What Women Seeking a Divorce Should Know

Divorce
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

(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

Under 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 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

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.

Uncontested Divorce in Texas

Returning wedding ringSome 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.

Divorce Law in Texas and Fair Division or Protection of Retirement

Under Texas Law, each legally married spouse, has a one-half interest in any community property from the marriage. Community property is money or assets that were acquired during the marriage that were not gifts or inheritances.

However, a Texas court is not required to give each side half. Texas law requires the court to make a just and right division of the property. In doing so, the court looks at whether there is evidence of “fault” in the divorce, whether there is evidence of wasting the community property by either party, and whether money is owed for reimbursement to either party as well as many other reasons.

Retirement accounts are very delicate areas because they have different methods or ways you get paid and different types of penalties you take for making a marital division. A qualified domestic relations order is carefully drafted by a competent and skilled attorney and is signed by a judge where a company is then commanded to distribute funds according to that order.

A skilled attorney must carefully evaluate all the settlement options for the client because sometimes an alternative settlement agreement is appropriate when there are other assets to divide and where there will be a major financial losses on both sides by dipping into the retirement.

Uncontested Divorce Texas – Pros and Cons

Conflict Between Couple
If divorce is going to happen, contact a good divorce attorney to help things go smoother.

A divorce in Texas may be agreed upon by both parties, as to how property will be divided and as to how custody and possession of the children will occur. 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.

However, a skilled attorney should be consulted despite the existence of a verbal “agreement for an uncontested divorce” between the husband and wife because bank accounts can be hidden, assets can be squandered or wasted on a “home wrecker,” and basic parental rights that are in the best interest of the child or children can be left out. In fact, in some “agreed” divorces, the other side is deprived of thousands of dollars in retirement benefits, spousal maintenance (Texas’s interpretation of a kind of alimony) and reimbursement claims (money owed to a spouse by the other spouse).

There are many pros and cons to getting an uncontested divorce. That is why a personal consultation is really needed so that specific legal advice can be provided on a case by case situation. Never let an attorney represent both parties in a divorce because of the high probability of a conflict of interest where the attorney has to make decisions that he or she knows or should know will benefit one side and deprive another.

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.

Division of Retirement Plans and Benefits in a Divorce

If you are involved in a divorce and have a pension plan, you should be aware that the court can order a portion of your pension plan to go to your spouse. Whether this occurs or not is totally dependent on the factors in your divorce and how the court will decide to divide the property according the community property laws of Texas and a just and right determination by the court. It is also possible that you and your spouse will agree find some other satisfactory arrangement to the court to divide your property without the court having to divide your retirement.

However, if this is to be done, the pension plan in question will require what is called a “qualified domestic relations order” to be signed by the judge so that the distribution can occur. Many pension plans offer model QDRO’s on their websites so that they can be downloaded and provided to your attorney to assist them to draft the order appropriately for your specific type of retirement plan.

You should be aware, too, that just because such an order is put in place, it does not mean that the distribution of the benefit will occur immediately to the receiving party. It is simply the means that allows the pension plan to have the legal authority necessary to distribute the benefit to the receiving partner at the time when the benefit becomes payable.

The Barrera Law Firm is knowledgeable in such divorce matters as QDROs and can guide you safely through the various options that you will have available in relation to your pension plan. It does not have to be a mine field, full of uncertainty. We work to make it as simple and understandable as possible for you.

Divorce Finance Questions Answered

People who go through a divorce for the first time inevitably have a lot of questions about it and particularly how it will affect their financial status. And that’s not surprising.  Divorce is, after all, a process that will permanently change your life as well as the lives of your spouse and (if you have them) children.

Here are some questions we at the Barrera Law Firm often get asked about the money side of divorce along with some answers that you may find helpful:

1. What if I bought a house into the marriage that was in my name only and then added my spouse’s name to the deed?
Texas is a community property state which means that those assets and income acquired during the marriage belong to both partners, so long as they were not acquired through gift or inheiritiance. In this situation, the whole house may be considered marital property and the contributions made to the equity of the house may be at issue regarding the ownership interest.

2. If my IRA is in my name alone, is it still considered marital property?
Everything acquired during the marriage and regardless of whose name it’s in is presumed to be community property. As you go through the process, it’s wise for you to evaluate the financial drawbacks to having your IRA included in the list of assets you retain after your divorce. Whatever you decide to do, you must remember that the funds in an IRA cannot be accessed before age 59 1/2 without paying a 10% penalty for early withdrawal.

3. If I am appointed the custodial parent of my children, do I get to keep the house?
The answer to this question depends on the situation. You will need to figure out whether or not you will have enough money coming in to stay comfortable in the home and pay all bills without feeling overextended. Once you have determined this, then you will need to see whether or not retaining the home is advisable if it means that you must give up other assets-such as liquid accounts and retirement plans-to do so. Ultimately, the court will decide that issue, taking into account a just and right division of the property and taking into account the best interest of the child in remaining in a stable and consistent environment.

The Barrera Law Firm understand the confusion that many of our clients experience regarding the financial aspects of marital dissolution. That’s why when you consult with us, we’ll carefully go over the details of your case to help you make the best decisions. For legal advice on divorce, contact us today!

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