Divorce | Marivonne Essex | The Red Headed Lawyer

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Archive for the ‘Divorce’ Category

New Year, New You – How to Move on After a Divorce

Posted on January 15th, 2016 by The Red Headed Lawyer

happy-new-year-2016

We often look at the New Year as a fresh start, a time to assess our current lives and set goals for the next year. The same is true after a divorce, you have a fresh start to begin a new life without your ex.

Moving on can be difficult, time consuming and a little scary. If the majority of your life was spent as one half of a relationship with your ex, then it might be hard to find your true, authentic self. I’ve outlined some important steps along the way in order to move on after your divorce.

Give Yourself Some Time

Grieving does not have a time frame and you need to take the time to reflect on your past in order to move on to a brighter future. Giving yourself the appropriate time to sort through your feelings is essential to your well-being in the future.

It might be difficult when you notice your ex has moved on fairly quickly, yet you still haven’t been able to start in the right direction. Don’t let that deflect from your situation. You need the time to heal, so make time for that process.

Acceptance

You will never be able to move forward in your life without accepting your past relationship. No matter how long you were separated from your spouse prior to signing your divorce papers, acceptance is difficult, but necessary.

There’s a finality that happens you when you sign those final documents and this can be an emotional time during the divorce process. Accepting the past as well as your future will help you move on to a happier life.

Memories

Relationships of any kind create memories. Songs, restaurants and places all bring back memories of the past. This is hard to overcome, as we can’t extinguish our memories, however, we can certainly begin to make new ones.

If a certain restaurant continuously reminds you of your ex, then choose a different place to eat. Make an effort to build new memories with new friends and family in order to move on with your life.

Think of Children

During a divorce, children are impacted far more than some imagine. Children watch how each parent reacts after the divorce is final. Are you emotional, angry or bitter about your ex in front of your children?

Remember that they are also trying to find a way to move on with their own individual lives after the divorce. Be an example of strength and courage for your children.

Find Support

Surround yourself with friends and family who can build you up after a divorce. You will need this support system like you’ve never needed them before. Lean on your friends and family during this difficult time in your life.

In the end, finding your true, authentic self is on the horizon after your divorce. Remember that it takes time to heal in order to move on.

Social Security – Questions and Answers Regarding Divorced Spouse Benefits

Posted on December 8th, 2015 by The Red Headed Lawyer

Original article provided courtesy of Bill Stewart of Stewart & Hurst:

Stewart & Hurst
7887 San Felipe
Suite 122
Houston, Texas 77063
Phone: 713.974.2928

Question 1:
How do I know if I qualify to receive benefits on my former spouse’s Social Security record?

Answer:
You may receive benefits on your former spouse’s Social Security record (even if he/she has remarried) if you:

were married to your former spouse for 10 years or longer;
are age 62 or older;
are unmarried;
the benefit that you are entitled to receive based on your own work is less than the benefit your former spouse would receive based on his/her work; and
your former spouse is entitled to Social Security retirement or disability benefits.

Question 2:
How do I know if my former spouse qualifies to receive benefits on my Social Security record?

Answer:
Your former spouse can receive benefits based on your record (even if you have remarried) if:

you were married to your former spouse for 10 years or longer;
your former spouse is age 62 or older;
your former spouse is unmarried;
the benefit that your former spouse is entitled to receive based on his/her own work is less than the benefit he/she would receive based on your work; and
you are entitled to Social Security retirement or disability benefits.

Question 3:
Am I entitled to receive benefits on my former spouse’s Social Security record even he/she has not filed to receive his/her benefits?

Answer:
Yes. If your former spouse is eligible for Social Security Benefits but has not filed to receive benefits you may still receive your benefits on your former spouse’s record if you meet the eligibility requirements from Answer 1 and have been divorced from your former spouse for at least two years.

Question 4:
What share or my former spouse’s retirement benefits may I receive?

