Author: redheadedlaw

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.

The Woodlands Divorce Attorney

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

The dissolution of a marriage is a difficult thing, not just emotionally, but also logistically and financially. There are many issues to sort through in the average divorce situation, such as child custody, co-parenting arrangements, child support agreements, debt and property divisions. Dealing with the house and residential changes can present logistical challenges. Retirement planning and health insurance may be impacted significantly. With the many complexities involved, using The Woodlands divorce attorney will result in the best outcome.

An Emotional Period

There’s no denying that divorce is emotionally trying, especially when there are children involved. However, there are decisions that must be made, decisions that can shape lives for decades to come. It is important to make choices that are clear-minded and logical, not influenced by emotion, because once divorce decisions are made, they can be very difficult to unmake. Some cannot be changed. Working with an experienced divorce lawyer is a smart move, helping to prevent potentially costly and emotionally driven errors during the divorce process.

Better Outcome

Working with a skilled attorney during the divorce process typically results in better outcomes. The equitable division of property and debts is important, impacting both short-term and long-term quality of life, with fair solutions varying among different divorcing couples. These are highly individualized matters, not able to be fairly resolved by purely formulaic means. An experienced attorney understands this and works hard to obtain the best divorce settlement possible. The best outcomes, however, are more than just financial.

A skilled divorce attorney also keeps the quality of the post-divorce relationship in mind, especially in situations where the children are young, requiring effective co-parenting for years to come. Sometimes an overly adversarial approach can do more harm than good over the long-term, especially when equitable concessions and compromises can be garnered through negotiations utilizing mediation techniques. A divorce attorney with this type of expertise can be essential to achieving a better outcome.

Don’t Go It Alone

There are certain situations in life that are best managed with expert, professional advice. Divorce, with its emotional and financial complexities, is one of those types of life situations. Decisions made today can have far reaching results, impacting the overall well-being of children and finances for decades to come. Protecting all parties involved against making expensive, lasting mistakes is important and having experienced legal assistance throughout the process is the best way to achieve that protection.

Divorce Attorney for Males

Written by redheadedlaw on October 31, 2013. Posted in Attorney, Divorce, Lawyer.

Contrary to popular belief, when men go through divorces, they experience many of the same devastating emotions that women do. Some of these emotions can include anger, contempt, sadness, shame, or frustration.

Aside from the emotional pain of a divorce, men often feel concerned about what will happen to their assets as a result of the impending divorce. Naturally, a man who has worked hard to carve out a comfortable life for the family will want to protect what he has earned.

While going through a divorce, many men believe that the best lawyer for their case is an aggressive lawyer who will handle the case with a ferocious approach. However, sometimes having an attorney who is subtle and comes off as compassionate can make all the difference in the outcome of a divorce case.

So is it better for a male attorney to be represented by a tenacious male attorney, or a stern but likable female attorney?

Truthfully speaking, the gender of your attorney doesn’t matter nearly as much as his or her ability to provide you with quality legal representation and his or her ability to gain your trust. No matter what your attorney’s gender is, if he or she is unable to adequately perform the job, or if you do not trust the attorney, you will more than likely find yourself unsatisfied with the outcome of your divorce.

Most importantly, individuals should understand there is no substitute for a qualified family law attorney, who will work tirelessly to ensure that your side of the story is presented in a way that will give you the best chance of getting your desired outcome.

Being Prepared for Divorce Court Proceedings

Written by redheadedlaw on September 11, 2013. Posted in Court, Divorce.

For many people, attending a divorce hearing will mark the first time they have been in front of a judge, and it can be a nerve-wracking and stressful experience. Not all divorces will involve significant time in court, but just in case yours does, you want to make sure that you are prepared for what court entails.

In the initial court hearing, the judge will usually make decisions and issue orders on things like child and spousal support. In some cases, these orders may be temporary, depending on the circumstances surrounding the divorce. The judge will also hear what issues the spouses were unable to agree upon, such as who should have custody of the children, how property should be divided, etc. If spouses are unable to come to an agreement, the judge will set dates for additional hearings to discuss these issues, review evidence from both sides, and come to a decision. In some cases, when both spouses have agreed to terms outside of the courtroom, additional hearings may not be necessary.

On the day of your scheduled hearings, it will be to your benefit to make it to the courtroom early. Being late to or missing your hearing could leave the judge with a negative impression of you, which could have a negative impact on the outcome of your divorce.

It is also important that you come prepared. Consult with your attorney before hand, and have exactly what you want to say/address in writing, act professionally and politely, and make note of any deadlines the judge gives you or your spouse. You want to make sure that the judge knows you are taking things seriously.

While awaiting for your next hearing, maintain a positive lifestyle and abide by any orders the judge sets forth in previous hearings. If you’re having a difficult time maintaining control over your emotions, counseling may be beneficial to you. You don’t want to do anything that may put you in a negative light, and cause the judge to side with your spouse.

For some, divorce can be a long and painful experience. However, with the help of an experienced divorce attorney, this process can go smoothly and will be over quickly.

What To Do After Receiving A Divorce Decree

What to Do After Receiving the Divorce Decree

Written by redheadedlaw on August 12, 2013. Posted in Divorce.

After the divorce process has been completed, many people often feel relieved. But there’s still work to be done. There are a few very important things you should do after you’ve received your divorce decree, in order to prevent any inconveniences in the future.

