KalishLawTexas' legal blog The Woodlands

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31 Jan 2012

I Want a Divorce: NOW!
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Whether or not to get a divorce can be a difficult decision to make. Sometimes a person who is in a bad situation may agonize over the decision for years, going back and forth about what to do – only to wake up one morning and know that now is the time to act.

If you are in that situation, you should be aware that there is a waiting period in the State of Texas. A divorce will not be finalized until at least 61 days after it has been filed.
Between the filing and the finalization, other steps must occur.

1. The non-filing party (respondent) is entitled to proper legal notice. Generally, that person must either:
1. be “served” in a way that is legally enforceable (usually by personal service unless that is impossible or the judge has granted an alternative means of service) OR
2. must enter into the suit voluntarily by responding to it and filing proper paperwork OR
3. must indicate his/her agreement with the divorce and the final decree by signature on documents (waiver, final decree) properly signed and presented to the court.
2. The case must be “proven up” by being heard by the judge (in some cases only one party appears, in other cases there may be a full trial with a judge and possibly a jury).

3. The judge must approve and sign the order that officially divorces the couple.

4. Additional possible requirements: If there are children involved, each party will need to take a parenting class. If the case is contested, mediation may be required.

The amount of time that a case takes depends on the complexity of the case, whether there are children or property involved, the rules of the county/court in which it is filed, and whether the parties are in agreement about the divorce and final terms.
How quickly a final hearing date can be obtained will depend on other practical matters, such as the court’s schedule, schedule and availability of the parties and their attorneys, and the amount of time that it takes to draft, review and sign the necessary documents.

Kalish Law Office The Woodlands, Texas; "Passionate, Professional and Personal. We Make the Difference." Since 1984.
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23 Jan 2012

Can a Copy of a Will be Probated in Texas?
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Once a Texas will has been properly drafted and executed, the original should be kept in a safe place. This should be a place that is dry and safe, such as a fireproof box. The will may also be kept in a safe deposit box, however, this is not always the best option because it will be less accessible. A safe deposit box should only be used if someone other than the testator (person who signed the will) has access to the box. Ideally, the other person with access will not be someone who often travels with the Testator because there would still be a problem if something should happen to the two of them together. Therefore, I always advise married couples who want to place their original wills in a safe deposit box to be certain that a third person has access to the box.

If a will is lost and cannot be found, it is possible to submit a copy to the probate court where a probate case is filed. The Texas Probate Code specifically allows for this, however, there is no guarantee that the document will be accepted by the probate judge as valid and current (unrevoked), especially if there is other evidence to the contrary.

Therefore, it is always best to be very careful to keep the original will safe at all times, and if it cannot be located when needed to make a complete and diligent search for the will. Keep it safe and dry, with other important documents and be sure that you know where it is at all times.

Kalish Law Office The Woodlands, Texas 281-363-3700 "Passionate, Professional and Personal. We Make the Difference". Since 1984 Check out our probate page on our website for additional information
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16 Jan 2012

DNA Testing for Family Law and Immigration Cases - Strict Standards
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DNA testing is sometimes used in paternity, adoption and immigration cases.
Here are some reasons that DNA testing may be used and who may request the test:

1. In a traditional paternity case: As evidence of the identity of the biological father

a. requested by the biological mother in order to enforce the duty of care and child support; or

b. requested by the biological father who wants to enforce his rights to the child and be allowed to be part of the child's life; or

c. by an alleged father who knows or suspects that he is not the true biological father and does not want to have rights to the child or a duty to support him/her; or

d. ordered by a court as evidence in the case.

2. In an adoption:

a. to prove that a child is truly the offspring of one or both biological parents when the biological parent(s) are consenting to an adopiton (especially in international adoption cases).

b. to prove that someone is NOT a parent of the child about to be adopted and therefore does not have to agree to the adoption

c. to comply with international, federal immigration, or state law in an international adoption as part of the evidence in the file and part of procedural requirements

3. In immigration law:

a. to prove that a person is truly the offspring of an alleged parent who is petitioning for them with the immigration service

b. to prove identity of a person by objective, scientific evidence

In both international adoption and immigration cases there are very strict guidelines about which labs may process the tests and how and when the tests should be done. In other family law cases it may be possible to use tests as evidence which were obtained prior to the case being filed (but this is not always true). In order to prevent delays in your case it is always best to seek legal advice and be certain that you are using a lab which is reputable and approved by the governmental agency or court that is involved in your case and that all proper procedures are followed.

Kalish Law Office 281-363-3700 Family and business law since 1984. The Woodlands, Texas.
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9 Jan 2012

Can Your Spouse Take your only Car during a Divorce in Texas?
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QUESTION: “I am getting a divorce and we only own one car. I need my car to get to work. Can my spouse take it during the divorce”

Questions about vehicles are common during a divorce. Who gets to keep the car is going to be decided on a case-by-case basis.

The first piece of information that is needed is this: Who owns the car? Even if the two of you are married, the car might be the separate property of one of the spouses. “Separate property” means more than just which spouse is on the title or is paying the loan.   There are specific legal guidelines as to whether a piece of property is “separate” and property law varies from state to state.

If the car (or any other piece of property) actually belongs to the two of you, then you both have the right to it.   This means that you have to either work something out by an “informal” agreement between yourselves or go to court to get an order from the judge that says what you can and cannot do with the car and other property while the divorce is pending.

The purpose of temporary orders is to “preserve the status quo” while paying attention to the rights of the parties and the good of the children, if any.   This means that the goal is to get through the divorce with the least damage possible financially.   Therefore, it would be unlikely that a judge would order the spouse who has a job to give up a vehicle and risk losing the family’s only source of income. However, the decision will have to be made with regard for the rights of both parties and the children, especially if someone in the family has a serious medical condition or special needs.

You will need to plan especially carefully about how and when to file for divorce (and how to serve your spouse with the papers) if you believe that your spouse may take your vehicle, money or property and try to hide them from you. Be sure that you discuss these things in advance with your attorney so that you are able to protect your rights.

Kalish Law Office, since 1984. www.kalishlawtexas.com 281-363-3700
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3 Jan 2012

Time for New Beginnings
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Welcome to the New Year. My wish for everyone reading this blog is that you can feel the energy and possibility that the New Year brings. If you are going through a difficult time right now the beginning of a new year may create a feeling of apprehension, hope, or a blend of those feelings, and understandably so.

The New Year is a good time to take stock and get organized. It’s a good time to act upon something that you’ve been putting off, evaluate a situation you’ve been ignoring, and look for ways to improve your life. Don't put off doing the things that you want or need to do.

Poet Edith Lovejoy Pierce wrote: "We will open the book. Its pages are blank. We are going to put words on them ourselves. The book is called Opportunity and its first chapter is new Year's Day."
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