5 Common Misconceptions About Divorce

If you’re like most people, you probably have certain ideas–based on things you’ve seen and heard–about how the judicial system works in divorce cases. Unfortunately, though, a lot of the information you have is probably incorrect.

Following is a list of some of the most common misconceptions couples have about divorce law and what to expect from the  marital dissolution process:

1. Only one parent has rights to full custody of the children.

In the state of Texas, courts talk about “conservatorship” and “access,” as opposed to “custody.” “Conservatorship” refers to the set of rights and duties that accompany being a parent. “Access” refers to the block of time when the non-custodian parent is able to visit with the children apart from the other parent.

Courts try to divide conservatorship between both parents wherever possible. However, one parent may be appointed the primary managing conservator who is in charge of making important life decisions for the children.

2. If one spouse doesn’t pay child support, then the other can block access to the children.

A parent cannot disregard court orders for visitation even if the other parent is delinquent on child support payments. Law is the law and you must follow it to the letter.

3. If a spouse leaves a household and family because of domestic violence, then that action constitutes abandonment.

This is false. Legally speaking, abandonment is defined as a failure to support children for six months or more OR living apart from the family unit for two years or more.

4.  A husband and wife who have not lived together for months or years are legally separated.

No legal separation exists in Texas.  If you don’t have the divorce decree, then you are still considered to be married no matter how long you have lived apart from your spouse.

5. A person who has cheated on his or her spouse automatically loses rights to all property in the marital estate.

While infidelity is grounds for divorce in Texas, it does not usually result in a division of assets that favors the  faithful spouse. The only time when infidelity may impact property issues is in cases where the cheating spouse exposes the children to highly inappropriate situations–for example, sexual activity or anything else that compromises their health, safety or welfare.

These misconceptions about divorce are just a few of the many that exist. That’s why it’s important to seek legal assistance when you decide that ending your marriage is the right step for you. At the Barrera Law Firm, our attorneys are divorce law experts who can help you deal with the many questions and challenges you will inevitably have throughout the dissolution process. Contact us today!

Photo credit: photostock

 

5 Things to Know About Child Custody in Texas

If you are a mother or father seeking a divorce in Texas, then you should know that state courts are not inclined to award custody of children to one parent. That’s because the Texas Family Code strongly recommends that parents should try to cooperate in raising their sons and/or daughters after the dissolution of the marriage.

When parents divorce, most state courts ask who will have child custody. In Texas, it’s slightly different. Courts in the Lone Star State will ask who will have child conservatorship. Wording is important here because  conservatorship speaks to caring for and protecting offspring rather than, as in the case of custody, possessing them.

A Texas court may appoint either joint managing conservators or a sole managing conservator. Joint managing conservatorship means that two people (usually the parents) share the traditional rights and duties of parenthood. In joint conservatorship, the court may give a particular right or duty to each parent independently or leave them to work out those duties together. In sole managing conservatorship, those rights and duties fall to just one parent.

If one parent is appointed the sole managing conservator, that individual can decide where the child live. The other may be appointed the possessory conservator or parent with the right to visit the child according to the conditions in the court order.

Texas law focuses on the child’s best interest and supporting continuing relationships with both parents wherever possible. However, the presumption favoring joint managing conservators can be overturned by three things:

  • a history of family violence
  • previous relinquishment of a child’s care for at least one year
  • danger that joint appointment is not in a child’s best interest because it would impair a child’s physical health or emotional development

What all of this ultimately means is that if a mother and father were decent parents during the marriage, they will likely get a chance to continue to parent as joint managing conservators after the marriage is over.

The experienced and compassionate attorneys Barrera Law Firm understand the needs of people seeking marital dissolution. If you are considering divorce, make an appointment to talk to us. We will take the time to go over what conservatorship issues are likely to come up in your divorce. Contact us today.

Photo credit: David Castillo Dominici

Prenuptial Agreements

a prenuptial marriage contract and pen

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.

Temporary Restraining Orders and Divorces

Divorce is hard on children

Under Texas law, a temporary restraining order lasts 14 days until a hearing can be conducted in which a judge will weigh evidence to determine whether the entire order, part of it, or none of it shall survive as temporary orders. Temporary Orders may involve issues of access, possession, and support of the child. The initial order by the judge is issued because there is a sworn affidavit attached with allegations that immediate and irreparable injury, loss, or damage will result, affecting the best interest of the children and/or community property, before notice can be served and a hearing can be held.

