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.

DNA testing is sometimes used in paternity, adoption and immigration cases. 

Here are some reasons that DNA testing may be used and who may request the test:

1.  In a traditional paternity case:  As evidence of the identity of the biological father

a. requested by the biological mother in order to enforce the duty of care and child support; or

b. requested by the biological father who wants to enforce his rights to the child and be allowed to be part of the child's life; or

c. by an alleged father who knows or suspects that he is not the true biological father and does not want to have rights to the child or a duty to support him/her; or

d. ordered by a court as evidence in the case.

2. In an adoption:

a.  to prove that a child is truly the offspring of one or both biological parents when the biological parent(s) are consenting to an adopiton (especially in international adoption cases).

b.  to prove that someone is NOT a parent of the child about to be adopted and therefore does not have to agree to the adoption

c.  to comply with international, federal immigration, or state law in an international adoption as part of the evidence in the file and part of procedural requirements

3. In immigration law:

a. to prove that a person is truly the offspring of an alleged parent who is petitioning for them with the immigration service

b. to prove identity of a person by objective, scientific evidence

In both international adoption and immigration cases there are very strict guidelines about which labs may process the tests and how and when the tests should be done.   In other family law cases it may be possible to use tests as evidence which were obtained prior to the case being filed (but this is not always true).   In order to prevent delays in your case it is always best to seek legal advice and be certain that you are using a lab which is reputable and approved by the governmental agency or court that is involved in your case and that all proper procedures are followed.  

Kalish Law Office 281-363-3700 Family and business law since 1984. The Woodlands, Texas.

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

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.

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

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.

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

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

Although many states do not require a divorced person to wait before remarrying, the State of Texas does.  There is a thirty day waiting period. During this time, either party to the divorce can appeal the divorce decree and the divorce will be “reopened”.

In addition, if one of the parties decides not to wait the entire thirty day period and remarries too early, the new marriage is “voidable” and may be challenged by one of the parties to it for a period of time.

In most cases, people can and do wait until at least day 31 to tie the knot again.   

For those who have had a bitter divorce waiting is especially good advice to prevent potential problems from the “ex” spouse.   Texas is a community property state, so any material change in assets during the 30 day period may cause the “ex” spouse to question whether the property was owned prior to the divorce, or rethink other issues (whether there was fidelity during the marriage), rather than moving on to the future.

In some cases, you can ask to have the 30 day waiting period waived by a judge. A Texas divorce attorney can help you with that.

In short, under Texas law in most situations it is best to hold off until at least day 31 to remarry, even if you and your spouse have lived apart for quite awhile.

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