Author: redheadedlaw

Houston Divorce Attorney Reviews

Written by redheadedlaw on March 5, 2013. Posted in Attorney, Houston, Lawyer, Texas.

When searching for a lawyer and looking online at Houston divorce attorney reviews, keep important criteria in mind. These may include:

Experience

When hiring a family law attorney, see how many years of experience they have in family law. If they only have a few, then they may not have all the right knowledge to make proper decisions concerning your divorce. You want to feel comfortable with your Houston divorce attorney, and you want to make sure nothing negative will come back later on down the road.

Education

Make sure the divorce attorney you review has a thorough education from a reputable college and/or higher learning institution. You can review every attorney in the state of Texas at www.texasbar.com and see their bar card number, Texas license date, law school education, and public disciplinary history. Review Marivonne Essex at the State Bar of Texas

Honesty

Not every attorney can win every case, and not every case can be won, but you want to make sure your attorney is going to do what is best for you and your family, despite all odds. If you are reviewing an attorney and they say yes to everything, promising you the sun and the moon, you should walk away. If an attorney is straight forward with you on every detail, and even may say “your case has a slim chance”, then you know they are being honest with you and are not steering you in the wrong direction. Honest feedback can save you a lot of headache (and money) later on down the road.

Do It Yourself Forms Burden Lower Courts

Do-It-Yourself Divorce Forms Will Burden Lower Courts

Written by redheadedlaw on February 11, 2013. Posted in Attorney, Divorce, Texas. No Comments on Do-It-Yourself Divorce Forms Will Burden Lower Courts

Original Article by Diana Friedman for Chron.com

The Texas Supreme Court last year approved do-it-yourself divorce forms, and now they are discovering they have to teach people the legal system. This is causing a greater burden on lower courts, slowing down the system.

A recent incident in a Houston civil court serves as a glaring example of the danger faced by indigent Texans when they attempt a DIY divorce.

The judge thought there was something familiar about the woman representing herself to prove up her divorce. The judge remembered her from a Child Protective Services case, and that she had children, but the woman checked a box on the form indicating no kids.

“Yes, I have three children,” responded the woman. “But the form says how many children are involved, and I’ve been careful not to involve any of them in this divorce.”

Only the judge’s good memory kept the woman from a mistake that might have required her to come back to court to assure her child-custody rights. The judge in this case had to stop proceedings to explain the problem and set the record straight. In many urban areas, the courts have nearly ground to a halt under the pressure of nonlawyers trying to handle their own cases. Explaining the legal system to pro se litigants inevitably falls on judges and their clerks. And it slows the civil system down for everyone.

Advocates of forms say divorce lawyers are proposed simply because they don’t want to cut off a potential business source, but family lawyers know that Texans need lawyers, and not just forms. There is too much information and fine print that can cause a tremendous amount of problems, if simply overlooked or not considered, when filling out a form. Divorce is a difficult time for any person involved, and trying to have everyone just fill out a form and call it done, can be dangerous.

Diana Friedman, a Dallas divorce attorney and chair of the Family Law Section of the State Bar of Texas, has an alternative solution:

Our solution is a project called Family Law Cares, which is working to provide pro bono legal services to that indigent population.

We are working to organize Texas attorneys in a systematic fashion, using effective communication techniques and technology, to enhance our pro bono initiatives. Most family lawyers handle some divorce cases pro bono. Our goal is to have the family lawyers train as many attorneys as possible from other practice areas to handle rudimentary family cases. We will also include the thousands of law school graduates who need courtroom experience to help them get a job, as well as family law clinics in most of the state’s law schools.

Who Gets the Dependency Exemption for Divorced Parents?

Written by redheadedlaw on February 8, 2013. Posted in Child Custody, Divorce, Taxes. No Comments on Who Gets the Dependency Exemption for Divorced Parents?

First, it is important to understand that a judge in Texas deciding divorce issues is a state court judge. A claim for the dependency exemption for a child for federal income tax purposes is a federal issue. Federal trumps state, so the divorce judge cannot decide who gets the dependency exemption. The parents, however, can reach an agreement which is incorporated into the final decree of divorce or post-divorce. In certain circumstances, this can be binding on the parents. It is important, then, to be aware of IRS rules regarding dependency exemptions during and after a divorce.

