KalishLawTexas' legal blog The Woodlands

If you are planning a divorce, you should be aware that you may be able to receive temporary spousal support while the divorce is pending, if you make significantly less than your spouse, you are unemployed or you are unable to work.

In order to receive this, you will need to have the judge sign “Temporary Orders”. These orders can be agreed to by both spouses, arrived at after a contested court hearing, or be entered after mediation, as a mediated agreement. 

Spousal support is separate from child support, but child support is given priority and the amount of child support that is being paid, if any, will be considered.

You should be prepared to show detail about your expenses and needs, going back several months.  Be ready to show evidence, and specific numbers, about what your needs have been and what you realistically expect them to be during the time the divorce is pending.  

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

It is very easy for children to be caught in the middle during a divorce.  In this video, our attorney Sio Ramirez Pitre is interviewed for examiner.com by relationship columnist Gina Gheller.  

Last week, we posted part I on this blog, this is part II.

In this video, geographical restrictions in divorce decrees are discussed.  These are common these days. If you are subject to a geographical restriction in your divorce decree, remember, this is a court order.  The reasons for these restrictions are explained in this video. There is also a discussion about children who wish to stop visiting one of their parents, seeking changes in child support, and the right to return to court and modify a custody or visitation order.

We hope you find this video interview informative.

Kalish Law Office, The Woodlands, Texas.  "Passionate, Professional, and Personal.  Since 1984".

281-363-3700

In previous blog posts, I have written about resources that are available to help elder family members.   The previous blog posts discussed how to best communicate, how to find AARP resources, hospice care, Meals on Wheels, Alzheimer Resources, and contained other important links. Another online resources is the web publishing company Assisted Living Today.  

After the publication of the last blog post, a reader who works with Assisted Living Today (an online web publishing company) contacted me and gave me permission to share the informational guides on that website with our readers.

 In September, 2011, the site posted an infographic about nursing home closures in the U.S. which shows a visual breakdown of the impact of the growing elderly population and diminishing available nursing homes.

That site contains a lot of information, including an  Assisted Living Care Guide

And additional guides:

• Memory Care Guide
• Nursing Home Guide
• Care Home Guide
• Independent Living Guide

Decisions regarding a loved one's care are difficult to make and the choices and options may seem overwhelming. Having access to information and resources is important in making the best choices.

Thank you to Katelyn Roberts, Assisted Living Today.  Disclaimer: Kalish Law Office is not associated with Assisted Living Today and did not receive any compensation for this blog post.  Kalish Law Office does not endorse Assisted Living Today and has not reviewed the content of Assisted Living Today for accuracy.  This blog post is merely presented as an informational option to assist our readers in gathering information.

Kalish Law Office is located in The Woodlands, Texas, north of Houston.   “Passionate, Professional and Personal. We Make the Difference.” Since 1984  www.kalishlawtexas.com  281-363-3700

If you are part of a male-female couple living together in Texas, you may be common law married without having a ceremonial marriage.  While living together you can agree to be married, and “hold yourselves out” to the public as being married and that can be enough to create a common law marriage.  Notice that both parties must agree on it and intend to be married; it cannot be a unilateral decision.   

If either party is still legally married to someone else, there will be no common law marriage created. Both parties must be over 18 and Texas law requires that the parties to this informal marriage be a man and a woman.

Not surprisingly, there can later be disagreement between the two people as to whether they really intended to be “common law married” or not.  This usually happens when the couple splits or is arguing over the ownership of funds or property.  One party will claim that they were never married and the other party will take the opposite position

If a party wants to allege and prove common law marriage upon breakup, a legal action must be filed in the Texas courts within two years of the time that the parties separated and ceased living together. If this is not done, Texas law presumes that there was no marriage and the chance to have these issues heard in a family law court are lost.

The issue of whether or not there was a legal marriage may also arise in a probate proceeding, when the alleged common law spouse is in opposition to the deceased partner’s other family members.  The common law spouse may be in a vulnerable position if s/he is unable to prove the common law marriage or his/her partial ownership of property or funds.

