Divorce Law

Can Community Property Money be Used to Pay for My Divorce?

In most cases, funds that may be secured through joint bank accounts, credit cards obtained during the marriage, and through the legal pawn of property acquired during the marriage may be used to secure reasonably priced legal services for a divorce.

Often times, it’s critically important a competent attorney is secured to ensure that along with your divorce, a restraining order goes into effect relating to expenditures of community funds, sale or gift of community property, and how the bills get paid while a divorce is pending. Child support and custody is also decided.

Courts also allow one to apply for additional attorney fees if the husband or wife is using a disproportionate share in order to cover their attorney fees. An example of this is when the husband scrapes up $2,500, but wife cashes our her 401k and pays $50,000 in attorney fees. In this event, the husband could apply for $22,250 of that amount or the equal amount, if available, for attorney fees.

Call The Barrera Law Firm at (956) 428-2822 for a free consultation or complete our online form.

Does Adultery Matter in Texas Divorces?

Texas is a no-fault state. That means you can get a divorce here without having to prove it was the other spouse’s fault. 

One can also allege that the other party cheated and seek a disproportionate division of the community estate when clear and convincing evidence is present of the adultery.  

Sometimes, an attorney will need to search financial records to track down hotel room charges, odd gifts, and other expenditures that are out of place. Even odd ATM withdraws, when combined with other evidence, tell the tale of betrayal.

For more information, please call The Barrera Law Firm at (956) 428-2822 or complete our online form for your free consultation.

Wasted Days and Wasted Nights — Do I Have a Common Law Marriage?

Texas law recognizes common law marriage based on three basic elements, all of which all must occur at the same time:

1) Co-habitation (did you live together?)

2) Holding yourself out as husband and wife (did you wear rings, file taxes as married, or did you put out there you were married on loans applications?)

3) Agree to be married 

Texas courts generally try to do the right thing, but the burden of proof is on the one who claims a common law marriage exists when not formally married.

Never invest your home, your future, your wealth on someone who cannot or will not commit. The results are often sad and unfortunate in the case of a separation because the law does not provide you with a community property share unless you can prove common law marriage through clear and convincing evidence. 

Years of cleaning up after and taking care of a person you are not legally married to may end you up not only with a broken heart, but in the poor house as well.

For more information, please call The Barrera Law Firm at (956) 428-2822 or complete our online form for your free consultation.

I’ve Been Served With a Temporary Restraining Order With My Divorce – What Do I Do?

Under Texas law, temporary restraining orders are meant to keep the peace during a divorce, provide protection of evidence and community property, and keep the other parent from hiding the children or moving away with them until a hearing is held by a judge within 14 days of application.

  • The first thing to do is seek out a lawyer and read the entire document.  Read it thoroughly, make notes, and be sure to have your lawyer explain any word or concept you don’t understand.
  • The second thing you should do is retain a lawyer to file a counter suit and apply for your own restraining order, so that all is fair and equal for the hearing.
  • The next thing you should do is gather witnesses and evidence of any issue that is being contested. 

Very often, judges like for things to remain as fair as possible with regard to finances and as normal as possible for the children with no major changes occurring unless there is possible danger or neglect.

For more information or help with a legal issue, please call The Barrera Law Firm at (956) 428-2822 or complete our online form.

How Do I Prove My Ex is Hiding How Much Money They Make to Pay Less Child Support?

Under Texas Law, child support is usually calculated based on the percentage guidelines in the Texas Family Code, 20% for one child, and add 5% more for each additional child up to 50% of the person’s net income.

If the person has other children, their child support may be less due to those obligations. However, the courts usually stick to the percentage-based calculation BUT they don’t have to.

A Texas court may also deviate from the guidelines based on the needs of the children, or evidence that the person is living large, brand new truck, expensive vacations, getting all their bills paid by their parents, spending more than they make.

It is never difficult to track this kind of behavior if it exists. One can always retain a competent attorney that ensures the person is served with legal and binding orders to produce proof of income, Time slips, contracts, bank statements and an inventory of what they own and what they pay for.

If you need help in a child support case, call The Barrera Law Firm at 956 428-2822 for a free consultation.

Protecting Your Assets In a Divorce

Let’s face it: ending a marriage is never easy. But if divorce occurs after 20 to 25 years or more, the aftermath can be especially severe, especially where your finances are concerned.

