If you have need a best suitable service your Texas Law experience, Nonmarital Children’s Paternity and Death of Alleged Father with the great process!
Divorce Attorney Houston: Recently I have had more than one person ask me about establishing paternity and doing a name change after a father has passed away. There is an automatic presumption of paternity for children who are born during a marriage. However, the number of children born out of wedlock in this country has increased dramatically since the first half of the twentieth century. This article will explore whether an action to establish paternity of an illegitimate child may be brought after the death of the alleged father. CASE LAW The question of establishing paternity after death is one that I have run into a few times. As such, it has caused me to look at both the family code and case law. This situation does not come up often. I will share a brief synopsis of some of the cases I have read on the topic below. Manuel v. Spector, 712 S.W.2d 219 (Tex. App. 1986) The mother of a child brought an action to establish paternity against a putative father. During the case the putative father was deceased. The petition was then amended naming the deceased parents as his biological parents. The petition requested the court to order the deceased parents to submit to blood tests in an attempt to establish paternity pursuant to Chapter 13 of the Texas Family Code. The alleged paternal grandmother was ordered to submit to blood testing. The alleged paternal grandmother sought a writ of mandamus asking to rescind the order. The appellate court considered the initial or threshold question on whether an action to establish paternity may be brought after the death of the putative father. In considering the answer, the appellate court looked to the Family Code and found that it “does not provide for abatement of the proceeding upon the death of the putative father although it does place a limitation period upon the child to bring the action on or before the second anniversary of the day the child becomes an adult.” The appellate court also considered the intent of the legislature: “Applying a liberal construction to achieve the intent of the legislature and to promote justice we are not compelled to hold that abatement necessarily follows from the death of the putative father. An action to establish paternity under our family code is not entirely limited to the establishment of a right of support. Rather there is evidence of a clear intent to create a status: the parent-child relationship, which confers upon the illegitimate child all the rights and privileges of a child born to the father and mother during marriage.” Manuel v. Spector, 712 S.W.2d 219, 222 (Tex. App. 1986). The Court of Appeals held that: 1. Action to establish paternity may be brought after the death of the putative father, and 2. Alleged paternal grandmother was not a party to paternity proceeding whom trial court could order to submit to blood testing. If this case were considered today it is likely the grandmother would have had to submit to genetic testing. This is because § 160.508 of the Family Code now specifically allows for ordering grandparents to be tested. In Interest of A.S.L., 923 S.W.2d 814, 815 (Tex. App. 1996) Houston Divorce Lawyers: This is the most recent case I have found on the topic. In this case, a mother filed to establish the paternity of an alleged father following his death. Her case was dismissed by the district court and she appealed. The Court of Appeals then ruled that that: 1. An action to establish paternity could be brought after the death of the alleged father; 2. A clear and convincing evidence standard was applied to such action; and 3. Evidence was not legally insufficient and the trial court erred in this finding. Chapter 160 of the Family Code governs a suit affecting the parent-child relationship in which the parentage of the biological mother or father is sought to be adjudicated. Tex.Fam.Code Ann. § 160.001 (Vernon 1996). TEXAS STATUTES § 160.204. Presumption of Paternity (a) A man is presumed to be the father of a child if: 1. He is married to the mother of the child and the child is born during the marriage; 2. He is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce; 3. He married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce; 4. He married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and: (a) the assertion is in a record filed with the vital statistics unit; (b) he is voluntarily named as the child’s father on the child’s birth certificate; or (c) he promised in a record to support the child as his own; or (d) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own. (e) A presumption of paternity established under this section may be rebutted only by: 1. an adjudication under Subchapter G; or 2. the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305. § 160.505. Genetic Testing Results; Rebuttal Family Law Attorney Houston: (a) A man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose: 1. that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and 2. a combined paternity index of at least 100 to 1. (b) A man identified as the father of a child under Subsection (a) may rebut the genetic testing results only by producing other genetic testing satisfying the requirements of this subchapter that: 1. excludes the man as a genetic father of the child; or 2. identifies another man as the possible father of the child … Continue Reading
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If you have need a best suitable service your Divorce Law experience, Family Law Cases in Texas: Notifying your Spouse regarding a Divorce case with the great process!
