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.

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.

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.

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.

Uncontested Divorces in Texas – How do I File?

Uncontested divorces in Texas are unfortunately common. The law requires that there be no expectation for reconciliation, so if you have consulted your church, your trusted friend or parent, or your conscious, and ultimately you decide it’s time to divorce for the greater good, then you should probably call a professional attorney with experience in divorce law to do it for you.

The WORST thing you can do is separate and then wait to divorce after you both have moved on as you are still legally obligated to each other financially and in other ways.

Some people attempt to file a divorce on their own and later discover they are still legally married, when they honestly thought their divorce was complete. Others pay to download forms online and find that those forms are not appropriate to a Texas divorce and waste their money. Others download proper forms and encounter a clerk at the courthouse who is unable to help or direct them because of the law prohibiting them from giving legal advice. And finally, others put their trust in a non lawyer, notary, or friend and take the gamble that they can navigate through the complex laws and issues and get their divorce. Some are successful and later find out they cut themselves out of thousands of dollars in community property and other things they were entitled to including permanent restraining orders, child support, health supporter, name changes, orders against unrelated adults around their kids or overnight, and much more.

There are three general rules you must know to successfully pursue an uncontested divorce:

1) Are you actually married in the first place?

2) Where should you file in order for the divorce to be legal?

3) What are you even entitled to in the first place?

If you do not sort out the three issues above, you may be clawing around in the dark and have a very frustrating experience.

If you or a loved one needs help with an uncontested divorce, call The Barrera Law Firm at (956) 428-2822 for a free consultation.  Get what you deserve and get it done right.

Talking to Children About Divorce

Research shows that children of divorced couples are as psychologically sound as those who come from intact family units. However, as the Huffington Post online reports, they also tend to experience “lingering distress” for years after their parents split.

divorce children barrera law firm
Communication with children about a divorce is vital. As is proper legal assistance. Call The Barrera Law Firm for a solid divorce attorney.
The main reason this seems to happen is because most parents do not talk to their children about their breakup. One study has shown that “less than 20% [of young adults from divorced families] said that both of their parents had talked to them in advance of the divorce” and that “only 5% reported that they had ever been given an opportunity to ask questions” about the process. This lack of communication creates “anxiety and helplessness” in children.

By contrast, those children whose parents do include them in the conversation about divorce reported “less painful memories and more positive attitudes” about their parents’ breakup. Following are some tips to help you decide what your children need to know about an impending divorce and how much say they should have in the matter:

  • Once you and your spouse have definitively decided to call it quits, tell your children. If they are young, it may be easier to tell them that “Mommy and Daddy may not be living together but that [they] will be with one or the other parent at all times.”
  • Give your kids a chance to ask questions, such as those pertaining to possible moves, school and schedule changes.
  • Accommodate their wishes as much as possible. That way, they’ll feel more in control of what’s happening to them and that their opinion counts.

Divorce marks the beginning of a sometimes painful adjustment period not just for the parents, but also any children they may have. If you are looking to dissolve your union, seek qualified legal assistance to help you and your spouse reorganize your lives—but don’t forget your children in the process. What they don’t know and aren’t given a chance to express about a divorce can hurt them in the long run.

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.

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