Wednesday, December 21, 2011

How is an Annulment different from Divorce in Texas?

A divorce legally terminates a marriage. While you are no longer married, the marriage was legally valid at the time.
An annulment dissolves a voidable marriage by declaration that it was legally invalid. From a legal perspective, after an annulment, it is as if the marriage never existed.
There is also a difference between a “voidable” marriage and “void” marriage. A voidable marriage is valid and recognized until it is annulled and declared legally invalid. On the other hand, a void marriage was never valid or recognized. For example, a marriage is voidable and can be annulled if one of the parties was under the influence of alcohol or narcotics at the time of the marriage. However, this marriage will be valid unless an annulment is sought. A marriage is void if, for example, one of the parties is currently married to a third party at the time of the marriage. This marriage is invalid and will not be legally recognized.
Texas law allows an annulment only in very specific circumstances and only if the party seeking the annulment can prove certain necessary facts.
Because seeking an annulment is asking the court to declare that the marriage was void and never existed, seeking an annulment rather than a divorce can affect the processes people typically associate with a divorce such as the division of property, and all potentially affected aspects should be carefully considered.
The articles following later this month will discuss the specific grounds for an annulment in Texas.
References: Texas Family Code 6.101 – 6.206


Article by Sarah F. Berry, Attorney

Friday, December 2, 2011

Can I Seek Custody of Someone Else’s Children?

Blended or complex households may involve raising step-children or even the children of friends and other non-relatives, often for a variety of practical economic and social reasons. But typically a non-relative does not have the legal right (called “standing”) to seek a court order for custody or to be appointed as that child’s conservator.

However, the Texas Legislature has recognized that, under certain circumstances, a non-relative can have enough involvement in a child’s life to be entitled to seek rights typically reserved for that child’s parents or other relatives.

Specifically, a person who has “actual care, control and possession” of a child for at least six months can file a petition to seek to be appointed as that child’s conservator, even when the child is not related by blood or marriage. The petition must be filed within 90 days of the child leaving the applicant’s actual care, control and possession. In this situation, “actual control” means that the applicant had power or authority to guide and manage the child.

So, for example, if the child of a friend has lived with you during the past year while attending school with your own children, and that friend is unable to return to care for the child (due to death, illness, financial misfortune, or other circumstances), you would have standing to file a petition asking the court to appoint you as the child’s managing conservator. Often, this arrangement can be temporary and does not involve terminating the rights of the child’s actual parents, but provides you with legal rights and authority (as described in the court’s order) related to the child’s care, possession and upbringing.

Article by Cindy Veidt.

Monday, August 22, 2011

Legal Separation in Texas

There is no such thing as “legal separation” in Texas. The only legal proceeding for separation is divorce. Once a divorce is filed, the court can make temporary orders concerning the parties, their property, and their children. However, some couples fee they need to be “separated” for a time to determine if their relationship is reconcilable or if divorce is truly necessary. This can cause problems because property and finances may remain joint between the spouses while married.

While there is no such thing as legal separation in Texas, it is possible for spouses desiring a period of separation with separate finances and property to enter into various property agreements, changing the ownership of property from community to separate. However, the consequences of should be carefully considered.

Legally, the spouses would still be married, and may not be completely protected from financial decisions made by their spouse, no matter how careful their planning and detailed their property agreements. Additionally, once the nature of property is changed from community property to separate property, the change in property ownership will remain effective if the separation does in fact lead to a divorce, which may not have been the intent of one or both spouses. The same is also true if the parties do not get divorced, which may have an unintended effect on property distribution upon the death of one of the spouses.

Article by Sarah F. Berry.

Monday, August 8, 2011

What is Spousal Maintenance and when is it available?

Texas has very limited laws regarding the availability of spousal maintenance. Spousal maintenance is defined under the Texas Family Code as “an award… of periodic payments from the future income of one spouse for the support of the other spouse.” (Tex. Fam. Code § 8.001) In other words, “spousal maintenance” is something of a misnomer – it is actually paid by a former spouse after the divorce is granted and the two persons are no longer married.