Spring TX Divorce Lawyer: Depending on the dynamics of your family, you may consult with a family lawattorney and decide to file for divorce without first having discussed the subject with your spouse. Alternatives would be to attend counseling or to attempt to work out the issues of your marriage on your own without formal assistance. There can be circumstances that necessitate a quick removal of yourself and your children from a marriage where either of these two options would not make sense. However, for most people reading this blog it is recommended that you attempt to salvage your marriage before making any hasty decisions regarding a divorce. However, if you decide it is to simply move forward with a divorce without first alerting your spouse you will need to figure out where and how to have him or her served. Today’s blog post from the attorneys with the Law Office of Bryan Fagan will focus on this issue. NOTIFICATION OF YOUR SPOUSE OF A PENDING DIVORCE SUIT Spring Divorce Lawyer: There are basically three ways to notify your spouse that you have filed for divorce against him or her. The first example is the easy one. In divorce cases that are uncontested or have few issues that need to be negotiated, it is possible to simply have your spouse sign a Waiver of Citation/Service. This is an affidavit that states under oath that your spouse did receive the Original Petition for Divorce and that he or she waives their right to be served with a Citation alerting him or her to the divorce in a formal manner. This Waiver of Citation/Service would be filed with the court. Theoretically, this is the fastest, most efficient way to get a divorce in Texas. The traditional and most common method of providing notice to your spouse of a pending divorce case is to personally serve him or her with the citation and the Original Petition for Divorce. A constable, sheriff, police officer or professional process server would collect your Original Petition for Divorce, the citation and any other documents you filed with your Petition and will serve them upon your spouse at the address you specified in the Petition. When the citation is in the hands of your spouse then service is complete. Once service has been completed the server will file an affidavit with the court stating under oath the details of the service- when, where, etc. A private process server will work with you to serve your spouse and is more flexible as to when service attempts can be made. A constable or sheriff will likely tell you when he or she is able to attempt service upon your spouse. Finally, the third method of serving notice upon your spouse of a divorce suit is by publication or posting at the courthouse. This is a means of service that should only be attempted as a last resort if personal service is not possible. You will need to log all of your attempts at service and then file a motion with the court to allow service by publication. The district clerk, upon the granting of your motion by the court, will post your citation on the courthouse steps or at whatever location your county designates on the courthouse grounds. A certain amount of time will need to pass before the clerk will notify your court of the completion of the posting requirement. Service by publication is accomplished by publishing your citation in the newspaper in the city or town where your spouse was last known to reside. Your court will authorize publication in certain publications and the District Clerk will see to it that the citation is published there. Proof of publication should be filed with the district clerk’s office once completed. FILING AN ANSWER Houston Divorce Lawyer: Once you have served your spouse successfully with your Petition for Divorce as well as the Citation, your spouse then has a deadline to file their Answer before the First Monday following 20 days after your spouse has been served. This applies to whatever method of service was chosen- even if a Waiver was signed by your spouse. The Answer entitles your spouse to receive notification from the court on any court dates or other important information such as deadlines to file discovery, trial/pre-trial dates and deadlines to attend mediation. The important part about filing an Answer is that by doing so your spouse keeps you from being able to get a default judgment against him or her. A default judgment can occur if you properly serve your spouse, he or she does not file an answer within the twenty-day timeframe I laid out a few paragraphs ago, and you have an order drafted and approved by the judge once the sixty-day waiting period has expired. Filing an Answer requires you to negotiate with your spouse for a final order instead of being able to push one through that reflects only what you want. SPEAKING OF THE SIXTY-DAY WAITING PERIOD… Your court cannot grant your divorce until your Original Petition for Divorce has been on file for sixty days. Believe it or not, many couples use this time to figure out if a divorce is actually the best course of action for them. It is not uncommon for me to receive a phone call from a client telling me that he or she does not want to move forward with a divorce after all. The other purpose of the sixty-day waiting period is to allow you and your spouse to work out an agreement on any outstanding issues in your case. Children and property issues abound in a divorce and the two months in between filing and resolving a divorce can act as a good time period to negotiate on those issues. Failing to reach an agreement with your spouse on them can result in having to go before a judge in a trial or first a temporary orders hearing. TEMPORARY ORDERS HEARING Divorce Lawyer in Houston: Once your divorce has been filed you and your spouse will need to figure out how to divide responsibilities and your children for the duration of the divorce … Continue Reading If you have need a best suitable service your Family Law experience, Family Law Cases in Texas: Filing for Divorce with the great process!
