There are many reasons for a parent to request child custody modification. This blog will discuss a few of those reasons that can affect a mother's or father's rights.
Changes in child support
One parent's inability to pay court-ordered child support can lead to a battle over conservatorship or possession and access (also known as "visitation"). The sole managing conservator (the parent with custody of the child) may deny visitation in retaliation for not receiving child support. This is against the law, and it also signifies a more significant need: if one parent can no longer pay child support, it may be possible to modify child support and, if necessary, conservatorship, and possession and access.
]]> RelocationDepending on whether or not there is a geographic restriction in the original court order, a sole managing conservator may not be able to relocate with the child without approval by the court. If a parent would like to move the child outside of the geographic restriction imposed by the court order, he or she must bring a request for relocation. This will likely impact the other parent's possession and access rights.
Allegations of child abuse or molestation
If one parent is accused of abusing or molesting the child, conservatorship and visitation may be significantly affected, especially if the child lives with the accused parent. A Texas court may issue a temporary protective order to prohibit future acts of violence. If the court finds that the allegations are truthful, custody and visitation arrangements will likely change.
A court may only grant modification of child custody / conservatorship if:
To learn more about modification of child custody / conservatorship in Texas, speak with an experienced family law attorney.
]]>Texas is a "community property" state. In other words, the property that a husband and wife accumulate during their marriage belongs to both spouses. This includes property acquired in the name of only one spouse. During property division, each spouse has a 50 percent interest in the community property.
One of the first steps in dividing property during a divorce is determining which property is marital property and which property is separate property.
]]> Separate property includes:Community property includes any property acquired during marriage that is not separate property.
Courts will presume that all of the property involved in a divorce is community property. It is up to each spouse to prove that the property is separate property through clear and convincing evidence.
The community property/separate property distinction is important for many reasons. For example, a court will usually divide community property 50/50 during divorce. Also, a spouse is generally not liable for debts on the other spouse's separate property, while both spouses are liable for debts on community property.
Some property, such as retirement benefits, contains aspects of both separate property and community property. There are specific laws that determine what portion of that property belongs to each spouse.
Source: Texas Family Code, Section 3.001-3.410: General Rules for Separate and Community Property.
]]>In our last post, we discussed business valuation in divorce. This post will explain the options available to divorcing spouses who own a business together.
Just as no two divorces are alike, no two businesses and business partnerships are alike. While business dissolution is the best option for some divorcing spouses who own a business together, other spouses may seek to keep the business alive. There are many creative options available. An experienced divorce lawyer can help you understand these options based on the facts and circumstances of your divorce.
]]> Examples of Business Options During DivorceAre you and your spouse able to maintain a professional relationship? Does one spouse want to buy the business from the other spouse? Would it be best to dissolve the business and split the assets? These are some of the questions you and your spouse should ask when looking for creative solutions about what to do with a family business after divorce.
Some solutions include:
As you can see, there is no one-size-fits-all approach to dividing a family business during divorce. Many people go into divorce worried that their only option is to dissolve the business. These people have spent significant time, energy and money on the business. Dissolution is an option, but it is not the only option. Depending on the unique facts and circumstances of your case, there may be creative, viable alternatives for you and your spouse to consider.
]]>Closing up shop and dividing business assets/debts is one option that spouses can consider. We will discuss this option in our next blog post. But what if one spouse wants to continue to operate the business? What should the other spouse receive? How does business valuation in divorce work?
]]> The first step is to determine if both spouses can agree on whether the business should stay intact. In some contentious divorces, businesses must be dissolved because the parties cannot reach an agreement. If the spouses can reach an initial agreement to keep the business running, then they must determine how much the business is worth.Divorcing with a small business is often challenging because a business isn't like other community property. The value of a business is not just what is in the books and is rarely determined by the business value listed in the buy/sell agreement. There are tangible assets such as commercial property, furniture and bank accounts, but there are also assets whose values are less tangible, such as mortgages, labor, intellectual property and the business' reputation. Determining reasonable compensation for the spouse who will not keep the business is, thus, difficult, especially when the other spouse will continue to receive the benefits of the business after the divorce.
