If you have need a best suitable service your Divorce Law experience, The division of military benefits in a Texas Divorce, Part Two in the great process!
Family Lawyer Houston: In yesterday’s blog post from the Law Office of Bryan Fagan, we introduced the topic of retirement accounts and how the funds within them are divided in a divorce. Today we will continue that discussion and will focus more on military retirement as our blog concludes. WHAT IF YOUR SPOUSE CASHES OUT THEIR RETIREMENT ACCOUNT BEFORE YOUR DIVORCE IS FINALIZED? In addition to concerns regarding whether your spouse has a “secret” retirement account that you don’t even know about, another concern that you may have is how can your spouse be trusted not to drain the retirement accounts that you are aware of. There are two ways that Texas courts will protect you from this sort of thing. First of all, many Texas counties institute what is known as standing orders as soon as your divorce is filed. A copy of served along with your Original Petition for Divorce to your spouse. These orders are basically ground rules for your divorce that limit certain “bad” behaviors by you and your spouse. One of the areas that the standing orders go into regard wasting community assets. This would include bank accounts and retirement funds. Right off the bat your spouse is ordered to not engage in this sort of behavior. If he or she does then there will be trouble at the courthouse if you bring it to the judge’s attention. If, however, you live in Harris County you will find that Standing Orders do not exist in your case. What you and your attorney will have to do is to file a Temporary Restraining Order along with your Petition for Divorce. That restraining order will last for a limited amount of time prior to a hearing on all issues contained in the restraining order. One issue would be to bar you or your spouse from draining bank accounts or retirement funds. Once you and your spouse have either settled on temporary orders outside of court or gone to see the judge have him or her issue orders from the bench, there will be an enforceable set of rules that you and your spouse have to live by for the entire length of the divorce. HOW DOES EVERYTHING WE’VE ALREADY DISCUSSED AFFECT YOU AND YOUR SPOUSE’S RETIREMENT BENEFITS? Divorce Lawyers Houston: You may be wondering at this point if we are ever going to actually get into the nuts and bolts of military retirement. That’s a fair question to ask but I can assure you that you’ve reached the point in our posts where that subject will now take center stage. In yesterday’s blog post we discussed briefly that in order to be eligible for a portion of your spouse’s military retirement benefits that you all needed to have been married for at least ten years. Your ability to receive benefits as the spouse of a member of the military is based on how long your spouse was employed in the military during the time in which you two were married. Should you be named as an eligible party to receive benefits, then you would receive those directly from your spouse’s retirement pay. WHAT IF YOU WANT TO KEEP YOUR MILITARY RETIREMENT PAY FROM GOING TO YOUR EX-SPOUSE? Family Attorney Houston: Suppose that the shoe is on the other foot, and you are the spouse who has earned military retirement benefits through your service to our nation. Now you have come to a time in your life where your spouse has filed for divorce and you are trying to create a game plan and course of action to take. One issue that immediately came to mind is your retirement benefits which are now becoming more substantial. It has not been a subject you’ve discussed at length with your spouse and you are not even sure exactly how everything works. How can you proceed at this point to protect yourself and your benefits from being divided up by a judge? The best and most obvious way to ensure that your benefits are kept out of your spouse’s hands is to never go see a judge in the first place. By this, I mean that you should do everything in your power to attempt to settle your case with your spouse before it gets to the point where a judge may have to intervene. If your spouse has retirement benefits that are community property and you do as well an agreement to not touch each other’s retirement benefits would make sense. If your retirement benefits are not nearly equal this could be a problem. In the event that your benefits are more substantial, you may be in a position where allowing your spouse to receive a greater than fifty percent share of other community property could be in your best interest. A vacation home, income from savings accounts or nonretirement investments are frequently used “proxies” for retirement savings that allow a spouse to walk away with the equivalent amount of property without having to actually dig into your retirement plan. ONCE AWARDED MILITARY RETIREMENT HOW DO YOU ENSURE THE MONEY GOES TO YOU AS ORDERED? A Qualified Domestic Relations Order (QDRO) will need to be drafted and signed by the Judge in your case. This is a separate document from your Final Decree of Divorce and places specific instructions to the plan administrator for the military retirement or other retirement that you are now entitled to. The administrator is to divide up the retirement according to the orders contained in the divorce decree. ADDITIONAL QUESTIONS ABOUT MILITARY RETIREMENT? CONTACT THE LAW OFFICE OF BRYAN FAGAN Divorce Attorneys in Houston: If you are facing a divorce and have questions please contact the Law Office of Bryan Fagan today. The information you learn can have a lasting impact on your case, your family and your well being. A free of charge consultation with one of our licensed family law attorneys is only a phone call away … Continue Reading
0 Comments
If you have need a best suitable service your Divorce Law experience, The division of military benefits in a Texas Divorce in the great process!
