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.

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.

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.

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