The general IRS rule for deciding which parent is entitled to the exemption of a child of divorced parents is that the parent having custody for the greater part of the year (“custodial” parent) is the one entitled to the exemption. If the child resides with both parents an equal number of nights, the rule then becomes the parent with the highest adjusted gross income is treated as the custodial parent. The parent entitled to the dependency exemption under these rules can release the claim for the exemption to the noncustodial parent by signing an unconditional written declaration releasing the exemption to the noncustodial parent. IRS Form 8332 is the form used for this purpose. Other “written declarations” could conceivably meet the statutory requirements, but the safest way to insure that the exemption is released to the noncustodial parent is to use this form. It has been specifically held that divorce decrees and separation agreements do not meet the requirements. For pending divorces, IRS Form 8332 should be attached as an exhibit to the divorce decree as an example of the written declaration, and the custodial parent should sign an original of the form at the same time he or she signs the divorce decree.

Can the release be revoked? The answer is yes, but written notice must first be provided to the parent currently holding the release. The revocation of the release does not become effective until the year after attempts are made to provide it to the noncustodial parent.

For more information or questions, a tax professional should be contacted.

Remove Name from Mortgage after Divorce

Written by redheadedlaw on January 29, 2013. Posted in Debt, Divorce, Mortgage, Property Division, Real Estate. No Comments on Remove Name from Mortgage after Divorce

Q: During a divorce, do you know how to get your name off the mortgage, if you’re not the one staying in the house?

A: It is a common scenario when a divorce is pending. One spouse wants to stay in the family residence, the other agrees (usually cannot afford the mortgage on one income), and the two assume that the one who moves out of the home will no longer appear on the mortgage (which carries both spouses’ names). The fact is, ownership of real estate in Texas is, at least for family law purposes, in two parts. First, who owns the property. It is a simple matter to prepare a deed which conveys ownership from one spouse to another during divorce proceedings. Bam, ownership changed. The second part is, who owes for the property. Not so easy. If the mortgage is in the name of the party who is planning to stay in the house, no problem. If that person, after the divorce, pays the mortgage late or defaults, it will not affect the credit of the person who left the home. The lender can only look to the person whose name is on the mortgage for repayment. However, if, as is usually the case, the mortgage is in both names, then the person leaving the home has fewer options. Unless and until the home is sold or a re-fi is done (can and should be done during the pendency of the divorce), the person who leaves the home may be in the position of no longer living in the home, not having access to information about any default, not having a say-so about whether the home should be sold or not, and having his or her credit affected by late payments or default. The family court judge who grants the divorce does not have the authority to change this. The only entity with the authority to change it is the lender. In almost 28 years of practicing family law, I have never seen a lender (without re-fi or sale of the home) agree to remove anyone from a mortgage. Bottom line is, if you are the person leaving the home, there must be a re-fi or sale to insure that you will not later be liable on the mortgage. And, if the divorce decree states that the re-fi will take place after the divorce, it is costly and mostly ineffective to try to enforce that provision.

Who gets custody of the Facebook profile?

Written by redheadedlaw on January 21, 2013. Posted in Child Custody, Divorce, Social Media. No Comments on Who gets custody of the Facebook profile?

Original Article by Aisha Sultan for St. Louis Post-Dispatch

When two parents get divorced, it becomes difficult for one parent to try and control what information the other parent can post online about their children. For example, Stacy Thibodeaux found pictures of her children on her ex-husbands Match.com profile, and was furious. She says he simply blocked her from viewing his profile.

Thibodeaux, who has now been divorced for nearly five years and has recently remarried, said she realized she could not control what her ex-husband did with their children’s pictures. But, had it occurred to her during the divorce, it may have been helpful to have established some ground rules about their children’s digital exposure as part of the custody agreement, she said.

The best thing to do is sit down and talk it over with your former spouse, and come to some sort of agreement. That is exactly what Meredith Friedman and her ex-husband did.