Houston Family Lawyers: If you are a person who either serves our country in the military or are married to a spouse who does, enough cannot be said about your family’s sacrifices in order allow your fellow citizens the opportunity to lead successful, productive and happy lives. For this, we all owe you and yours a debt a gratitude. It would be ideal for your lives to be ones that are lead without strife or hardship, but unfortunately, that can’t always be the case. Hardship can arrive at the foot of your door in the shape of a divorce. Today’s blog topic from the Law Office of Bryan Fagan is on the subject of dividing retirement benefits in a military divorce. MILITARY RETIREMENT BENEFITS IN A NUTSHELL Unless you have actually done some research into the subject you may not know exactly what is included in the retirement benefits that you or your spouse have earned through your career in the military. Throughout your working lives, you may have accumulated a variety of financial accounts that contain money that you can utilize in retirement. 401(k) accounts, Individual Retirement Accounts (IRA), and pensions are just a few of the types of retirement plans available to people. We will not go over each of these today but it is a good idea to read into each of them so you can be aware of how each can impact you both in divorce and retirement. WHAT IF YOUR SPOUSE HAS THE RETIREMENT PLAN IN THEIR NAME- DO YOU GET CREDIT FOR THEIR HAVING SAVED MONEY? Houston Divorce: For the answer to this question, we would take a look at whether or not the money was contributed to the retirement account before or after the date you and your spouse became married. If the money was contributed before you were married then the state of Texas considers those contributions to be the separate property of your spouse and not subject to division in your divorce. On the other hand, if the money was contributed to a retirement account after the date on which you were married then those contributions are considered to be community property and are subject to division in your divorce. Just as it would with a bank account and income deposited into that account during your marriage, it does not matter if your name appears on the retirement account or who actually contributed the money. You will get credit depending on when the money was deposited not whose name is on the account or from whose job the deposits came from. It can be the case that retirement accounts are made up of both community and separate property. DOES THE LENGTH OF YOUR MARRIAGE HAVE ANYTHING TO DO WITH YOUR ABILITY TO ACCESS RETIREMENT BENEFITS IN DIVORCE? Houston Family Law Attorney: A lawyer’s favorite answer to give anyone when asked a question is: “It depends.” That response is applicable for the question I posed in the title to this section, as well. We will need to examine the sort of retirement account that is relevant to your case. When you consider an IRA or 401(k) then the length of your marriage has no effect on if the account is divisible in your divorce. However, a judge does not have to split these type of accounts straight down the middle. A just and right division of community property is the standard with which a judge would divide up any community property in your case- retirement accounts included. An example to illustrate this point is if you and your spouse married later in life after your spouse had already contributed twenty year’s worth of income into her employer’s 401(k). Unfortunately, after only one year of marriage, you filed for divorce from your spouse. In this situation, the first twenty year’s worth of retirement contributions would be considered your spouse’s separate property and would not be subject to division in your divorce. The final year’s worth of retirement savings are subject to division- but even then a judge does not have to award you a portion. He or she could award you other sums of money equal to the retirement account in order to allow the retirement to not be divided up. When it comes to pension plans, military retirement benefits and social security benefits then there are different rules on how the length of your marriage can affect your eligibility to receive a portion of retirement funds upon divorce. HOW CAN YOU FIND OUT WHETHER OR NOT YOUR SPOUSE EVEN HAS ANY RETIREMENT BENEFITS SAVED? Divorce Lawyers in Houston: During the course of your marriage did you and your spouse rarely, if ever, discuss financial matters like retirement? If so, then you can count yourself among the many, many Americans who are in the same boat as you. With the hurried pace of our day to day lives, it is not uncommon to focus on other, more pressing issues than down the road topics like retirement. If you are contemplating a divorce it may be worthwhile to look at a paycheck that your spouse receives to see if there is money being taken out to go towards a retirement plan of some sort. If your spouse is a member of the military then it is likely that their pension will send out periodic statements to your home and also have a notation on each paycheck with the amount stated which goes to their pension fund. MORE ON MILITARY RETIREMENT TO BE POSTED IN TOMORROW’S BLOG FROM THE LAW OFFICE OF BRYAN FAGAN Thank you for showing an interest in this important topic. Tomorrow we will continue our discussion on retirement benefits and divorce and hope you return to read and learn more. In the meantime, if you have any questions about this topic or any other in the field of family law please do not hesitate to contact the Law Office of Bryan Fagan. Consultations with our licensed family law attorneys are free of charge and are available six days a week … Continue Reading If you have need a best suitable service your Texas Divorce Law experience, Parental Relocation with Children after a Texas Divorce in the great process!
Family Law Attorney Houston: Suppose that you have gone through a divorce from your spouse and you are attempting to adjust to life as a single adult raising a child in different households. You may need to find a new place to live and do so on a budget with one income instead of two. This is challenging because not only will you have less money to live on than during your marriage, there is likely an order from the judge in place that restricts where you can move in the event that your children live with you primarily. MOVING AFTER A DIVORCE COMES WITH A CATCH The issue with moving after you have secured a divorce from your spouse is that no matter what the reason is you will likely need to work something out with your ex-spouse prior to doing so. Suppose, for example, you have the opportunity to take a new job within your company in the months after your divorce. The catch is that your new job (that pays almost twice as much as your old job) is located across the state in another city. If your children reside primarily with you what can you do to remain in line with your Final Decree of Divorce’s orders on living within a certain geographic distance from your spouse? Your divorce court made decisions in your case based on what is in the best interest of your child. This means that above all else (including considerations related to a new job and more pay) your children would come first and what was in their best interests would be considered to be the most important factor when rendering orders related to your divorce. Part of operating in the best interest of your children is to ensure that your children have an opportunity to have continuous and lasting contact with both you and your ex-spouse in a safe and stable environment. Ultimately the decision as to whether or not to allow you to relocate with your children is dependent upon the facts and circumstances of your specific case. MODIFYING YOUR DIVORCE DECREE IN ORDER TO ALLOW FOR A RELOCATION Houston Divorce Attorney: If you file for a modification of your divorce decree in order to put yourself in a position where you can move to the city where your new job would be then you can expect to find out one way or another whether or not you will be able to move. What I tell clients in this position is that unlike a lot of family law questions, there really is no middle ground in a situation like this. Your goal is to be able to move to take the new job. You will either achieve that goal or fail at achieving that goal. There is no compromise position. Since you cannot expect to compromise with your ex-spouse, assuming that he or she is against the move, you may seek to have a study done of your family in order to have a judge understand the particular circumstances at play. As we touched on earlier, the decision will wholly be about your children and how they would be able to adjust to a potential move and their inability to be able to see their other parent as much. A psychological study could be done of the children to understand if it would be even conceivable for a move to occur. In the event that you are able to win