Under Texas law, a person is only eligible to receive spousal maintenance if:

1) the other spouse was convicted of an act of family violence that occurred during the two years immediately before the date on which the petition for divorce was filed, or

2) the marriage lasted longer than ten years and the spouse to receive maintenance cannot support himself or herself.

In general, a Texas court may not order spousal maintenance for longer than three years after the divorce is final, and the court will limit the duration of payments to the shortest period of time possible. However, a person may be entitled to receive spousal maintenance for a longer period of time if he or she has an incapacitating physical or mental disability, or is caring for a child with such disability.

Factors in determining whether to award spousal maintenance include:

* the relative financial resources of both spouses,

* the duration of the marriage,

* the age and earning ability of the spouse seeking maintenance,

* the contribution of the spouse as a homemaker,

* infidelity or fraud during the marriage,

* the spouses’ respective education and employment skills, and

* one spouse’s contribution to the other’s earning power.

These factors are not exclusive. In Texas, there is a presumption against spousal maintenance, and it is not available unless the person requesting spousal maintenance has been diligent in seeking employment and improving his or her job skills and employability.

Lastly, the amount of spousal maintenance cannot exceed the smaller of $2,500 per month or twenty percent of average gross income per month of the spouse who is ordered to make payments.

In summary, spousal maintenance is not available unless the party requesting such payments can overcome the presumption against an award of spousal maintenance by providing evidence supporting the various factors, and – even when awarded – the payments are for a limited amount and only for a limited time.

This blog was prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

What is Spousal Support and when is it available?

In contrast to “spousal maintenance” (see related blog topic), Spousal Support in Texas is awarded on a temporary basis while a divorce suit is still pending. This temporary spousal support is meant to provide a financially dependent spouse with income during the divorce while the parties are working on a resolution to their financial situation.

Temporary spousal support is based on the common law duty to support one’s spouse during the marriage, by providing “necessaries” such as food, clothing, shelter and medical care. As a result, an award of temporary spousal support can be taken into account when the court divides the spouses’ community property, since the spouse who is providing such spousal support is entitled to reimbursement from their community estate.

To be entitled to receive temporary spousal support, the requesting spouse must demonstrate that: (1) the parties have a valid marriage, (2) he or she is unable to pay for necessary expenses, and (3) the other spouse can afford to pay the amount of spousal support sought.

If the spouse receiving temporary spousal support remains unable to pay for necessary expenses at the time of the final hearing/trial, he or she should consider requesting spousal maintenance for a period of time after the divorce is granted.

Blog prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

Monday, May 9, 2011

How to Change a Child’s Name in Texas

In Texas a guardian or parent must petition the court if they wish to change a child’s name. This is also the process that must be followed when an adult requests a name change, but in the case of a child, there are additional requirements that must be met. Our blog about changing an adult’s name can be found below.

If a name change is requested for a child, all parents or conservators of the child must be served with the petition requesting the name change by a constable or process server and the name change must be in the “best interest” of the child. As in the case of an adult name change, the petition must include specific personal information about the child. The party requesting the name change for the child must also disclose whether there has been a previous court order regarding the child and which court has continuing exclusive jurisdiction under the Texas Family Code. If the child is 10 years of age or older, the child’s written consent to the change of name must be attached to the petition.

As in the case of an adult name change, a hearing will be scheduled. Other parents or conservators f the child must be notified of the hearing and given the opportunity to contest the name change. If the name change is contested, the court will determine whether or not the name change is in the child’s best interest.

After an order changing the name has been signed by the judge, that person should notify the appropriate governmental agencies such as the Social Security Agency. If a child’s name has been changed and the child has been the subject of a previous court order such as a custody or child support order, a copy of the order changing the child’s name should also be sent to the Bureau of Vital Statistics.

Wednesday, March 16, 2011

How to Change Your Name in Texas

Most name changes occur when an individual either gets married or divorced; however, for various reasons, people may desire a name change at other points in their lives. In Texas, it is possible to change your name in a separate proceeding. The process to change an adult’s name is different than that to change a child’s name and this article will only address the procedure to change an adult’s name. Please visit our blog again later to for information on how to change a child’s name.