Answer:
If you are 62 years old and the former spouse is eligible for benefits, although not necessarily receiving them, the maximum benefit you would receive is 50% of the benefit your former spouse would receive at full retirement age. Benefits paid to you before full retirement age of your former spouse are reduced based upon the age of your former spouse at the time benefits are paid to you.

Question 5:
If my former spouse remarries after being married to me for 10 years, which spouse receives benefits?

Answer:
Benefits paid to a surviving divorced spouse will not affect the benefit rates for other beneficiaries.

Question 6:
If I remarry can I still collect benefits from my former spouse?

Answer:
No, unless your later marriage ends by death, divorce or annulment.

Question 7:
If I remarry can my former spouse still collect benefits from me?

Answer:
Yes, if the former spouse meets the criteria from Answer 1.

Question 8:
If my former spouse remarries can he or she collect benefits on my record?

Answer:
Generally the answer is no. If your former spouse’s later marriage ends, whether by death, divorce or annulment, he/she may be able to collect benefits on your record.

Question 9:
What if I am eligible for retirement benefits on my own?

Answer:
The Social Security Administration will pay the benefit to you first. If:

The benefit of your former spouse’s record is higher than yours, you will get a combination of benefits that equals the higher benefit amount (reduced for age);
you have reached the full retirement age[i] and you are eligible for a spouse’s benefit and your own retirement benefit, you have a choice.

Question 10:
What if my former spouse is eligible for retirement benefits on his/her own?

Answer:
The Social Security Administration will pay the benefit to your former spouse first. If:

The benefit on your record is higher than your former spouse’s, he/she will get a combination of benefits that equals the higher benefit amount (reduced for age);
your former spouse has reached the full retirement age and is eligible for a spouse’s benefit and his/her own retirement benefit, he/she has a choice.

Question 11:
Can I delay my own retirement benefits and opt to only receive the benefits on the record of my former spouse?

Answer:
Yes, if you delay your own benefits a higher benefit may be received at a later date based on the effect of the delayed retirement credits.[ii]

Question 12:
Can my former spouse delay his/her own retirement benefits and opt to only receive the benefits on my record?

Answer:
Yes, if your former spouse delays his/her own benefits a higher benefit may be received at a later date based on the effect of the delayed retirement credits.

Question 13:
Does the amount of benefits I receive effect the amount of benefits my former spouse receives?

Answer:
No, the amount of benefits you receive effects neither the benefits your former spouse may receive nor the benefits your former spouse’s current spouse may receive.

Question 14:
Am I eligible for benefits if my former spouse is deceased?

Answer:
There are a few exceptions for surviving divorced spouses:

If you remarry after age 60, and your former spouse is deceased, you may still be eligible for a benefit under your former spouse’s record;
If your former spouse is deceased, you may apply for benefits based on your former spouse’s record at age 60;
You would not have to meet the 10 year length-of-marriage rule if you are caring for a child under age 16 or disabled who is getting benefits on the record of your former spouse. The child must be your former spouse’s natural or legally adopted child.

Question 15:
When am I entitled to Divorced Spouse’s Insurance Benefits?

Answer:
You are entitled to a divorced spouse’s insurance benefits on the worker’s Social Security record if:

the worker is entitled to retirement or disability insurance benefits;
you have filed an application for divorced spouse’s benefits;
you are not entitled to retirement or disability insurance benefits based on a primary insurance amount which equals or exceeds one-half the worker’s primary insurance amount;
you are age 62 or over;
you are not married; and
you were married to the worker for at least 10 years before the date the divorce became final.

[i] If the divorced spouse was born in 1937 or earlier, full retirement age is 65. If the divorced spouse was born in 1960 or later, full retirement age is 67. If the divorced spouse was born between 1938 and 1959, the full retirement age will be somewhere between 65 and 67.

[ii] Social Security benefits are increased by a certain percentage (depending on date of birth) if the divorced spouse delays his/her retirement beyond full retirement age. The benefit increase no longer applies when the divorced spouse reaches age 70, even if the divorced spouse continues to delay taking benefits.

