Houston Divorce & Family Law Attorney Blog : Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

The issues of same-sex marriage and termination of such marriages may be dealt with in Texas sooner that this commentator expected. Thursday, October 1, 2009, Dallas Judge Tena Callahan ruled that the state’s ban on same-sex marriage violates the equal protection clause of the Constitution. Texas Attorney General Greg Abbott filed a petition in intervention, which was denied by the judge. Abbott’s office indicated the State would seek an appeal of Judge Callahan’s decision. For more information, see today’s Houston Chronicle and The Dallas Morning News.

• Comments
• Trackbacks

On Friday, April 3, 2009, the Iowa Supreme Court declared unconstitutional a 1998 state law limiting marriage to one man and one woman. Iowa is now the 3^rd state in the U.S. to legalize same-sex marriage. The other two states are Massachusetts and Connecticut. 

The Iowa Supreme Court Opinion cited a constitutional duty to ensure equal protection under the law – “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”

Though this is a victory for advocates of same-sex marriage, there are many unanswered legal questions that remain, such as what happens when same-sex couples relocate to another state that does not recognize their marriage, or what happens when and if the couple wants to divorce. 

For more information on same-sex marriage and domestic partnerships across the country, see the story in The Houston Chronicle. 

• Comments
• Trackbacks

It’s that time of year again – the seemingly long stretch between the New Year and April 15^th. If you’re like me, you keep putting off until tomorrow what you should be doing today – that is organizing your documentation to prepare the income tax return. Then you find yourself strung out on Red Bull and fretting with the latest version Turbo Tax asking why you wasted all that time. The only two certainties in life are death and taxes, so let’s get it in gear!  The tax preparation that is. 

As a family law practitioner I do not offer tax advice, and recommend that my clients seek counsel from a CPA or tax attorney, especially if they have complex issues. 

Another useful resource is IRS Publication 504 - Divorced or Separated Individuals. Though the current version on the IRS’ web site is for preparation of one’s 2007 return, the information is still helpful and though provoking. 

• Comments
• Trackbacks

My colleague at prenuptialagreements.org posted a great blog story about how pre-marital (a/k/a pre-nuptial) agreements are beneficial to prospective spouses. The excerpt from his story follows:

A preenuptial agreement is an agreement between two people that deals with the financial consequences of their marriage ending.

All marrying couples have a "prenuptial agreement" - it is known as "divorce law." However, a lot of people are unhappy with the way divorce law works, and prefer to take control of their lives, rather than leave it in the hands of the government. In these cases, it makes a lot of sense to get a customized prenup.

Getting a prenuptial agreement is particularly important in these 8 cases:

1. You are much wealthier than your partner. A prenuptial agreement can ensure that your partner is marrying you for who you are, and not for your money.

2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is payable.

3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family are cut off.

4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and don't want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.

5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenup can ensure that your spouse does not become an unwanted partner in your business.

6. To prevent your spouse from overturning your estate plan. A prenuptial agreement can ensure that you estate plan works, and, for instance, ensure that a specific heirloom remains in your family.

7. You are much poorer than your partner. Just as a prenuptial agreement can be used to protect a spouse who is well off, a prenup can also be used to ensure that the partner who is weaker financially is protected.

8. If you plan to quit your job to raise children. Quitting your job will negatively impact your income and your wealth. A prenuptial agreement can ensure that the financial burden of raising the children is shared fairly by both partners.

• Comments
• Trackbacks

Because of real estate market woes, many of my family law clients are finding it more difficult to sell their homes as quickly as they hope, for the price they hope to obtain, or to simply refinance. Apparently, reality TV shows are feeling the housing market woes as well. The Learning Channel begins airing a new reality TV show called “Hope for Your Home” on Saturday, August 9, 2008 at 7:30 p.m. CDT (check your local listings for time and channel). Unlike shows such as Flip that House or Trading Spaces, this show is aimed at assisting homeowners increase the value of their property so that they may sell or refinance. Though some of the episodes discuss harsh realities people don’t want to hear, in order to get the house sold you’ve got to get that reality check.  For more information, visit the article published in today’s Wall Street Journal. 

• Comments
• Trackbacks

Though Houston is reportedly one of the areas least affected by the economic downturn, the city is not without its share of troubles. The quandary of what to do with the house has always been an issue in divorce cases, but my practice is encountering an increasing number of people in financial turmoil with respect to the house. Selling property and dividing proceeds was a good option for couples where neither could afford to stay in the house alone. Selling is still an option, but with the mortgage lending crisis and surplus of available homes, no one can predict how long the house will remain on the market.   

Unless you and your spouse are on exceptionally good terms during the divorce, usually someone has to move out. Before deciding on who stays and who goes, consult a real estate agent and educate yourselves on optimum ways to stage a house so it is appealing to potential buyers. For more information on realtors in the area, visit the Houston Association of Realtors.