your modification case and you are allowed to move with your children it is foreseeable that you will need to pay a portion (if not all) of your ex-spouse’s transportation costs associated with their now having to travel a much greater distance to spend time with your children. The flip side of having to pay transportation costs would be that you may lose out of child support that you had previously been able to receive. Either way, the costs of raising your children will now have to be evened out somewhere given that you have added in a factor to the situation that will make life more difficult for all parties involved. PREPARING YOUR CASE IF YOU ARE THE NON-MOVING PARENT Houston Family Lawyer: Suppose that you are the parent who will not be moving and instead is facing the prospect of having your ex-spouse move a great distance away with your children. What can you do to prepare yourself and your case to best ensure that this does not happen? Obviously, you would want to think it through and see just how much your visitation rights and time with your children will be affected by the move. If your ex-spouse wants to move across the country with the children you would likely lose multiple weekends of visitation per month as well as your weeknight together with your children. Making this determination will allow you to make this point obvious to a court. What do your children stand to gain from this move- other than having one parent who earns more money? Will your ex-spouse be moving closer to their extended family thus giving your children more of an opportunity to be with family they had previously not known well? What about your family? Will they lose any ability to build relationships with your children due to the move? These are the sort of elements you should consider when dealing with this type of situation. Obviously, the burden is on your ex-spouse to present a case as to why a move should be allowed. This will be difficult to do considering the policies of our state but you should not take this for granted. Begin to think about the circumstances of your case so that you can prepare your attorney with this knowledge from early on. QUESTIONS ABOUT RELOCATION AFTER A DIVORCE WITH CHILDREN? CONTACT THE LAW OFFICE OF BRYAN FAGAN Divorce Lawyer Houston: To learn more about post-divorce life please do not hesitate to contact our office today. A free of charge consultation is available six days a week with one of our licensed family law attorneys … Continue Reading Stress related to combat and its effect on a Military member’s ability to Parent their Children7/22/2018 If you have need a best suitable service your Law experience, Stress related to combat and its effect on a Military member’s ability to Parent their Children in Texas the great process!
Houston Divorce Lawyer: It is no secret that as a military member you are exposed to stressful situations. These are not always the sort of deadline driven, people induce stresses that we as civilians encounter in our jobs, either. Servicemembers encounter stress associated with combat on a regular basis while on deployment. That stress can be long-lasting and can effect your ability to transition into civilian life and as a parent. Being away from your family only exacerbates these stresses and creates a difficult situation for you and your family once you return home to Texas. Unfortunately we see that servicemembers, upon their return to the United States, experience higher than average rates of unemployment- often times caused by the stresses that have been taken home from those overseas deployments. Anxiety and post-traumatic stress can lead you to experience life differently than you did before. Learning how to parent your child and live with a spouse or significant other after being away for an extended period of time is a real concern. A reliance on the Veteran’s Administration to properly process and pay out benefits on behalf of veterans puts military members like yourself in a precarious situation if you are responsible for paying a monthly child support amount. If you are unable to find work you will become dependent on the Veteran’s Administration to pay out timely benefits so that you do not fall behind. However, if you have to wait over a year to receive them (which many veterans do) this causes you to be in a bad position when it comes to your child support payments. The last thing you need is your ex-spouse or child’s other parent to file a child support enforcement case against you based on your failure to timely pay your child support. We discussed in yesterday’s blog post the importance of handling any child support or child custody situation prior to being deployed overseas. One of the reasons is because if you have experience a change in your pay (usually a decrease) you find it difficult to pay the previously ordered child support amount if you have less money to do so than you previously did. Having to scrimp and save money in order to pay child support is a daily reality for veterans. If you find yourself needing to have your child support obligation adjusted downward because of the loss of a job or your inability to find work once you return to the States you should consider speaking to a family law attorney immediately. Your situation will not improve on its own and will only get worse. If you incur past due child support and debt you will find yourself unable to qualify for housing loans and at worst can result in you facing jail time. HOW ARE MILITARY FAMILIES COMPRISED? Divorce Lawyer in Houston: As a parent serving in the military, you have likely spoken to and confided in other members of the military who also find themselves with history in the family law courts in Texas and other states. Servicemembers can be custodial or noncustodial parents, divorced or never married and have child support cases active in Texas and other states. My point is that within the military you will find that there is a wide array of family situations that require advice and expertise in this area of the law. Like most problems that you encounter in life, sweeping the issues under the rug will not eliminate them. In fact, your situation is likely to worsen the more you put it off. While nobody wants to deal with unpleasant situations you have assistance available to you through local attorneys and through programs that assist veterans in finding legal help. Our office would be honored to speak to you about your problems but you need to take the first step and reach out to be able to take advantage of these resources. To conclude today’s blog post, let’s discuss some concerns that I have encountered from having spoken to many different military members like yourself. CONCERNS RELATED TO TIME SPENT PARENTING Divorce Attorney Houston: Every parent wants to be able to spend as much time as possible with their child. If you are a military parent who is a noncustodial parent (the one with whom your child does not reside with primarily) this is even more true for you. Time is a precious commodity and is not one that you will want to waste. When you are back in the country or available to see your child you want to be able to do so without any issues. Unfortunately, there are plenty of reasons why you could find yourself unable to see your child as regularly as your child custody order allows. If your child’s other parent is not willing to work with you on an alteration to your visitation schedule then you are at his or her mercy to see your child when your breaks from military service align with the visitation schedule in your order. It is perfectly understandable for you to be frustrated with the system and to want to resolve issues related to time with your children. Co-parenting can be especially difficult for you as a military member. Ideally, you will be able to work with your child’s other parent to make sure that your child support commitments are met and to ensure that you are able to visit with your child as frequently as time permits. Unfortunately, you are not always able to create time to see your child or to see your child according to the orders from your previous family law case. In this situation, your co-parenting skills will need to be well-formed in order to make sure your child’s other parent is aware of any issues upcoming regarding visitation and child support. CONCERNS RELATED TO CHILD SUPPORT Houston Divorce Lawyers: Whether you are a custodial or noncustodial parent, you may have questions regarding child support. If you are the parent with whom your child lives with primarily you may have questions regarding how to establish child support. If you have not been receiving assistance from your child’s other parent then you should get him or her on board with helping you to pay the expenses associated with parenting your child … Continue Reading If you have need a best suitable service your Summertime Divorce Law experience, Summertime Divorce in Texas the great process!
