KalishLawTexas' legal blog The Woodlands

0 15 Jul 2011

Finding Your Ex in Contempt of a Court Order Involving Children

What is contempt?

Contempt is an action that can be used by the court to enforce an order, or to punish disobedience. Contempt can be used by the court “on its own” (Judge says, “I am going to find you in contempt for your misbehavior in this courtroom”) or can be requested by a party who files a motion with the court (a parent files a suit against the other parent for non-payment of child support and repeated visitation violations).

I could write for several pages about contempt in general. For this blog post, let’s narrow it down to situations in which contempt is filed by one parent against another.

If you are a party to a court order that is being violated (but not by you!), you may have already wondered about how this works.

Family law contempt cases relating to children typically involve one of the following:

1) A party has not paid child support or medical support as it was ordered in the decree

2) A party is not following the visitation schedule as it was ordered in the decree, especially if access to the children is being withheld.

3) A party is not following restrictions placed upon him/her by court order that involve health or safety of the children (drinking before or during visitation times).

If you want to succeed on a motion for contempt, there are a few things you are going to need:

1) Actual instances of contempt- Filing a motion for contempt with nothing but anger or desire for vengeance to back it up is not going to work for you. You will spend time and money; negatively affect your children, waste court time and anger the judge.

2) Very good records- In a contempt action, you need to have copies of documents that are relevant and support your case, and an accurate list of when contempt occurred. Examples of documents: A certified copy of the final court order that s/he has violated (see our recent blog about how and why to get one of these- June 21, 2011); emails or letters showing your ex’s disregard of the court order, photos, certified mail receipts showing his/her receipt of medical bills that went unpaid, your diary or logs of the months child support was unpaid, a copy of child support payments from the Child Support Division.

3) A healthy attitude- An attitude of hatred or uncontrollable anger that drives the case and comes across to a judge will not help you. An attitude of doing what’s best for your child, keeping your child safe, getting money to help support your child- this will definitely help you.

4) Organization: Here is a tip that can save you time and money: get really organized before you go to an attorney’s office for a consult. Have a list prepared of all the times that the court order has been violated. It is a good idea to keep a journal or computer log that you can enter information into regularly. Have your documents in a folder, organized by date.

A Motion for Contempt is filed along with (and is part of) a “Motion to Enforce”. This means that the judge is asked to enforce the prior order that is not being followed AND is being asked to punish the person who is not following the order by making him/her pay past due child support, if any, pay attorney’s fees, and/or serve jail time. Because the result can be very severe and can result in a loss of a person’s liberty (even for a short time), the standard of proof is strict. The judge may decline to find someone in contempt, but still enforce the order that is requested (such as payment of child support).

A Motion to Enforce can be filed without a Motion for Contempt and very often it is. The enforcement motion filed alone can save legal fees and have the intended result. In cases where a person has to be taken back to court again and again, a Motion for Contempt is more appropriate. It is also appropriate in cases where a party’s misbehavior is so terrible that it is a risk to the health and safety of the child.

A consultation with a family law attorney can help you determine your options and get legal advice to help you protect your legal rights.

Kalish Law Office; The Woodlands, Texas

“Passionate, Professional and Personal. We Make the Difference”

0 3 Mar 2011

The Risks of Refinancing Your Home With Your Spouse or Partner

WARNING! Joining in the refinancing of a home previously owned by your spouse or significant other does not guarantee that you actually “own” part of the house.

Signing the Promissory Note DOES mean that you are legally responsible to pay the mortgage on the property. However, it does NOT mean that the property is automatically in your name, or that if your spouse dies you will automatically inherit all or part of the property.

Here is a specific example that could contain a nasty surprise waiting somewhere down the line:

Husband has three adult children by a previous marriage. He is divorced from Wife #1, and he owns his home, which is in his own name. He then marries Wife #2.

Husband and Wife #2 evaluate their joint financial situation. They decide that it would be financially helpful to them if they were to refinance the home that they live in. They apply for, and are granted a new mortgage. It is at a better interest rate, especially since Wife #2 is a co-borrower. Husband and Wife #2 both sign the refinance agreement, but there is no deed filed in the county records which gives part ownership of the home to Wife #2.

The couple goes along happily with their life. Then, Husband dies suddenly, and without a will.

Under Texas law, his prior children inherit the ownership of the home, since the deed is in his name and it is his separate property.

Wife #2 does have a “life estate”, which means that she is allowed to live in the same home that her stepchildren now own. Under the paperwork she signed with the mortgage company, she is still obligated to pay the mortgage, but the home is not in her name and she cannot pass the home or any portion of it on to her own descendants. If she chooses to just walk away from the home, she is leaving behind the money that she and her deceased husband have already put into it, and her stepchildren don’t have to compensate her.