Some examples of what a temporary restraining order can accomplish involves preventing one parent from removing the children, preventing community property from being wasted or hidden, and preventing the denial of access to property.

If you have been served with a Temporary Restraining Order, it is important that you retain a skilled attorney who will represent your side of the story. A skilled attorney will organize witnesses and bring evidence to disprove any inaccurate statements made against you, which were the basis of the temporary restraining order.

Uncontested Divorces in Texas- How do they Really Work?

Martial problems
Distribution of marital assets may need the assistance of an attorney
Under Texas Law, several factors are considered by the Courts in determining what happens with children and property. Two parties may make agreements and those agreements will be considered by the Court to determine if they are a just and right division of the community property and whether the agreement is in the best interest of the child or children.

Uncontested divorces can be very useful in saving thousands of dollars in attorney fees, in saving much embarrassment from the community regarding personal and private information becoming a matter of public record, and in saving time from numerous hearings and hours in the courtroom.

It is important that if you are pursuing an agreed divorce where both sides have worked out all the issues, that you understand your full rights regarding the custody and care of the children, and that you understand the scope of the property that you are entitled to divide. Sometimes, property that one is entitled to get is never revealed or known. It is important to have a skilled attorney be able to discover what property is up for agreement, so that a just and right division of property may be proposed to the Court. Many times, one party will represent there is “nothing to divide” when there are retirement accounts and gifts made to other parties and properties held in trust by relatives etc.

For more information on how The Barrera Law Firm and Attorney Ricardo A. Barrera can assist you in an uncontested divorce, call 956-428-2822.

Facebook and Divorce

I appeared on Action 4 News this week to comment on the use of Facebook postings in legal cases, particularly divorce.

Here is the story and the video:

Action 4 News Story

Commenting on some pictures while on Facebook can land you in court

Be careful with what you post in Facebook because it may be held against you in court.

Attorneys can now use Facebook posts, pictures and comments as evidence.

“It is a very effective tool for a skilled divorce attorney to use Facebook in a way to show that there might be foul play in divorce,” Ricardo Barrera, attorney, said. “That there might be some neglect towards children or somebody not acting to the best interest of their child.”

Last year in Cameron County 1,433 divorces were granted.

Harlingen attorney Ricardo Barrera tells Action 4 News, half of those cases involve couples with children.

Barrera says over the last 2 years, more couples are using Facebook to prove their cases.

“There could be evidence of adultery, criminality, all kinds of things that can lead a jury or judge to believe there is foul play on divorce,” Barrera said.

Barrera said he’s used Facebook as evidence in over a dozen cases.

He said that it’s not only those getting divorced that must testify, but also those who like or comment on your posts or pictures.

“People can be made to testify what is in the picture or ever having seen the picture.” Barrera said.

If you say no, you could get subpoenaed.

“My advice is watch what you post, make sure that you understand when you put something out there, that’s public knowledge and can be used against you in court.”

How do Courts Really Divide Property in a Divorce?

Divorce is difficult
Call The Barrera Law Firm for help with a divorce.
Under Texas Law, the Courts look to accomplish a “just and right division” of the community property. Community property is property that was acquired during the marriage, that was not inherited or gifted. However, any property acquired during the marriage is presumed to be community property by the Court unless the opposing party shows that it is not. Community property is not just your house, land, and cash, but it also includes debts that were acquired during the marriage, retirement benefits, and in some cases, other benefits depending on what they are.

Sometimes before the marriage began, one party may have invested money they earned before the marriage into property that was acquired during the marriage. If that is the case, a competent attorney will gather evidence of this transaction in a form that the Court will accept in order to make a claim for reimbursement out of the community funds.

The simplest way to explain how things go, in a divorce as to the division of community property, is that it hinges on whether a “no fault” or “fault” based divorce exists. If a claim is made with proper evidence to back it up that except for some act of adultery, cruelty, violence, fraud, etc. the marriage would have continued, then the court will look to giving more than just a split down the middle to one or either party. This is where you get the concept of “he or she got everything” in the clearest example of fault based divorce.

In the end, there are many factors taken into account in dividing marital property. Know your rights and know what questions your attorney should ask because you may not even know that you are entitled to more than you originally thought.

CALL NOW