Kingwood Divorce Attorney: I’m sure if you wanted, you could go online and search through 1,000 proverbs about beginning a process and you’ll find a few that mention that perhaps the most difficult step in that process is the first. Getting the “oomph” you need to take that first step and build some forward momentum is an underrated part of a divorce from the standpoint of difficulty. The emotions that you are likely experiencing at this time make any sort of decision a tough one and you are most likely not firing on all cylinders from a mental perspective, either. With that being said, I would like to share with you an overview of how to actually begin the process of filing for divorce in Texas. While doing so follows the path of many other civil cases in Texas, the emotions and relational history of a divorce make doing so more difficult from my experience as an attorney. My hope is that by going through these steps you can understand the steps and give yourself some peace of mind in regard to whether not filing for divorce is the best thing to do for you and your family. NAMING THE PARTIES AND LEGAL DOCUMENTS IN A DIVORCE Any good overview of a process should first define the terminology that we will be utilizing throughout the overview, in my opinion. If you file for divorce from your spouse you are known as the Petitioner. Your spouse will have the legal obligation to respond to your divorce filing and as a result, he will be known as the Respondent in your divorce case. From here forward if I use the terms “Petitioner” or “Respondent” you can refer back to his paragraph to go over what each “role” means in the context of your divorce if you forget. WHERE TO FILE FOR DIVORCE? The Woodlands Divorce Attorney: For some of you that have resided in the same county with your spouse for many, many years the answer to this question may be obvious. For others reading this blog you may have no earthly idea where you should be filing your divorce. You and your spouse have moved ten times in ten years of marriage and have lived many different residences along the way. You may have even separated from your spouse in recent years with you living in one Texas county and your spouse living in another. Where should you go from here to file for divorce? To be able to file for a divorce in Texas (any county in Texas, that is) you and your spouse (or one of you individually) must have resided in Texas for at least six months before filing for divorce. With so many Texans having recently come into our state, both from other countries and other states, this is often more difficult to achieve step than you may think. I’ve counseled many folks in the past few years to cool their heels and to wait to establish residency before filing for divorce here. The next step in determining where you should be filing for divorce is to determine in what county you or your spouse have resided for over ninety days. This means that if you and your spouse have not resided together, as long as you have resided in your county of residence for over ninety days then you can file near your home. This can potentially provide you an advantage at least from a travel perspective. If your spouse resides away from you any courtroom hearings would require your spouse to travel to you. Be aware that if your spouse files before you do where he or she resides the same advantage would apply to your spouse. GROUNDS FOR DIVORCE IN TEXAS Spring Divorce Lawyers: The vast majority of divorces in Texas are known as “no-fault” divorces. This means that there was not one particular issue that drove either you or your spouse to file for divorce but a general discord or conflict in your personalities that saw no chance for reconciliation. Simply put- the reason for getting a divorce in Texas in mostly just not being able to get along with your spouse. In other situations, you can assert specific “grounds” for your divorce having been filed. This is done in order to gain tactical advantages. The biggest area that the advantage is sought is in dividing up your community estate. Something like adultery or physical violence against you by your spouse could result in you being awarded a disproportionate (greater than fifty percent) stake in your community estate. Be aware that in filing your Original Petition for Divorce, you should not get into the nitty-gritty details regarding each allegation of adultery, abuse or other fault grounds for filing the divorce. Simply stating that adultery has occurred is sufficient. Going into time and location details of each extra-marital affair of your spouse is inappropriate and is likely to be struck from your Petition by the court. FILING YOUR ORIGINAL PETITION FOR DIVORCE Divorce Lawyer in Spring TX: The Original Petition for Divorce will be the initial filing in your Texas divorce. This document identifies you, your spouse, your children under eighteen (if any) as well as any requests you are making of the court in regard to your children and property. As we mentioned in our previous section this document will also list each fault ground (if any) that has led to the breakup of your marriage, in your opinion. For the most part filing divorces is done completely online in today’s world. Your Petition would be accompanied by a filing fee and what is called a Citation. The Citation is a document produced by your court to be served upon your spouse with your Original Petition for Divorce. It specifically states that you are suing him or her for divorce and that there is a deadline by which to file an Answer by. The court will stamp all documents and will assign a “cause number” to identify your case with moving forward. Once the documents have been prepared, filed and reviewed by the court it is time to serve your spouse with them. This means that you will need to pay for a process server or constable to pick the documents up from the courthouse and to locate your spouse and personally serve him or her with the papers. If you hire an attorney to … Continue Reading Family Law Cases in Texas: Conservatorship, the Standard Possession Order and Child Support9/21/2018 If you have need a best suitable service your Family Law experience, Family Law Cases in Texas: Conservatorship, the Standard Possession Order and Child Support with the great process!