“We decided together not to put our kids on Facebook,” she said. He convinced her that it was more of a security issue. Now that their children are older, they do include some family pictures on their pages.

Probably the best advice is to shut down your social media profiles as soon as you begin considering a divorce. That is what Alton Abramowitz, president of the American Academy of Matrimonial Lawyers, recommends.

Parents who post questionable pictures that may potentially embarrass a child later might find those same pictures and status updates used against them in court. It speaks to poor parental judgment, he said.

IRS Expands Availability of Innocent Spouse Relief

Written by redheadedlaw on December 18, 2012. Posted in Divorce, IRS, Taxes.

Original Article by Stephen J. Dunne for Forbes

Many couples going through a divorce find themselves in trouble when filing taxes jointly. When one spouse makes enough money to cover their own taxes, but the other doesn’t, then a problem could arise. Because of the prevalence of this issue, the IRS is now making innocent spouse relief more broadly available.

Internal Revenue Code § 6015 empowers the Commissioner of Internal Revenue to relieve a spouse from liability for a joint income tax return. The IRS issued Revenue Procedure 2003-61 to interpret IRC § 6015, and provide procedure for seeking relief under it. But the IRS and the U.S. Tax Court applied Rev. Proc. 2003-61 strictly, narrowly, denying relief to deserving spouses.

In January, 2012, the IRS issued Notice 2012-8, immediately effective, making innocent spouse relief more broadly available. Indeed the IRS is applying Notice 2012-8 in spirit, as we are seeing a marked increase in applicants granted innocent spouse relief. In one recent case, the applicant was denied relief by the IRS Innocent Spouse Office, but later granted innocent spouse relief by the IRS Appeals Office.

If you are filing jointly with your spouse and are seeking a divorce, then please contact the Essex Law Firm to make sure you are receiving the full benefit of innocent spouse relief.

Exploring the Connection Between Abuse and Divorce

Written by redheadedlaw on December 7, 2012. Posted in Divorce. No Comments on Exploring the Connection Between Abuse and Divorce

I don’t often write personal accounts about my clients, for many reasons, not the least of which is confidentiality. But today I have an up-lifting story to tell you which is all about rising from the ruins of a shattered marriage, putting on your boots on a daily basis and doing what you need to do to rebuild not only yourself but the lives of your children. More than 25 years ago, I represented a woman I’ll call Luisa. She was trapped in an extremely abusive marriage, she was a low wage-earner and she had three children. Over a period of several years, she would make an appointment, come in for a divorce, then as soon as the case was filed, promptly call to cancel the case. Her husband was going to change, she said. He was sorry he beat her and would never do it again. This happened at least three times. This is so typical of an abusive relationship, as I learned from her case. The abused spouse goes back an average of 17 times. I was sure I would see her on the pages of the newspaper as a homicide victim at some point.

Finally, one day she called and told me she needed an appointment for a divorce. “Luisa,” I said, “we’ve been through this before. Are you sure you want to do this? I know you don’t have the money to file for divorce again.” “No,” she said, “I got counseling. I now know that it wasn’t my fault. Before, he would convince me that if I just didn’t do this or did do that, he wouldn’t have to beat me. Now I know it is not my fault.”

We filed the divorce, and her husband did everything possible to try to get her back. He cajoled her. He threatened her. She told him with great courage and conviction, “Do what you need to do, but never, never, never, no matter what happens, will I stay married to you. I am done with you.” He responded by trying to kill her and the 3 children, but through a fortunate set of circumstances he was not able to harm them. He was tried and convicted of attempted murder and served many years in prison.

A few days ago she called and brought me up to date on her family. Her oldest son, who is 26, has a good paying job and has already purchased his own home. One daughter is almost finished with a master’s degree in education, and the other daughter is just finishing her first year of college. And, Luisa, with her wonderful heart and great courage, is adopting a tiny CPS baby.

She made me feel like a part of her story, because she said, if I hadn’t worked with her on the divorce, neither she nor her kids would be in the good place they are in today. I thanked her for that, but I will take one bit from her story of courage and strength. That all goes to her.