Remember – if you and your spouse signed the deed of trust then you’re both responsible for the mortgage note regardless of who remains in the house. The court cannot make the mortgage lender remove either party from the agreement. Even though you may despise your soon-to-be ex, it’s in each party’s interest to make sure the house is sold and for the best possible value. 

• Comments
• Trackbacks

If you anticipate a separation or impending divorce it is a good idea to revisit your estate plan. Most individuals' principal assets include their home, life insurance, retirement funds, bank accounts and securities.

Though unpleasant to consider, think about what could happen if you die before filing for divorce or during the divorce proceeding itself.

If you have a will, consider executing a new will or codicil bypassing the soon-to-be ex-spouse and leaving your share of the community estate to the children in trust, or other individuals. You may also wish to change designated beneficiaries on any life insurance policies. Because many retirement plans are subject to ERISA, it is unlikely that you will be permitted to change your beneficiary designation(s) without your spouse's consent.

• Comments
• Trackbacks

With cohabitation on the rise and marriage on the decline according to national figures, it follows that self-help guides to living together are available for quick reference.  One such book is The Good Girl's Guide to Living in Sin released on June 1, 2008.  Another resource is Shacking Up:  The Smart Girl's Guide to Living in Sin Without Getting Burned.  Though these guides are not a substitute for seeking legal advice in your jurisdiction, they bring up practical ideas that should be discussed with your mate before comingling the CD and DVD collection. 

• Comments
• Trackbacks

According to data collected in a national study, between 1995 and 2005 the marriage rate in the United Stated declined by approximately 20%.  More couples nationally, and across the globe, are electing to cohabitate rather than marry.  According to an article from the June 9, 2008 USA Today by Sharon Jayson, a more in depth study regarding marriage will be released this week.  The article cites various reasons for the shift away from marriage such as economic uncertainty, convenience, and uncertainty about long-term relationships.

 

• Comments
• Trackbacks

More and more people are posting intimate details about their private lives on-line for the world to see. I’m sure somewhere someone is conducting a sociological study about this phenomenon. In fact, this topic might be my cousin’s doctoral dissertation! 

At any rate, it appears that one popular site for ex’s to purge emotional bile can be found at exboyfriendjewelry.com. This site was established by two entrepreneurs, Meghan Perry and Marie Perrry, to help jilted women sell engagement rings and other baubles given by their cheating husband or boyfriends. The site is so popular that People Magazine featured a write-up about the pair in the May 26, 2008 edition.  The sales site, along with its ex-boyfriend blog is a cross between E-Bay and Craig’s List meets Jerry Springer. 

Give it a look in your free time. Who knows…you might find a real bargain. 

• Comments
• Trackbacks

Under Texas law, a court may annul a marriage if a party to the marriage was at least 16 years old but under 18 years old at the time of the marriage, and the underage party did not have parental consent or court-ordered permission to marry. The court has discretion in whether it will annul an underage marriage. In exercising its discretion, the court must consider the circumstances relevant to the parties – for example, whether the wife is pregnant. 

A parent, guardian, individual with a court-ordered relationship, or individual acting as next of friend to the child may seek an annulment of the child’s marriage. Time is of the essence in filing such a petition for annulment whether the petitioner is the parent, guardian or next of friend. A parent or guardian will not be permitted to seek an annulment of the marriage once the child reaches the age of majority (18). An individual filing the suit as next of friend to the minor child must bring the suit within 90 days from the date of marriage, or such as suit is barred. 

• Comments
• Trackbacks

It is a common misconception that either party can simply tear up, shred, or otherwise destroy a premarital agreement to nullify it. To properly revoke the premarital agreement, both parties must execute a written agreement (using the same formalities as in executing the pre-marital agreement) to property revoke. 

It does not matter if one or both of the parties is certain to have destroyed all the copies.  Usually the attorneys for the husband and wife retain an executed copy. If the revocation of the premarital agreement is not handled properly, either party may seek to enforce pre-marital agreement.

Before attempting to revoke or amend a pre-marital agreement, it is best to seek assistance of a licensed attorney familiar with such agreements.

• Comments
• Trackbacks

Texas voters overwhelmingly approved a constitutional amendment prohibiting marriage between individuals of the same sex, and about 43 other states also prohibit same sex marriage. However, nine other states recognize civil unions, and in 2004 Massachusetts approved provisions allowing same sex marriage.

The questions are (1) if same sex partners can marry or enter into civil unions in certain states, how can these marriages and unions be undone; and, (2) what is the impact if the parties relocate to other states? These are not easy questions to answer, as an April 15, 2008 article in The Houston Chronicle noted.

