Author: redheadedlaw

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.

Ten Common Divorce Misconceptions

Written by redheadedlaw on June 3, 2014. Posted in Divorce.

Most of what we know about divorce either comes from friends and acquaintances who have been through the process or the high-profile celebrity cases we hear about through the media. What you don’t know about divorce can cost you—either in additional time, money, or stress. Here are some of the most common misconceptions about the process.

1. I Can File for Divorce Whenever/Wherever I Like

Not true. In Texas, one spouse has to have been a resident of the state for a continuous six-month period. In addition, one of the spouses has to have been a resident of the county where the divorce is filed for at least 90 days.

2. Divorce Is Incredibly Expensive

Thankfully, the costly cases we hear about through the media are not the norm. If both spouses try to amicably agree on who gets what and do not depend on the court for every decision, the fees are manageable. If things do not go smoothly, mediation can be a wise choice to shorten resolution time and help curb escalating court/attorney fees.

3. No-Fault Divorce Is Faster and Cheaper

No-fault divorce in Texas means that the parties have agreed that they can no longer live together as husband and wife and there are no fault issues such as adultery. Yes, a no-fault divorce can take as little as two months once it’s on the court calendar. However, this is only true if both parties can come to a timely agreement on the division of assets and the custody and support of any children of the marriage. If the marital assets are many/complex, and there is no agreement as to how to divide them, or if there is a dispute over children’s issues, then a no-fault divorce can become as long and drawn out as an at-fault divorce. Divorce is a process. Any issues that arise can add time and expense to this process.

4. Marital Assets/Debts Are Split 50/50

Actually, the court hopes every couple will appear before it having already agreed to the division of assets and debt. But in tried cases, that is highly unlikely. So, the court looks at what is fair and equitable, which usually does translate into an approximate 50/50 split of the assets and liabilities as a whole. This means, for example, the judge may assign extra debt to one spouse but offset that with an award of more property. Or, one spouse may be permitted to remain in the marital home without having to make an equity payment to the other spouse, but then not be given an equal portion of a retirement/pension fund.

5. Mothers Almost Always Gain Child Custody

In the past, child custody was indeed biased in favor of the mother. In the last decade, however, the number of custody awards in which the dad is awarded primary custody has increased substantially. For most divorce situations where the parents cannot agree on custody issues, the court bases its decision on the best interest of the children, not the gender of the parent.

6. Spouses Who Make Less Money or Who Were the Stay-at-Home Parent Are Entitled to Alimony

There are no automatic provisions for post-divorce spousal support in Texas. Instead, the dependent spouse must request it in the divorce petition. The court makes spousal support decisions on a case-by-case basis. Considerations may include such things as skill set, education level, illness and disability as well as the length of the marriage. In fact, in Texas, post-divorce spousal support (also called maintenance) requires a marriage of at least ten years. If spousal support is awarded, whether as a lump sum or over time, the court intends for it to be a bridge of support for the dependent spouse, not a long-term solution.

7. Cheating Spouses Will Be Punished

While adultery may be the reason for the divorce, the judge usually does not take that into consideration when deciding child custody issues unless the adultery can be shown to have directly affected the children. As far as the division of marital assets, the court can indeed take into consideration “fault” issues such as adultery. Usually, however, the judge makes a property division decision he or she deems is a fair and equitable division of community assets.

8. At the End of a Case, All Inequities Will Be Adjusted

During the divorce process, which may be spread out over many months, one spouse may have over or underpaid the other. Both spouses may be told, or perhaps just assume, that adjustments will be made when the case is settled. But when a case is settled rather than being tried, the interim inequities can fall through the cracks. Make sure any inequities are addressed in your settlement.

9. I Can Always Reopen the Divorce Settlement at a Later Time

Divorce is a painful process and people are usually in a rush to just get through it. When they hear or read that in some cases the settlement can be reopened for issues related to custody, child support, etc., they often convince themselves that they will have certain recourse for change at a future time. This is not so for most settlements. In Texas, property division settlements should be considered set in stone. It is very difficult to change such a division unless fraud can be proved. Custody decisions run very close to being set in stone, although they are easier to overturn than property divisions. Child support, in most cases, can be changed after three years if the facts warrant.

10. I Don’t Really Need a Lawyer

This may be the most dangerous divorce misconception. Often, people try to get through the process on their own to save money. In the end, they may end up being taken advantage of/or harming their own cases. They may not understand the legal terminology or the intricacies of the process. While having an attorney is not a legal requirement, anyone considering divorce should see it as a necessity. It is cheaper in the long run to hire a good attorney than to try to get any settlement or court decision changed later.