I’m sure I don’t have to tell you the “moral” of this story, which is true, except for Luisa’s name, but I will ask you to remember this as you go about your life. If you are an abused woman, there is hope and there is a light at the end of that tunnel. If you know of an abused woman, share this with her.

Common Law Divorce Texas

Written by redheadedlaw on November 9, 2012. Posted in Child Custody, Child Support, Common Law, Divorce, Marriage, Real Estate, Texas. No Comments on Common Law Divorce Texas

Last week we discussed about the parameters of being in a common law marriage in Texas (or informal marriage). According to the Texas Family Code, there are four main points to consider, to see if you’re in a common law marriage. In summary, they are:

You have agreed to be married.
You have lived together for any length of time. (The length of time being inconsequential.)
You have represented to others, through formal and informal means, especially through writing, that you are married.
The relationship has not ended or ended less than two years ago.

(see our detailed post on common law marriage in Texas for more details)

The second part to this is, what happens if you’re found to be in a common law marriage, and want to end the relationship? Do you now need a common law divorce? In the state of Texas, there is no such thing. If you and your partner decide to end the relationship, then you and your partner could simply go your separate ways, and leave it at that. This is in fact what most people do. Two years after the relationship ends, then both of you are, for the most part, not at risk for any claim related to marriage.

If you and your partner have had children together, purchased real estate together, or if sums in pensions or 401ks have accumulated, then you may need to get these matters sorted out legally. Either of you could file for divorce to do this. By filing for a divorce, you can make sure your children have correct legal protection, as well as proper child support and visitation rights. By filing for a divorce in a common law marriage, you also make sure the real estate is divided properly and dealt with in a legally binding manner. It is not absolutely necessary, however, to get a divorce to take care of most of these things. Children’s issues can be handled legally through a Suit Affecting Parent-Child Relationship. Real estate can be handled either by agreement and having the proper documents drafted or if no agreement, then through a civil suit.

In summary, if you’ve lived together with someone for any length of time, have had children together, have purchased real estate property together, and/or have accumulated funds in 401ks or a pension, and you and your partner have decided to end the relationship, then it would be best to seek the advice of a professional divorce attorney. A reputable family law attorney will advise you on the best legal action to take, whether it is divorce, some other action, or occasionally, simply walking away.

Common Law Marriage Texas

Written by redheadedlaw on November 2, 2012. Posted in Common Law, Marriage, Texas. No Comments on Common Law Marriage Texas

Are you in a common law marriage (Texas law calls it an “informal marriage”)? This is one of the most misunderstood aspects of Texas law and can be one of the most important. Here are some answers and some examples.

A common law marriage can be declared by going to your local county clerk’s office and completing and filing a Declaration of Informal Marriage. This is the easiest and most straightforward way IF it is your desire to be married without a formal marriage (marriage license, ceremony, etc).

Far more dangerous, in my opinion, is ending up married when you did not intend to do so. How does this occur in Texas?

Texas Law

Lets look at what Texas law says and then look at some ways that a marriage might occur without one of the parties intending to be married.

Here is a quote from the Texas law.

(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married…

—Texas Family Code Sec. 2.401(2)

Let’s analyze that, because MUCH confusion arises over these seemingly simple sentences.

“the man and woman agreed to be married…”
Does this mean the agreement has to be in writing? No, although it might be easier to prove if the agreement were in writing. Also, stay with me here. The case law that further defines this phrase states that an agreement will be presumed if the other elements (see below) are met. This means if you do the other things in #2 and #3 below, you agreed, whether you knew it or not!
“…after the agreement they lived together in this state as husband and wife…”
Even more confusing. Lived together for how long? Ten minutes, ten years? The statute does not define how long you have to live together. Presumably, any period of time can count depending on the circumstances.
Lived together as husband and wife?
How do you live together as husband and wife if you are not married? The gist of this is that if you let other people think that you are husband and wife and all the other elements of the statute are met, you could indeed be husband and wife. How do you “represent” that you are husband and wife to other people? The most obvious is telling other people, “This is my husband, ____” or “This is my wife, ____.” This is difficult to prove, however, and is the least used way to prove a common law marriage. The most common examples are those which are in writing. For example, filing an income tax return together where the parties file as husband and wife. Another is adding your partner to your health insurance policy through your employer as your spouse. Note, some larger companies allow unmarried partners to add each other to health insurance policies while declaring a relationship but not a marriage. This is not the same as declaring on the health insurance application that you are adding your “spouse.”