Spring Divorce Lawyers: The heat in Texas definitely has an effect on how we behave? Don’t believe me? Consider how the summertime, specifically the second half of summer, is a peak time during the year for divorces. Maybe it has to do with the kids being home from school, nerves already being on edge from additional parenting responsibilities and transitioning the kids back to school in August. Whatever the reason it is the experience of the attorneys with the Law Office of Bryan Fagan that we get more requests for consultations and have more people sign up for divorces in July and August than at almost any other time of the year. What we hear from folks in consultations is pretty consistent- you have taken some vacation days away from work to spend time with the family on a faraway beach or even just a close by swimming pool. After spending some uninterrupted time with your spouse, maybe the first such opportunity that you’ve had in months, your feelings that something isn’t quite right in the relationship has become crystal clear to you. The next thought in your brain is whether or not a divorce is right for you and how to go about taking the first step towards that reality. No matter what your particular circumstances are, you have multiple ways to get a divorce. Texas is a “no-fault” divorce state meaning that you and your spouse can get a divorce for literally no reason other than a discord or conflict in personalities with no expectation for reconciliation. This is lawyer-talk for you and your spouse no longer get along and you can’t reasonably expect to get over those differences and continue on as married persons. As the barriers to entry for a divorce are quite low in our state, the next decision you need to make is about whether or not you actually want to get a divorce. DECIDING TO GET A DIVORCE IN SUMMER- HOW TO MAKE A DECISION Divorce Lawyer in Spring TX: As we have already discussed, it probably has to do with the time you are able to spend with your spouse in the summer that causes whatever feelings in the back of your mind to drift towards the front. Perhaps you have tried marriage counseling or therapy with limited or no success. Maybe your spouse (or you) have been unwilling to undertake this step altogether. Regardless, if you believe that a divorce is necessary for you and your family then there is little stopping you from filing a petition for divorce. If you decide to get a divorce at the beginning of summer there is a possibility that your case could be resolved in time for school to be back in session in late August or early September. Texas law requires that a divorce resolve itself in no less than sixty days from the date your Original Petition for Divorce is filed. This is to allow the possibility for the reconciliation that we noted earlier to possibly take place. Absent that reconciliation you will need to wait at least sixty-one days to head to court to talk to the judge about signing your Final Decree of Divorce. It is not likely that your divorce will be completed in two months time but it is possible. If you have complicated property or child custody issues I can almost promise you that you will be in for a case that stretches at least through the end of the year. On the other hand, if your case relatively issues free then a fast yet effective divorce is altogether possible. WORKING WITH YOUR SPOUSE ON THE ISSUES TO AVOID UNNECESSARY CONFLICT Spring TX Divorce Lawyer: Divorce is all about conflict on some level. It is expected and it is inherent in the process. I am not here to tell you that there is any surefire way to avoid conflict in a divorce. However, I can tell you that the spouses that find themselves with relatively quick and painless divorces are those that decide what issues need to be worked on early in their cases, work together, put aside their egos and then come to a consensus on the subjects in question. Whether this is through informal negotiation between spouses, attending mediation or simply utilizing attorneys to further negotiation, the successful spouses in divorce do not shy away from issues or kick the can down the road to be decided in another month. The biggest factor in this whole discussion is minimizing disruption to your children. Again, it is unavoidable that your children will be impacted in some way by your divorce. It may not be dramatic, but your children will notice pretty quickly that you or their other parent are no longer living in their home. They may have been exposed to fighting or worse between you and your spouse as well. This can have a dramatic impact on them and requires you and your spouse to draw a line between acceptable and unacceptable behavior in conjunction with your divorce. LET COOLER HEADS PREVAIL IN THE HOT SUMMER MONTHS Spring Divorce Lawyer: Summertime offers you and your spouse an opportunity to file for divorce, negotiate a settlement and have final orders ready for a judge’s review in relatively quick succession. With your children being out of school there is more flexibility as to when you and your spouse can spend time with them while the divorce is being worked out. This is a great time for both of you to be able to reconfirm with them that while the makeup of your living arrangements will be different moving forward, the love and commitment that you as parents have towards your children will not be changing. If possible, you should attempt to have both parents remain in your home. Of course, if there is family violence occurring or verbal conflicts that are ongoing this will not be a reasonable outcome. However, if yours is a fairly amicable divorce why not stay in the home together and spend as much time as possible with your children in the summer … Continue Reading If you have need a best suitable service your Law experience, The Standard Possession Order and Child Support- A Texas Divorce Overview Continued in the great process!
