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Archive for the ‘Law’ Category

HB 93 Will Take Us Back to the Bad Old Days

Posted on May 10th, 2017 by The Red Headed Lawyer

Back in 1970, Texas became one of the first states to offer couples a less confrontational, less expensive way to end a failed marriage. It was known as “No Fault” Divorce, and many at the time believed it would be a disastrous social experiment with American families. However, there is evidence now suggesting that rather than encouraging divorce, the long term effect of this option has been to make divorces less frequent.

During the 1970s and into the early 1980s, divorce rates did rise as each state eventually passed legislation to offer some kind of no fault option. In economic terms, you could say there was pent-up demand that was suddenly being satisfied by the change in laws.

One common measure of divorce rates is the number of divorces per 1,000 people. From about 4.6 per 1,000 in 1970, divorces in the US rose throughout the decade, peaking in 1981 at about 6.9 per thousand. Since then, the numbers have steadily declined, dropping to 4.0 per 1,000 in 2000 and just 3.2 today. Here in Texas, we are fortunate to have a divorce rate below the national average at 2.7 per 1,000.

Clearly, this is one of those rare occurrences where it’s good to be below average!

Texas House Bill 93 (and a companion bill that lengthens the waiting period from 60 to 180 days) would undo years of progress on dealing with divorces in the state and bring us back to the bad old days. If this Bill becomes law, couples whose marriages have failed will no longer be able to claim the no-fault option of “insupportability” – basically another way of saying irreconcilable differences. Instead, they will need to file using one or more of the fault-based grounds – adultery, abandonment, cruelty, felony conviction, living apart for three years or confinement to a mental hospital.

In my opinion, this Bill would be a disaster for Texas couples. They are already going through one life’s most stressful events. Now, they will be forced to adopt a confrontational approach and air their dirty laundry in public. Kids will be forced to take sides with all the long-term hurt and emotional baggage such conflict would sow.

And what about the parents? Should they be penalized for admitting that they are no longer compatible? Currently, it is estimated that as many as 90% of divorces in Texas are filed on no-fault grounds. Eliminating this option will make divorces much more expensive as one party will have to prove malfeasance as described above. This could entail the hiring of private investigators, expert witnesses, and the like. These proceedings will also take much more time to complete, which will also run up the bills.

But it’s not just about money. For women (and men) who are in abusive relationships, a no-fault divorce can be the only way out. After years in such a destructive relationship, the abused party will likely be very reluctant and afraid to report the partner to authorities, which would be required in an at-fault divorce. There is more data supporting current law – since no fault divorces became common, studies show female suicide has dropped 8 – 15%, domestic murder is down 10%, and domestic violence (for male and females) has fallen as much as 30%. Also, given the inevitable rise in costs that would ensue, would divorce become an option only for the wealthy?

There are many groups that support this change in law, but I can tell that as an attorney, I do not support it. Kids will suffer, parents and their families will suffer, and what if people lose their jobs and careers? How would this development help the lives of those involved?

If you have any questions on this or any other family law matter, please feel free to contact us here at the Essex Law Firm.

What is a Divorce Decree?

Posted on March 26th, 2014 by The Red Headed Lawyer

A divorce decree, also know as the final decree of divorce, is a formal document granted by the court and signed by a judge (and the parties to the suit), that legally terminates a marriage. The divorce decree is stored in the vital records office of the county courthouse.  Additional copies are available to each spouse for a small fee charged by the county. Details pertaining to spousal maintenance (alimony), property division, child custody, and child support are typically contained in the divorce decree.

Property Division

In a divorce, the court has authority over the community property (property acquired by the spouses during the marriage which was not a gift or was not inherited). This applies no matter which spouse’s name is on the title.  Property accrued during the marriage is presumed to be community property.  Property acquired prior to the marriage or by gift or descent is separate property. However, it is the burden of the spouse claiming separate property to prove how it was acquired.  This usually requires documentation; testimony is not considered sufficient to prove separate property.  The court’s objective is to divide the property in a way that is “just and fair.” While often this is a 50-50 division of the community property, the judge is not bound to make it 50-50 as long as the division can be considered “just and right.” It is important to remember, especially when the divorce decree results from an agreement, that property divisions are “set in stone.”  Once the divorce has been granted and the statutory 30-day waiting period for filing for a new trial has passed, it is extremely difficult to get the court to change a property division, absent fraud which can be proved.  I frequently have people in my office who have been divorced a year or two and have realized they made a mistake in agreeing to a property division.  Perhaps they didn’t feel they could afford a lawyer and made the agreement without a lawyer. Perhaps they simply wanted to get an agreement and move on.  I make it a point to make sure my clients understand (1) what they are agreeing to and (2) the ramifications of the agreement.  As part of that analysis, my paralegal prepares a spreadsheet so that the client can see in numbers what percentage of the community property he or she is agreeing to.  Often, this is eye-opening and my client will not agree to what he or she previously considered “fair.”

Child Custody

In many divorces, the parents of the children involved will reach a custody agreement before coming to court. After an agreement is made, it will be entered into the divorce decree. In situations in which an agreement cannot be made, the court will decide on who will have custody of the children based on many factors which fall under the heading of “best interest of the child.”  There is a long laundry list of what constitutes “best interest.”  The analysis is too much for these few paragraphs.  The most important thing to remember is that in a Texas divorce decree, whether the judge made the order or there was an agreement, it becomes the rulebook for what happens to the children until they turn 18. You must read your divorce decree page by page and understand every page if you have children.  As with property division, I discuss each provision with my clients before I ask them to sign.  Children’s provisions are lengthy and complicated in divorce decrees, but very few things are as important to a parent as these provisions.  If you don’t understand, ask.  Don’t assume because your lawyer put it there it’s ok to go ahead and sign it and deal with any problems later.