For starters, get a good lawyer. While this may be an obvious point, Fox Business.com recommends that you not “waste cash venting to your attorney.” Stick to the facts of the case and “think with your wallet, not your heart.” If you have differences with your soon-to-be ex, “look for alternative ways to resolve their differences such as mediation, to negotiate the division of your assets” and let your lawyer fight or what legally belongs to you.

The next thing to do is create a realistic budget for yourself as a single person before the divorce becomes final. The one challenge many recent divorced individuals face is learning how to effectively manage their finances. If you will be receiving a settlement, you’ll need to do some careful planning as well, particularly if you receive cash. You may find it helpful to seek the assistance of a financial adviser.

If you and your spouse owed money as a couple, you’ll also need to prepare for merged debt. Some of the repayment responsibility will fall to you even if you didn’t make the purchases. It’s possible, though, that the court will award you a greater share of you and your former spouse’s total assets. In the case of secured debts, however, “the debt follows the asset—you get the house you get the mortgage.”

Where real estate is concerned, should you be the one to keep the family home, be sure that you can “afford the mortgage and other property costs.” It would also be smart to “get an appraisal and conduct a title search right away.” Your spouse could have used the house as collateral on a loan. The last thing you need is a piece of property that has a lien on it—especially one you didn’t know anything about.

Some people who go through a divorce shut down emotionally and isolate themselves from others. This behavior is unwise: if you have adult children or other relatives who are close to you and can offer you emotional and/or economic support, you may want to consider accepting their assistance. Besides which it is far better to “talk about the challenges you have, what you would like to change, what’s working and ways to improve” than live in denial.

Walking away from a multi-decade marriage commitment takes courage and a willingness to embrace radical change. With the right legal and professional assistance, you can restart your life on the secure footing you’ll need to succeed on your own.

Claiming the Children on Your Taxes During a Divorce

Divorce can be confusing as to how taxes are filed.

Normally, as attorneys, we tell our clients to go see a tax professional relating to the preparation of tax filings. However, community property is basically characterized as any benefit, debt, or liability, acquired during the marriage, that is not acquired by gift of inheritance.

Therefore, say your spouse is quick on the draw and file his taxes as “married, but separated” and claims all of your kids as his dependents. You may feel like you missed out. You may feel like your spouse just got the best of you and now your spouse is going to live it up with their new side person on that money.

It does not have to be that way if you have a good attorney.

A good attorney can order the court to freeze that money and make a fair division of that money because it is community property. The moral of the story here is to get the right attorney who knows how to make sure you are prepared. Something can always be done about it.

For more information, please call The Barrera Law Firm, PC for a free consultation at (956) 428-2822.

Annulment of Marriage in Texas

Annulment of a marriage is not the same as a divorce. Divorce is the dissolution of a valid marriage. Annulment ends a marriage that was not valid to begin with.

Grounds for annulment include:

  1.  Impotence.  If one spouse is permanently unable to have sex and the petitioning spouse did not know about the impotence at the time of the marriage, the marriage may be eligible for annulment.
  2.  Intoxication.  If one of the spouses was too intoxicated during the wedding ceremony to have had the capacity to consent to marriage, the marriage may be eligible for annulment provided that the spouses did not continue to live together after the effects of intoxication wore off.
  3. Incest.  Spouses who have a familial relationship closer than first cousins do not form a valid marriage.
  4. Fraud.  If one of the spouses “tricked” the other into marrying him or her by hiding or lying about something essential to the marriage, the marriage may be eligible for annulment.
  5. Bigamy.  If one of the spouses was already married, the later marriage is not valid.  However, if the earlier marriage is dissolved and the spouses of the later marriage continue to live together, the later marriage is not eligible for annulment.
  6. Underage.  Marriage between spouses, either of whom was under the legal age to get married, is not valid.  Annulment does not necessarily have to be filed by the underage spouse; a parent or guardian can file on their behalf.  If the marriage continues past the legal age of 18 (or 16 with parental consent or a court order), it is no longer eligible for annulment.
  7. Duress or force.  If one of the spouses was threatened, forced or coerced into the marriage, the marriage may be eligible for annulment as long as the spouses did not continue to live together after the duress was no longer present.

Is your marriage eligible for annulment? Call us at (956) 428-2822 or complete our online form for a confidential and no-obligation consultation.