How to Make the Divorce Process as Easy as Possible

Posted on September 22nd, 2015 by The Red Headed Lawyer

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Divorce isn’t easy. Typically, it’s a long, emotional and drawn out time in your life that you never imagined would be a part of your story.

While we all agree that getting a divorce isn’t easy – there are several ways that we can make the divorce process easier.

Communicate with your Ex

Sounds crazy, right? But having an open line of communication with your ex can allow you to have an easier divorce. Whether the communication is done via email, phone or through your lawyer, it will help in several ways:

Saves you money
Keeps the divorce moving forward
Maintains your integrity

While every situation is unique, I recommend that you set boundaries when it comes to communicating with your ex during the divorce; I would never want anyone in a situation that they don’t need to be in. With certain divorces, some couples shouldn’t communicate except through a lawyer. For example, DO NOT use this advice if you feel that your spouse is so controlling, you could possibly enter into an agreement that you don’t really want.

Plan ahead for child custody

If children are part of the divorce, try to plan ahead on what makes the most sense for your family while keeping your children’s best interests in your mind. Think about schedules and schooling in order to arrange the best custody agreement for them. Having a jointly agreed upon idea will help move the custody portion along while keeping things easy for you. Remember, children psychologically see themselves as one-half of each parent. Parents who work together to maintain this whole for their children will see healthier, happier children who will transition much more easily through the divorce process.

Let it go

Assets, relationships and your old life are things of the past. Being able to emotionally let all of these things go will save you time and energy throughout the divorce process. It’s difficult to split the house, cars, and debt that have accumulated over the years, but it is part of the entire process.

Prepare yourself to detach from people and things, prior to the divorce becoming final, so you can move on quicker.

Hire a divorce lawyer

Having someone that you can trust, that supports your best interests, gives you a peace about the entire process. Divorce lawyers know the ins and outs of what you’re going through and are there to help you.

A divorce lawyer understands the process and can handle the courts of law much better than if you were to represent yourself. More than any other time, this is the time that you need an advocate, somebody who knows the law and at the same time is looking out for your best interest. Some of the biggest legal disasters are do-it-yourself divorces which basically have to be redone later, costing more in both time, money and stress. Save the DIY for home projects.

Take time for yourself

One of the most important things to remember during your divorce is to take time for yourself. I tell my clients to do whatever it takes to relax. Plan a weekend getaway or a spa weekend, to keep your mind off of the divorce.

Making the divorce process easier will not only speed things up, but it will give you a peace during one of the most unsettling moments in your life.

Personality Disorders in Divorce

Posted on August 10th, 2015 by The Red Headed Lawyer

personality-disorders-in-divorce

Recently I read an article entitled “Personality Disorders in Divorce” by Jim Dolan. That got your attention, didn’t it? I can hear a lot of you saying, “I know my ex has one of those! He (she) is crazy! Let me just tell you….” As a divorce attorney, I see people on both sides of divorces do lots of “crazy” things that they would not otherwise do. Here in Spring, a woman was just recently arrested for putting a hit contract out on her husband who she is in the process of divorcing. Their court files shows ongoing conflict, threats, assault and charges on both sides. So, as Mr. Dolan correctly points out, many lawyers and judges believe that both parties are equally at fault. But aren’t some people really “crazy” anyway and it just gets worse during a divorce? Well, it turns out that might be true.

Mr. Dolan identifies three personality disorders (he calls them the “Big Three”) which can make an otherwise typically “crazy” divorce become one in which one person is truly the victim.