This is a sobering set of facts, but unfortunately it is very common.

It is very unlikely that the Husband in the example wanted this to happen. It is more likely that he wanted Wife #2 to own 100% of the house upon his death.

The situation could have been avoided in two ways. First of all, a properly drafted and filed deed would have protected Wife #2, because it would have given her immediate rights and ownership in the property. It would have legally given her her own portion, regardless of whether the Husband lived or died.

Secondly, the Husband could have had a valid will, which would have spelled out exactly what was to be done with his 50% upon his death.

It is important for everyone to understand all of the consequences of refinancing property. It is especially when dealing with second marriages, stepfamily issues, and non-traditional families. Couples who are in same-sex partnerships and cannot legally marry each other and couples who are unsure of their "common law" status or choose not to marry can be especially vulnerable to these problems. A timely legal consult can avoid serious problems and unpleasant surprises later on.

Kalish Law Office has been representing clients in family law and real estate law since 1984. Located in The Woodlands, north of Houston, Texas. 281-363-3700. www.kalishlawtexas.com

0 23 Feb 2011

Five Ways to Save Money on Legal Fees

So, it's finally happened. You have no choice; you have to consult with a lawyer. Everyone knows legal fees can be expensive, but what everyone doesn't know is that there are ways to save money on legal fees.

•1. Get a consultation. A good legal consultation is essential and well worth paying for. This 30 -60 minute block of time is going to help you decide the course of your entire legal situation. This is your chance to ask questions, get information, and evaluate the lawyer and law firm. In short, you are going to be a thirsty sponge, soaking up all the information you can get, and using it to make intelligent, informed decisions

•2. Organize yourself. Take notes, snap pictures, keep a diary, separate papers by subject and date into folders. Make a summary of events. The more information that you condense for use by yourself and your lawyer, the better chance of success. Your intelligent "summaries" will help save you legal fees. Don't ever give your lawyer unorganized "shoeboxes" full of junk to wade through. Organize it yourself, you'll save legal fees.

•3. Don't give tons of unnecessary information. Trying to help, clients may give reams of paper or stacks of disks that are irrelevant and unrequested. The lawyer will spend many billable hours reviewing information that isn't necessary and then will have to charge for his/her time. The same goes for repetitive information given by email or phone.

•4. Do for yourself when you can. In some cases, you may not have to "retain" a lawyer to handle something, but may choose instead to visit the attorney periodically for assistance in handling the matter yourself. (Example: taking your own case to small claims court, negotiating changes in a contract you have been given, or collecting a judgment you've won). Even if you have retained a lawyer, try to complete paperwork on your own first, rather than spending billable hours reading it for the first time while your lawyer sits and watches you. Make a "working copy" for yourself, and a "clean copy" that you can use in case you have to meet with your lawyer again.

•5. Don't "do for yourself" when it makes the situation worse. We've all heard the expression "pay me now or pay me more later" (I've had a plumber and an auto mechanic tell me this- it was true). It can apply in a legal situation. There are certain times when you absolutely should not be handling your own case. (Example: when you have to file documents with the court that you don't have the training to prepare, when a lot of money or emotional well-being is at stake, and when you are too emotional or exhausted to do yourself justice.) There is a reason for the phrase "The lawyer who handles his own case has a fool for a client". We even hire each other when we have to! Recognize those times and hire a lawyer before damage is done.

Following these few guidelines can significantly reduce the amount of money spent in legal fees!

Kalish Law Office has been representing businesses and families for over 26 years. www.kalishlawtexas.com 281-363-3700

0 10 Feb 2011

Three Things to Consider When Deciding Whether to Incorporate

There are three main considerations when deciding whether or not to change the form of your business. 1) Tax benefit; 2) liability protection; and 3) the time-cost analysis of changing your company’s legal status

Tax Benefit:

Oftentimes the tax benefit analysis is not a “legal question”, but rather an “accounting question”. If you are unsure of whether you might benefit from a change in your business structure, ask your CPA for more specific information about the different options (incorporation, partnership, LLP or LLC) and what they would mean to you in dollars and cents.

Protection:

As far as asset protection, the first rule is to always have the appropriate insurance policies! But even the most careful business owner can find him/herself involved in a lawsuit. You may not have significant assets right now but be aware if that a judgment is rendered against you it may be collectable several years from now. So you should not ever take asset protection lightly.