Same sex couples married in Massachusetts are finding that other states will not permit them to seek dissolution. Additionally, couples who later relocated to another state find that if they do not meet the domicile and residency requirements under the Massachusetts family code, the state will not permit dissolution suits to move forward. While this may seem to be an unnecessary road block, the state has a legitimate interest in denying relief to parties who are not domiciled in the state. There are also constitutional considerations – the court can only adjudicate a matter if it has jurisdiction over the parties and issues. According to sources at The Houston Chronicle, to establish domicile in Massachusetts one must reside there for at least 12 months.  

Though same sex marriage and civil unions are hot topics, they recognized by a minority of US jurisdictions. With a highly mobile society, many of couples will find themselves relocating from the states where they entered into the marriage or union, and perhaps seeking assistance under the law to terminate the relationship. It is just a matter of time and parties making a constitutional argument. At some point laws of the various states (Texas included) must address issues of division of property, conservatorship and custody in same sex marriages/unions.

• Comments
• Trackbacks

In Texas premarital agreements are valid contractual agreements that allow prospective spouses to amend the “default” marital property rules, but premarital agreements are not recognized by all US states. This is an important factor to consider in today’s mobile society.

At the time this post was written, 27 states recognize pre-marital agreements in some form. The states include:

Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois

Indiana Iowa Kansas Maine Montana Nebraska Nevada New Mexico North Carolina

North Dakota Oregon Rhode Island South Dakota Texas Utah Virginia Wisconsin

In 2008, states considering recognition of premarital agreements include Mississippi, Missouri, South Carolina and West Virginia.

For more information on the Uniform Premarital Agreement Act, visit http://nccusl.org/Update/uniformact_factsheets/uniformacts-fs-upaa.asp

• Comments
• Trackbacks

The Wills, Trusts, and Estates Professor's Blog posted a timely story on an update to the Texas Probate Code that deserves examination.  It will be interesting to see the results of this legislation in the Houston-area probate courts.

The 2007 Texas Legislature added Probate Code § 47A to authorize a court, under certain circumstances, to deem a decedent’s current marriage void for lack of mental capacity even after the decedent has died.  Acts 2007, 80th Leg., ch. 1170, § 4.01.  This section was designed to “undo” marriages entered into due to the actions of conniving and/or abusive caregivers.

1.  Types of Voidable Marriages

a.   Proceeding pending at time of death

If a Family Code proceeding to void a marriage based on lack of mental capacity is pending at the time of death (or if the court has been asked to do so in a pending guardianship proceeding), the court may declare the marriage void despite the death of the decedent.  The court must apply the same standards as for an annulment under the Family Code.

b.  Proceeding not pending at time of death

If a proceeding to void a marriage based on lack of mental capacity is not pending at the time of death, the court may nonetheless deem the marriage void under the following circumstances:

The decedent entered into the marriage within three years of the decedent’s death.

An interested person files an application to void the marriage on the basis of lack of mental capacity within one year of the decedent’s death.

The court finds that the decedent lacked the mental capacity to consent to the marriage and understand the nature of any marriage ceremony that might have occurred.

The court does not determine that after the date of the marriage, the decedent gained the mental capacity to recognize the marriage relationship and actually recognized the relationship.

2.  Result if Marriage Deemed Void

The surviving partner of the void marriage is not considered as the decedent’s surviving spouse for any purpose under Texas law.  For example, the surviving partner would not be able to receive an intestate share of the estate or claim homestead rights.

• Comments
• Trackbacks

Generally speaking, neither party to a divorce in Texas may marry a third party before the 31st day after the date the divorce is decreed.  However, if the parties wish to remarry each other, there is no waiting period .  Further, if either party can show good cause, the party may receive a waiver of the waiting period.  See Tex. Fam. Code Sections 6.801 and 6.802.

The purpose of the waiting period is to curtail impulsive remarriage.  However, this is easily defeated if a recently divorced person travels to another state. 

• Comments
• Trackbacks

Texas law provides that a county clerk may not issue a marriage license if either applicant is under 18 years of age.  See Tex. Fam. Code Section 2.101. 

However, if an applicant is between the ages of 16 and 18 years of age, the county clerk shall issue a marriage license if parental consent is given.  A parent must provide consent through a written declaration on a form supplied by the county clerk in which the person consents to the marriage and swears under oath that the person is the parent or a judicially designated conservator of the minor. 

Knowingly providing consent under false pretenses is a Class A Misdemeanor in Texas. 

• Comments
• Trackbacks

When a couple applies for a marriage license in Texas, the general rule is that the marriage ceremony cannot take place during the 72 hour period immediately following the issueance of the marriage license by the county clerk.  However, there are some exceptions to this rule which involve members of the U.S. armed forces, U.S. Department of Defense Employees, and persons who request a waiver of the waiting period. 