For an adult, to change your name you must follow the correct procedure and meet all requirements. The person seeking a name change must first file a petition in the district court in their county of residence. The petition must include very specific personal information such as your date of birth, social security number and a set of fingerprints. This personal information is required because the court must find that the person seeking the name change is not seeking it to avoid legal problems such as criminal convictions or evading debts. After the petition has been filed, the person seeking the name change will need to appear before the judge and give testimony regarding the personal information in the petition. At that time, if the judge finds no problems, he will sign an order changing your name.

After an order changing the name has been signed by the judge, that person should notify the appropriate governmental agencies such as the Social Security Agency and Department of Motor Vehicles to obtain a new social security card and driver’s license. You should also notify relevant private organizations such as credit card companies, banks, employers, and insurance providers. If any agencies or companies require proof of the name change, a certificate can be obtained from the district court clerk.
Blog by Sarah F. Berry http://www.carylippincott.com/Attorney_SarahBerry.php

Tuesday, February 8, 2011

Waiving Service of the Lawsuit in Divorce Cases

What does it mean to waive service of the lawsuit in divorce and what effect does it have? A suit for divorce is like any other lawsuit in that the person who filed the petition for divorce must serve a copy of the lawsuit on the other spouse. However, the spouse being sued for divorce can agree to waive service of the lawsuit by signing a waiver.

Depending on the circumstances, there can be several good reasons the parties may want to consider waiving service of the lawsuit, especially in a divorce case. First of all, it costs money to serve the lawsuit. You must hire an independent person (such as a process server or constable) to serve your spouse and they charge a fee for their services. So if your spouse agrees to waive service, you will save a little bit of money.

Second, it can be embarrassing to be served with a lawsuit. The process server may appear at your spouse’s place of employment or home to serve the lawsuit. This can result in embarrassment for some people. If both spouses want to get divorced and are on good terms, agreeing to waive service can spare potential embarrassment.

However, if you are the spouse being sued and are considering waiving service, you need to read the waiver very carefully. Waivers can contain different terms. Some waivers say that you are waiving service of the lawsuit ONLY, but want to be notified of everything else in the case. Other waivers say that you are waiving notice of everything. If you waive notice of everything, your spouse can schedule a hearing or trial and is not required to notify you. This can be very problematic.

Waivers certainly have their benefits, agreed upon divorce cases, but make sure you understand what you are agreeing to before you sign a waiver.

Blog prepared by Sarah Berry.

Wednesday, January 12, 2011

How Do We Divide the House in Divorce?

One of the most troublesome problems facing divorcing couples in a “down” real estate market involves division of the marital residence (or other real property they may own together). Often, couples have little or no equity in the marital residence and neither spouse will be able to re-finance the debt into their name alone.

When both spouses are joint debtors under the mortgage, a divorce decree by itself will not limit their individual liability for payment of that mortgage, and in these economic times, many mortgage lenders will not agree to release one spouse from individual liability under the mortgage.

Traditionally, one spouse agrees to be responsible for the mortgage payments (becoming essentially the property “owner”) and to indemnify the other spouse from any claims by their mortgage company until the house is sold or the mortgage is paid off; this agreement is usually secured by a lien against the marital residence (so that the other spouse is now placed in the role of a “lienholder” although behind the mortgage lender and perhaps other creditors). In other words, the “lienholder” spouse giving up the marital residence has to hope that the “owner” spouse will be able to continue making mortgage payments after the divorce and – if he or she can’t – must be ready to step in and pay the mortgage to avoid foreclosure of the property and being sued individually for any deficiency between the sales price and the accelerated amount of the mortgage.

If the marital residence has “equity” – in other words, if the value of the property is substantially more than the full amount required to pay off the mortgage – this is generally not a problem. But if the marital residence has little to no equity, or is “underwater” because the property is now worth less than the amount of the mortgage, divorcing spouses have to make some very tough decisions concerning future liability and financial risk.

Even when a divorce is “agreed” and there are essentially no disputes between the spouses about dividing marital assets, in situations where the marital residence or other real property carries substantial debt and little equity, it is best to consult with a family/divorce lawyer to advise you on potential methods for handling the marital residence in a way that will help limit exposure to potentially large and unexpected expenses after the divorce has become final.

Blog by Cynthia W. Veidt