Prenuptial Agreements and Divorce

You and your spouse drew up a prenuptial agreement before taking that long walk down the aisle. Now that you’re thinking of getting a divorce, you’re wondering what you can expect to happen when you bring the document forward and seek its enforcement or abrogation.

A premarital agreement is a contract that prevents the creation of community property. In Texas, community property is subject to a “just and right” division.  The 50% rule does not exist. This means that assets can be divided according to a 70/30 or some other percentage split.

What the court cannot do is divest an individual of his or her separate property. This means that a husband and wife can contract that the property owned by one or either of them will remain separate.  This can also include the income derived from that separate property. Under community property laws, that income would normally be considered  income held in common. This also applies to anything purchased without income.

All of this is to say that a prenuptial agreement can address any property issue that might arise in context of a divorce. However, only the court can decide on matters pertaining to child support.  Furthermore, the Texas Family Code stipulates that this kind of an agreement must be in writing. It must be signed and dated by both parties and goes into effect on the date of marriage. Amendments can be made in writing anytime afterwards.

A pre-nup becomes null and void if the party against whom enforcement is requested is able to prove that:

  • the document was signed under coercion,
  • the agreement itself was unconscionable when it was signed,
  • he or she was not provided a reasonable and fair disclosure of the other individual’s property or financial obligations,
  •  he or she did not voluntarily waive any right to disclosure of said obligations in writing,
  • he or she did or could not have had full knowledge of those obligations.

No matter how carefully you prepare for the possible end of a marriage, life and its attendant complications happen. And when it does and you find yourself  unsure of how to proceed, that’s when you need to contact the Barrera Law Firm. Our attorneys are experts in Texas divorce law and can help you sort through any issues pertaining to a prenuptial agreement. When protecting your rights and assets matter, we’re there.

Photo credit: David Castillo Dominici

The Link Between Education and Divorce for Women

Conventional wisdom has long held that women who have higher levels of education are less likely to get divorced. However, researchers at the National Center for Family and Marriage Research (NCFMR) have recently found that American women with the lowest and highest levels of education file for divorce at approximately the same rate.

The actual results of the study were as follows: women who had not earned their high school diploma or GED had a first divorce rate of 14.4 per thousand. By contrast, women who had earned a bachelor’s degree or higher had an almost identical rate of 14.2 per thousand. Interestingly enough, both groups of women had rates of divorce that were higher than average.

Divorce is a reality.What these figures would seem to indicate is that  having a college degree (or degrees) does not protect a woman from eventually becoming a divorcee. This further suggests that, as NCFMR director Dr. Susan Brown says, “the relationship between education and divorce is [far from] straightforward.”

In the past, individuals of both genders saw divorce as one of the worst life-decisions a married woman could make, largely because of the negative impact it would have on her social and financial standing. But as women continue to become more independent, divorce has become the accepted way to make a fresh start.

If you are a woman who is considering divorce but who is hesitating because of the social and financial disadvantages you believe a dissolution may create, do some research about the real effects that it will have on your life. The attorneys at the Barrera Law Firm can also assist you by going over your legal options as you begin the divorce process: call us today for a free consultation.

Divorce and the Family Home

Divorce house ownership issues
Who gets the home in the divorce can be contentious. Call The Barrera Law Firm for help.
You and your spouse have decided to divorce. In Texas, property division is a big part of what comes next in the dissolution process. While such issues as child support, custody, visitation and maintenance can be revisited and modified in a divorce decree, you should know that once your property is divided, no changes can be made.

Where the family home is concerned, the spouse who receives primary custody of the children often feels compelled to keep the property. That spouse will typically argue that the children should experience as little disruption to their lives and routines as possible. Other arguments may center around emotional attachment to the home itself.

Regardless of whether children are involved or not, both spouses should put dollars and cents before sentiment when considering what to do with the family home. The individual who ultimately does get the property—if it is not sold—will have to consider how he or she will deal with mortgage payments, property taxes, insurance, utility bills and routine maintenance on a smaller post-divorce budget.

Before the actual division is made, each spouse should evaluate their asses and debts to figure out whether keeping the family home is economically viable. While it may be possible for you (or your soon-to-be ex) to keep the family home, doing so may be unwise depending on what you/your spouse must give up to receive and keep the property.