Family Lawyers in Houston: Time and Money. Those are two of the things that we as human beings are most concerned about, especially when considered in the context of our families. That goes double when you are going through a divorce. Ultimately you are spending some time and money in the divorce to determine how much time and possibly how much money you get to spend on your children in the form of child support. No matter what your conservatorship breakdown is, whether it be sole managing or joint managing, there will be certain periods of possession that you will be allowed that are spelled out within your Final Decree of Divorce. You could be named as the parent with the right to primary possession of your child, where you have the right to be in possession of him or her during all times that are not accounted for in your final decree of divorce. I usually term this parent the “primary parent” for obvious reasons. If you are not the primary parent then you are provided with court-ordered periods of possession of your child that are pretty clearly spelled out within the Final Decree of Divorce. Of course, you and your spouse would be able to negotiate to alter and amend the schedule as the need arises. This is what most courts envision happening since schedules and needs change for families pretty frequently. However, if there is no need to change the arrangement or you and your spouse are not able to communicate effectively the possession order in your Decree will serve that purpose. THE TEXAS STANDARD POSSESSION ORDER Family Law Attorneys Houston: Contained within the Texas Family Code, the Standard Possession Order is the go-to method for dividing up parenting time for judges in our state. Essentially every: 1. First, Third and Fifth weekend of each month goes to the nonprimary parent and 2. Every Thursday evening during the school year. The way I explain the Thursday to clients is that you can swing by your ex-spouse’s house after work, pick your kiddo up and take them to Chic-fil-a for a bite to eat. It’s not a heck of a long time to visit, but it breaks up the week and ensures you won’t go more than a week without seeing your child. You may be thinking that this breakdown in time does not seem very fair in terms of how time with your child is broken down between you and your ex-spouse- especially if you are the nonprimary parent. In actuality, if you remove the time that your child is asleep or at school/daycare, you as the nonprimary parent would be with your child 47% of their waking hour’s vs. 53% with the primary parent. If you truly want to bridge that gap to make it even closer to 50/50 my advice would figure out how to negotiate that with your spouse. Judges are not apt to vary too much from the Standard Possession Order if you are forced to go forward with a trial. CHILD SUPPORT- HOW MUCH AND FOR HOW LONG Houston Family Law Lawyers: If you anticipate that you will be the parent who is the “non primary” parent in terms of possession then you will likely have questions for an attorney regarding child support. In order to bridge the gap between yourself and your spouse in terms of caring for the child on a daily basis you will likely be ordered to pay child support to the primary parent. This in and of itself frustrates many people- past clients of mine included. Not only are you losing time with your child but you are being made to pay money to your ex-spouse to top it all off. I think that’s the definition of adding insult to injury. However, if we keep in mind that the money paid to your ex-spouse is for the benefit of your child and not the benefit of your ex-spouse hopefully that will make you feel a little less ornery about handing over some of your hard-earned money. Dollars to donuts, I bet you would spend whatever amount of money you have to pay in child support on your child regardless of whether or not a court ordered you to do so. Payments of support occur usually once or twice a month and go through the State Disbursement Unit for the Texas Attorney General’s Child Support Division. The amount that you have to pay will largely depend on your amount of resources (net) on a monthly basis. Whatever that amount is determined to be will be multiplied by a percentage based on how many children you are responsible for. If you have: 1. one child a percentage of 20 will be applied, 2. 25% for two children 3. and so on up to 40% for five or more children. This system is referred to as the Texas Child Support Guidelines. If you are a high earner, it is important to note that only the first $8,550 of your net monthly resources will be considered for child support purposes. It is rare that a judge would ever deviate from this standard absent extreme circumstances. Therefore, the only real way to adjust the figures is to take issue with the number of net resources that are being utilized to determine the actual monthly responsibility for child support. Having an experienced family law attorney representing you can be extremely helpful because he or she will be able to assist you in calculating your resources and can ensure that your spouse’s attorney isn’t being unfair in their calculations either. THE END OF THE LINE FOR OUR DISCUSSION ON DIVORCE- TOMORROW’S BLOG POST Family Law Lawyer Houston: Tomorrow we will conclude our series of blog posts on Divorce by finishing up with the subject of child support. We’ll put a bow on everything by discussing some miscellaneous topics in divorce as well … Continue Reading If you have need a best suitable service your Houston Texas Law experience, Spousal Support and Children in a Texas Divorce in the great process!
