Texas Modification of Custody Orders and Other Orders

It is important to know that if your current court order does not work in best interests of your children, it can be changed.

In Texas, you can modify (change) a court order for many reasons.  Here are some examples:

  • More than one year has passed since the judge signed the existing order and there has been a major change that you can prove is detrimental to the children.
  • Less than one year has passed since the judge signed the existing order and there has been a major change that you can prove is detrimental to the children, and you can show (and swear to in an affidavit) there is a danger to their physical and emotional needs.
  • You were laid off of work and you now have a different job or make less money, and have a different work schedule.
  • You can prove the other parent or their spouse is violating the law and the children are at risk of harm.
  • Your child is over 12 years old and has explicitly stated their desire to live with you, without any pressure or persuasion, and you can demonstrate that you will be more active and capable in raising them than the other parent.
  • You are seeking a court order to restrain the other parent from moving out of the county or state.

There are many other scenarios.

Whether it is a divorce decree or a child support order, any order affecting the best interests of the children can be changed, but it must be done right. If it’s done wrongly, you may lose attorney fees and, even worse, your case could be dismissed.

Feel free to call The Barrera Law Firm, P.C. at (956) 428-2822 for a free consultation today.

A Nightmare Before Christmas Holiday
Court Ordered Possession

Christmas nightmare- court ordered possessionYou may live in a different town than your kid’s primary residence. And every year, it may be a gamble as to whether or not they will be there for pick up, or whether the other parent will go into radio silence.

Here are some helpful tips to avoid the nightmare:

  1. Make arrangements to pick up the children from school the day they are released. 
  2. Have a copy on hand of your court order on hand when you pick them up.
  3. Call the school in advance for any updates on early release, school performances, and pick up and drop off locations.
  4. Leave an email or text for the other parent with a general idea of the holiday plans, back-up emergency phone numbers, and where you are staying.
  5. Ensure the children wish the other parent happy holidays for as long as they wish on those days.
  6. Advise of date and time of return, even if they should already know from the court order.

For more information please call The Barrera Law Firm at (956) 428-2822 or contact us on line for a no-charge consultation.

Protecting Your Businesses From Divorce in Texas

Divorces in Texas can sometimes put businesses in jeopardy.   Community Property is any property that was acquired during the marriage, except for gifts and inheritances, or property designated through prenuptial or postnuptial agreement to be separate property.

Prenuptial and Postnuptial Agreements

A Prenuptial Agreement is an agreement between prospective spouses, that designates property, including certain income from that property to be separate property in certain circumstances.  A Postnuptial Agreement, also called a Partition and Exchange Agreement , is an agreement between two married spouses that creates a similar effect as the Prenuptial Agreement.   They each will be enforced so long as they are not unconscionable, were executed voluntarily, and each spouse provided complete disclosure of his or her assets or signed a waiver of disclosure or had adequate knowledge of the other spouse’s property and debts.

A divorce does not automatically ensure that separate property will be recognized or that community property will be divided 50/50 because all property owned at the time of divorce is presumed to be community property unless proven not to be through clear and convincing evidence and tracing of assets. Also, the court in Texas makes what is called a just and right division of the community property. That means the court can make a disproportionate division of the community estate, depending on factors concerning fault in the break-up of the marriage.

LLCs, Corporations, and Partnerships

The way you have your business set up also factors into how a business may be affected in a Texas divorce.  A CPA or other asset protection professional should be consulted regarding how assets are held under different models of business organizations in Texas.

For example, The Texas Business Organizations Code is composed of laws relating to how assets are held and how other owners and shareholders come into play relating to the division or distribution of assets.  Also, when one has the correct legal structure for a business, a competitive but reasonable salary may be considered the community income, as opposed to the entire business and its assets, in some circumstances that are appropriately planned for. A company vehicle that is leased by the business, equipment owned by the business, and collections for a business may be protected from divorce distribution if appropriately planned for in some circumstances.

Division of Business Community Assets in a Texas Divorce

If a business was started or acquired during a marriage and no prenuptial or postnuptial agreement was made, one’s share or ownership interest in that business may be divided by the court or a settlement agreement may be made so that other property may be sacrificed in order to keep the business from being damaged. Should one not be able to resolve these issues, a divorced former spouse may be able to make decisions and or sell off business assets, which can cripple the earning power and cause a long fall in which recovery may be difficult.

What is a Sealed Record?