Your divorce lawyer will work with business valuation experts (such as a CPA / business appraiser) to determine all of the business' assets and debts. You may be asked to compile your books, tax returns and other financial documents. A business appraiser can also determine, based on your earnings and other information, the goodwill of the business (the ability of your business to maintain and attract customers).
You and your spouse may both have a business appraisal done. Most likely, the appraisals will be different and you may need to work with your divorce attorneys to agree on an appropriate business value.
Sometimes, business valuation leads to a property division agreement that the spouse who would like to continue to operate the business simply cannot pay. In these cases, the divorce decree should lay out how the business owner can make future payments to the other spouse, including all the specifics of that payment. Keep in mind that, unlike support orders, you will not be able to modify the amount owed.
Source: Forbes, "Minding Your (Own) Business in Divorce," Marlene M. Browne, Dec. 12, 2006.
]]>For example, let's compare three types of divorces: a divorce between a young couple after a short-term marriage; a divorce between a mid-life couple involving children; and a divorce between empty-nesters.
]]> Young couples divorcing after a short-term marriage tend to focus on personal property. Who owns what? Who should get to keep the t.v.? The leather sofa? In contentious divorces, property division can be difficult, with a great deal of time and money spent fighting over small pieces of property.Property division becomes less important in mid-life divorces involving children. These divorces usually revolve around the children. Who will have managing conservatorship? What should visitation schedules look like? How much child support should one parent pay the other? These questions are indeed the most important in divorces with children, but they can also lead to intense arguments.
In empty-nest divorces, the focus is usually on division of retirement assets, health insurance and keeping peace in the relationship. These divorces are often more positive, with fewer disputes.
Every type of divorce has its unique challenges and every couple will experience each challenge differently. Even uncontested divorces can be full of unexpected twists. Determining how pensions can be divided through qualified domestic relations orders (QDROs) can be just as taxing as dividing up a household full of memories. Having experienced professionals on your side can help the process go more smoothly and provide balance, no matter what you are facing.
Source: Huffington Post, "Older and Wiser," Abby Tolchinsky, Jan. 4, 2012.
]]>That is why it is important for parents to consider their children's best interests and rights throughout and after a Texas divorce. How can you help your children through the divorce and what can you do to make things easier on them after the divorce?
]]> Here are a few tips to consider:Your children matter to you and you want what's best for them. So do the courts. They will consider your children's best interests for child support, child custody and visitation.
Source: Huffington Post, "A Divorced Child's Bill of Rights," Julie A. Ross, Judy Corcoran, Jan. 6, 2012.
]]>Many people admitted to using wealth preservation strategies, where they hid assets from creditors and spouses through offshore accounts and asset protection trusts. Others use other trusts, holdings, charitable foundations, family-limited partnerships, and equity reduction plans (ERPs). Still others may hide assets through their business partners or family members and in expensive artwork or office furniture. They may even collude with their employer/business partners to delay bonuses/raises until after the divorce.
How can you uncover hidden assets during a Houston divorce?
]]> First, hire a divorce lawyer who is experienced in high-asset divorce and uncovering hidden assets. You and your attorney may need to work with asset searchers around the world and gain access to your spouse's electronic data. Often, evidence of the hidden assets can be found on computers, PDAs, smart phones and other electronic devices.Second, make copies of all of the financial documents available to you. Try to find and copy bank account statements, pay stubs, tax returns and similar documents. Give these to your attorney, who will use them to help uncover the hidden assets and present your financial situation to the court.
Remember: your spouse is required, by law, to fully disclose all financial resources. Failure to do so can put your spouse in a difficult bargaining position during the divorce as well as set your spouse up for legal ramifications. In other words, it doesn't pay to hide assets.
Source: Forbes.com, "Uncovering Hidden Assets," Marlene M. Browne, Nov. 1, 2007.
]]>Tax filing status: Your filing status for the entire year is based on your marital status on December 31, 2011. For example, if you were divorced on December 30, 2011, you will be considered "single" (or, depending on your situation, "head of household") for 2011 tax purposes. You may not file a joint return.
If your divorce decree was not issued until January 1, 2012, then you will be considered "married" for tax purposes. You can choose to file as "married filing jointly" or "married filing separately."