Here they are: the Narcissist, the Borderline, and the Anti-social

The Narcissist, typically male, is your charming “bad boy” with big ideas and not much to back them up, may not work much, doesn’t care about anyone else’s feelings. He is the one who is going to punish you if you try to escape. Be careful with this one. He is out to exact revenge on you for even thinking of leaving.
Then there is the Borderline, usually female, drug or alcohol issues, parental abandonment, chaotic family background, often a crime victim. She thinks she can “buy” a good, solid relationship with intense sex. All hell breaks loose when she hooks up with a Narcissist. Think Fatal Attraction with Michael Douglas.
The Anti-social, our third PD, is more often a man who is witty and charming and may be in a position of power. He looks for a woman who wants to be taken care of. He needs to control the woman he is with. Violence and drug abuse are unfortunately behind the charm.

If you are currently going through a divorce and your spouse exhibits these symptoms, you should seek counseling early on to learn how to cope and to help your children cope. You are not going to change the person so, as they say, you can only change yourself. You may be in for a long, stressful, seemingly never-ending road of conflict. You need to understand that you are not at fault. You will need professional help. If you see yourself in one of the “Big Three” then you also need counseling. You need help so that you find peace with yourself, and so that you do not permanently damage your children. If you are not married, then you will want to carefully consider any relationships so that you do not fall into one of the “Big Three” traps.

I am not a psychologist, but I have seen these personality disorders and the pain they cause. Mr. Dolan has written a very interesting article and I will be happy to share the entire article with you if you email me. If in doubt, contact a professional therapist or counselor.

Marriage and Divorce in Texas

Posted on July 29th, 2015 by The Red Headed Lawyer

An overview of how marriage and divorce works in Texas, taken from the Houston Bar Assocation Family Law Handbook.