If you already have significant assets and your business is doing well it is time to consider taking asset protection to a level beyond the mere purchase of insurance policies. Structuring your business properly will make it a separate legal entity from you. However, whether or not a business structure protects you and your personal assets depends on the situation, the type of business you are in, and other laws and regulations which apply. You can’t assume that just because you have a corporation or an LLP that you and your assets will be protected in all instances.

Time-Cost Analysis:

If you are a sole practitioner, you are your business and your business is you. If you form a business corporation, your business will be a separate legal “person.” You will have additional paperwork to do. In addition to meeting federal tax requirements, you will have to be sure that your information on file with the state is current, your “entity books” are updated regularly, any required annual statements are filed, and your franchise taxes are paid in a timely manner. Failure to do these things can result in forfeiture of your status. We have our clients docket the important dates on their business calendars and return to us yearly for a review and update, usually between Jan and April.

Any business entity that is formed must comply with all laws, If you are in a profession which requires a license you will need to be aware of restrictions on what a business may be named, what form of organization may be used, what types of licensed professionals are allowed to practice together, and whether or not an entity may include non-licensed individuals as principals.

If these additional requirements help you save money, protect your assets, grow your business, and stay out of legal trouble, the time that you spend will be well worth it.

Plan Ahead

Talk to a business attorney about the types of options available to you. Explain your current status, your short-term and long-term business and financial goals. Adequate planning and preparation is the key to success.

To get the most out of your consultation, make a list of your goals and a list of your questions. A summary sheet which describes your business (length of operation, industry, owner/partner information, financial status) will also help the attorney in analyzing the situation.

Kalish Law Office has been serving business clients in The Woodlands, Texas and surrounding areas since 1984. www.kalishlawtexas.com

0 8 Feb 2011

What if you Don't WANT Child Support for Your Child?

There are times when a parent may be entitled to collect child support for a child, but still would choose not to do so. Here is a list of the statements that we usually hear:

“I don’t want any child support because my ex is dangerous or a bad influence, and I don’t want him around my child. S/he probably won’t visit if we don’t ask for child support.”
“I can make it on my own; we don’t need his/her money.”
“I don’t want to have to deal with my ex.”
“My ex doesn’t have any money anyway, so why waste the time and legal fees?”
“My ex is unemployed, or self-employed, and we’ll have to chase him/her for the money, so let’s just save the effort.”

Texas law requires that both parents of a child support that child. Judges are required under Texas law to consider “best interests of the child.”, so it is unlikely that a judge will allow a parent to get away with no child support, even if all the parties agree.

Even if you are able to adequately support your child now, the court will consider the future needs of the child. The reasoning is this: Even if you don’t want that money, your child can benefit now or later.

It is best to try to remove your personal feelings from child support decisions. Try to look at it as a “business decision”, not as a sign of weakness or a punishment to either party. Your attorney can assist you in deciding what is reasonable.

If your ex is uncooperative and is unemployed, self-employed, or disabled, it may indeed be more difficult to determine income or collect child support and you’ll need to decide what you are willing to do in order to tackle the problem.

If you are able to support your child on your own, one option is to wait until later to pursue unpaid child support, especially if you have legitimate fears about bringing about contact between your child and your ex. When your child is older, your ex may have changed, and may have the desire to be a stable and involved parent. (But understand that you are also taking a risk that your ex may be in worse financial or physical shape later on, making it difficult to get the full amount of support that is owed). If you choose to wait, be sure to save all of your documentation and consult with a child support attorney or Texas attorney general’s office far in advance of the time that your child turns 18 and graduates from high school.

0 22 Dec 2010

Divorce and Downsizing in Difficult Economic Times

Divorce is difficult and emotionally taxing, even when the economy is stable. Added to the already overwhelming financial stress that some families are already experiencing, it can seem like an insurmountable burden.

Divorce and business downsizing have a lot in common. In both processes the principals involved must analyze their assets and debts, strengths and weaknesses. In both processes honest evaluation, flexibility, organization, and planning are essential in order to have a reasonably acceptable outcome. In both processes there is anxiety, loss, and finally, a new beginning.

The process is made more efficient, perhaps even a little less painful by a willingness to accept personal responsibility, simplify, economize, and ending relationships (whether business or personal) that are no longer working.

Although emotions are likely to be running high, it is always important to step back and take a deep breath. Having family, friends, and professionals on your side that can be trusted to be honest with you while remaining supportive is important.

Information gathering is essential. It is never too soon to gather information and look at all of your options. This is especially important if you have complicating factors such as a family run business, high assets or a complicated financial picture.

Divorces can further be complicated by such factors as immigration issues, a child with a disability, or a non-traditional family structure.