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

Written by redheadedlaw on May 19, 2014. Posted in Common Law, Debt, Divorce, Property Division.

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.

Video Introduction

Written by redheadedlaw on April 22, 2014. Posted in Uncategorized.

Marivonne Essex discusses the benefits of choosing The Essex Law Firm for your family law issues.

Recognizing Signs of Child Abuse and Neglect

Written by redheadedlaw on April 7, 2014. Posted in Child Abuse, Child Neglect, Parental Rights.

Anytime you leave your child in the care of someone else, a part of you is always concerned with whether or not they are being cared for properly. This is especially true when your child is not old enough to speak, or can clearly tell you what is going on while they are away.

When your circumstances make it necessary for you to take your child to day care, or hire a babysitter, it important for you to be observant of the way your child is being handled while you are there.

It is also important to regularly examine your child physically, as well as take note of their mood when you are taking them to day care, and their mood after you pick them up. If your child suddenly becomes sad or reclusive when the baby sitter arrives, or when you arrive at day care, it could be a sign of deeper issues.

Some of the most common signs of child abuse or neglect include:

Unexplained changes in behavior
Withdrawal
Cuts and scrapes
Bruises
Burns
Feelings of fear

In some cases, children can be abused or neglected while visiting a parent as part of a custody agreement. This can be extremely detrimental to the child because the child is being harmed by someone that he or she trusts. If it is discovered that your child is being abused or neglected by the other parent, you may be able to have the abusive parent’s visitation rights stripped or restricted. It is, however, difficult to prove abuse without hard evidence such as medical records. Keep in mind that the child can’t tell the court what is going on and you cannot report to any court what the child says. If you suspect abuse, take your child for a medical exam immediately. Even a day’s delay may hamper proof in restricting the other parent’s visitation rights.

When your child’s safety and well-being is threatened, it is important to take action immediately. With the help of a family law attorney in Spring, TX, you can get an accurate assessment of your legal options, and pursue justice for the wrongs that have been committed against your child.

What is a Divorce Decree?

Written by redheadedlaw on March 26, 2014. Posted in Court, Divorce, Law.

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.

2014 Harris County Primary Results

Written by redheadedlaw on March 5, 2014. Posted in Elections.

Originally from The Mongoose Newsletter by Attorney Greg Enos

Harris County Primary Results

70% of Republicans Smartly Refuse to Vote for Pratt in 311th GOP Race

Pratt	33,483	29.81%
Franklin	26,012	23.16%
Magdaleno	24,107	21.47%
Detamore	19,773	17.61%
Placzek	8,933	7.95%

On the Sunday before the primary, the Houston Chronicle ran an editorial entitled,”Beware of Slate Cards,” which stated in part:

As an example of how skewed they are, consider that several of the better-known slates endorse Denise Pratt, the incumbent judge for the 311th District Court who’s been mired in scandal for months. Never mind that she’s been reprimanded for “unreasonable” delays, that she’s been accused of backdating court documents and that’s she’s been rated “not qualified” by the Houston Bar Association. Never mind all that: She paid; she plays.

No More Amicus Appointments for Woodfill?

Jared Woodfill may not be so popular on the 7th floor as he lost his race to be reelected Chair of the Harris County Republican Party in a lop-sided loss to Paul Simpson 53% to 37%. Despite our big differences in politics and attitudes toward the proper role of amicus attorneys, I have come to like Jared and I am sorry personally for the dude losing.

District Clerk Daniel Lets Loose a Beat Down

Chris Daniel won his primary race for District Clerk big time 69% to 31% over Court Koenig.

Runoff Between Schmude and M.L. Walker

Results in the Republican primary for the 247th Family District Court to replace Bonnie Hellums were:

Schmude	40,393	36.45%
Walker	37,378	33.73%
Flowers	33,045	29.82%

I have given M.L. Walker a hard time lately but let me say two things about this race: (1) Walker is a darn good Associate Judge and we all know that, and (2) John Schmude needs to do more to renounce Dr. Hotze for the racist and ugly e-mail Hotze sent out about Walker and Melanie flowers. Click here to read a blog by a Republican who was disgusted by the e-mail. Hotze needs to stop worrying so much about sodomites and reconsider what it means to be live a life that is truly Christ-like.

Charley Prine Coasts to Victory

Charley Prine beat Angelina Gooden 78% to 22% in the race for the GOP nomination to replace Judge Jim York in the 246th District Court.

Peake Defeats Maldonado in Democratic Primary

In the Democratic race to see who gets to take on Judge Prine, Sandra Peake defeated Julia Maldonado 51.07% to 48.93%.

Jim Evans Beats Bruce Steffler for Chance to Take on Judge Lombardino

Democrats chose Jim Evans 67% to 33% over Bruce Steffler. Evans will now square off against Judge James Lombardino in November.