SOLE MANAGING CONSERVATORSHIP Family Law Attorneys Houston: In yesterday’s blog post we discussed that the typical arrangement for parents coming out of a divorce is for each to be named as a Joint Managing Conservator of their child. This, too, is the set up that you can expect to find yourself in after your own divorce. Joint Managing Conservators share equally in the rights and duties of raising their child (for the most part). On the other hand, in rare instances, you may find yourself as being named the Sole Managing Conservator of your child after the divorce has concluded. Your ex-spouse would be the Possessory Conservator of your child. What sort of circumstances could lead a court to name you as the Sole Managing Conservator? For starters, if your spouse has simply been an absentee parent and not part of your child’s life at all then giving him or her equal rights and duties you would not make sense. Your spouse having been out of the picture negates any argument as to why he or she ought to be put on virtually level footing with you. Secondly, if your spouse has engaged in abuse or neglect of your child or of you during the course of your marriage then it is unlikely that he or she would be named as a joint managing conservator of your child. After all, the judge has the responsibility to make decisions that are in the best interests of your child. It would be hard to argue the point that it is in the best interests of your child to allow him or her to have frequent contact with an abuser/neglector. It would even be worse for that abuser/neglector to be able to make decision-making abilities on par with your own. Finally, if you and your spouse have had extreme difficulties during the course of your marriage in terms of decision making regarding educational, medical or psychiatric issues then it could be that your spouse is not named as a joint managing conservator. You would need to show that despite your best efforts, your spouse has not been willing to engage in rational thought on these subjects. None of these examples means, necessarily, that your spouse will not be able to visit with your child after the divorce has taken effect, however. If you are named the sole managing conservator of your child this means only that you would have a superior ability to make decisions for your child in almost all respects. SUPERVISED VISITATION Houston Family Law Lawyers: As we discussed in the prior section on Sole Managing Conservatorship, it could be the unfortunate situation that your spouse has engaged in abusive or neglectful behavior towards your child. As such, a judge may order that any visitation that your spouse has with your child- both during the divorce and afterward- be supervised. Either a third party organization or a mutually agreed upon family member can conduct the visitation periods. These periods of visitation can either be ongoing and more or less permanent or can be temporary until your ex-spouse shows themselves to be able to act appropriately. Sometimes therapy sessions or other treatment is mandatory along with these ordered periods of supervised visits. THE RIGHT TO DETERMINE THE PRIMARY RESIDENCE OF YOUR CHILD One of the rights that cannot be divided between you and your ex-spouse is the right to determine the primary residence of your child. In a joint managing conservatorship, the parent who is named the primary conservator will have this right. Your ability to move will be restricted, however, as a geographic restriction will be placed on your children. In Harris County divorces this means that you will be able to reside with your children in Harris County or any county that touches Harris. How will a court determine which parent has the right to determine the primary residence of your child? There are many factors that a court will weigh, among them which parent has had the primary responsibility or providing daily care to your child, the age of your child, his or her specific needs and the work schedules of you and your spouse. A court will also look at whether or not you or your spouse have the financial ability to raise a child by yourselves. THE STANDARD POSSESSION ORDER (SPO) Family Law Lawyer Houston: The theme regarding possession orders and possession schedules is that if you and your spouse can come up with your own schedule, one that suits both of you better, then that is preferable to having a judge come up one for you too. After all- nobody knows your life, your child or your circumstances better than you and your spouse. If you two are at all able to bury the hatchet and work together on a possession schedule then that is a best case scenario for you and your family. However, if you both are not able to arrive at your own possession schedule you will need to ask a court to create one for you. A schedule that is outlined in the Texas Family Code and one that your court is likely to follow is called a Standard Possession Order (SPO). The SPO is designed to be as “fair” as possible when it comes to the allocation of time between you and your ex-spouse. The hallmarks of an SPO are that the parent with visitation rights will have the child on the first, third and fifth weekends of each month. A Thursday evening visit from 6 to 8 p.m. occurs weekly during the school year. Major holidays are alternated. The parent with visitation rights will either have thirty or forty-two days of consecutive possession of the child depending on the distance (less than 100 miles or greater than 100 miles) he or she lives from the primary residence of the child. An SPO can be expanded to include an overnight visit during each week of the school year (Thursday to Friday) for the parent with visitation rights as well as the ability for that parent to pick the child up from school on Friday and drop the child off at school on Mondays. From my experience as a family law attorney, this is the sort of flexibility that many parents really like about … Continue Reading If you have need a best suitable service your Family Law experience, Family Law Cases in Texas: Child Support in Divorce with the great process!
Family Lawyers Houston: Of all the subjects surrounding a divorce, child support seems to garner the most extreme opinions from parents. The child support levels are either too high or not high enough, depending upon your perspective. Daycare, clothing, food, rent, etc. are all issues to be concerned with if you are a custodial parent and your children live with you. On the other hand, if you are the noncustodial parent and are ordered to pay child support under a divorce order then you may have misgivings about paying your ex-spouse support that is intended for your children. I had a prior client who asked me, innocently enough, whether or not there was a chance that we could ask the judge in his case to insert an order in his Final Decree of Divorce that required the State of Texas to track every dollar of the child support he paid his ex-wife in order to verify that she was spending the money on the kids and not herself. While an ambitious idea to be sure, I had to inform this client that unfortunately, the State did not have unlimited resources and therefore tracking every dollar his child support would not be possible. With that said, what are the keys to establishing child support in a divorce and how is it done? Today’s blog post from the Law Office of Bryan Fagan will focus on this topic. SETTING UP CHILD SUPPORT IN CONJUNCTION WITH YOUR DIVORCE Family Lawyer in Houston: If you are the parent with the right to determine the primary residence of your children you will have the right to also receive child support on behalf of your children from your ex-spouse. These two rights, for what it’s worth, are possibly the only two superior rights that you have over your ex-spouse depending upon the additional orders contained in your Final Decree of Divorce. The income of your ex-spouse, as well as the number of children you have before the court in your divorce, will determine the dollar amount of child support that you will owe each month moving forward. It is important to note a child support credit will be given for any children that your ex-spouse is responsible for who are not before the court (as in from other relationships) and to whom a duty of support is owed. This means that a lesser amount of child support will be owed to you as a result. The State of Texas has created guideline levels of child support and the percentages associated with those levels of support are contained within the Texas Family Code. For example: 1. If you have one child with your spouse then the percentage of your spouse’s net monthly resources that will be taken for child support purposes is 20%. 