What is a Sealed RecordCourt proceedings are a matter of public record and, in most cases, can be easily accessed by anyone, often on line. Not only are there companies that will provide you with court records (for a fee), but the State of Texas has a website devoted to providing the general public “with an easy and straightforward method to search for, examine, and obtain public records, arrest records, court records and more”.

It is possible to seal some records through the process of obtaining an “order of nondisclosure”. A sealed record still exists but is not available to the general public. However, this does not mean that your records are unavailable to everyone. The court may disclose the information contained in the sealed court records to:

  • criminal justice agencies for criminal justice or regulatory licensing purposes;
  • an agency or entity listed in Section 411.0765; or
  • the person who is the subject of the order.

The agencies and entities listed in Section 411.0765 that may see sealed records is a fairly long list and includes other criminal justice agencies who may obtain the records in some circumstances such as: various state departments and licensing agencies; and financial institutions such as banks, credit unions, and their federal regulatory entities. The list of exceptions to the non-disclosure also includes some schools and fire departments.

Not all records are eligible to petition the court for an order of nondisclosure. The records of many sexual offenses and some crimes of violence may not be sealed.

To determine whether your petition to the court for an order of nondisclosure would be successful, you should consult an attorney.

The Barrera Law Firm is here to help you. Call us at (956) 428-2822 or complete our online form for a free and confidential consultation.

Termination of Parental Rights in Texas

In Texas, the law provides that parental rights may be terminated as long as grounds for termination exist and the judge finds that termination is in the best interest of the child. 

Texas courts are more likely to terminate parental rights when an adoption may also occur. In that case, grounds could simply be that the biological parents failed to support the child for one year.

Sometimes the court will grant a termination of parental rights without an adoption. A very tragic and obvious example would be that one parent murdered the other parent.  The offender parent is a felon and is actively dangerous. Another example is that the parent molested one or more of the children.

At the end of the day, the court will decide if termination and/or adoption is in the best interest of the child. Some defenses a person may assert who is having his parental rights terminated is parental alienation, hostility toward the parent, and failure to co-parent.

For more information please call The Barrera Law Firm at (956) 428-2822 or contact us on line for a no-charge consultation.

Prenuptial Agreements

According to Texas law, a prenuptial agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. This means that two people make a contract that will be enforced in the event of a divorce or death. The right of a child to support may not be adversely effected by a prenuptial agreement.

The content of a prenuptial agreement may include how property will be divided:

  • on separation before the divorce is final,
  • after the divorce itself,
  • upon death,
  • if one of the parties remarries after the divorce,
  • if one of the spouses becomes disabled after the divorce or during the marriage, and
  • what happens if a child is produced or not produced as a result of the marriage and much more.

Prenuptial agreements have many sensitive legal issues involved that online forms simply have no capacity to discover, analyze and provide. It is important that a skilled attorney be employed to create a prenup that meets your needs and will hold up in a Texas court.

Texas Holiday Season Child Visitation Order Enforcement

happy young father and his cute son spending fun time together at pumpkin patch; family of two at fall

You’ve been looking forward to the holiday season all year. Maybe you have family coming in for your favorite food, favorite games, annual football games, or annual hunting trip. You took days off and everyone is looking forward to it. Then, the worst happens. Whether it is an excuse, a misunderstanding of the court order, or an outright denial of the children — there you are, heading for an embarrassing and depressing holiday. 

The Texas Standard Possession Order, and most custom visitation orders, provide visitation for the children during the Thanksgiving holiday, the Christmas holiday, and the New Year’s holiday. They distinguish each parent’s rights to that particular holiday as to odd or even years. The dates and times for pick up and drop off are set out in the court order. 

One should put the other parent on notice, call in advance to the school with a copy of your court order and do whatever you can in advance to make sure you don’t get denied your holiday season visitation.

If you do get denied, or anticipate you will, call The Barrera Firm for a free consultation to enforce your rights, get your attorney fees paid and get your make up time, while the person violating the court order may get fined or be otherwise punished.

Call us at (956) 428-2822 or fill out our online form for prompt service.

Car Accidents in Brownsville, Harlingen & McAllen: What to Do

Car accident harlingen attorney Barrera
Don’t let a car accident also wreck your life. Call The Barrera Law Firm.

Car accidents are never any fun for anyone involved. In addition to being scary, they usually result in damage to vehicles as well as slight to severe personal injury to those involved. When you are involved in a car accident, whether it is your fault or not, there can be much confusion and slight chaos, as you try to determine what to do next. Having a well thought out plan of what to do when an accident occurs can help you to make decisions on the fly, as long as you are not too injured to do so. Here is a basic list of what should be done when a car accident that results in personal injury occurs.