Family Lawyers Houston: Spousal support or maintenance as it is sometimes referred to as is when one spouse supports another spouse financially after a divorce has occurred. If you are able to prove to a court that you have circumstances in place that will prevent you from earning an income sufficient to provide for yourself then you have an opportunity to be awarded spousal support. If you are caring for a disabled child, are disabled yourself or due to circumstances related to your marriage have little ability or job experience to earn an income then you may be in line to receive spousal support. CONSERVATORSHIP OF YOUR CHILD When people come into the Law Office of Bryan Fagan to discuss their divorce 10 times out of 10 he or she will use the word “custody” when it comes to their child. I do the same thing, and most attorneys do as well. Would it surprise you to learn, then, that the word custody does not appear in the Texas Family Code even one time? The word that the Code uses that most closely approximates what the word custody means is called conservatorship. Conservatorship refers to the relationship between a child and their parents. Issues like the support of the children, access, and possession, as well as visitation, are all taken into consideration when the court determines orders related to the conservatorship of your child. Dividing up the rights and duties you have as a parent is somewhat similar to how you and your spouse divide up your community estate. There is no “one size fits all” order that can be handed down by a judge and there are certainly circumstances in play related to your children that would make it ideal for you and your spouse to hammer out your own breakdown. A creative solution works best for most families, compared to having a judge make a ruling that is pretty cookie cutter. MANAGING VS. POSSESSORY CONSERVATORS Divorce Houston: For the most part, you can expect to be named either a possessory conservator or a managing conservator of your children after your divorce concludes. While the time breakdown that each kind of conservator gets to spend with their children is not much different, the rights and duties of each can be significantly different. Essentially- if you are named the managing conservator your child will be residing with you primarily and you will have more right to make decisions on their behalf. If you are named the possessory conservator you will have visitation on the weekends with your children and have a reduced role in the decision making on a daily basis. Let’s discuss each role in greater detail. As a managing conservator, your primary advantages over the possessory conservator is that you have the right to determine the primary residence of your child as well as the right to receive child support. The majority of decision making responsibility is placed on you which means that you can make the lion’s share of decisions regarding educational, medical and other important issues related to the raising of your child. As a possessory conservator you are still provided with rights to your child but on a reduced level. Your times of possession with the child will be more sporadic than the managing conservator as well. Finally, you will likely be ordered to pay child support to your ex-spouse in order to provide for your child during the times that you are not in possession of him or her. JOINT MANAGING CONSERVATORSHIP VS. SOLE MANAGING CONSERVATORSHIP Family Lawyer in Houston: There is a presumption in Texas that naming parents as joint managing conservators is in the best interests of the child, absent fairly extreme circumstances like abuse or neglect. If you are named as a sole managing conservator not only do you have the ability to determine the primary residence of your child but also to hold almost all of the rights associated with making decisions for him or her. The possessory conservator holds some right to possess the children and make decisions (possibly) but those rights are restricted a great deal. For the most part, parents in Texas divorces are named as joint managing conservators. It is the public policy of our state that a child should have a long lasting and strong relationship with both parents and naming parents as joint managing conservators seek to further that goal. This does not mean that both parents will share visitation, possession, access and conservatorship rights equally- but these issues will be essentially split down the middle more so than in a sole managing conservatorship. POSSESSION AND ACCESS TO YOUR CHILD To avoid issues and disputes regarding who should be in possession of your child at a certain time, a schedule will be outlined in your final decree of divorce which details a possession schedule where every day of the year is accounted for. That’s not to say that you and your spouse cannot deviate from this schedule by agreement, but in any event, it acts as a fall back to rely upon. If you are the parent with the right to designate the primary residence of your child then you will be able to be in possession of your child at all times not specifically provided for in your Divorce Decree. Your spouse will be awarded specific periods of visitation that will be named explicitly in your divorce decree. If you’ve heard of the term “visitation rights” this is what that term refers to. THE STANDARD POSSESSION ORDER AND CHILD SUPPORT- TOMORROW’S BLOG TOPICS Houston Family Law Lawyer: Stay tuned with us tomorrow when we will go over the Standard Possession Order as well as child support in greater detail … Continue Reading If you have need a best suitable service your Texas Divorce Law experience, Overview of the steps in a Texas Divorce in the great process!
Divorce Attorneys Houston: Waking up one morning and filing for divorce from your spouse without first understanding the process and steps involved is probably not a great idea. This is true even if you’ve hired an attorney to represent you and your interests. Divorces in Texas can be simple and straightforward or they can be complicated and packed with twists and turns. Yours will likely have elements of both. With that said, the Law Office of Bryan Fagan would like to share with you some of the most basic, yet essential, pieces of information that we can think of when it comes to divorce in Texas. Our hope is that you can become as educated and informed as possible prior to actually moving forward with your divorce. WHAT GROUNDS ARE YOU ASSERTING IN YOUR DIVORCE? Why are you getting divorced? For the majority of people in Texas, the answer to that question is that for various reasons the marriage just wasn’t working. If this is true for you as well you would simply state in your Original Petition for Divorce that yours is a “no-fault” divorce in which insupportability is the actual grounds for your divorce. If your personalities are no longer able to sustain the marriage and you all cannot foresee a time where you can reconcile your differences yours will likely be a no-fault divorce. On the other hand, there may be an actual, concrete reason why you have filed for divorce. Typical fault grounds for divorce include adultery, living apart from one another for three years or more or even cruel treatment. Other than the satisfaction of accusing your spouse of bad behavior, what advantage does stating a specific fault grounds for divorce have in your divorce? Very simply, a court will consider fault grounds when it is dividing up the community assets and debts associated with your marriage. For instance, a judge may feel like your spouse’s having treated you poorly merits giving you more than 50% of the assets of your marriage then that kind of ruling may occur. If your spouse’s adultery led to him or her spending community income on their paramour then you may be in line to receive a disproportionate share of the community estate. HOW LONG MUST WE HAVE BEEN IN TEXAS FOR DIVORCE TO BE FILED? Divorce Attorney in Houston: Texas, and Houston especially, seems to a hub for folks moving from place to place. I can’t tell you how many people I’ve met with at our office who have only recently from to Texas from another state or country and now want to get a divorce. The question that you need to ask yourself is how long have you actually lived in Texas? Answering that question will let you know if you can actually file for divorce yet. The rule in Texas is that either you or your spouse must have lived in Texas for at least six months, and in the county in which your divorce is