2. Two children means 25% of the 3. Net monthly resources are considered on up to at the most 50% for five or more children. It will be important for your attorney to determine how to arrive at an income for your spouse from which child support can be determined. In some circumstances, your spouse may be under-employed– meaning that he or she is earning less than he or she is capable of in order to avoid a higher support obligation. This would need to be proved to a judge in order so that he or she can make a ruling on what is an appropriate amount of child support to be paid. WHAT IS CONSIDERED TO BE A PART OF NET RESOURCES WHEN IT COMES TO DETERMINING CHILD SUPPORT? Houston Family Law Lawyer: Wages and salary on a monthly basis are one hundred percent eligible to be a part of your spouse’s net monthly resources. Bonuses, overtime pay, and commissions are included in this calculation. If your spouse earns interest or dividends on investments then these too factor into the analysis for child support. Rental income (minus expenses and mortgage payments) and other miscellaneous sources of income like retirement benefits, social security income, and worker’s compensation benefits complete our look at different sources of income that are eligible to be considered when determining child support in your divorce. For the most part, your spouse’s monthly wages are what the child support will be based on. Most of us don’t have significant secondary sources of income or investments that yield income that would be worthwhile to investigate. If you are in the beginning stages of planning your divorce then I would recommend that you collect any pay-stubs of your spouse that you can if you expect to be paid child support. Once your divorce is underway this information will be harder to come by and your attorney may have to make formal requests of these documents via the discovery process. REASONS TO DEVIATE FROM THE CHILD SUPPORT GUIDELINES CONTAINED IN THE FAMILY CODE Family Lawyers in Houston: The percentages associated with your spouse’s net monthly resources are what is typically ordered to be paid for most divorces in Texas. However, there are circumstances that can either increase or decrease the levels of support. Essentially, if the court determines that it is not in the best interests of your children to have the guidelines level of support be applied in your case these other factors may be considered. Specifically, the age and special needs (if any) of your children may be considered. If your child has special needs in terms of academics, medical or psychological issues then your spouse may end up being on the hook for higher than guidelines levels of child support. On the other hand, what if you and your spouse negotiated that you would be able to reside a great distance from one another after the divorce. In so doing, you knowing accepted the fact that your spouse will have to travel greater distances, and incur greater costs, just to exercise his or her periods of possession with your children. As a result, his or her level of child support may be decreased to account for these increased costs when compared to most parents in his or her position. HOW DO MEDICAL EXPENSES FIT INTO THIS DISCUSSION? In addition to being required to provide child support for your children, your spouse is required to pay for health insurance coverage for the children as well … Continue Reading If you have need a best suitable service your Texas Family Law experience, Family Law Cases in Texas: Marital Property and the Community Presumption with the great process!
Divorce Attorney in Houston: If you read anything about divorce in Texas then you have probably come across at least one article online that has told you that Texas is a community property state. What does this mean and how exactly does it affect- your case? Today’s blog post from the Law Office of Bryan Fagan will discuss this topic in detail so that you know for certain what it means to your divorce and your life moving forward. PRESUMING PROPERTY TO BE COMMUNITY OWNED DURING A MARRIAGE All property that you and your spouse own when it comes time for a divorce is presumed to be owned by both of you. The same rule applies for debts that either of you incurred during your marriage. In your divorce, the court will divide both your property and your debts prior to the finalization of your case. In order to prove to a court that a particular piece of property is not community property, but separate property owned by either you or your spouse individually, you or your spouse will need to present evidence that is clear and convincing to the judge. At the moment that a piece of property was first acquired by either you or your spouse, you would need to show that at that moment in time the property was, in fact, the separate property of one of you. This is done typically with title documents, receipts or other documentary proof of the transaction that brought the property into your marriage. Testimony from a witness alone about why the property is separate and not the community will not suffice in most cases. DEFINING SEPARATE PROPERTY Houston Family Attorney: Now that we’ve begun to discuss what separate property is we need to define the term so we can know exactly what we’re talking about. Property that is acquired prior to your marriage or property that is acquired during your marriage by either gift or inheritance is considered to be separate property in Texas. Many spouses in Texas will sign off on a premarital agreement that places certain property in the category of either separate or community property. In this way, you and your spouse can take property that may ordinarily be viewed as community property and convert it into separate property. ASSERTING A REIMBURSEMENT CLAIM AGAINST YOUR SPOUSE During the course of your marriage, you and/or your spouse may have contributed community income to pay a debt on either of your separate property. That same community income could have been used to improve a piece of your separate property. For instance, say you owned a home prior to your marriage and that home needed a new roof. You could have used your income to put a new roof on the home. Because that income is community property your spouse, upon divorce, would potentially be able to assert a reimbursement claim against you for utilizing community funds to improve a separate property asset that you own. PREMARITAL AND MARITAL PROPERTY AGREEMENTS Houston Family Law Attorneys: We had briefly discussed premarital agreements earlier in this blog post and now we will open up a more wide-ranging overview of these documents. You and your spouse, either prior to your marriage or during the course of your marriage, have the ability enter into a signed, written agreement regarding how you and he/she are going to classify certain pieces of property. This is done to take the decision out of either