KalishLawTexas' legal blog The Woodlands

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. 

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.

A final divorce decree will have provisions in the court order which relate to division of property and debts. 

When one of the parties does not follow through in obeying the court order, the other “innocent” party may choose to file a motion with the court. This is called a “Motion for Enforcement” and is a request for the court to hear the case and enter new orders to enforce those particular provisions that are in issue.

An ex-spouse may neglect to pay a debt as ordered, may choose not to vacate, sell or maintain property as s/he was ordered to do, refuse to cooperate in property transfer or help him/herself to more than his/her share of a joint asset.   These are all situations in which a Motion to Enforce may be filed by the ex-spouse.  

What are your options if your ex spouse hasn’t followed through?  You can attempt to discuss it directly (not recommended if your relationship is volitile) .  If further action is necessary, you may decide to take a copy of the final divorce decree and any evidence with you to a family law attorney’s office for a consultation.  That attorney will help you assess your case, and possibly offer alternatives that are less expensive for you than filing an immediate suit, such as writing a certified letter from the law firm or attending mediation.   If you decide that you would like to file a suit, the attorney will explain the potential cost and time investment that your case will require.

If you are served with a lawsuit regarding enforcement, you will have a certain number of days in which you must respond by filing your answer. If you do not do so, a judgment will most likely be taken against you.   Even if you cannot pay the judgment now, it can follow you for several years, and collection efforts may be initiated against you.  See an attorney right away, before that happens.

If you see “trouble ahead”, you can also try to minimize problems by dealing with the situation now.  For instance, if you know that you have been unable to follow court orders because you have become ill, or lost your job.

Kalish Law Office has been serving family law clients since 1984.  www.kalishlawtexas.com  The Woodlands, 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.

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

When a divorce or other lawsuit is filed, there is a process of citation issued for the party who is being sued. Usually, this legal citation is personally served on the person who is the respondent in the lawsuit.  (If the respondent is a company, the citation will be served on the registered agent, director or owner of the company or some else legally authorized to accept the service). This gives legal notice of the suit.

But sometimes a party is nowhere to be found.  What then?

These cases can and do proceed.   There are alternative methods of providing service to persons and companies. These alternative methods, if done correctly, provide legal and valid service of the suit so that it can proceed to completion.   The Plaintiff can have his/her day in court even if the other party is unable or unwilling to be found.

If regular service is unsuccessful because of unknown whereabouts (or if someone is avoiding service on purpose), the judge can grant a motion to serve the party in an alternative way, for example by posting or publication.   The judge will want to know what has been done to serve the party in the traditional way, and will require proof of these attempts. 

The fact that the case can proceed is good news, however, the case may proceed more slowly, or require additional expenses (depending on the type case it is).

If you must file a suit against someone whose whereabouts are unknown, be sure to collect whatever information that you do have. You will need to show that you have made diligent efforts to discover this information.  When working with a lawyer, bring the information to the initial meeting so that the lawyer can assist you with efforts to find the person and tell you what additional steps or expense will be required in your case if the person cannot be found.

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

Under Texas law, a divorce has to be on file for at least sixty days before it can be signed by a judge.  Even though a decree can be signed on the 61^st day, that doesn’t mean that it will be signed on the 61^st day, although it is a possiblity if the divorce is an uncomplicated and agreed one.

The specific legal requirements that need to be satisfied in a divorce  take time.   Everyone involved (the two parties and any attorneys involved) must have the time necessary to carefully draft and review the documentation. When everything is ready, a time must be chosen for at least one party to appear in a Texas divorce court and present the case to the judge (this is commonly called the “prove up”).  Some family courts have specific times during which the judge will hear uncontested cases. Other courts require that a final hearing date be requested in advance, once the agreed decree of divorce is signed and ready.

Here are some things that you can do to help your uncontested divorce case move along more quickly:

1.      Be certain that you and your spouse really do agree on everything.  This means that you have an agreement about property division and debt division. If you have children, be certain that you are in agreement about visitation, child support, custody and payment of medical expenses.   When discussing the visitation agreement, be certain that you understand holiday visitation and summer visitation terms. 

2.      If you have children, and are willing to use Texas Standard Visitation provisions, the documents will not take as long to draft as “custom” provisions.  Likewise, if you are using standard child support guidelines, things will go more quickly in both the drafting and the approval by the judge.   This is because the “Standard” provisions are part of the Texas law, presumed to be fair to the parties and children and do not require a fresh analysis by the attorneys involved or the judge.

3.      It is usually helpful to write out the agreement between you and your spouse, perhaps in a “list format” and make sure each of you has a working copy. This can be done prior to anyone visiting an attorney and can be helpful to take to your consutlation with your divorce attorney.

4.      Be sure to return calls and emails from your lawyer’s office promptly, and review documents and provide information when requested.

5.      Talk to your divorce attorney about how having a Waiver of Citation in divorce case that is signed by your or your spouse can speed the process along and whether it is advisable in your situation.

6.      Be sure that you have met all the requirements that Texas divorce law and the Texas family court judge have set in your case.  For instance, do not delay in taking parenting classes and providing proof to your attorney.  The Montgomery County, Texas family law judges, Harris County Texas family law judges (and family court judges in other Texas counties) have some specific requirements regarding completion of classes and submission of paperwork.  Make sure that you understand what these are and cooperate promptly.

Even though your divorce may not be granted on the 61^st day after the filing, if you follow the above suggestions, things will go a lot more smoothly and quickly in your uncontested divorce.

Your divorce attorney in The Woodlands, Texas can assist you by explaining the legal process of an uncontested divorce and guiding you through the Texas 30 day waiting period for divorce.

The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  Contact us at Inquiries@kalishlawtexas.com or 281-363-3700. www.kalishlawtexas.com