When it comes to money and property these are some of the most highly contested subjects that couples encounter in a typical divorce and having them decided well in advance of the divorce can be a great way to help a divorce keep from getting bogged down if one has to be filed later on.

What doesn’t the law in Texas allow a premarital agreement to do?

Kingwood Divorce Attorney: A premarital agreement cannot contain anything that violates state criminal law or violates public policy. Importantly, you and your spouse cannot come to any sort of agreement on child support in a premarital agreement. As in, you cannot agree ahead of time that you and your spouse will not ask the other for child support- even if you have children that are already born.

The reason for this is that it is a judge’s responsibility to ensure that the best interests of your child are taken into consideration in any orders regarding support of that child. He or she will be fine with an amount of child support that you and your spouse agree to incident to a divorce but will not enforce a provision of your premarital agreement related to child support.

For example, you may have a child that requires around the clock medical attention due to physical impairment of some sort. As a result, the provision included in your premarital agreement that states no child support will be paid under any circumstances doesn’t seem to be in line with what is in your child’s best interests.

The top ways in which a premarital agreement can be determined to be unenforceable

Like any written contract, ideally, the document will be enforceable in court in the future should a divorce occur. If a judge cannot enforce the agreements made within the document then all the time, money and effort that went into negotiating and drafting the agreement was pointless and for naught.

A good question to ask yourself at this stage of your investigation into premarital agreements would be how can you and your spouse avoid putting yourself in that type of situation. Let’s go over the most likely reasons that I believe premarital agreements are determined to be unenforceable.

First of all, any agreement must be made voluntarily. As in, you and your spouse must both have shown a knowledge of the issues being agreed upon and a willingness to enter into the agreement. This means that you cannot have forced him or her to sign the agreement and vice versa. You also must not have fraudulently induced him or her to sign, or vice versa. If it can be shown that one of you relied on a promise made by your spouse and that promise turned out to be false then the contract will likely be determined to be unenforceable and not valid.

Secondly, your premarital agreement may be determined to be unenforceable if one of you are able to prove that it was unconscionable. This means that the agreement is so unfair, so one-sided that it cannot be enforced as a result. In reality, it is pretty difficult to prove this.

Years after signing the agreement if you argue that the agreement is invalid on grounds of unconscionability you would need to show more than that it is just favorable to your spouse. There is nothing necessarily unconscionable about that, per se.

The reality is that the failure to disclose pertinent information or that debts/assets/liabilities were hidden from you in negotiating the agreement is a necessity when arguing unconscionability. If both you and your spouse were represented by an attorney it becomes even more difficult to argue this point because once an attorney becomes involved it is presumed by most courts that the attorney representing you was reasonably prepared and capable of advising you in conjunction with whether or not to sign off on the agreement that you entered into.

Questions about premarital agreements? Contact the Law Office of Bryan Fagan, PLLC

The Woodlands Divorce Attorney: At the end of the day, if you want to ensure that you protect your rights in the best manner possible and that you have entered into an enforceable premarital agreement it makes a lot of sense to hire an attorney who has worked with clients on these subjects before. The attorneys with the Law Office of Bryan Fagan, PLLC have the right combination of experience and knowledge of the law in order to best advise you in matters relating to premarital agreements.

To schedule a free of charge consultation with one of our licensed family law attorneys please do not hesitate to contact our office today … Continue Reading

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Texas Divorce - Serving Military Personnel or their Spouse Worldwide

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Houston Family Law Lawyers: As a Houston, Texas divorce lawyer I have had the opportunity to help service members through a military divorce and family law cases. One the things that my clients are often concerned about is getting a service member served with the paperwork.

Acceptance of Service

The easiest way to accomplish the service requirement in a Texas Divorce is if the military member is willing to accept service by signing and returning a waiver of service. This document simply means that he received the divorce papers and is aware you filed for divorce. As long as your spouse is willing to cooperate, this method works well for military families since it allows couples to work through the divorce process while one of them is locate elsewhere even if they are out of the country.

Locating Service Member or Getting a Mailing Address

Responsibility for military personnel records falls within the jurisdiction of the military departments, not the Office of the Secretary of Defense. Therefore, requests for military addresses should be sent to the respective service of the individual whose address is being sought. This process can take up to four weeks.

The following information is needed for all requests for all locator services:

> As much identifying information as possible such as full name, last duty assignment, last known military address, service number, and social security number.

> The locator service is free to immediate family members and government officials. Others must pay a nominal fee.

32 CFR 720.20 - Service of process upon personnel

CFR Provides that commanding officers may permit service of process of Federal or state court upon members. Factors that will effect that decision include:

> In-State process. When a process server from a State or Federal court from the jurisdiction where the naval station is located requests permission to serve process aboard an installation, the command ordinarily should not prevent service of process so long as delivery is made in accordance with reasonable command regulations and is consistent with good order and discipline.

> Out-of-State process. In those cases where the process is to be served by authority of a jurisdiction other than that where the command is located, the person named is not required to accept process

Service on a Military Installation

Just because a service member is stationed at, and maybe living on, a military installation in the U.S. does not mean it is not possible for a sheriff or a process-server to accomplish service. Military authorities will make the member available for service of process, assuming he is actually at the base.

Service when Overseas

Family Law Attorneys Houston: It is sometimes possible to serve a service member while abroad through registered or certified U.S. mail. In such case this will be done utilizing “APO” and “FPO” addresses. Service by this method can at times be difficult because military postal clerks do not always send back return receipts … Continue Reading