A Texas couple has another marital option aside from what is discussed above.   The couple can file a signed “Declaration of Marriage” in the county of residence, without having a ceremonial marriage. This document will prove that the informal marriage was acknowledged and intended by both partners.   Couples who have filed a declaration of marriage are married under the law, and will need to file for divorce if they split.  

Next Time:   “Unmarried and Living Together? Protect Yourself!”

Kalish Law Office www.kalishlawtexas.com   Family law attorneys, Spring, Texas 

My posts about how to find legal information on the web have been wildly popular in the past, so here is another gem of wisdom on how to catch that elusive thing called legal knowledge.

You can always google, bing, yahoo or ask your way to an answer, but you may have to search through a lot of information that doesn’t cut to the chase. 

So, here are a few tips for doing legal research (and a few cautions, too!)

TIPS (The best places to find good information):

1. State Bar websites: Many state bar associations have specific pages for non-lawyers.  For instance the Texas State Bar has a page “for the public” 

Non-lawyers can download pamphlets and also information that previously appeared in the Texas Bar Journal client pages.

2.  www.lawyers.com   This site has legal forums and blogs and is searchable.

3.   www.avvo.com  legal forums and legal guides

4.   www.findlaw.com  Here you can “Learn about the law” and “Browse legal wiki”

5.   www.nolo.com  Lots of information on various legal topics

6.   Groups or sites that are specific to your problem or area of law, for instance:

For immigration: USCIS: www.uscis.gov

US Patents and Trademarks For copyrights and trademarks

 Texas Workforce Commission

Many professional groups also have a helpful links page.

CAUTIONS:

1. Don’t base an opinion on the wrong law.  Make sure you know whether you are looking at the right law (State or federal?  Current or old law?  Does it apply?)
2. Don’t believe everything you read, especially on message boards and chat, and don’t assume that it applies to your situation.
3. Don’t share personal information in a public forum. (not only is it dangerous in general, but if you are involved in a legal action later your posts may work against you)
4. Beware of scams and of people who are “practicing law without a license.”  

Now you are ready to get some background information for your specific legal question, or just because you want to learn something new!

Be sure to contact a lawyer when the situation calls for it.  Just as you would consult a professional to deal with a medical problem or a problem with your car engine, you should consult a legal professional in certain situations.

I. HOW to do it

If you are currently getting a divorce, you will be able to get a copy of your divorce decree after the judge signs it. It will be available from the Clerk in the county where your Texas divorce is filed. (usually the district clerk, rather than the county clerk) If you have an attorney, and your case is still open, your attorney will usually either get a decree for you or give you instructions on how to get the decree on your own.

In some courts, the decree will be available as soon as you are finished with the final hearing and you will be able to walk to the district clerk's office and get a stamped decree that very day. In other counties/courts, you will be asked to wait for a number of days until the file is processed, sent to the clerk, and imaged.

There is a copy fee (see below).

Situation #2: Your Divorce is Final, and Your Case is Already Closed

Say that your case is complete, and maybe even was completed several years ago. You should call or visit the district clerk in the county where your divorce was rendered. The more information that you have the easier the clerk can your case. The case number is the best piece of information to have. You may also be asked the names of the parties, and perhaps the approximate year the divorce was final or which court had the case.

Unless your case has been very recently completed, it is generally better to contact the district clerk directly yourself, rather than contacting the attorney who represented you in your divorce. Doing so will save you time since an old law firm file is likely to be archived, in storage or even destroyed.(most firms do not keep family law files forever). Secondly, if you are going to get a copy of a court document, you should take the time to get a certified copy, and only the clerk's office can do that for you. Thirdly, you will want to be sure that you have the absolutely final version that was signed by the judge - an unsigned copy from an old file may not be the final version.

Information about cost:

You may be asked if you want a regular or certified copy of the decree. Get the certified! It is usually the same price as the regular (generally, about $1.00 per page). For all "official" situations, you will need a certified decree. (A certified decree bears an official stamp or seal).

Personal checks are usually not accepted.

II. WHY would you want to?

There are many reasons why you may need a copy of a divorce decree, here are just a few!