A bill which passed in the Texas House and Senate during the 80th legislative session would provide another exception for couples who complete an 8 hour pre-marital education course and can provide a certificate of completion not more than one year before the date teh marriage license application is filed with the clerk.  House Bill 2685 is awaiting Governor Rick Perry's signature.

 

 

• Comments
• Trackbacks

House Bill 180, also known as the "covenant marriage" bill failed to pass during the 80th Legislature's regular session, which closed just after Memorial Day weekend.  The bill would have created two classes of marriage.  Couples would have been required tochoose between a covenant marriage, where obtaining a divorce would require more procedural hoops, or a regular marriage.  The bill was purportedly drafted to reduce the number of divorce filings in the state's civil courts. 

 

 

• Comments
• Trackbacks

Couples who are avid about saving for retirement, or who have been married for a long period of time, often have significant assets in 401-K accounts. At the time of divorce, the deposits each spouse made into his/her 401-K during the marriage is community property subject to just and right division. Employer matching made during the marriage is also community property, provided that the employee is fully vested in the plan. Whether couples have agreed on how to divvy up these accounts or if the court makes a division, that is far from the end of the story.

401-K and pension plans are governed by the Employee Retirement Insurance and Security Act (ERISA), a federal law. 401-K and pension plans are administered by a plan administrator. No matter what the text of your divorce decree says, the plan administrator must pre-approve a qualified domestic relations order (QDRO) in order to divide the assets between spouses. Having a QDRO kicked back by the plan administrator potentially delays the division of assets and distributions. Therefore, attorneys often outsource the preparation of QDROs to consultants having special expertise in this area. 

Though this is another person on the divorce “payroll,” outsourcing saves time and money because the consultants have experience with various administrators and know what items are likely to cause a QDRO to be rejected. Whatever the flat fee charge for QDRO preparation, it is almost always less expensive than having your attorney charge by the hour to draft a complex document. 

• Comments
• Trackbacks

Susan Robicsek, author of the Bankruptcy Law Network recently posted an important article on balanced budgets and bankruptcy.  Since one of the top reasons marriages end in divorce involves financial strain, I think this article may provide benefit to many folks. 

When you rely on credit cards to cover things that don’t come up every month like car repairs, house repairs or medical issues, you have to recognize that your budget is not balanced. These things will come up and shouldn’t be a surprise when they do. In fact, there is little anyone can do to avoid them.
Maybe you use credit cards to buy groceries, because your paycheck goes to pay your other bills, like your rent/mortgage, car payment and credit cards or other revolving debt accounts.

If you are using credit to cover your living expenses or “emergencies”, you are spending more than you make to cover the things that occur in your life. When you have to borrow to pay for things you can’t afford now, you will pay back more when you consider the interest. So if you couldn’t afford to have something to begin with, why will it be easier to pay back more over time?

• Comments
• Trackbacks

This spring, the Texas Legislature began considering whether to revise the Family Code to include provisions for the creation and dissolution of a "covenant marriage."  Essentially, when couples obtain their marriage license from the County Clerk's office, they will have to elect whether or not they want a covenant marriage.   House Bill 180 is on the general calendar for May 8, 2007. 

The Texas House Committee's analysis indicates: 

C.S.H.B. 180 amends the Family Code to provide for the creation of a covenant marriage and the collection of applicable fees. The bill provides that applicants for a marriage license select either a covenant or non-covenant marriage license. The bill requires the county clerk to indicate on the marriage license whether the license is for a covenant marriage.

 

• Comments
• Trackbacks

Texas marital property has rich history with roots from the Spanish legal tradition.  Texas is also unique in that its marital property rights are constitutionally based.  Article 15 Section 16 of the Texas Constitution defines separate and community property, and the Texas Family Code also provides guidance as to the differences between separate and community property. 

• Comments
• Trackbacks

Common law marriage is legal terminology often casually used in conversation, but persons involved in marriages without formalities may not be aware of the statutory elements, or that the Texas legislature has revised the law several times since 1989.

Information regarding common law marriage is found in the Texas Family Code at 2.401 - 2.402. 

A man and woman may enter into an informal marriage by one of two methods:

• Executing a written declaration as described in Tex. Fam. Code Section 2.402; or
• By meeting a three prong evidentiary test:

1. the man and woman agree to be married;
2. the man and woman cohabitate in Texas;  and,
3. the man and woman hold out to other parties that they are married.

 

• Comments
• Trackbacks

In a recent poll of members of the American Academy of Matrimonial Lawyers (AAML), 49% of the divorce attorneys cited an increase in postnuptial agreements during the past five years. Interestingly enough, 58% of the respondents most frequently draw up the agreements as a result of a request made by both parties, rather than it coming from either a husband or wife individually.

• Comments
• Trackbacks