Author: redheadedlaw

The Marital Home

Written by redheadedlaw on April 30, 2015. Posted in Divorce, Property Division, Real Estate.

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

Written by redheadedlaw on October 10, 2014. Posted in Divorce, Property Division, Real Estate, Texas.

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

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

Domestic Violence

Written by redheadedlaw on September 15, 2014. Posted in Domestic Abuse, Domestic Violence.

I believe one of the biggest failings of our family court system is the failure to understand the vicious cycle of family violence. Victims are often blamed because they did not “just leave.” In fact, many leave and return, on average 17 times, even after being severely beaten. There is a dedicated court in Harris County for obtaining protective orders. This means one judge hears all these cases. It follows then, that it is most important for that judge to understand domestic violence. The current judge, and candidate for reelection, is Judge Lynn Bradshaw-Hull. I have in the past felt that this judge does not understand domestic violence. I have seen her grill victims worse than she did the accuser. Apparently, investigations, as reported in the Houston Chronicle recently, have revealed that I am not alone in that belief. THIS IS WHERE YOU COME IN. The candidate opposing this judge, BARBARA STALDER, has been actively working in and with organizations for years to protect victims of domestic abuse. She has the background, training and experience, and I believe the understanding, in this area that Judge Bradshaw-Hull does not. I encourage you to step across party lines if necessary and vote for Barbara Stalder. Do not wait until it is your mother, sister or friend standing in front of the protective order court judge as a victim to take a stand.

The following is from a recent Huffington Post article explaining why victims do not just leave:

It’s the question every survivor of domestic violence is posed, often incredulously: Why didn’t you just leave? The reality is that leaving an abusive relationship is often a herculean task that endangers the woman and calls for resources that aren’t readily available.

In June, after The Huffington Post ran an investigative report on a woman allegedly murdered by her boyfriend, we received an outpouring of responses from domestic violence survivors who wanted to explain why they had stayed with their abusers. We spent the next three months interviewing these women. While they offered hundreds of reasons, ranging from the logistical to the deeply personal, some common themes emerged: Fear. Love. Family. Money. Shame. Isolation.

In this series, you will hear from six survivors of domestic violence about why they didn’t leave sooner. The stories — told in their own words — are as distinct as they are similar. One woman suffered a brutal week of abuse before fleeing. Others stayed for decades trying to make things work. Two women were shot, the bullets narrowly missing their hearts. Another endured years of incessant stalking.

This week, stories like theirs became part of a national conversation when a video surfaced of pro football player Ray Rice violently punching his then-fiancee Janay Palmer in an elevator. Palmer, who married Rice just a few weeks after the incident, was criticized for having stayed with him. Then, something remarkable happened: Writer Beverly Gooden shared her own reasons for staying in an abusive relationship on Twitter, using the hashtag #WhyIStayed. Within hours, hundreds of survivors were tweeting their own reasons for doing the same.

As the stories continue to flood in, we hope this project will make it clear that “just leaving” often isn’t an option. We hope these accounts will prompt people to stop asking why she stayed — and instead begin asking how they can help.

Why We Use MyCase.com

Written by redheadedlaw on September 4, 2014. Posted in MyCase.com.

The number one complaint to State Bar Associations involves insufficient attorney-client communication. Often, clients become exasperated:

I can’t get my attorney on the phone.
I don’t know what’s going on.
I don’t know when/if things are happening.
I can never get a quick answer.
NO ONE gets back to me!

At the root of all this is the way most firms have to deal with paperwork—files, documents, time and expense tracking, etc. These items are usually stored in different places and are often managed by different people. Marivonne Essex and her firm knew they could save time and effort if they could find a way to centrally locate all of their client information. Their solution? MyCase.com. MyCase is web-based legal practice management software that makes it possible to streamline both information and communication for both the firm and you.

How it works…MyCase permits all client information—from the initial case file to each petition/letter to the court—to be uploaded into one secure place in their cloud-based database. It also accepts and helps sort notes and comments, manages appointments and schedules, manages all personal contact information, facilitates messaging/notifications and can even manage billing.

Sounds great for the firm, but what does it mean for you? It means that when you need information, no one has to pull your case file from a file drawer; no one has to find the latest petition and then check for filing details; no one has to go find the billing records to see what you’ve paid or find the schedule to see the date of your next appointment. With MyCase, it’s like the old Ragu ads; it’s in there. Everything about you and your case is in your private MyCase database folder and all of that is at the fingertips of everyone in the firm. On top of all of that, it’s accessible from anywhere there is internet capability.