A law firm with the expertise to “cross over” into various areas to assist you with the entire picture can make the process easier to handle.

Kalish Law Office 281-363-3700 The Woodlands, Texas www.kalishlawtexas.com

“Passionate, Professional and Personal. We Make the Difference” Since 1984. Divorce, Family Law, Business Law, Family Immigration, Non-traditional Family Law, Real Estate and Probate

Serving Montgomery, Harris, Walker, Waller, Fort Bend and surrounding Texas counties

0 14 Nov 2010

Tips to Prevent Identity Theft | The Woodlands, Texas Lawyers

There are several things that you can do to make yourself less of a target for identity and information thieves.

1. Be careful with your Social Security Number. Don't share your Social Security Number when you don't have to. Shred old documents, insurance cards, and medical records that contain your SSN when you are finished with them.

2. Don't put a lot of personal information online. Even if you must network online for business purposes or to keep up with family members who live far away, be careful what you post.   Before filling in your online profiles think about what information may compromise your identity or personal safety.

3. Have up-to-date programs that stop computer viruses and spyware that will catch intruders.

4. Don't conduct sensitive business in public. Don't shout your account number of even the last 4 digits of your social security number into a cell phone in a public venue. Don't pay your bills online while sitting at an internet cafe over an unsecured network.  Have a secure network at home. Doing banking over an unsecured internet network is like shouting your personal information to the world and hoping that no one is paying attention.

5. Check your credit report periodically and check your credit statements monthly. Promptly report any suspicious activity, even if the dollar amount is minimal.

6. Shred, shred, shred.... old bills, old credit cards, income tax returns, old medical records, even labels on your pharmaceutical bottles.

7. Purge old cell phones, pdas, laptops and personal computers of all information prior to donating or giving away. Use a reliable program for this or speak to the manufacturer of the item. Don't assume that just "deleting" will do the job.

8. Don't sign up for applications and games online unless you are aware of what you are sharing. Be careful who you invite onto your social networks. Don't accept "friend requests" from total strangers.

9. Don't open suspicious emails. If you do so accidentally, run your virus and spyware program right away. Remember, if it sounds like a scam, it probably is. If you have to reply for business purposes, do so with caution and demand evidence that the person is who they say they are.

10. Don't compromise other people's privacy. If you have a business, be careful with the sensitive information that belongs to your employees and customers.

Although these tips aren't foolproof, making them second nature will reduce the likelihood that you will be a target.

0 26 Oct 2010

Applications Being Accepted for Haitian Adoptions | The Woodlands, Texas Lawyers

In January 2010, a massive, devastating earthquake hit Haiti. Many children were orphaned or separated from their parents. Between January 18, 2010 and April 14, 2010, a special humanitarian parole program was instituted by the U.S. This program applied to orphans who were already in advanced stages of the adoption process. At that time prospective adoptive parents could not begin a new adoption in Haiti.

On April 29, 2010, the Haitian government began accepting new adoption applications for Haitian children who were already classified as orphans prior to January 12, 2010, or who have been relinquished by their parents since the earthquake.

Prospective adoptive parents should be aware that Haiti has strict laws regarding adoption. An adoption must conform to those laws in order to be valid, and in order for the child to be able to immigrate to the United States.

Haitian law requires that the adoptive parents obtain a full and final adoption in Haiti prior to bringing the child to the United States. This means that both adoptive parents will have to make at least one trip to Haiti to appear personally in front of a justice.

Once the child arrives in the United States we advise parents who are residents of Texas to file a petition in a Texas state court in order to obtain a U.S. birth certificate and U.S. court order recognizing the adoption. (parents who are residents of other states should seek advice regarding the procedures in their particular state).

For more information about Haitian adoptions (and other specific country information), see the U.S. Department of State website http://bit.ly/cCusVe and Kalish Law Office's informational page about international adoption http://bit.ly/duK0Yp

KalishLawTexas' legal blog The Woodlands

0

15 Jul 2011

Finding Your Ex in Contempt of a Court Order Involving Children

0

3 Mar 2011

The Risks of Refinancing Your Home With Your Spouse or Partner

0

23 Feb 2011

Five Ways to Save Money on Legal Fees

0

10 Feb 2011

Three Things to Consider When Deciding Whether to Incorporate

0

8 Feb 2011

What if you Don't WANT Child Support for Your Child?

0

22 Dec 2010

Divorce and Downsizing in Difficult Economic Times

0

14 Nov 2010

Tips to Prevent Identity Theft | The Woodlands, Texas Lawyers

0

26 Oct 2010

Applications Being Accepted for Haitian Adoptions | The Woodlands, Texas Lawyers

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