]]> Your home: Many divorcing couples decide to sell their homes. If you sold your home in 2011, you and your spouse may have to worry about capital gains. If you are filing a joint tax return and owned your home for at least two of the past five years, you can exclude $500,000 of your home's value. If you are divorced and filing separately, you and your spouse may exclude $250,000 each (if your home was your primary residence for at least two years).Alimony / spousal maintenance: If one of the spouses paid alimony in cash in 2011, he or she can take a tax deduction for those payments. You and your ex-spouse must report exactly the same amount of alimony / spousal maintenance on your federal tax returns. Alimony is considered income, which means that the spouse receiving alimony needs to pay taxes on that amount.
Dependent exemption: If a couple was divorced on or before December 31, 2011, only one of the ex-spouses may claim a child as a dependent. This can be difficult, especially if the divorce was later in the year. The parent who should claim the child as a dependent is usually the "custodial parent," or the parent with whom the child has lived the longest. Hopefully, you discussed this topic during divorce, especially since it also impacts the Lifetime Learning and American Opportunity credits (only the spouse who claims the child as a dependent can receive one of these credits).
Having a team of experts on your side during and after your divorce can help you make sure that all of your bases are covered, including the financial and tax implications of your divorce.
Source: Huff Post Divorce, "5 Money Questions to Ask Before the Year and Your Marriage Come to a Close," Gabrielle Clemens, Dec. 27, 2011.
]]>As Houston adoption lawyers, we are privileged to experience the moments when grandparent adoptions are completed. We also understand the complex nature of these adoptions and the legal issues that can prevent Texas grandparent adoptions.
]]> In order to adopt your grandchildren, you must show the court that you have been the children's primary caregiver for an extended period of time and that the children's biological parents do not have the capacity to provide parental care.To begin the adoption process, file a Petition for Adoption. If the children's parents are still living, you must also file a petition to terminate the parent-child relationship. In a hearing, you will need to show that it is in the children's best interests for you to be appointed possessory conservator. You will also need to provide references and go through the home study process to show that your home is appropriate for your grandchildren.
Obtaining custody of your grandchildren
Grandparents can also request custody of their grandchildren in certain circumstances. In order to receive child custody, grandparents must show that the children have lived with them for at least six months; one of the parent's parental rights have been terminated; the parents are deceased, incarcerated, incompetent; or the children have been abused. Grandparents have the burden to prove that granting custody to the grandparents is in the children's best interests.
Obtaining custody or adopting your grandchildren may be an uphill battle, but it is a battle worth fighting.
]]>While parties can contractually agree on Texas alimony, courts have the final say. Therefore, it can be helpful to understand the factors that courts will consider when determining spousal maintenance. Below is a list of some of the relevant factors courts can use. If you are going through a divorce, discuss these factors with a Houston alimony lawyer to help determine whether you or your spouse may be eligible for alimony.
]]> When Can a Court Order Texas Spousal Maintenance?Under Texas alimony law, a court may order spousal maintenance if:
Texas Alimony Factors
The court can consider "all relevant factors" when awarding maintenance. This means that Texas courts have discretion when deciding when a spouse is eligible for alimony and for how long. Relevant factors under Family Code, Section 8.052 include:
How long a spouse can receive the alimony payments depends on the number of years of marriage. For example, a court can award up to five years of spousal maintenance for a marriage lasting 10 years or up to 10 years if the marriage lasted more than 30 years.
Source: Texas Family Code, Title 1, Subtitle C, Chapter 8, "Maintenance."
]]>In fact, the military divorce rate was higher than the civilian divorce rate for 2011, which was 3.5 percent. Of the military branches, the Air Force saw the highest divorce rate, at 3.9 percent. And divorce hit enlisted women especially hard - almost one-tenth of marriages involving enlisted women ended in 2011.
]]> According to military officials and researchers, years of repeated deployment cause strain on marriages. Additionally, with the end of the wars in Afghanistan and Iraq, more families are back together, many of which were simply not used to being together. The increased divorce rate could also reflect on the increased number of women in the military and the fact that military women are divorcing at twice the rate of men in the military. Historically, the military divorce rate for men has been less than the civilian divorce rate.The pressures that military families face are unique, and so is the divorce itself. For example, military service members may lose custody and parenting opportunities due to field training exercises and deployment. Non-custodial parents who are members of the military may need special custody and visitation agreements. Furthermore, dividing military retirement benefits is different than dividing other retirement benefits.