being filed for at least three months before filing for divorce. The actual word used in the Texas Family Code is “domiciled” in Texas for six months- this means that your intent is to actually remain in Texas. If you have just moved to the Lone Star State then cool your heels and let the clock run. As soon as you’ve been here for six months you are ready to file for divorce if that is your wish. COMMUNITY PROPERTY- WHAT IS IT AND HOW DOES IT APPLY TO YOUR DIVORCE? As you may have heard, Texas is a community property state. This means that all of the property, assets, and debts associated with you and your spouse will be classified as either community or separate property. Let’s examine each type starting with separate property. SEPARATE PROPERTY Houston Family Attorney: This category would include property that either you or your spouse owned prior to marriage or you acquired during marriage by either gift or inheritance. If the property came into your possession before the marriage that means it will be considered separate property- even if you were financing it during the marriage itself. For gifts, it must be clear that the gift was made to you individually with no intent that it was to benefit your spouse. If you take a gift of cash from your Uncle Bob and use that cash to purchase a four-wheel drive vehicle to ride around your ranch with then that four wheeler is your separate property. The cash gift changed form into a vehicle but the essence of the property remains the same. THE BURDEN OF PROOF IS ON THE PARTY ASSERTING THAT PROPERTY IS SEPARATELY OWNED One of the most complicated and time-consuming elements of a divorce in Texas is proving that a piece of property is owned separately by either you or your spouse. If you contend that a dresser is your separate property (or even more complicated a share of stock in Apple) then the burden of proof is on you to prove that it indeed is your dresser or stock share, independent of your spouse. You must note in your Original Petition for Divorce that you own certain pieces of separate property and that you will prove that the property is separate. If you and your spouse disagree on the status of a particular piece of property you should be prepared to collect evidence to present to a judge if you are of the opinion that the property is your separate property. A DISCUSSION ON COMMUNITY PROPERTY AND DEBTS TO BE POSTED TOMORROW Houston Family Law Attorneys: Please come back tomorrow for a continuation of our discussion on divorce in Texas. We will go over what community property is (and is not) as well as how debts are treated in divorce … Continue Reading If you have need a best suitable service your Divorce Law experience, Debt division in a Texas Divorce in the great process!
Family Lawyer Houston: Even if you don’t know much about getting a divorce in Texas it is likely that you have heard that Texas is a community property state. You may not know exactly what this means or how it could impact your life but you’ve at least heard the term. If a piece of property was purchased during your marriage then it is likely to be termed as community property. This goes for acreage in the country, your marital home and right down to the silverware that you and your spouse eat with every night. The other side of the equation would beg you to find out whether or not the same rules apply to marital debts? Debts are the not nearly as fun a counterpoint to the fun stuff in life like the houses and land and whatnot that we just discussed in the opening paragraph of this blog. While not nearly as fun, debt for most Texans is real and can even outnumber property and assets for many families going through a divorce. With this realization in place, I think you would agree that you too need to learn how debt is handled in a Texas divorce? Is it as easy as just splitting it down the middle with your soon to be ex-spouse? THE GENERAL RULE WHEN IT COMES TO HOW DEBT IS HANDLED IN A TEXAS DIVORCE Divorce Lawyers Houston: Any debt or liability that is associated with a piece of property or with a person will go to that person in a divorce, most likely. Of course, there are individual circumstances and scenarios that can play out where this general rule may not apply but for the most part if a debt is in your name or if a debt is attached to a piece of property that is in your possession or management then it’s your responsibility. For instance, when you financed your car you likely sat down at a car dealership, bank or credit union and signed a financing agreement where you became obligated to pay money towards the debt owed to a lender/creditor. This is an example of a fairly straightforward situation where you are currently on the hook for a debt and would likely be so after your divorce as well. Apply this example to a television that you financed through a store at the mall or even a cellphone. If your name appears on the dotted line of a finance agreement then you ought to be prepared to pay that debt on your own after a divorce. BECOMING LIABLE FOR THE ACTIONS OF YOUR SPOUSE WHEN IT COMES TO DEBT Family Attorney Houston: The previous section of this blog that covered instances where you are directly responsible for debt hopefully made sense fairly quickly. You sign paper, you become liable. This is a pretty straightforward lesson to learn. What about situations that involving debt that aren’t so easily digestible? For example- can you be held responsible by a family court judge for debts that are your spouse’s and not your own? Yes, you can become responsible for debts that are not your own, but we’ll need to discuss this subject a little more in depth before we move on to discuss another subject. Under the Texas Family Code, you can become personally liable for the debts of your spouse in the event that your spouse has acted as your agent in incurring the debt or if the debt is for a necessary item. How can your spouse act as your agent, you may be asking. Typically this means that if you provided your spouse with your authority or permission to do something on your behalf in a particular area then it could be reasoned that he or she has acted as your agent. You must have specifically laid out what authority was being given to him or her. Your spouse would not be able to simply argue that by virtue of the fact that you two are married that he or she has your authority to enter into contracts that create a debtor-creditor relationship. A DISCUSSION ON WHAT IS A “NECESSARY” Divorce Attorneys in Houston: What a necessary item is for you and your spouse may not count as a necessary item for my spouse and myself. However: 1. food 2. shelter 3. clothing and 4. medical care Almost assuredly are necessary items across the board for any family in Texas. Who actually is on the hook for a debt associated with a “necessary” upon the divorce of you and your spouse depends on who is actually exercising control over said property. Let’s recall from prior blogs of ours that both you and your spouse are solely responsible for and manage: 1. both of your separate property, respectively as well as 2. those items of community property that would have been considered to be separate property had you and your spouse never gotten married. This would include your wages/salary, personal injury settlements and things of that nature. If you have ever heard a lawyer refer to an item as a “special” then the sort of property that we referred to in the prior paragraph would fit the bill. Wages and salary, personal injury settlements and income derived from your separate property is what I have in mind. This community property is “special” and would be counted among those sorts of property that ordinarily would be separate in nature had your marriage not occurred. All other community property is subject to joint control of both you and your spouse in all circumstances- absent a pre or post-marital agreement. WE WILL CONTINUE OUR DISCUSSION ON DEBT TOMORROW Houston Divorce Attorneys: I have more to discuss with you all on the subject of debt and divorce so please join me tomorrow when we pick back up with this subject. In the meantime, if you have any questions about debt in the context of a Texas Divorce please do not hesitate to contact our office today. A free of charge consultation with one of our licensed family law attorneys is only a phone call away … Continue Reading If you have need a best suitable service your Divorce Law experience, Handling a home mortgage after your Texas Divorce in the great process!