The first thing you should do is thoroughly read the divorce decree. Often times, people make the mistake of assuming they know what’s in the decree, so there’s no need to read it. You want to reread your copy of the divorce decree to ensure that it contains no mistakes. If, when reading the decree, you see any typos or other mistakes, immediately notify your divorce lawyer so that he or she can have them corrected.

The next thing you should do is to follow through on your obligations. After reading your divorce decree, you’ll have a list of tasks you need to complete. For example, the divorce decree may require you to remove your spouse’s name from your home loan by either selling your home or refinancing your mortgage. Making a list is a good idea because it will help you avoid being in violation of your divorce agreement simply because you forgot to do something.

Updating some important documents is also a must. After a divorce, your ex spouse’s name is probably still listed on many legal and financial documents, including some you may not see on a regular basis. Your legal name and address may have also changed. Therefore, you should update documents such as, your will, power of attorney, life insurance polices, emergency contact information that is on file with an employer, checking accounts, savings accounts, and credit card accounts.

Lastly, you should take some time to reconnect with family and friends. A divorce is a major life-changing event. It is stressful and disruptive to your regular routine. Take some time to yourself, meet new friends, join a gym, or even take a vacation. If you have children, remember that their lives have also been shaken up. Spend extra time with them to provide reassurance that everything is OK. Younger children in particular may have trouble coming to terms with the divorce, so pay attention to what they’re saying and what’s left unsaid. Consider talking to a family therapist if you think your children are having a difficult time adjusting.

Cons of a Do It Yourself Divorce

Written by redheadedlaw on July 31, 2013. Posted in Divorce.

The legal term that refers to self-representation in court is known as representing yourself pro-se. Many people who have taken part in a “do it yourself divorce” might find this term ironic because there are often times more cons than pros to it. Some divorces are too complex for anyone other than an experienced attorney to handle, which is evident by some of the following commonly made mistakes by individuals choosing to represent themselves during a divorce.

Many individuals who choose to represent themselves develop a false sense of security. They often believe that all financial and asset division issues are correctly resolved because the court accepted their forms and has issued the divorce decree. However, this may or may not be the case. Some problems can remain undiscovered for years until, for example, one spouse decides to purchase a home only to discover a mountain of jointly held debt that was never accounted for. Sorting these matters out can take a large amount of time, with both parties suffering from credit issues in the process.

Another mistake commonly made involves child provisions. Because there are so many options and choices when it comes to child custody arrangements, couples that make agreements without legal guidance frequently make mistakes. It is important to note that the Texas Family Code does not use the term “custody” in describing a parent’s legal relationship with a child, but instead uses the term “conservatorship.” Legally, there is no such thing as full, joint, sole, or primary custody under Texas law, and it is important for people representing themselves to fully understand child/parenting laws.

Mistakes are often made in property division. Often people do not understand Texas community property laws and in a pro se divorce may not be aware of rights to property which they have. Unlike children’s provisions, which can be changed (although it may be costly and time-consuming), property divisions are set in stone unless some kind of very obvious fraud was involved.

Individuals are encouraged to become knowledgeable in family law. However, representing oneself pro-se can result in frustration, wasted time, feeling overwhelmed, and it can increase the chances that you will end up with a settlement that is not best for you. It is not uncommon for a pro se litigant to appear before the judge more than once, be curtly told by the judge that the decree does not meet the requirements of the law, and have the judge send the person away to try to figure out what went wrong.

If there is no children or any property, a pro se divorce is perfectly feasible. If there is either of those, it may be pound-wise and penny-foolish not to hire a lawyer.

Difference Between A Divorce and An Anullment

Difference Between Divorce and Annulment

Written by redheadedlaw on July 16, 2013. Posted in Annulment.

Divorce and annulment are both designed to legally dissolve a marriage. A divorce ends a marriage while an annulment voids the original marriage contract, as if the marriage never occurred. If you are deciding between the two, it is important to fully understand their differences.

There are many reasons for getting an annulment, with the most common reason being for religious purposes. For many people, divorce is against their religion, making an annulment their only option. Along with religious reasons, some people get a marriage annulled because they simply don’t want to carry the perceived stigma of having been divorced. One of the differences between annulment and divorce is a matter of semantics. You are considered divorced if you have been divorced, but you are considered unmarried if you get an annulment.

To receive an annulment, you must be able to demonstrate that the marriage was invalid from the start and, therefore, should be voided. Valid reasons include: (1) Party is over age 16 but under 18; (2) impotency; (3) under influence of alcohol or narcotics; fraud, duress, or force was used to induce the person to enter into the marriage; (4) lack of mental capacity; (5) concealed divorce; or (6) marriage less than 72 hours after issuance of license.

The following marriages are void on their face (annulment does not apply): (1) one party to the marriage is related to the other (consanguinity); or (2) marriage occurred during the existence of a prior marriage (but may become valid if, after the date of the dissolution of the prior marriage, the parties have lived together as husband and wife and represented themselves to others as being married).

Many people will opt for a divorce because they believe divorce no longer carries the social stigma that it once did. An annulment can imply that one person did something wrong before the marriage, while many states allow no-fault divorces which do not require either party to prove wrongdoing.

The choice of whether to get an annulment or a divorce depends on your specific situation, and you and your spouse must agree on which one is best for you. Either a divorce or an annulment still requires you to address issues of child custody, spousal support, and property division.