-to begin or end child support withholding

- to change a name on a driver's license, social security card, passport, insurance policy, or piece of property

- to review and follow a visitation schedule

-for transfer of property, deed or refinance

-to review provisions regarding responsibility for debt

-for income tax purposes

-for probate reasons, after one of the parties has died

-for family research reasons

-for your own record keeping

-to apply for a state license in a profession, apply for a passport or other official document

You should keep a certified copy of your divorce decree with your important papers.

LInks to the Montgomery County Texas website and the Harris County Texas website can be found at www.kalishlawtexas.com under the tab marked "legal resources".

Kalish Law Office- divorce and family law attorneys, The Woodlands, Texas   Since 1984

Texas Uncontested Divorce:

If you and your spouse have worked out an agreement and signed it, you will still need a hearing in court for "prove up" of the divorce.  At this time, one of the parties will testify under oath in front of the judge.  

Let's assume that you are represented by lawyer, and that you and your spouse have children together.   You have reached an agreement about property, custody and visitation and you have both signed it.  You are taking a deep breath, knowing that it is almost over. Your spouse has signed a waiver indicating that s/he is not going to attend the hearing, so it will be up to you to go to the courthouse and finish it.    

Scheduling the Hearing:

First of all, your Texas divorce must be on file for at least 60 days prior to the final hearing.  Although some couples have thought it through, prepared well and are ready to go earlier, the hearing still has to occur after the 60th day. This is Texas law.

 In some counties, it is not necessary to schedule a hearing in advance.  You and your attorney will simply show up one day at the appointed time for uncontested cases and sign in on the "uncontested docket" sheet.   In other counties your attorney will have to request a specific date and time well in advance. Depending on the court, this request may be made by telephone, by formally filing a request, or by e-filing a request.  The agreement will generally have to be prepared and signed before a hearing can be scheduled.

 Before the Hearing:

 Your attorney will prepare her file in advance of the hearing.  She will be certain to have a copy of the petition and any other important documents that were filed in the case. She will make certain that the final agreement is properly prepared and signed, that a final order is ready for a judge's signature and that any other necessary paperwork or forms are ready (such as forms for the Bureau of Vital Statistics, child support withholding orders, or other forms specific to that county, etc.). 

 At the Hearing:

When you are called to approach the judge you and your attorney will do so. The questions that you will be asked in an uncontested divorce will be ones that you know the answers to, so try not to be too nervous!  The questions will lay out your story for the judge by stating your name, how long you have been married, when you separated and whether you and your spouse have agreed and signed the paperwork, among other basic questions.   If you have children, you will tell the judge that you and your spouse have agreed on child support and visitation. The judge or your attorney may ask for a bit more detail (amount of child support per month or information about where the children will be staying).

A divorce is granted in Texas when all the proper requirements have been met and there is “no chance of reconciliation.” Therefore, you will need to be able to testify that there is no chance of reconciliation. (This does not necessarily mean that one party may not wish that there were a reconciliation, just that there is no reasonable expectation of a reconciliation at the time of the testimony.)

 In most cases your testimony will take about 5 minutes.

 After the Hearing:

Your attorney will assist you in getting a certified copy of your decree and discuss any other pending issues to wrap up your case.

 It is normal to be anxious and emotional when appearing in court to end a marriage. However, knowing what to expect in advance can help.

We often hear from parents who want to know if they can still collect child support for their child and would like to have help in understanding the time limits for collection under Texas law.

There are a variety of reasons why someone might wait to collect child support. Here are some of the most common:

1. Fear of physical or emotional retaliation from the ex-spouse
2. Lack of understanding about how the law, or the collection process works
3. Does not know where the ex-spouse is located, or how to find him/her
4. Fear that the ex-spouse will then demand or exercise visitation, when the ex-spouse’s lifestyle may be detrimental to the children.
5. Lack of funds to pursue an action
6. Mistaken belief that it is “too late” to do anything

Each situation is different, and only you can make the decision as to what is the best thing for you and your family.   If you have been waiting until the children were older, time may have gotten away from you.  Maybe your children have turned 18 and graduated from high school, so you believe that your chance is gone.