Houston Divorce: One of the issues that is often times the most concerning to people going through a divorce is the family home. After all, not only is it the place where more memories and important events occurred than any other for your family but it is most likely the largest financial investment and asset that you can claim. When you combine matters of the heart and matters of the wallet you can see why this subject leads many people to worry that it is being handled correctly in the context of a long and difficult divorce case. If the family home was purchased during the course of your marriage then it is very likely community property. Community property has no one owner- it is jointly owned by you and your spouse. The specific proportion of ownership and its impact on your divorce is unique to your situation, but the point is that it will be up to you and your spouse to divide ownership of the home in your divorce or have the judge do so. It is likely that your divorce will settle prior to entering into a trial. This means that you and your spouse will be in control of the terms of your marital split. When it comes to your house there are really only three ways to resolve its ownership: either you 1. will remain in the house and your spouse will leave (or vice versa) or 2. the house will be sold and the equity will be split between the two of you in some manner. For the sake of today’s blog post let’s limit the possibilities to the former of those two- with one spouse remaining in the home and the other leaving to live elsewhere. WHAT TO DO ABOUT THE MORTGAGE Houston Family Lawyers: Unless you and your spouse can count yourselves among the very few that own your home outright, it is likely that there is a mortgage on your home that you make payments on. That mortgage is held by a financial institution of some sort- your credit union, bank, mortgage company or other entity. Supposing that you and your spouse agreed to have you remain in the home and he or she to move, there are specific steps that can be taken to ensure a smooth and relatively pain-free transition is accomplished. The debt that is owed to the lending company is secured by a mortgage against your home. Even though your divorce decree may free your ex-spouse of liability from making payments on the mortgage moving forward this will not suffice for purposes of freeing him or her from responsibility in the eyes of the mortgage company. After all, you both agreed to have your names listed on borrowers and are liable for the debt as a result. Even if your spouse has conveyed their ownership interest in the home to you in a Special Warranty Deed this still does not clear him or her of their responsibility to pay the mortgage. Suppose then that you fall behind on your mortgage payments. What recourse does your ex-spouse have against you to protect their interests? With their having ceded all property rights in the home to you it would seem that they are in a no-win position. If the bank would foreclose on your home and sell it, there is a possibility that it could sue both you and your ex-spouse in order to make up any deficiency as far as the difference between what the home sold for and the amount of money lent to you initially to purchase the home. A DEED OF TRUST TO SECURE ASSUMPTION AS A MEANS TO TIE UP THE LOOSE ENDS OF YOUR HOME LOAN Houston Family Law Attorney: What will likely happen in your divorce is that your spouse’s attorney will request that a Deed of Trust to Secure Assumption is executed upon the conclusion of your divorce. This document will protect your ex-spouse from a default on the home loan that occurs if you fail to make timely payment in the future. You can think of a Deed of Trust to Secure Assumption like a second mortgage on the home- it allows your ex-spouse to re-enter the picture and take back the home if you do not pay the mortgage in a timely fashion each month. You are assuming the obligation to pay the mortgage and the deed of trust secures that responsibility for you. Your spouse will want to contact the mortgage company as soon as possible after the divorce to notify them of his or her right as granted by the Deed of Trust to Secure Assumption. The reason being is that he or she will need to sue for foreclosure prior to the mortgage company or risk having their lien wiped out by the mortgage company’s foreclosure process. Although the Deed of Trust to Secure Assumption is a method to protect your spouse’s rights, it is not without its drawbacks. For instance, if you do fall behind on your mortgage then your spouse will need to go through the foreclosure process him or herself, make all past due payments in order to get the loan current and then attempt to sell the property to get all the money back that he or she spent during the process. If this doesn’t sound ideal to you I can’t say that I disagree. However, in exchange for your getting the house of the divorce, it is the protection that is offered to your spouse. The same is true if you are the spouse who no longer is to reside in the home. QUESTIONS ON DEEDS OF TRUST TO SECURE ASSUMPTION? CONTACT THE LAW OFFICE OF BRYAN FAGAN Divorce Lawyers in Houston: The process that we just described probably seems more akin to what a real estate attorney would be discussing rather than a family lawattorney. With that said, divorce cases tend to blend together multiple areas of a family’s life and real estate is one such area. As a result, having an attorney who can advocate for your rights and protect your interests is crucial. The attorneys with the Law Office of Bryan Fagan represent clients across southeast Texas and would be honored to speak to you and your family about … Continue Reading |
AuthorWrite something about yourself. No need to be fancy, just an overview. Archives
December 2018
Categories |