Only have time for an email or a message? With MyCase, if you leave a message or send an email, everyone in the firm is notified. So if you need information and your attorney is not available, all of the attorneys and support staff can access your information and respond. And through MyCase, all responses are private and more secure than standard email. There’s more. MyCase follows up to let everyone in the firm know whether or not you have been answered. Couple that with the Essex promise to return all requests for information or contact within 24 hours and now you’ve really got something that works.

It gets better…MyCase also allows Essex to share new information with you by posting secure comments and messages or sending alerts of case developments using Facebook-style notifications. But communication works both ways and the Essex firm wants you to keep them informed as well. So once you set up your personal, secure MyCase login and password, everything mentioned above, including all court related documents and filing details, is available to you 24/7. You can read through all of your petitions and documents at your own pace and insert any comments or questions you have for the firm as you go. And, to share new information or updates to your personal information, you can easily send messages or comments blog style.

The Essex firm’s investment in MyCase is a win-win for everyone. Information is streamlined, centrally located, secure, and available to everyone in the firm and you 24/7. Add the messaging and notification capabilities and communication issues disappear. All of this means fewer calls and less discussions and that can translate into less billable hours. So now Essex not only can help you with all your family law issues, it can save you time, energy, frustration, and money while doing so.

Standard Mutual Injunctions Can Make Your Gun Owning Client a Federal Criminal!

Written by redheadedlaw on August 22, 2014. Posted in Divorce.

Standard injunctions routinely imposed in family cases in Texas can cause our clients to violate ‘The Brady Bill’, 18 U.S.CA § 922(g).

The mutual injunctions routinely used in divorce cases in Texas include standard language prohibiting the use or threatened use of violence by one party to the divorce case against the other party. Therefore, it would appear that anyone subject to such an injunction in a divorce case is prohibited from possessing a firearm, even if no domestic violence has ever occurred or been threatened.

In U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), the husband, Dr. Emerson, owned a pistol, which he had purchased a year earlier. Dr. Emerson never got rid of the pistol and federal grand jury returned a five-count indictment against him.

The Fifth Circuit followed a literal reading of the statute, which states only that the Court must explicitly forbid the use of threats or violence against a spouse or minor child. The court refused to read into the statute a requirement that there be a finding of abuse or danger of abuse. The Court of Appeals reversed the trial courts dismissal and remanded the case to the lower court for prosecution.

The Fifth’s Circuit interpretation of 18 U.S.C. § 922(g) makes clear that it a federal criminal offense to possess a firearm while under an injunction, issued after notice and hearing, which contains the standard violence/harassment language which is included in almost all of the mutual injunctions and temporary orders in divorce cases. Given that almost half the households in Texas contain at least one gun, this decision is one all family lawyers must bear in mind when drafting temporary orders.

Here is a quote from a leading Texas family law attorney: “…if injunctions are put in place as a result of a temporary hearing or alter a temporary hearing occurs, the party possessing the firearm is in violation of the federal statute. It would appear that this would be the case even if the parties waive a hearing and enter into agreed mutual injunctions or agreed temporary orders which include the *magic words” regarding threats or violence. Moreover, there are no statutory exceptions included in 18 U.S.C. § 922(g), so it would appear that once the injunction is in place, the ban on possession is absolute, until further order of the Court.

This ruling places on the family law practitioner the duty to explain the ramifications of the boilerplate injunction language. While previously, mutual injunctions could generally be agreed to with a minimal amount of controversy, now the lawyer must clarify whether or not his client possesses any firearms before agreeing to any injunctions containing such language. Should the client own a gun, it will be necessary to eliminate the language from the injunctions which would trigger the applicability of 18 U.S.C. § 922(g)…

For…those…whose occupations require that they be armed, such as law enforcement officers, avoiding having such an injunction imposed by the Court obviously takes on much greater significance, and care must be taken regarding any such injunctions.

Who Gets Fido?

Written by redheadedlaw on August 12, 2014. Posted in Divorce, Pets.