Although this is not an easy area of law to simplify, here are a few general guidelines:

*** Please note, exceptions to these guidelines may exist for children with disabilities, when the court has recognized the disabilities and made an order regarding them.

1. Step One: In order to get child support in the first place, you must first get a court order in which a judge orders child support to be paid. Do this as soon as possible, and prior to the time the child is 18 or no longer enrolled full-time in high school, whichever is later. 
2. Once you have that court order, if you want to file for “contempt” against the non-paying parent you have 2 years from the time that the obligation to pay has ended. (Look at your Order to see what it says, usually it will say that support is due until the child is 18 or no longer enrolled full-time in high school, whichever is later)
3. If you want to get a judgment from a court that determines past-due child support and interest AND allows you to treat the debt as one that you can collect by court enforcement, you must do this within 10 years of the time that the obligation terminates under the court order (again, when the child is 18 or no longer enrolled full-time in high school, whichever is later).
4. Once you have received a judgment from the court that allows you to collect this as a debt, you don’t have a time limit to collect it.  You can treat it as a valid debt and collect it at any time after that, using collection methods such as filing a lawsuit and using other legal remedies.

If you do not know the whereabouts of your children's other parent, an family law attorney can assist you with how to handle that situation.  

Special situations exist when an order has been rendered in another state, and one or both parties are now living in Texas. Cases involving multiple states can be complicated, but resolvable.

A consultation with a Texas child support attorney can help you understand your rights, and decide what is best for you and your family.  The attorneys at Kalish Law Office have been representing clients in child support cases since 1984.

Kalish Law Office: "Passionate, Professional and Personal" Since 1984  281-363-3700 www.kalishlawtexas.com

This is an excellent article which was just posted on the National Council for Adoption website.  Very good, practical advice on  how to spot and avoid adoption scams.

http://bit.ly/myG83E

Even though Texas is a community property state, you still have the right to direct who will inherit your portion of that property when you die.   

If you have a will which leaves everything to your spouse, the bequest will not be invalid just because you have filed for divorce, even if you are just one day away from getting your final divorce.  Consider the following scenario:

Patricia and Wesley have been married for 10 years.   They filed for divorce a year and a half ago and have the final hearing scheduled to occur in two weeks.  A few of the major issues leading to the divorce was Wesley’s belief that Patricia does not manage funds well and does not put their son first in her life.   Wesley has some separate property and some community property and if he were to die, he would want these assets put into a trust for their son.   He has no other children. However, he does not update his will during the divorce, relying on one which was made 8 years ago.  He is in a tragic accident and dies just two weeks away from the finalization of his divorce.  His current will leaves everything to Patricia, as his wife.  The will further states that as long as Patricia is alive, nothing will go directly into trust for Wesley. When he dies, Patricia is still his legal wife and is the sole heir.  Hopefully, Patricia will use the assets in a manner to benefit their son and will put his needs first.  

 When a divorce is first filed, it is common for orders from the court to be in place that forbid the spouses from transferring or selling money or property, changing insurance policies, and so on.  These orders are sometimes requested by one or the other of the parties. In some counties these are part of the local court rules and are automatic.  However, there is no prohibition against making a will which will dispose of the person’s own portion of the property upon his or her death. 

Having a current will can be especially important in divorces which are long and complicated because of the issues involved, or because one or both spouses work and travel outside the US, causing difficulty in scheduling.   It is also important in cases in which one spouse is ill, or works or travels in a dangerous occupation. It can be emotionally important to a spouse who has been abused or abandoned. 

Wesley could have signed a new will that left some of all of his property in trust for his son and named a trustee to manage the estate for his son. He could have chosen Patricia, or someone other than Patricia to take on this duty. This would have avoided the risk of Patricia inheriting 100 percent of his estate at a time when that is clearly not what he would have wanted.

The Kalish Law Office is located in Spring, The Woodlands, Texas, just north of Houston and south of Conroe. We have been practicing family and probate law since 1984.