For example, the spouse with the greater interest in the home may have to renounce their interest in such assets as 401(k) accounts, pension or other retirement plans and turn them over to the other spouse to achieve a fair division of property held in common. If the cost to keep the family home is too high, then it is probably best for the divorcing couple to sell the family home.

The attorneys at the Barrera Law Firm can help you make the best decision possible regarding whether or not to keep the family home. They will explain your options and develop a no-nonsense plan to make the division of property between you and your spouse one less thing you’ll have to worry about.

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.

cold hard cash
Think with your wallet, not your heart.

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.

Divorce Statistics

divorce attorney brownsville
If divorce is going to happen, contact a good divorce attorney to help things go smoother.
So are their predictors to a divorce or is it all a crap shoot?

A walk down the aisle is one of life’s biggest gambles. A Time online article reports that “an average couple has a 57% chance of seeing their 15th wedding anniversary.” But statistics say little about which newlyweds will manage to stay together over the long haul. What can offer insight into the marriage crapshoot are a bride and groom’s maturity, the relationship they have with each other, their financial standing and their respective family histories.

The age difference between a bride and groom is important. Two young people fresh out of high school stand less chance of succeeding as husband and wife than a mature man and woman of at least 25. But, cautions Time, older does not mean better: “marrying at age 35 is not any better than 25.”

Premarital cohabitation is no guarantee of success either. Statistics show that men and women who live together before marrying are actually more prone to getting divorced than those who do not. This is likely because “whatever it was that made them not want to get married in the first place ended up becoming a problem long term.”

If a newlywed husband leaves all housework and child-rearing duties to his wife, this may cause resentments that, over time, will undermine the relationship and help to bring about eventual dissolution. Mutual sharing of domestic responsibilities helps couples long-term.

Money issues also determine the success or failure of a marriage. A relatively small amount can help a lot. Time online reports that if a couple together earns “a modest $50,000 as a family, the odds of seeing their 15th anniversary jumped to 68%.” Interestingly, wealthier couples will typically divorce over interpersonal conflicts while those with less money will divorce because of financial problems.

Children of divorced parents are 14% more likely to end up divorced themselves. However, those who come from a household where marital problems were out in the open tend to do better in their marriages than those who come from households where interpersonal difficulties between parents were kept out of sight. Individuals in the latter group tend “not trust their relationships.”

If your own “marriage gamble” doesn’t pay off long-term, you’re in good company: in fact, you’re actually in the majority. Many factors—some of which are out of your control—go into to making a marriage work than just saying “I do.”

But keep in mind what IS in your control if your marriage must head towards divorce: which is how you handle the divorce. The best option is always to seek the help from a good family lawyer.

What Women Seeking a Divorce Should Know

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Facing divorce? Call The Barrera Law Firm for expert legal assistance.
No matter how you slice it, divorce is difficult for everyone involved. But if you are the wife in a marriage where your husband is the breadwinner and/or controls the family finances, the situation could get especially sticky.

Forbes online recommends that you should take especial care in getting your financial house in order as you prepare for an independent life: “it’s critical that you immediately gather all your financial records, including bank account information, mortgage statements, credit card bills, wills [and] trusts.” You should also go over your will and/or any medical directives you have to make sure that you prevent your husband “from making medical decisions on your behalf or inheriting all your assets should you die before the divorce agreement is signed.”

Once you’ve stored all important documents in a secure place that only you can access, next thing to do is get a copy of your credit report and keep a close eye on it. That way, “you’ll know if your husband is charging gifts for [a] girlfriend under joint credit cards, or if he’s dissipating marital assets in some way. Plus, you’ll also be able to keep tabs on your all-important credit score.”

The next thing to do is open new accounts in your name: make sure that you don’t use the same bank for you and your husband may have joint accounts. “Go to a different bank, and open a new checking and savings account in your name.” If you don’t already have a credit card in your name, Forbes suggests you get one.

Once your accounts are open, the website suggests that you “begin securing funds for legal and other professional fees.” This may be one of the most difficult of your tasks: Forbes states that “if your husband controls all access to the family funds, he can make it difficult (if not impossible) for you to have the resources necessary to hire a divorce team you need.”

Finally, since you will very likely be receiving legal and financial mail that you will want to keep confidential, you will want to open a post office box. That way, you’ll know “that your mail is being delivered to a secure, locked box” and have that much less to worry about during a time of upheaval and change.