Child Support

After child custody is decided upon, the courts will come to a decision on the amount of child support the non-custodial parent will pay the “primary parent”. Although theoretically the amount can vary from situation to situation depending on the needs of the child and other factors, the reality in Texas is that the judges base child support on the formula which Texas has decided is in the best interest of the children.  Although the percentage per child is easy to determine – 20% for one child, 25% for two, etc., the use of the formula is more complex.  To begin with, you must have the formula for the year in which you are calculating child support.  The Attorney General publishes the formula each year.  It involves beginning with the gross income from all sources for the paying parent (the custodial parent’s income is not factored in), subtracting those items which the legislature says can be subtracted, and coming up with a net income.  This is based on the formula, not what is on the actual paycheck.  Although in theory judges can vary from the formula, the fact is that they do not.  In 29 years of practicing law, I have seen only one occasion where the judge varied from the formula.  Judges can be required to explain in writing if they vary from the child support guidelines, and it’s been my experience that that is something judges do not want to do.

Receiving a divorce decree is the final step in what can be a long and grueling experience. Having a knowledgeable and experienced divorce attorney in Spring, TX can help alleviate some of the stress associated with the process, and assure that you understand each part of one of the most important documents of your life.

Choosing The Right Lawyer

Posted on June 12th, 2013 by The Red Headed Lawyer

When involved in a serious legal dispute most people know the first thing they should do is contact a lawyer. However, many people struggle with choosing the right one. Choosing the right lawyer is often times the most important factor in determining the outcome of legal disputes, so needless to say, a good amount of time and research should be invested in finding the best lawyer for you.

The first step in finding a good lawyer is to determine the type of lawyer you need. In most states, a licensed attorney may practice in any field of law, but most concentrate on very specific areas. Most states also have a process of specialization for attorneys. In the past, most lawyers were general practitioners, meaning that they handled cases in a wide variety of areas. Over time, the number of lawyers grew and our society spread out, and it became common for lawyers to concentrate their efforts. There are almost as many different practice areas as there are lawyers. For example, a lawyer who practices admiralty law might not be the best attorney to assist a person needing a divorce.

The next step you should take is to utilize referral sources. One of the best resources to find a lawyer that does the kind of law you need is through other lawyers. Everyone should know at least one lawyer they could call and ask for a referral. Even if the lawyer you know practices criminal law and you need someone to prepare a will, the criminal lawyer will be able to give you some referrals in the practice area you need.

You can also look online to research lawyers in the area you need. The Internet is an extremely beneficial source of locating a lawyer. Many websites maintain directories of lawyers nationwide. Most law firms these days maintain websites and usually you can find those through any search engine. Often lawyers are active in professional or community organizations which may be featured on a website.

Next, you should meet in person with a couple of lawyers. The initial interview with an attorney that you are considering hiring is extremely important. Take with you to the interview all of the documents and other information that relates to your problem. Don’t be afraid to ask your lawyer about his or her credentials, as well as how many cases he or she has handled that are similar to yours.

The last thing you should do is to establish reasonable expectations. Many people have never dealt with a lawyer before, so they don’t know what to expect. You should expect frank, honest advice. Your lawyer should point out the strong and weak points of your case and give you a realistic expectation of the potential outcomes. She should keep you informed and send you copies of documents pertaining to your case. If a lawyer gives you a guaranteed result, turn and run. Lawyers are prohibited from guaranteeing any particular outcome, so be very leery if this happens. Don’t expect your lawyer to act as a psychologist, financial advisor, tax planner, or to give any other advice outside of her expertise. If you need advice in other areas, consult a professional in that area.

Why divorce rates have increased over the years

Posted on June 7th, 2013 by The Red Headed Lawyer

Original Article for attorneys.com

“Half of all marriages end in divorce” has been a widely accepted idea for many years. Statistically speaking how accurate is that idea? Well, as it turns out, it’s right on the money. Over the last 40 years, roughly 50% of the marriages in the U.S. have ended in divorce. However, the percentage of marriages ending in divorce hasn’t always been so high.

“Before 1970, divorce was relatively uncommon and difficult to get. Fault was usually required. One of the spouses must have committed a crime or sin that justified the divorce. There needed to be adultery, abandonment, cruelty, intoxication or some other reason that made it necessary to end the marriage.”

So what changed? Simply put, the law.

“No-fault divorce became an option in some states in the 1950s. Couples no longer needed to prove that one person was at fault. They could simply say that the marriage had broken down. By 1970, almost all states had laws allowing no-fault divorces. A long separation before the divorce used to be mandatory. Many states also passed laws that greatly decreased the separation time, making divorce easier and faster. These laws had a great effect on the divorce rate. From 1940 to 1965, the divorce rate remained near 10 divorces for every 1,000 married women. By 1979, the rate had doubled.”

The changes in the laws regarding divorce dramatically shortened the time and effort an unhappy spouse needed to put forth in order to get a divorce. This had a monumental impact on divorce rates. With laws that are still being revamped, and the ongoing changes in sociological views on divorce, many believe that divorce rates will continue to rise.