Even under the best of circumstances divvying up your assets and deciding who gets what in the divorce settlement can be difficult. But what about your beloved pet? To you, Fido may be family, but unfortunately Texas, along with most other states, considers pets property.

As property, Fido is subject to our community property laws. This means that if you and your spouse cannot hash things out ahead of time, the court will decide who gets the pet. In some rare instances, visitation with the non-custodial pet owner is awarded. And if your pet is valuable (such as a show animal or a horse), the court could actually require it to be sold and the proceeds divided. There is an exception—only if you can prove that your pet is actually your separate property. To prove this you have to be able to show that either you owned the pet prior to the marriage or that it was given as a gift or was willed to you during the marriage.

So what can you do to ensure the best fate for Fido? Keep him out of the divorce proceedings. This means doing everything you can to work things out with your spouse prior to court. If your spouse is resistant, perhaps shared custody/visitation rights can be agreed upon. If so, have your attorney draft up the mutual agreement for the court.

If you just can’t work things out with your spouse, you will have to fight for Fido. To help your case, ensure that your attorney is aware of how important your pet is to you and is sympathetic to your attachment. Then, be prepared to show the court why custody should be awarded to you. Here are some possible considerations:

You may be the custodial parent of minor children who have attachments to the pet.
You may be the one who has taken the most care of your pet, such as grooming, vet visits, and exercise.
You may have more time to exercise and play with your pet.
You may be healthier and better able to deal with the responsibility.
You may have more space.
You may be better able to afford pet related expenses.

There’s one more critical consideration. What’s really best for Fido? Despite how you feel and how attached you are, the key goal should be what is actually going to be best for the animal. So before you act at all, do some soul searching and then, when you’re ready to act, make sure your attorney is supportive but practical about both your and your pet’s best interest.

Above all, keep in mind that many judges are skeptical of battles over pets. Unless you have a judge that is a bona fide pet lover and owner, he or she may not take your concern seriously, which could result in a ruling not necessarily in your best interest or your pet’s. All the more reason to do your absolute best to resolve the issue with your spouse without involving the judge.

What is Probate?

Written by redheadedlaw on August 1, 2014. Posted in Probate, Wills.

What is probate? Essentially, it is the process by which the court distributes your estate after your death. If you have a will, the court will distribute according to that. If you do not have a will, the court will appoint an administrator (a type of executor) and distribute according to the descent laws of Texas.

The process is made much simpler and cheaper if you have a will. Texas probate is one of the simplest in the country thanks to what is called the “independent administration” of estates. Using this process, your named executor can distribute your estate with very little court supervision. There are other probate options in Texas, but this is the most common. If you do not have a will, there are many more costs involved because the court oversees the process.

Does everyone need a will? No. If you do not own real estate or have stock certificates or some other type of asset with a title, you may not need a will. Pension plans, 401(k)’s, financial accounts, and insurance proceeds do not pass through probate except in limited circumstances. Bank accounts can be handled outside the probate process by using a POD (pay on death) signed at the bank or by making another person a signatory on the account.

If you do have real estate or another item with a title, you probably are better off with a will, although the will may not have to be probated. Especially with real estate, you want to ensure that a deed is done as part of the probate process so that any real estate is conveyed and filed in the deed records. There are some alternatives to probate, such as small estate affidavit and heirship affidavit, which may be appropriate under certain circumstances.

Can you use a handwritten (holographic) will in Texas? Holographic wills are legal in Texas. However, if a handwritten will is not prepared according to Texas law, it may not be accepted by the probate court. If it gets thrown out, the outcome may not be what you wish as far as how your estate is distributed.

In the end, you want to ensure that your loved ones are not left with the complicated and messy task of dealing with your estate while trying to follow through on your last wishes and while dealing with your death. To be on the safe side, it is better to have a valid, up-to-date will prepared by an attorney who is advising you. Can you copy a form from the internet? Sure you can. But the fact is, a basic, simple will prepared by an attorney who answers your questions and advises you on Texas probate law is not costly. It is cost effective. To do otherwise is to be penny wise and pound foolish.

Spring Texas Divorce Lawyers

Written by redheadedlaw on July 17, 2014. Posted in Divorce, Texas.

Looking for Spring Texas Divorce Lawyers? Marivonne Essex and the Essex Law Firm are your go to source for all family law issues including divorce, child custody and child support as well as wills and probate.

Why does Marivonne stand out?

