Topics covered include: Open communication with your attorney, Attorney-client confidentiality.
Kalish Law Office The Woodlands, Texas Divorce Attorneys - Since 1984
Family and Business Attorneys
Topics covered include: Open communication with your attorney, Attorney-client confidentiality.
Kalish Law Office The Woodlands, Texas Divorce Attorneys - Since 1984
Although a final divorce decree is supposed to “split” the property once and for all that is not always the case. There are a variety of reasons why a couple may find themselves dealing with property issues months or years after the final decree has been signed. Here are some of the most common:
Retirement assets (401K, private and governmental retirement benefits and accounts, etc.) Some of these accounts cannot truly and finally be ‘split’ until the retirement actually occurs. Even if the paperwork is done at the time of divorce and is submitted to the benefits department or managing investment company, there can be additional steps before the benefits or funds are cleared for release. Specific court orders for this purpose (called “QDROs” for Qualified Domestic Relation Orders”) are usually required. Requirements for allocation of retirement benefits vary from company to company and these QDROs can become quite complicated at times. Because this issue can also become time-consuming, some couples who are anxious to be finished with the divorce process decide to just “deal with it later”.
Real Estate Issues: The most common scenario here is the sale of the marital residence and split of the proceeds. The divorce decree should specify the allocation of equity, but the actual sale may not occur until months or years later, depending on the terms of the decree. There may also be additional real property (usually income-producing) which the divorced couple has chosen to keep as co-owners for financial reasons. Another common situation occurs when the final paperwork transferring real property was not finished, signed or filed at the time of divorce for a variety of reasons (for example, one spouse refuses or forgets to sign, or cannot be found).
Split of debts: A divorce decree can allocate a joint debt between the spouses, but it cannot take away a creditor’s right to be paid by co-debtors. For instance, if a husband and wife owe Credit Card Company $ 10,000.00 and the Judge orders Husband to pay the $10,000.00, Credit Card Company may still legally sue both spouses if the husband does not pay the debt. In that event, the wife will be able to sue the husband for not paying the debt, but she still is held responsible to Credit Card Company.
Titled Vehicles: For any vehicle with a title, the title should be changed to reflect the name of the party to whom it was awarded. This is a step that often gets overlooked, especially for property which isn’t used often or doesn’t have a lot of monetary value (trailers or boats that aren’t used often, “spare” pickups or heavy equipment). This can be remedied with a proper power of attorney for transfer.
Other Accounts: Bank accounts, stock, and safe deposit boxes fall into this category. Some of these assets may be accessed and split by showing a certified copy of the divorce decree, available through the district clerk’s office of the county in which you received your divorce.
Fraud in the Divorce: If a spouse has hidden assets from the other spouse fraudulently during the divorce process, the innocent spouse may have a legal remedy. In this case, it would be important to contact an attorney to determine if there is anything that should be done.
Some of the above problems can be remedied without the assistance of an attorney and others can become very complicated and may even require court intervention.
Kalish Law Office has been representing clients in divorce and family law issues since 1984. We are located in The Woodlands, Texas, just north of Houston. 281-363-3700
It is easy to focus on just one piece of the puzzle, such as who will get the house or who will have to pay a particular bill. Don’t do this. It is important to look at the entire picture. It may be better to let your spouse have the house if you really will not be able to afford to stay there. Even if you want to keep the house for the sake of your children, you don’t want them to feel the stress of your struggles to maintain it for the next several years. Sometimes it is difficult to make a “business decision” due to the emotion of the situation. That is why it is important to work closely with your attorney and listen to his/her suggestions. Putting things on paper where you can see them may help. You and your attorney may decide to put together an inventory to show assets and liabilities of the marriage, and a proposal showing which spouse should receive each asset or debt.
There may be a temptation to focus on cash flow in the short term and being unrealistic about long term possibilities. It may be tempting to use account funds or home equity to pay off bills immediately for the feeling of a fresh start, but that may not make the best financial sense. You might be tempted to consider paying more child support or debts that you will realistically be able to afford, just to “get it over with”. But decisions made in haste or desperation are often the worst ones, and you could end up mentally kicking yourself for years.
While being too lenient is not a good idea, neither is being too tough. If you find yourself getting so caught up in the battle that you are determined to win at all costs you need to stop. Ask yourself whether your stance is costing you more in attorney’s fees and time than you are likely to gain, or whether your determination is hurting your children emotionally or harming your health.