of your hands or a judge’s hands in the future should you two decide to get a divorce. Many times spouses enter into premarital agreements in order to keep separate certain pieces of property that have been owned prior to the marriage or to keep certain debts of theirs separate from the community estate. Marital property agreements are signed off on during your marriage. Many times people will enter into marital property agreements so that certain pieces of community property can be separated between the spouses. In the event of a divorce, the marital or premarital agreement will be attached as an exhibit to your Final Decree of Divorce or incorporated into the Decree by quoting the specific language utilized in the agreement. DIVIDING UP COMMUNITY PROPERTY IN A DIVORCE Divorce Houston: If you had not read anything about divorce in Texas before going through this blog post you may believe that it is a foregone conclusion that your divorce case will be decided by a judge in a courtroom. This is not the case, however. Typically divorces are decided by the parties themselves in either a formalized settlement process like mediation or in informal settlement discussions between spouses and their attorneys. If you and your spouse cannot reach an agreement on your divorce terms then a court will intercede. A court will divide community property in your divorce in a just and right manner. The court will determine what is just and right by evaluating the circumstances of your case, each of your rights and spouses and the circumstances at play regarding your children (if you have any). The popular notion regarding community property is that debts and property will be split evenly down the middle and divided between you and your spouse. Often times this does not occur. Your separate estates and the fault either of you played in causing the divorce will be considered. This often results in what is known as a “disproportionate” share of the community estate going to either you or your spouse. On top of these factors, taking a knife a la King Solomon and dividing community property in an even fashion is not always possible. For instance, suppose that you and your spouse own a home and one of your files for divorce. What often happens (and what is easiest) if you go to court is that the judge in your case will order the house to be sold and the proceeds would be divided between the both of you. Seems straightforward, right? DIVIDING THE MARITAL HOME IN A DIVORCE Well, what if you all have three children who are all school-aged and live in that home. This is a circumstance that does not lend itself as easily to just simply ordering the house to be sold … Continue Reading If you have need a best suitable service your Child Law experience, Family Law Cases in Texas: Punishments for the Failure to Pay Child Support with the great process!
Family Attorney Houston: In child support enforcement cases your back is against the wall if the record from the Attorney General’s Office shows that you have not paid your support obligation in full and on time. In some ways, it is very black and white. Did you pay on time and in full? Great, you have yourself a valid defense. Did you not pay your child support obligation on time, in full and in the manner specified in your prior order? In this case, you had better line up a defense or two to talk to the judge about. We went over those defenses yesterday and if you have not already done so I would recommend that you go back and read about those defenses to see if any are applicable to your situation. Supposing that those defenses were not effective and you now find yourself facing punishment from a judge for failing to abide by your court orders on child support, just what could you potentially be facing? What remedies are available to your child’s other parent as far as mechanisms to address your support deficiencies? Today’s blog post from the Law Office of Bryan Fagan will get into this subject in some detail. REMEDIES THAT A PETITIONER CAN SEEK IN A CHILD SUPPORT ENFORCEMENT CASE The Petition in a child support enforcement case is the party who initiated the lawsuit- the one who filed the petition. You are the respondent in this case- the party that responds to the lawsuit filed with an answer and possible defenses to the alleged violations contained in the petition for enforcement. If you are unsuccessful in offering a defense to the allegations made against you then there are a range of remedies that the petitioner can seek to address the arrearages in child support payments. INCOME WITHHOLDING Divorce Attorneys in Houston: Income withholding is a straightforward remedy that is typically instituted at the time of your previous family law case– whether that was a divorce or Suit Affecting the Parent Child Relationship. Income sufficient to pay your child support obligation as well as any arrearage will be withheld from your paycheck. There will be a specific money judgment that is assessed against you by the judge in your case and a payment plan of sorts will be worked out. An additional sum of money will likely be placed on your monthly child support obligation until any arrearage is paid in full. The goal is to have you pay back the child support arrearage in less than ten years. Some people are self-employed or otherwise not able to have a wage withholding order filed to withhold future income. In those instances, you would be ordered to make payments over and above your future child support obligation to the other parent in order to begin to make up for the arrearage. PLACING A CHILD SUPPORT LIEN ON YOUR PROPERTY A less commonly used method to retrieve any arrearages in child support would be to have a lien placed on any real property or even personal property that you own. The child support lien would be the equivalent of the amount of support that you currently owe. This includes interest that accrues during the time that the payments were lacking or not made at all. SUSPENDING LICENSES Houston Divorce Attorneys: A separate petition can be filed by your child’s other parent (or by the Attorney General’s office) to suspend your license if you have fallen more than three months behind on your child support payment schedule. The petition must be filed and notice given to you that such a remedy is being sought. You have the right to respond to this petition and at that point, a hearing would be scheduled to consider this option. If the other parent is successful in suspending your license then an order will be drafted by the opposing party and approved by the judge with his or her signature included. That order would then be sent out to whatever body or agency issues the license that has been suspended. Your driver’s license is the most logical to be suspended as a result of your failure to timely and fully pay child support. However, if you hold a pharmacist’s license, engineering license, license to practice medicine or a law license those too are options to go after for the failure to abide by a court order related to paying child support. CRIMINAL CONTEMPT (JAIL TIME AND FINES) A remedy available to petitioners in extreme circumstances would be to request that you be held in criminal contempt for your failure to abide by the court’s order regarding child support. This means that