She makes it personal. Clients and their families are important to her. She has maintained some client relationships for the entire span of her 29-year career.
She keeps things simple. Her goal is to avoid protracted litigation and to secure the best settlement/decision in the shortest, realistic time frame.
She makes it easy. How? By maintaining close communication and using new technology, the Essex Law firm keeps your information, files, and appointments at your fingertips. This keeps you in the know and reduces administrative fees.

So, if you are looking for Spring Texas Divorce Lawyers, you need look no further for professional, personal, and affordable representation. Watch her YouTube video to meet Marivonne and then give her a call at 281-350-4104.

Lady Bird Deed

Written by redheadedlaw on June 27, 2014. Posted in Real Estate.

As a family law attorney, my areas of expertise include divorce, child support and other family related matters. I also do basic wills and probate. Occasionally, however, I have a family member or close friend who needs advice on another type of law. When that happens, I research the problem and give them my limited advice. That is how I learned about lady bird deeds, which offer a simple way to transfer real estate at your death without probate. Please note, I am not a real estate lawyer or an elder law attorney and this is not intended as legal advice. I’m simply sharing with you what I learned.

An elderly relative needed my help. He owns a small homestead where he lived until his recent move to a nursing home. He has been living on a small retirement fund and social security, and the homestead is his only asset. He has one son, who has disabilities. My relative wanted to deed the small homestead to his son without affecting my relative’s Medicaid or other government benefits. The solution was a lady bird deed, which gave my relative a life estate in the real property—meaning he could live there if he wished—and upon his death, title would transfer to his son without affecting any of his benefits.

Ronald Lipman’s column “State Your Case”, June 23, in the Houston Chronicle discusses the lady bird deed. If you have a similar situation or a relative who needs advice on lady bird deeds, contact a real estate or elder law attorney for advice.

Keeping Your Cool During Divorce

Written by redheadedlaw on June 17, 2014. Posted in Divorce.

Divorce can be overwhelming. Right now, your world may feel like it is upside down. Keeping your emotions in check and managing stress levels can be difficult. But not keeping a cool head may result in costly/long-lasting mistakes. It’s best to have a strategy for dealing with this emotional rollercoaster. Here are a few things to consider that can help you create a plan of action, not reaction.

Don’t rush

Of course, you want the situation to end as soon as possible. But making rushed decisions is not in your best interest. Settling for a poor deal just to get things over with may be disastrous. So, throughout the process, try to concentrate on responding not reacting. This means dealing with issues, demands, or requests in a logical manner, not an emotional one. So, before responding to anything, try taking some deep breaths and telling yourself to remain calm and peaceful.

Stay healthy

When stressed, it’s easy to forget very basic needs. Poor diet, lack of sleep, alcohol, use of tobacco or more all help fuel increased stress and reduce energy levels. Don’t get sucked in.

Take care of the inner you

Make it a daily habit to practice some type of stress-reducing activity, such as exercise, deep breathing, journaling, and/or meditation. Additionally, practicing your response to difficult situations can help prepare you for them. Try to visualize a confrontation with your spouse or a court scene and then visualize yourself remaining calm and peaceful throughout the event. Your “practice session” can help you face the real deal.

Be kind to yourself during the process

Take some “me time” after meeting with your attorney or spending time in court. Treat yourself to a massage or lunch with friends where the subject of the divorce and your spouse are off limits. If time or money is an issue, simply plan a walk or a soothing bath—just anything to treat yourself.

Stay busy and have some fun

The more you occupy your mind with things you like to do or with taking care of your family, the less time you have to think about the events taking place. So, make some plans for the movies, a game of tennis, a short trip, anything you like that will help counterbalance the negative emotions and issues.

Seek support

You don’t have to go it alone. Reaching out to friends, family, or religious advisers and talking through your feelings and emotions can be a big help. But, if you cannot stop thinking about the divorce or are getting too angry or too depressed, consider outside help. A therapist can help you deal with your emotions, teach you how to deal with your ex or your family, and show you how to remain calm during stressful situations.

Accept the reality of the situation

You cannot change the facts; divorce is messy and the process is not perfect. It’s going to take some time and a lot of energy. But if you work at keeping your head and take care of yourself, that energy does not all have to be negative. You may just begin to realize that regardless of where you are in the process, you are already on your way to a new beginning.