During a divorce, schedules are disrupted and emotions run high. It is more important than ever to take good care of yourself physically. If that seems like impossibility, even a ten-minute break everyday where you clear your mind or do something you really enjoy can be helpful. Consider the time spent taking care of your health as an investment in your future happiness. A good working relationship with your lawyer is necessary and can help you keep things in perspective. Having a support system of friends and family that will allow you to vent when necessary will also help keep you on track.
Kalish Law Office has been representing divorce clients since 1984. "Passionate, Professional and Personal. We Make the Difference." www.kalishlawtexas.com
What if you should have gotten a Premarital Agreement but didn’t do it prior to marriage?
Don’t despair, there are specific legal documents which can be drafted and executed that will divide a married couple’s assets and debts into “his” and “hers”.
These legal agreements may be called “Postmarital Agreements”, “Postnuptial Agreements”, “Partitioning Agreements”, or “Partition and Exchange Agreements” (I will refer to them as “Partitioning Agreements from this point on).
The partitioning agreement is used for the same basic reasons as the Premarital Agreement 1) To keep assets separate; 2) To protect one spouse from the other spouse’s separate debt 3) To account for a imbalance in assets between the spouses; and 4) For psychological or emotional reasons when it is better for each spouse to have his or her “own” property, rather than co-mingling it in one marital “pot”.
IMPORTANT** A Partitioning Agreement can not be used as a legal maneuver to defraud creditors. However, it is legal to use one in order to protect a spouse from separate debts owed by the other spouse. The separate debt may have already existed at the time the marriage was entered into. In other cases, the debt may not even exist yet. (For instance, only one spouse is embarking upon a financial venture and agrees to use or risk his/her own assets only).
In any event, the creditors will have full knowledge and disclosure. It is possible to take certain steps in giving legal notice to potential creditors and may be advisable to file Partitioning Agreements in county records (although care must be taken with personal identifying and financial information since such filings are public record).
The legal requirements for these agreements are very specific and the consequences of signing such documents are many; this will affect current and future finances, income taxes, affect the couple’s estate plan, and be important in the event of a divorce so it is essential that an attorney who is knowledgeable in these areas be employed to draft and complete the documents.
The family law attorneys and estate planning attorneys in The Woodlands, Texas can assist you by explaining the legal requirements of Marital Agreements and drafting documents tailored for your family and business situation.
The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years. www.kalishlawtexas.com 281-363-3700
Premarital agreements are also called Prenuptial Agreements, or “Prenups”. Most couples who decide on a premarital agreement do so for one or more of the following reasons; a) there is a disparity in their assets; b) there is a disparity in the amount of debts owed; c) they want to preserve all or a portion of the premarital assets for their already existing children; and/or d) to meet financial goals, including asset protection.
The Texas Constitution defines marital (“community”) property and separate property. All income earned or property obtained after marriage (other than that gained by gift, inheritance, or certain parts of a personal injury settlement or award) is community property, unless there is a very specific legal agreement to the contrary. In order to legally change that designation, a couple needs to sign a very specific contract.
In some situations one of the spouses may have a large amount of debt going into the marriage. Texas law states that a prenuptial agreement may not be entered into with the intention of defrauding creditors. However, there is no fraud if the couple merely protects the non-debtor spouse from a debt that is not legally his/hers. The debtor spouse will continue to be liable for the debt under the law, but the non-debtor spouse’s present and future assets will not be co-mingled with the assets that are legally available to pay this pre-existing debt.
A Premarital Agreement can help clarify the couple’s financial picture, remove anxiety about potential disputes and misunderstandings and assist them in planning their financial future. Although the idea of a Prenuptial Agreement may seem “unromantic”, having a well-planned and valid agreement may provide harmony and peace of mind.
If you are considering a marriage and think that a Premarital Agreement may be appropriate, take the time to have a consultation with an attorney who has knowledge and experience in the areas of family law and estate planning. You will then be able to make an informed decision about what is best for your future.
The family law attorneys and estate planning attorneys in The Woodlands, Texas can assist you by explaining the legal requirements of Premaritial Agreements and drafting documents tailored for your family and business situation.
The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years. www.kalishlawtexas.com 281-363-3700