you could be held in jail for up to 180 days per violation (all jail time associated with multiple violations to be served concurrently) or you can be fined up to $500 per violation. Civil contempt findings involve jail time for an indefinite amount of time until you are able to pay the arrearages in child support. For example, if you have a child support arrearage of $5,000 you can be ordered to serve jail time for up to 180 days on a criminal contempt finding and then face a day to day civil sentence until you pay the $5,000 in full. If nothing about a child support enforcement case got your attention until now, I would venture to say that jail time most likely did. COMMUNITY SUPERVISION Divorce Attorneys Houston: More likely than having to actually serve jail time in connection with the failure to abide by court orders regarding child support is being sentenced to serve a period of time in jail with that sentence suspended so long as you meet certain requirements in regard to beginning to pay your child support arrearage. In Harris County, a judge can send you to the Domestic Relations Office immediately after your enforcement hearing to have you register with a community supervision program in order to have an officer check in with you and your progress in toeing the line as far as child support is concerned. If this sounds like something someone would do who is on probation, then you would be correct … Continue Reading If you have need a best suitable service your Family Law experience, Family Law Cases in Texas: Defenses to Child Support Enforcement Suits with the great process!
Houston Family Lawyers: If you find yourself in a position where you have been unable to pay the child support you have been ordered to pay there are defenses that you can offer in an enforcement hearing. The fact of the matter is that one of these defenses will hopefully be applicable to your situation because if not, child support enforcementcases can be very cut and dry. Did you make the full payment, on time to your child’s other parent in the manner stated in your prior order? If not you will likely be held in contempt of court. Let’s get into those defenses without further delay. If you as the possessory conservator of your child and the custodial parent allowed your child to reside with you for any period of time then you are not on the hook for paying support for those periods. This stands to reason. The reason why noncustodial parents are on the hook for paying child support in the first place is that they have a duty to support their children at all times. The child support payments are supposed to act as a substitute for your care and support when you are not able to be in possession of your child. VOLUNTARILY RELINQUISHMENT OF YOUR CHILD TO YOU Houston Family Law Attorney: Voluntarily relinquishment to you by your child’s other parent is a defense to your having to pay child support. If you have actual care, control and possession of your child over and above what you are ordered to have in your prior order then you should not have to pay “double” support. If you did pay child support for these periods of time that your child was in your possession when he or she was not necessarily ordered to be you can earn credits for payments made. It is important that you be able to show that your child was actually living with you on a day in day out basis for whatever period of time you are offering this defense. BEING UNABLE TO PAY THE CHILD SUPPORT OBLIGATION Divorce Lawyers in Houston: An inability to pay the child support you had been ordered to is another defense that you can offer at an enforcement hearing. To do so you must prove that you had no options in terms of your ability to provide the support that you were ordered to. This means that you could not have had the property that could have been sold in order to get the money you needed to pay the support as ordered. Do you have a wealthy parent, or friend or another relative that you could have borrowed the money from to pay your child support? If you did and did not inquire about a loan then the court may find your defense lacking and order you to pay any back support that you may owe. I realize that asking a relative or friend for a loan is uncomfortable but courts have been swayed by evidence of relatives with deep pockets who were not contacted for a loan in order to meet a child support obligation. DIRECT PAYMENTS TO THE OTHER PARENT THAT ARE NOT REFLECTED IN THE ATTORNEY GENERAL’S LEDGER OF PAYMENTS Family Lawyer Houston: The Office of the Attorney General has a ledger that details the date payments for child support are due, along with the amount paid (if any) and the arrearage in place for any partial payments received. It is fairly standard for payments to go through the State Disbursement Unit and then on to the bank account of your child’s other parent. In this way, there is typically no issue as far as proving payments were either made or were not made. In some scenarios, you and your child’s other parent may have spoken or worked out an arrangement where you pay him or her directly rather than going through the Disbursement Unit. For instance, you may have switched jobs and not had a new Wage Withholding Order submitted to the court with your new employer’s information. Or, perhaps you and the other parent are on friendlier terms where he or she feels comfortable accepting money for child support directly from you. From my experience, while this sounds like a nice idea, in practice it almost always blows up in the obligor parent’s face the first time a payment is missing, late or made only partially. You have no protection other than offering this defense at an enforcement hearing if the other parent decides to file an enforcement suit against you for failure to pay child support. You must prove that you were not given credit for all payments made. How can you prove to a judge that you made the payments directly to the other parent? Check copies, money order receipts or cashier’s checks are examples of documents that could save you if you find yourself needing to offer defenses to a child support enforcement case. The bottom line is that some judges simply will not give you any credit for direct payments made to the other parent for child support purposes. If your prior order does not allow for direct payment of child support then my advice would be to never indulge in that practice. No matter how much easier it may seem or no matter how friendly the other parent is it is a bad idea to make direct child support payments. Pay through the State Disbursement Unit. Have the money taken out of your check and take it out of your hands. PAST BEHAVIOR AS AN INDICATOR OF COMPLIANCE Divorce Lawyers Houston: In criminal law, there is the idea that a person’s “prior bad acts” cannot be used as an indicator that he or she committed a present crime. Your past should not influence the legal system in charging you with a crime, in other words. However, in a child support enforcement case a judge can consider your past behavior as far as compliance with paying support when determining a punishment for you … Continue Reading If you have need a best suitable service your Family Law experience, Family Law Cases in Texas: Initiating a Child Support Case with the great process!