Divorce Rates

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Call The Barrera Law Firm for help with a divorce.
(Reuters) – Men and women in the South have higher rates of divorce than any other region of the country, while those in the Northeast have the lowest, according to a Census Bureau report on Thursday.

Statistics from “Marital Events of Americans: 2009,” show that in the South, per 1,000 men or women, divorce rates were 10.2 and 11.1 percent.

By contrast, Northeastern men and women had divorce rates at 7.2 and 7.5 percent.

The national divorce rate was almost 10 percent, at 9.2 for men and 9.7 for women.

The report is the first to examine and detail marriage, divorce and widowhood among Americans ages 15 and older, using data from the 2009 American Community Survey (ACS).

“Divorce rates tend to be higher in the South because marriage rates are also higher in the South,” Diana Elliott, a family demographer at the Census Bureau, stated in the report’s release.

To read the full article, click here.

More Facts About Divorce in Texas and Child Custody

Divorce can be upsetting for childrenUnder Chapter 153, of the Texas Family Code, a court may not discriminate as to who would be the better custodial parent because of gender of the parent or marital status of the parent.

Rights of Parents at All Times

Unless limited by court order, a parent has at all times some of the following rights:

(1) to receive information concerning the health, education and welfare of the child;

(2) access to medical, dental, psychological and educational records of the child;

(3) to consult with a physician, dentist or psychologist of the child;

(4) to consult with school officials concerning the child’s welfare and educational status, including school activities;

(5) to attend school activities;

(6) to be designated on the child’s records as a person to be notified in case of an emergency.

Custody Battles and What Goes On

A custody battle can be intense. Evidence and witnesses will be examined by a judge and/or jury to determine what would be in the best interest of the child or children. Nothing is held back. The court may appoint personnel to assist the court in ensuring that the case is properly mediated beforehand and the children have their own attorney to look out for their interests. This may become costly and time consuming. Therefore, a key battle is usually getting temporary orders established that designate custody, access and possession.

Interference with Child Custody

A parent may not deny access and possession of a child with the intent to deprive or violate a court order under Texas Penal Code, 25.03. If a parent does so, and does not return the child within three days of the commission, the person perpetrating the crime may be found guilty of a State Jail Felony.

Motion for Enforcement and/or Contempt

A parent may request the court make additional orders to make up periods of possession that were denied, provide monetary compensation for causing one part to expend time and money to follow court orders, and to impose jail time or probation periods for failure to follow court orders.

Call The Barrera Law Firm, PC, at 956 428 2822 to get a free consultation, in order to inform of you of what your rights are and how to get started with taking action so that you are definitely an undeniable part of your child’s life.

Protecting Your Businesses From Divorce in Texas

a prenuptial marriage contract and penDivorces 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.

 

Uncontested Divorce in Texas

divorce attorney brownsvilleSome individuals simply agree not to be together anymore. They agree to end their marriage in a civil manner, without the need of a judge or jury to make decisions about what will happen to their children and property.

The two main rules in Texas divorce law are:

1) The Court acts in the best interest of the child or children.
2) Where there is no agreement, the Court will decide the outcome.

An uncontested divorce means that both parties are in agreement as to arrangements for access and possession of the children, child support and medical coverage for the children as well as the division of property that was acquired during the marriage but was not a gift or part of an inheritance.

Waiver of Service
A Waiver of Service is often used in an uncontested divorce because it satisfies several requirements. One, that the other party has been notified of the law suit and received a copy of it. Two, that they have supplied their correct contact information. Three, it generally sets out what level or participation they would like to have in the divorce i.e waives the necessity of being there at all. The waiver is required to be signed and notarized. It is then filed with the court and must be on file for 10 days prior to the final hearing.

Final Decree of Divorce
In an uncontested divorce, the Final Decree of Divorce contains all the agreements both parties made in reference to the access and possession of the children, child support and medical coverage for the children, and the division of property. It will also specify whether a name change is being granted as well as many other things. This document has a blank where the judge signs so it immediately becomes a court order that has the force of law, should the judge
approve the agreement and sign it.

It is important that a skilled attorney be employed in order to ensure that the uncontested divorce be performed legally and in the best interest of the child or children.

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