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Archive for the ‘Property Division’ 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.

Make the deal!

Posted on April 21st, 2016 by The Red Headed Lawyer


People just can’t help it. Even the most congenial divorces usually involve some level of hurt feelings and rejection. And then things can quickly deteriorate into a legal tangle worthy of a Grisham novel.

True congenial divorces are pretty rare. And even if the two parties get through the initial emotional trauma, logistical issues, and child custody arrangements without a blow up, things often break down during the division of property. This is when total reality sets in, and even worse, by this time one or both parties probably has friends, relatives or neighbors giving them advice. This “advice” usually results in a more intransigent position as far as negotiations are concerned. Why? Because they are feeding into whatever feelings they see in their relative or friend. If he/she wants to punish the other person, then punishment they will get! If he/she wants to make them pay, then by God, they will pay!

This kind of thinking is like a double expresso – it will make you feel energized and alive for a while, but then it will fade and leave you worse off than before.

Keep in mind that in any legal conflict, the longer something takes, the more expensive it usually becomes. People can (and do!) fight for years over teapots and lawn chairs, or someone can ask themselves, how can this impasse be broken?

Often, it’s not that hard to resolve quickly.

Ask yourself two questions:

  1. What do I really want most?
  2. What does my counterpart want most?

If the two things are different, you are on your way to settlement.

Here’s an example – two people are married many years but the relationship slowly ends. One files, and before you know it, counter suits are flying back and forth along with discovery demands, the possible hiring of expert witnesses, etc. But the silver lining is one person would love to stay in the house, and the other wants to keep his/her retirement account.

Bingo! Your negotiation will be started by offering to trade half the home equity for half the account equity. Get an appraisal on the property, compare the two numbers mentioned, and then quibble about chairs and teapots. The quibbling won’t last because each party already believes they’ve won. They won’t care much about the small stuff.

It doesn’t have to involve assets of approximately equal value either. It’s the perceived value that matters. One person might want the house, but the other wants granny’s silver settings. Again, we have the beginning of a resolution to the negotiation – the rest is just splitting the household inventory.

In any negotiation, it is important to achieve small victories, but in a divorce, the other party must also feel successful (barring any unlawful or immoral behavior.)

If you are involved in a contentious divorce (or any similar situation), take a few breaths and ask yourself the two questions referenced earlier. This technique can often be the key to a swift resolution that respects the feelings of all parties (including children) while easing the financial and time burden.

We can assist you in asking and answering these questions. Please feel free to call anytime.

The Marital Home

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


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.

Till Death Do Us Part? by Judith Bryant

Posted on October 10th, 2014 by The Red Headed Lawyer

There are many common myths concerning divorce in the state of Texas, which include:

  1. If I get the kids 50 percent of the time, I won’t have to pay child support.
  2. Texas has a no-fault divorce system, so my affair is irrelevant.
  3. Texas doesn’t have alimony.
  4. I bought it with my earnings, so it’s mine.
  5. I earned it, so it’s mine.

To find out the answers to these myths, read the full article here.


Written by Judith E. Bryant, a partner with the Austin law firm of Noelke English Maples St. Leger Blair, for the State Bar of Texas, Texas Bar Journal.

Why Should I Opt for a Divorce Instead of a Separation?

Posted on May 19th, 2014 by The Red Headed Lawyer

Often times, when a marriage goes downhill, spouses may opt to separate rather than divorce. In some cases, a separation can be beneficial due to financial reasons, or it can allow both sides time to decide if divorce should be the final resolution. However, in many cases, opting for the path of least resistance may actually be more detrimental in the long run.

One of the main risks a spouse takes when he or she agrees to separate instead of getting a divorce is that he or she no longer has any control or knowledge of how the other spouse is managing the marital assets. One spouse could be mismanaging funds or even getting into debt that could later be considered joint debt.

Another potential negative outcome of a separation is one spouse could lose his or her job or suffer another major financial shift that could lead to a substantial decrease in your divorce settlement amount. If individuals decide to get a divorce after years of separation, there is always a chance that the financial status of one spouse has changed, and divorce settlements will be based on the current financial status of both spouses.

In some cases of separation, one spouse will move out of the state or country without notifying the other spouse. This could make it difficult to officially receive a divorce, which will postpone custody decisions, divorce settlements, and other legal matters.

In the event that you meet someone new while you are still legally married, it could put a damper on your new relationship. While some people may be accepting of your situation, you run the risk of scaring someone off.

By opting to get a divorce, you make it clear to yourself and your spouse that you are prepared to move on with your life.  Although there may be some cases where a separation makes sense, if you are in a marriage that no longer suits you for whatever reason, opting for a divorce will more than likely be the most logical choice.

What About The House?

Posted on June 19th, 2013 by The Red Headed Lawyer

During a divorce, the family home is usually the largest and most difficult asset to manage. What to do with the home is one of the most challenging questions a divorcing couple will have to answer.

If one party owned the home before the marriage, or received it as part of an inheritance or gift, it is considered his or her separate property. In this circumstance, he or she has the right to decide what to do with this house after the divorce, as well as who gets to live there during the divorce. However, since Texas is a community property state, when the home is part of the community estate, a judge may give temporary possession of the home to whoever has temporary custody of the children, in order to keep the children’s lives as stable as possible.

Stability often plays a part in the disposition of the home to complete the divorce. Sometimes parties agree to let one parent and the children stay in the home for a certain period of time. The children may be a couple of years away from graduating so the parties might agree for one parent to stay in the home until then. But divorcing couples are not always agreeable about the family residence. Some clients insist they should have the home, only to later regret the financial burden. It would be beneficial for divorcing to take advice from their attorneys or financial experts who see a house as a financial instrument and not as something that holds sentimental value.

In most cases, the family needed two combined sources of income in order to be able to afford the home. When one of those incomes is taken away, the house becomes difficult, if not impossible to afford. When you decide to divorce, there may not be enough assets to compensate the party who doesn’t get the house. In this case, parties often agree to sell the house or a judge can order it sold. Once the house is sold, generally the parties will split the proceeds in some manner.