Houston Divorce Attorney: If you are wanting to begin a family law case involving child support matters it is recommended that you contact an attorney before doing so. I know- shock of the century- a family law attorney is recommending that you hire a family law attorney. Trust me on this one, though, Child Support cases are ones that require an experienced hand. The investment you make in your attorney can pale in comparison when looking at your potential gains in support or savings in support depending upon if you are the parent who will receive or pay child support. The initial filing in a child support case is called a Suit Affecting the Parent Child Relationship. There will be two other parties to your SAPCR– the other parent as well as the Attorney General of Texas. The Attorney General needs to be notified whenever you are attempting to modify the amount of child support being paid. Your being able to hire an attorney to file this SAPCR is an advantage over going about it yourself or contacting the Attorney General. First and foremost, your attorney can often work your case more efficiently than one of the attorneys for the Attorney General’s office thereby hastening the pace with which your case resolves itself. Often times a quick mediation set up at the beginning of a case can allow you to complete the process with relatively little spent on attorney’s fees. The other advantage to hiring an attorney to handle your SAPCR related to child support is that you can also work on modifying issues related to conservatorship, possession, access or visitation in the same suit. The Attorney General would focus entirely on child support and would likely require you to file a second SAPCR. CHILD SUPPORT CALCULATION IN TEXAS Houston Family Lawyer: If you are in a position where you are likely to have to pay child support, either in a SAPCR or divorce case, this section will be relevant for you. Your net income and the number of children that you have a duty to support are what goes into the calculation for child support. Children that are both before the court in the present child support case as well as other children for whom you owe a duty to support that are not presently before the court. For the most part, child support calculations are based on the guideline percentages that are laid out in the Texas Family Code. For a basic rundown of the calculation, you will want to deduct from your monthly pay federal taxes, social security and the health insurance that you pay towards your children. Once those items are removed from your income, a percentage will be applied against your net resources in order to come up with the total monthly child support obligation. For one child multiple 20 percent against your net monthly income. Two children are 25 percent on up to at most 50 percent for each corresponding child. The highest percentage of your income on a monthly basis that can go towards child support is 50 percent. Other children not before the court will offset the amount that you have to pay to children who are involved in the present case. For high-income earners only the first $8,550 of your monthly income counts for these calculation purposes. If your child has proven needs that require additional sums of child support the guideline percentages may not be utilized. FAILURE TO PAY CHILD SUPPORT Divorce Lawyer Houston: Once your child support obligation is calculated it is an amount that you are ordered to pay without exception. This means that if you have a job where your income fluctuates (real estate agent, small businessperson, etc.) there are no protections built in to account for your not earning a consistent income throughout the year. If this describes your situation it is recommended that you plan ahead by either securing a part-time job to fill in the gaps or by simply saving money and anticipating these fluctuations. Either way, it is not a defense to the failure to pay child support to tell a judge that your income is inconsistent. Likewise, if you simply refuse to pay child support as ordered on a timely basis the parent to whom the child support is owed can go back to the court that rendered the order and seek an enforcement of your obligation to pay support. That parent can ask the judge to hold you in contempt of court and can even seek jail time as a possible recourse to encourage your payment of child support. As touched on briefly at the outset of this blog post if you have not been paid timely support you may hire an attorney to file this enforcement or can contact the Office of the Attorney General. MODIFICATION OF A PRIOR COURT ORDER Houston Divorce: Asking a court to adjust the amount of child support that you either have to pay or that you have been ordered to receive means filing a modification suit. You are basically asking the court to take the prior order it rendered and change it in some way based on a substantial change in circumstances. Child support, conservatorship, possession, access, and visitation are all issues that are covered by this sort of lawsuit. The material and substantial change in circumstances must have occurred since the signing of the prior court order. If the other parent moved away from their prior place of residence with your child and therefore caused you to incur additional sums of money in travel costs in order to exercise your right to visitation with your child then that material and substantial change in circumstances. Likewise, if your ex-spouse has abused your child or engaged in some other illegal behavior in the home then this too would qualify as a material and substantial change in circumstances. MODIFYING CUSTODY, POSSESSION AND/OR ACCESS First and foremost any requested modification must be shown to be in the best interests of your child … Continue Reading |
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December 2018
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