Divorce: Why You Need Good Representation

When a marriage has reached a point where the only solution to problems are separation, its time to talk about divorce. When you are married, it is often the case that finances become intertwined. A divorce is the process of legally separating a couple’s finances in a way that is, hopefully, fair to both parties. While in a perfect world people would be able to do this simply between themselves, without the assistance of a lawyer and judge, most of the time the emotions that are a natural part of divorce prevent this from being a possibility. A good family lawyer, specializing in divorce, is a critical part of obtaining a fair settlement from a divorce proceeding.

  1. Calm and clear guidance. A good divorce lawyer will give you calm and clear guidance during your divorce. While your emotional state may prompt you to irrational and hasty decisions, the lawyer, who is emotionally neutral, will be able to guide you to make more productive choices.
  2. They know the way the system works. Going through a divorce is a complex task. There are many laws, statutes, and protocols that must be followed. While this may be your first divorce, it is one of many for a good divorce lawyer. This experience with divorces and having good divorce representation at your side will help you to navigate the waters of the divorce system and steer you clear to the other side with as little trouble as possible.
  3. Better chance of child custody going your way. When a divorce involves children, things can get even trickier. Choose your divorce lawyer very carefully if you will be fighting for custody of your children. Make sure that the lawyer you choose has had good success in the past with child custody suits.
  4. Will act as a mediator between you and your spouse. While you and your spouse may have trouble talking rationally about how to divide up your common estate items, a lawyer has no emotional ties to either of you and can act as a neutral mediator between you and your husband. For this reason, you want to make sure the divorce representation you choose is someone you feel comfortable with and who has a history of getting his clients fair divorce settlement.
  5. Why would you want anything less than great legal representation? A divorce can be one of the most challenging, and life changing, events in your life. Depending on how your divorce is settled, you could end up with, or without, your property, children and financial security. Why wouldn’t you want the best possible divorce representation to guide you during this difficult time? Choosing the least expensive divorce lawyer could end up costing you way more than you bargained for in the end, so do your research and make sure you choose a good one.

Having the best divorce representation possible is vital to getting a fair divorce settlement. With the right lawyer at your side, your divorce will proceed much more smoothly and result in a much quicker, and more amiable, split with your soon to be ex-spouse.

Steps to Simplifying a Divorce

Divorce is never going to be easy, no matter what you do. Despite your best efforts, it is an emotionally trying time that is made more complicated by finances and, if you have children, custody proceedings. While there is nothing you can do to take the pain away from divorce, there are steps you can take to cut down on its complexity:

    1. Find a good lawyer. This may seem like a no brainer, but it has to be said. If you choose to take the first rock-bottom priced lawyer you can find, then chances are you will be getting what you paid for. Look for a family law lawyer that has a good track record with divorces in the courtroom. Do some research, both online and by asking the advice of friends and family, especially those that have recently gone through a divorce. While a divorce lawyer is not cheap, choosing the right one is essential if you want to simplify your divorce, and subsequently your life. A good lawyer will take over your case and help you to avoid making poor decisions that could result in the divorce taking too long, or not ending in a way that is fair to your needs.
    2. Give your spouse back their possessions. Make your divorce easier by not having to decide who gets every single little thing. When your spouse moves out, give him or her back those items that are rightfully theirs. Try to divide up as much of the items in your house as is possible to avoid having to spend long hours debating who gets what. You have to decide what is worth fighting for. If it’s a family heirloom you have sentimental ties to, that’s one thing. But if you find yourself battling over a TV you can easily repurchase in the future, just let it go. It’s not worth the headache.
    3. Get your finances in order. When you sit down to talk to your lawyer, be prepared by giving them a full portfolio of your assets and debts, especially those that you hold jointly with your soon to be ex-spouse. You want to make sure that you are not stuck with debt in your name that should be shared with your ex. Having your finances in order will assist your lawyer in being able to create a plan of action for your divorce. The quicker they are able to figure out a settlement, the sooner you will be able to move on with your life.
    4. Be prepared to give. In the end, fighting over every little detail of a divorce will only prolong the agony. Look over your shared assets and decide what is important to you and what you are willing to give up. Going to the bargaining table with the intent of being able to give up a few possessions in order to make the proceedings simpler is sure to save time and heartache. Remember, possessions are just things, and can always be replaced. Your time, happiness and emotional stability are much more valuable in the long run.

The Barrera Law Firm in Harlingen provides legal services to Harlingen, Brownsville, McAllen and the Rio Grande Valley. Legal services offered include: divorce law, personal injury (such as auto or 18-wheeler accident), wrongful death, criminal defense, and civil rights actions.

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