Marriage and Divorce

Does Texas have an age requirement for marriage?
Yes. Both parties must be at least 18 years old to obtain a marriage license. If either party is under 18 years of age, parental consent or a court order is required.
Can I marry someone who is related to me?
It depends. You may not marry (1) someone who is an ancestor (mother, father, grandmother, grandfather, etc.) or descendent (son, daughter, grandson, granddaughter, etc.); (2) your brother or sister; (3) your parent’s brother or sister (aunt or uncle); (4) your niece or nephew; (5) your cousin; or (6) your step-children or your step-parents.
Can I legally marry someone of the same sex?
In Texas, you may not marry someone of the same sex.
What is a “licensed marriage?”
A “licensed” or “ceremonial marriage” requires a marriage license and is performed by an authorized official (minister, priest, rabbi, judge, etc.).
What is an informal marriage or “common-law marriage?”
An informal marriage (sometimes called a common-law marriage) can be created when a man and woman sign and register an official document of marriage at the county clerk’s office. A man and woman may also
enter into an informal marriage if they agree to be married, live together in Texas as husband and wife, and represent to others in Texas that they are married. There is no minimum time period necessary to create an informal marriage, and living together, by itself, is not enough to create one. An informal marriage may not be entered into if either party is less than 18 years old.
Is there a “common-law divorce?”
No. If the parties to a non-registered informal marriage separate and live apart for two (2) years or more, the parties may or may not need a divorce depending on the circumstances. Parties to a registered informal marriage must be divorced the same as parties who were married in a ceremony with a marriage license.
Is an annulment different from a divorce?
Yes. An “annulment” is a proceeding to have a marriage declared void as if it never took place. A “divorce” is the proceeding to end a valid marriage. However, in both an annulment and a divorce, the court will divide property and issue orders regarding any children.
What are the grounds for an annulment?
An annulment will be granted if (1) the parties are related, by blood or adoption, or (2) either party was previously married and the prior marriage has not been dissolved. An annulment may be granted if at the time of the marriage one party to the marriage was (1) underage, (2) under the influence of alcohol or drugs, (3) impotent, (4) mentally incompetent, (5) forced to marry by fraud or duress, or (6) was misled about a prior divorce. In most cases, the law requires that the person seeking an annulment must stop living with the other party once the problem is discovered.
Must fault be found against a party for a divorce to be granted?
No. In Texas, a divorce may be granted without either party being at fault. However, a divorce may also be granted when one party is found to be at fault in the break-up of the marriage.
How long must I live in Texas to get a divorce here?
Before filing, one of the spouses must live in Texas for at least six (6) months and in the county where the divorce is filed for at least ninety (90) days.
Is this different if I am in the military?
Not really. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.
Am I entitled to a court-appointed attorney?
Not unless there are special circumstances.
What do I do if I can’t afford an attorney?
There are several programs in Harris County that offer help to persons who cannot afford to hire an attorney; however, you will be required to meet certain financial guidelines. See the resource guide at the back of this handbook for more information. The Houston Volunteer Lawyer program provides limited document review in the basement of the Family Law building at 1115 Congress, Houston Texas 77002. Also, an extensive set of forms approved by the Family Law Section of the State Bar of Texas are available to help litigants at the Harris County Law Library located next door to the Family Law Building at 1019 Congress, 17th Floor, Houston, Texas 77002.
What is a board-certified family attorney?
Attorneys who meet certain qualifications and pass a special examination may become board certified in family law by the State Bar of Texas, evidencing their level of knowledge and experience in this area of the law.
Do the rates charged by attorneys differ?
Yes, attorneys set their hourly rates based upon their knowledge, experience, qualifications, and the complexity of the case.
How do I begin my divorce suit?
A petition for divorce must be filed in the district clerk’s office and the required fees paid.
What if there are children of the marriage?
If there are children born, adopted, or expected during the marriage, the suit for divorce must also address matters of custody, visitation, and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not, or may not be the biological child of her husband, that information must be given to the court as soon as possible. If the wife is pregnant or becomes pregnant while the divorce action is pending, the parties must wait until the baby is born before the court can grant a divorce. This is true regardless of whether the husband is the baby’s father.
Who is the “Petitioner” and who is the “Respondent?”
The party who files for divorce first is called the “Petitioner” and the other party is called the “Respondent.”
Does my spouse get notified after I file my petition?
Yes, if you make certain the proper steps are followed to notify your spouse.
How is my spouse notified?
It is up to the party filing the suit to make sure the proper steps are followed to notify your spouse of the divorce case. Failure to notify him or her can result in a delay of your case or in some cases, dismissal of the case. Several methods to notify your spouse are available depending on the circumstances:
1. By receiving a copy of the petition from a sheriff, constable, or court approved private process server after you have made the request and paid the required fees; or
2. By certified mailing from the district clerk’s office; or
3. If the parties agree, the non-filing spouse may, after the petition has been filed, sign and notarize a document called a “Waiver of Citation,” which indicates that the non-filing spouse is accepting service of the lawsuit; or
4. If your spouse cannot be located, notice can be published in a court-approved newspaper or other court-approved publication.
What happens after my spouse is notified of the filing?
Once a respondent is officially notified, there is a deadline to file a response to the petition. If the deadline is not met, the petitioner may be able to go forward and obtain a divorce by “default.”
What is a temporary restraining order?
A temporary restraining order is a court order that sets forth the acts which either one or both parties are prohibited from doing immediately after the petition is filed. Sometimes this order is called a “TRO.” A TRO usually prohibits bad acts such as committing family violence, harassment, hiding money from the other spouse, attempting to hide a child of the parties, etc.
Can I get a Temporary Restraining Order (TRO) without notice to my spouse?
Yes, if the court approves the request for a TRO; however, it is effective only for a limited amount of time before you must go before the judge at a court hearing and ask that the TRO be put into effect until the divorce is granted.
What happens if the TRO is violated?
A person who violates a TRO, or any other court order, can be held in contempt of court and punished by a fine and/or a jail sentence.
Can my spouse ask for a divorce also?
Yes. The Respondent may file his or her own request for divorce in a document usually called a counter-petition for divorce.
What happens if I reconcile with my spouse?
You may dismiss your divorce proceedings by filing a request for nonsuit.
How soon can the court grant a divorce?
A petition for divorce must be on file with the court for at least sixty (60) days before the court can grant a divorce. The sixty (60) day waiting period may be waived in certain cases involving convictions for family violence and protective orders.
How long does it take to get a divorce?
If the parties are in agreement, a divorce proceeding can be finalized soon after the sixty (60) day waiting period is over. If the parties are not in agreement, the time it takes will depend on the court’s schedule and the complexity of the case. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are not in agreement on some or all issues will usually take several months and up to one year if a trial is necessary.
How do I know when my case is set for trial?
The court will issue a scheduling order that will inform you of all the deadlines you are expected to follow. Each party must make sure that the court and other parties are notified in writing at their current address, so that each will receive the scheduling order and other notices.
When am I divorced?
You are divorced when all the property and child related issues are resolved and the presiding judge signs an order, usually called a Decree of Divorce.
How long must I wait to get married again?
In most cases, you must wait thirty (30) days, but the court can grant a waiver to permit you to marry sooner.