So let’s recap. If you agree to be married (in writing or not) and after the agreement (which can be presumed) live together (for some unspecified period of time) in Texas and in Texas represent to others that you are married (by telling other people, filing income tax returns together, adding your partner to your health insurance policy as your spouse, or in any other way making people think you are married), you will be married, whether or not you intended to be married. The caveats: You must be 18 for these provisions to apply to you or your partner; cannot already be married to someone else; and if you separate and cease living together any proceeding declaring there was a marriage must be made within two years of the date of separation. Common examples of declaring there was a marriage are filing for divorce during the two year period or, if the partner is deceased, filing some probate action claiming a marriage existed before the partner died. Note that it is what the law calls a “rebuttable presumption” that there was no agreement to be married if any such declaration is not made without two years of separation. Meaning that a claim could still be made after two years, but it will be much harder to prove.

What else do I need to tell you? Be VERY careful about living with someone when there is no formal marriage and no marriage is intended. If you do that, do not under any circumstances tell other people, or allow your partner to tell other people, that you are husband and wife. Do not file income tax returns together, sign a lease together, put your partner on your health insurance or allow him or her to put you on his or her policy. The implications go way beyond simply disagreeing and splitting up. It can affect such things as real property ownership, federal income tax liability, ownership of 401(k) or pensions plans, and too many other things to list here.

Other notes/common questions:

Does having a baby together make a couple married?
No. See above. A different legal procedure, known as a paternity adjudication, is required to establish the terms of access and possession, child support, etc.
Does buying real property together make a couple married?
No, as long as they do not buy it as husband and wife. And be very careful here. Often, lenders and title companies, if you are living together, will tell you that you are already married and want you to sign papers as married. Absolutely refuse to do so if the intent is to buy the real property as real estate partners but not as a married couple.

Last but not least, if you have read the above and believe that you are unintentionally in a common law marriage and want out of it, the only way to get out (if the relationship is less than two years old) is to file for divorce. There is no “common law” divorce. Divorce proceedings for common law marriages are the same as for formal marriages.

16 Ways To Keep Your Marriage

Written by redheadedlaw on October 29, 2012. Posted in Marriage. No Comments on 16 Ways To Keep Your Marriage

Dan Pearce, of the blog Single Dad Laughing, describes in detail 16 different ways he blew his marriage. These are 16 ways that may help keep your marriage, and help you avoid having to see a divorce lawyer in the first place. After all, a dentist will gladly fix your cavity, but would much prefer to see your teeth stay healthy.

http://www.danoah.com/2012/10/16-ways-i-blew-my-marriage.html

1. Don’t Stop Holding Her Hand

When I first dated the woman I ended up marrying, I always held her hand. In the car. While walking. At meals. At movies. It didn’t matter where. Over time, I stopped. I made up excuses like my hand was too hot or it made me sweat or I wasn’t comfortable with it in public. Truth was, I stopped holding hands because I stopped wanting to put in the effort to be close to my wife. No other reason.

If I Could Have A Do-Over: I’d hold her hand in the car. I’d hold her hand on a star. I’d hold her hand in a box. I’d hold her hand with a fox. And I’d hold her hand everywhere else, too, even when we didn’t particularly like each other for the moment.

4. Don’t stop cooking for her.

I knew how to woo a girl, for sure. And the ticket was usually a night in, cooking a nice meal and having a romantic evening. So why is it then, that I didn’t do that for her after we got married? Sure, I’d throw some canned soup in the microwave or fry up some chimichangas once in a while, but I rarely if ever went out of my way to sweep her off her feet after we were married by steaming crab legs, or making fancy pasta, or setting up a candlelit table.

If I Could Have A Do-Over: I’d make it a priority to cook for her, and only her, something awesome at least every month. And I’d remember that meat in a can is never awesome.