Family and Business Attorneys
Houston Relationship Therapist Gina Gheller interviews our attorney Bob Kalish about divorce dos and don'ts. Topics discussed include: Is property always divided equally? What if one spouse stays home to care for the children? What if one spouse puts another through school? How can a therapist help? What not to discuss with the children, Learning to communicate with your ex.
Can you really ever prepare for a divorce? Although people handle divorce differently, you can do some advance preparation from a legal point of view. It is harder to prepare emotionally, even if you are the one who desires the divorce, and even you know that it is the only option. Counseling can help prepare you for the emotional ups and downs that follow.
Legally, there are some things that you can do to get ready. Many people try to "tough it out", not asking for help or advice and hoping that everything will fall into place when the time comes. But having a legal consult well in advance can help make things easier for everyone.
At a legal consult, you can discuss:
1. What are the options for dividing the property?
2. Are any of the property, accounts, or debts likely to be considered one spouse's "separate property"?
3. How can a family business be divided?
4. How can bonuses that are earned, but not yet paid be divided?
5. What might happen with income tax liability or an income tax refund?
6. What amount of child support am I likely to recieve/be required to pay?
7. What are the options for custody and visitation?
8. What about dating during the divorce?
9. How do I deal with issues of cruelty or infidelity in the marriage?
10. How long does it take to file the paperwork?
11. How will my spouse be notified that I filed?
12. How much does it cost?
13. How long does it usually take to get divorced?
14. How do we do this without missing payments on the house or car?
15. Will I be able to move away with my children after the divorce?
16. Can I buy a home or refinance our home while I am getting a divorce?
17. What if we can't come to an agreement and have to go to trial?
The initial consult can help you understand all of your options and help you decide if you are really sure that you want to proceed. Everything that you discuss is confidential, and you don't have to proceed with a divorce. You can go away and think about it and return later, or never.
If you are contemplating a divorce, don't be hesitant to learn all that you can to help in your decision-making process.Kalish Law Office "Passionate, Professional and Personal. We Make the Difference". Since 1984.
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
A "morality clause" is a clause that is placed in a divorce decree which states (as a court order) what a divorced parent is or is not allowed to do around the minor children. Typically, the clause will state that the parent is not allowed to have an adult of the opposite sex (or the same sex in certain circumcustances) who is unrelated by blood or marriage to spend the night.
Here is a video of our divorce and custody attorney Sio Ramirez Pitre as she is interviewed by Houston relationship therapist Gina Gheller regarding divorce and custody. Part I http://exm.nr/wLloId
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:
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.
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
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.
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.