  1. Pull over out of the flow of traffic. When an accident occurs it may take you a minute to orient yourself. If you are able to move your car to the side of the road, out of the flow of traffic, do so immediately. This will help to reduce the risk of another accident occurring. If it is not possible for the car to be moved, then pick up your personal items as best you can and go to the side of the road. It is always possible that during the accident your gas tank may have been punctured, which could lead to an explosion. Moving away from the vehicle is the safest bet, but be sure to take your cell phone, keys and other important belongings.
  2. Call for help. Once you are safely out of the way of further harm, then call either 911 or the police if you have a local number. If you don’t have a cell phone, try to flag down another driver for help. The sooner the accident is reported, the faster officers will show up and get started on your accident report. If you have been injured, be sure and tell the operator so they can send an ambulance as well.
  3. Take out your car accident emergency kit. Many people like to keep a car accident emergency kit in their car’s glove compartment. This kit includes all the numbers you will need in an accident situation, such as the police, ambulance, your doctor and your insurance company. Other items can include a disposable camera for documenting the scene of the accident and the damage to the vehicles involved. It may also include first-aid supplies, such as bandages and gauze. If you have one of these, take it out with you when you exit the car.
  4. Exchange information with the other driver. Exchange car insurance information with the other driver. The police officer will determine who was at fault in the accident and use it to compile his official report. This information, along with the driver’s insurance information, will be needed when you make your insurance claim. You can never document too much information, as insurance companies often require detailed information in order to pay out on claims.

Custody Modifications for Children 12 and Older

Under Texas law, a parent that does not have the authority to designate the primary residence of a child 12 years of age or older may file a modification of conservatorship for the purpose of reviewing whether that designation should be changed.

An attorney may prepare an application for the court to interview a child 12 years of age or older regarding child’s preference of which parent should have the exclusive right to designate the primary residence of the child. However, despite the child’s preference, it is ultimately up to the court to decide. That means that although the child may have a totally valid preference as to who they would like to live with, it is ultimately up to judge to consider a number of factors that shed light on the best interests of the child.

Below are a few tips to observe:

  1. Ensure you are up to date on child support. While this is not a mandatory requirement, it can be considered by the court.
  2. Ensure that you have a good record of following the court’s order on visitation as well as the rest of the provisions.
  3. Do not bribe or try to persuade your child to prefer to live with you primarily over the other parent.
  4. Be active in investigating how your child is doing in school and how your child is doing physically or emotionally with the intention of setting up an environment for the child that is an improvement.

A child needs two parents in their life. Parental alienation will not be tolerated by Texas courts. In fact, South Texas courts are getting tougher and tougher on this. The right thing to do is to consult an attorney well before legal action is taken to increase the probability of success.

Steering Clear of Collisions

avoiding car accidents attorney brownsville
More and more cars are on the roads each day...but there are many ways to avoid accidents.

If you want to stay safe on the roadway, here’s a hot tip from MSN.com: avoid driving near or around sporty, high-performance vehicles like the Scion tC, Chevrolet Cobalt SS, the Honda Civic Si and the Subaru Impreza WRX. These cars and others like them probably belong to drivers who lack “maturity and good judgment.”

According to statistics compiled by the Highway Loss Data Institute (HLDI), the Scion tC and cars like it typically appeal to young people, who are themselves “most likely to be involved in a crash.” The HLDI bases its findings on “a monthly flow of claims data from 30 insurance companies that represent about 80% of privately owned and insured vehicles.”

Each vehicle model receives a ranking “that is relative to the average for all vehicles.” On its most current list, the Scion tC has 65% more insurance claims than other vehicles. The figures for Chevrolet Cobalt SS the Honda Civic Si and the Subaru Impreza WRX are, respectively, 61%, 59% and 54%.

The HLDI creates its list based upon claims alone. However, MSN.com reports that “several factors can put a car high on the list, including the vehicle’s performance characteristics, the age and experience level of the typical driver, and where and how the vehicle is usually operated.”

Vehicle color also seems to play a role in collision statistics. Research by the Monash University Accident Research Center (MUARC) in Australia found that “vehicles painted black or 12% more likely to be involved in a crash than vehicles painted white” and that” silver cars were in 10% more accidents than my cars.” Environmental factors such as low light and visibility were cited as probable reasons for these results.

So the next time you’re out driving, it may well be to your advantage to not only watch out for what other cars are doing, but also stay aware of vehicle models and colors—every little bit helps to avoid dangerous and costly accidents.

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