The Marital Home

Posted on April 30th, 2015 by The Red Headed Lawyer

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In most divorce cases, the marital home is the largest jointly owned asset and is subject to division per the Texas community property laws. Unlike other community property states, Texas judges are not required to divide property settlements in a straight 50-50 ratio. Instead, assets can be divided in a “just and right fashion,” which means whatever the judge thinks is fair under the circumstances. In fact, in Harris County, where a lot of my practice is, it is not uncommon to see a 50-50 division.

Property division can however easily become complex and costly. The first obstacle is the fair market value of the home. If the parties cannot agree on the value, they must each gather evidence which supports their position. The best evidence for determining the fair market value is to have a certified appraiser do an appraisal. This costs from $400-up. If a party chooses this route, he or she must then be prepared to pay the appraiser to come to court to testify that the report he or she prepared was accurate. A less expensive route is to have a realtor run “comps” to see what comparable homes in the neighborhood are selling for. The third, and much less reliable, is to use the appraisal district appraisal in the county where the real property is located.

The best case scenario is to work out a fair and equal split of the marital home before heading to court. You have the following options:

Sell the home and divide the proceeds.

This is the best option if neither party wants and/or can afford the home or if you cannot agree on the terms, without presenting the case to the court. You will need to determine the home’s equity value. Equity is determined using the fair market value and then deducting any debts or liens that may exist. If the parties can agree on a realtor, the realtor will advise as to the sale price, and then help the parties negotiate the sale. Although the net proceeds can be divided any way the parties desire (because a court is not making the decision at this point), most parties choose to divide the net proceeds 50-50. If the parties agree to sell the house but cannot agree on how the proceeds should be divided, the net proceeds can be held either in escrow or in the trust account of either lawyer representing a party. This is the “cleanest” method of dividing the equity, because any disputes regarding the value are resolved when the house is sold for the agreed-upon price.

Have the spouse who wishes to remain in the home refinance the home and buy out the other party.

Choosing to retain the marital home can be an emotional decision. If you are considering buying your spouse out, you need to carefully consider whether or not you can afford and/or manage the following on your own:

Mortgage
Utilities
Insurance
Taxes
Assessments
Maintenance

Another consideration with this option is to be sure to factor the cost to refinance into the settlement equation.

Have one spouse remain in the home with exclusive use and possession for a specified period of time.

For example, the custodial parent may wish to stay in the house until the youngest child graduates from high school. When the specified time period is over, one spouse buys out the other or the home is sold and the proceeds are divided. Note: If your spouse wants to keep or stay in the house but cannot refinance, consider the following carefully before moving forward:

Despite any and all terms of the divorce agreement regarding the house, as long as your name is on the mortgage, you are contractually liable and obligated to pay if your ex becomes delinquent with any associated payments, fees, or assessments.
Any late or delinquent payment history will affect your credit history as well.
Your ex may not maintain the home properly, reducing its value.
With your name already on one mortgage, you may not be able to get financing for a new home for yourself.

If you cannot come to any agreement, then the court will decide for you. Let your attorney know right away which options you are considering. Your attorney can help you and your spouse find practical ways to address your issues.