That is why it is important for people going through a military divorce to speak with a military divorce attorney who understands the additional pressures on the family as well as the unique challenges involved with military divorce.
Source: USA Today, "Military Divorce Rate at Highest Level Since 1999," Gregg Zoroya, Dec. 14, 2011
]]>Texas law strongly encourages courts to appoint both parents as joint managing conservators (JMC); however, judges in Texas child custody cases look at a variety of factors when determining who should receive custody/conservatorship of a child, including:
Today, men who ask for sole custody / sole managing conservatorship during their U.S. divorce receive it at least 50 percent of the time. This is a dramatic change from fifty years ago, where men had little chance of obtaining sole custody. Yet, the stigma against custodial fathers continues, and divorced fathers continue to struggle with gender bias. Hopefully, the bias will lessen as our culture continues to change and fathers take an increasingly active role in their children's lives.
Source: Huff Post Divorce, "Fathers: Equal in Marriage but Not in Divorce?" Vicki Larson, Dec. 14, 2011.
]]>There are steps you can take today to make the divorce process easier, many of which are financial in nature.
]]> These include:Whether you will be going through a high asset divorce or a divorce involving moderate means, start thinking about your finances now to protect your financial future.
Source: Forbes, "End-of-the-Year Checklist for Divorcing Women," Jeff Landers, Dec. 6, 2011.
]]>Nationwide, the average age of a first marriage has risen dramatically the past few decades - from 22.5 for men and 20.6 for women in 1970, to 28.4 and 26.5 respectively in 2009. However, people in the Northeast are waiting even longer to get married, and are less likely to get remarried after a divorce. Conversely, those in the South tend to get married at a much younger age and will remarry more quickly following a divorce. Ultimately, these higher marriage rates are closely linked to higher divorce rates.
]]> Diana Elliot, a demographer for the U.S. Census Bureau, told the Houston Chronicle that she believes these "regional marriage cultures" are important to understanding marital trends. Based on these cultures, Elliot observed that the increased chance of remarriage explains the longer duration of second marriages in the South when compared to the rest of the country.Illustrating the importance of regional cultures, Mark Regnerus, a sociologist at the University of Texas, told the Houston Chronicle, "You have a culture that is very pro-marriage. Country music is popular. The story line in country music is the quest for love, and if it doesn't work out the first time, you go back to the trough."
Generally, people in Texas are much more willing to give it a second try when their first marriage doesn't work out. However, that doesn't alter the fact that the first marriage ended in a divorce. If you are currently going through a divorce, contact an experienced divorce attorney in your area for guidance.
]]>At a time when credit is needed the most to establish a new life, it is suddenly in shambles, which only illustrates the need to monitor and protect your credit during a divorce.
]]> Establish a BudgetOne of the first credit related tasks to complete for a person getting a divorce is to create a budget. Many times, a divorced spouse is changing from a dual-income household to a single-income household.
There is simply less money available, and a recently divorced individual must prioritize his or her expenses. Housing costs, such as mortgage or rent and utilities, should generally be the top priority. Then look to other obligations such as credit cards, loans and car payments. Consider dropping some luxuries, such as cable or cellphone plans, if you find yourself nearing your expense limit.
Texas is a community property state, which means any debts acquired during the marriage are jointly owned, and thus both spouses share the obligation of paying off that debt. However, for some marriages, after decades of marriage, it is easy to forget about all the accounts you may have shared, such as store credit cards. It is always a good idea to order a credit report to determine all accounts shared with your spouse.
It is generally best to pay off joint accounts and close before divorcing. However, sometimes that is just not possible, such as high balances on credit cards or mortgages. If paying off joint accounts is not possible, delineate in the divorce agreement which spouse will pay what obligations. For example, the spouse keeping the car will make the auto payments, and the spouse keeping the home will make the mortgage payments.
However, keep in mind that agreements between divorcing spouses may mean very little to lenders and credit card companies, and if one spouse begins to miss payments, the lenders may attempt to come after the other spouse. Thus, it is a good idea to monitor accounts to make sure payments are being made.
Divorces can be emotionally draining, and having an ex spouse sullying your credit can only add more distress. If you need assistance during this trying time, contact an experienced divorce attorney in area to be advised of your rights and options.
]]>