Stalder Defeats Pottinger in Democratic 280th Race

Barbara Stalder beat Allecia Pottinger 61% to 39% in the Democratic primary to run for the 280th District Court (the “Protective Order Factory”).

Unopposed Judges Win!

Judges Farr, Moore, Millard, and Warne won their primaries without opposition and we already know they will win in November because no Democrats filed against them. Judge Dean and Lombardino were not opposed in the GOP primary but face Democrats in November. These folks won the Democratic nominations for family district courts without opposition: Kathy Vossler for 309th, Sherri Cothrun for 311th, and Chip Wells for the 247th.

I do not expect to win every case. I just want an efficient system in which my client gets a fair hearing before a judge who works hard, knows the law, and does not play favorites. I also expect judges to appoint qualified amicus attorneys who zealously look after children (and actually visit the kids in their homes). Is that asking too much? Stay tuned.

Greg Enos

The Enos Law Firm

Estoppel Is No Longer A Defense For Child Support Enforcement Proceedings

Estoppel Is No Longer a Defense to a Child Support Enforcement Proceeding

Written by redheadedlaw on January 23, 2014. Posted in Child Support.

Texas Supreme Court ruling in 2013:

A father and mother agreed that the father’s child support obligation would cease if he voluntarily relinquished his parental rights. The father signed an affidavit of relinquishment, but the mother never filed the affidavit with the court. Nine years later, the OAG sought to modify the father’s child support and confirm arrearages. On appeal, the father argued the OAG was estopped from seeking child support because the mother led him to believe his parental rights were terminated. The Supreme Court held that although the father and mother had an agreement, the agreement did not override his duty to support the child.

What does this all this legalese mean to you if you are a father paying child support and you and the mom have agreed that you will relinquish your rights? It means that you should have a lawyer advising you, to insure that the right documents are being filed in the right place at the right time so that years later you don’t suddenly learn that you owe a large child support arrearage when you thought you were done. Sometimes people will be penny-wise and pound-foolish. It’s cheaper in the long run to hire a lawyer than try to it right the first time than to try to correct it later.

What Happens When I Die?

Written by redheadedlaw on January 10, 2014. Posted in Wills.

The beginning of the new year is a good time to review your Will and other end-of-life documents. Were you divorced during the past year? Did you lose a spouse to death? Or have you simply changed your mind about some provision in your previous Will? If any of these things, or other life changes, occurred it may be time for a new Will and related documents. In our Will packages, we include the documents which not only dispose of a person’s assets, but also provide for end-of-life decisions such as who makes medical and financial decisions if a person is unable to make them; whether the person consents to life support; and who controls the disposition of remains. There is a specific reason each of these documents are contained in our package and not all apply to every person. We discuss each document with clients so that they understand and can make a decision about which ones they want to include.

Recently, several clients have requested legal advice on how their remains would be handled at death and, as a result, we have added an “Agent to Control Disposition of Remains” document to our Will package. How do you know if you would need such a document? First, let’s clear up any confusion about a Will disposing of remains because many people believe that if they have a Will, that takes care of how their remains will be handled. From the time the Will is filed for probate until there is an actual hearing on the application to probate the Will is about two months. Total time to probate of a Will in Texas averages close to six months. Obviously, the remains will have been taken care of through burial or cremation long before these events occur. A Will, then, is not the most effective vehicle for settling the issue of disposition of remains. Do you know what happens to a person’s body when there is a dispute over how the remains will be handled? Here is the list, in order of superior right: a person which the decedent has appointed in writing; spouse; any adult child; a parent; any adult sibling; or certain persons related to the decedent as set out in Texas laws of descent.

Any person designated loses the right if that person does not make arrangements for the disposition within six days of being notified or ten days of learning of the death. Also, the person designated must be willing to take on the obligation, including the associated cost and obligation of interring the body. For persons who are married, these decisions may seem to be a given. For others, especially those with domestic partners, it can be quite important to put these wishes into writing if they want to insure that the partner has the right to make the decision. Also, note that in the list, “any” adult child or “any” adult sibling can make the decision. Making the designation in writing can help cut down on family costs and squabbles where family members may quarrel over the disposition of the remains. Lastly, burial plots are separate property. This means that in a divorce, a person owning a burial plot is entitled to keep it. A person may dispose of the plot in his or her Will, subject to the spouse’s vested right. The spouse must consent for the plot to be conveyed to anyone else. Death, like divorce, is an emotional topic. And death, like divorce, goes much better with everyone concerned if careful planning is done with a skilled, caring, thoughtful lawyer well in advance.