Author: redheadedlaw

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.

Divorce Lawyers in The Woodlands TX

Written by redheadedlaw on October 22, 2012. Posted in Attorney, Divorce, Lawyer.

There are many divorce lawyers in The Woodlands, TX, but how do you know which one to choose? Here are some things to consider:

Credentials

Don’t be afraid to ask the divorce lawyer about their credentials and background history. You want to make sure you are not trusting yourself and your family to someone who is inexperienced and naive about the way things work. Ask where they went to college, how long have they been in practice, and how long have they have been in practice in the state of Texas. Be sure to ask for a list of references, and they should be more than happy to provide it.

Stays Current With The Times

The laws in the state of Texas change constantly, and you need to know how and why they affect you. If you use someone who’s inexperienced, you may fall into a trap of not receiving the right benefits or you may be find yourself later in a place you regret. Having a family lawyer who knows the playing field, backwards and forwards, can really make a difference.

Makes No Frivolous Promises

No divorce lawyer should make you frivolous promises, but all should be candid with you, giving you a reasonable expectation of outcomes. If the divorce lawyer knows something is beyond reach or out of the question, then they should tell you that up front. You want your attorney to be truthful, reliable, and honest, even if that means telling you no.

Is A Redhead

Redheads are known for being stubborn and tenacious, so why not have one on your side?

Financial Help with Divorce

Written by redheadedlaw on September 29, 2012. Posted in Debt, Divorce, Finances. No Comments on Financial Help with Divorce

Original Article by Hadley Malcolm for USA Today

Amber Rodgers provides financial help with divorce, and can help people anticipate what their financial obligations might be after a divorce. For some, it can be a shock to transition from one lifestyle, to the next.

When she was married, Rodgers had never followed a budget or paid bills online or taken care of her taxes — her husband was in charge of the finances.

Once they were no longer together, Rodgers says she struggled to manage all of her expenses and blew a lot of money on feel-good spending.

“When you go from a dual income into a single income, it’s traumatizing,” the 35-year-old says. “I literally had my electricity turned off because I just couldn’t pay my bills. I had to borrow money from friends.”

Don’t wait until it’s too late to plan financially. If you think your marriage is headed towards a divorce, start getting prepared by reviewing bank accounts, credit cards, insurance, and other assets and liabilities.

“Look at the paperwork that’s probably in your house,” she says. “Look at your tax returns. Look at your monthly bills.” Understanding what you’re working with will better help you prepare for how life will change after the divorce, as well as what you need to do to put yourself in the best financial circumstances possible, she says.

Start setting aside emergency cash, too — Rodgers, who recommends having about $2,000 saved, says she stashed hers in a tampon box and used it to pay initial attorney fees.

And make it a priority to seek professional financial help. It’s most ideal to meet with a financial adviser before or at least during the divorce process rather than after the divorce is finalized, DeGroat says.

Marivonne Essex can refer you to some local, professional, financial advisors in Spring, The Woodlands, Conroe, and the greater Houston area. If you would like to make an appointment with Marivonne Essex to discuss you legal and financial options, please fill out our contact form, or call 281-350-4104 .

Read the Full Article

How to Tell Children about Divorce

Written by redheadedlaw on September 21, 2012. Posted in Divorce. No Comments on How to Tell Children about Divorce

Original Article by Dr. Joan B. Kelly for CBC Documentaries

Dr. Joan B. Kelly discusses how to tell children about divorce, and how to display the right attitude towards telling them. Children are very impressionable, and need to know that they are loved, and both parents will always be there for them.

“It is very important for parents to talk with their children about the separation, preferably before you physically separate or very soon thereafter. Surprisingly few parents provide an explanation of what is happening and give their children an opportunity to ask questions. Parents frequently dread this conversation because of worries about how the children will react and whether you and your partner can control your own emotions. Parents often feel guilty about hurting the children’s adjustment, and may have fears that an older child or adolescent may blame or reject them. But despite your anxiety, all children need to know what’s happening, and how the separation will affect their lives.”

Dr. Joan B. Kelly also gives some very important tips to help you plan for your discussion with your children.

“Think about the tone of your conversation. Despite how you each feel, can you both agree to contain your anger, accusations and harsh words in front of your children? Your sadness and tears are OK.

“Telling children about separation should NEVER be used as an opportunity to damage or destroy your children’s relationship with the other parent, no matter how angry you or your partner is. This can have tragic outcomes for children.

“Basic reassurance about continued love and caretaking after separation is important. Inappropriate details of why the divorce is happening are not.

“A great deal of divorce research tells us that the vast majority of children love each of their parents, want them involved in their lives after separation and divorce, and want opportunities to be with each of you after separation.”

Read the Full Article

Property Division in Texas Divorce

Written by redheadedlaw on September 14, 2012. Posted in Divorce, Property Division, Texas. No Comments on Property Division in Texas Divorce

by Marivonne Essex

If you’re contemplating a divorce in Texas, the fact that Texas is a community property state will be very important to you if either you or your husband has assets, such as real property, savings accounts, automobiles, pension plans, 401(k)’s, or anything else of value. The first misconception to clear up is the issue of title. The name on the title to the asset has no bearing on whether it is an asset which will be considered as community property. If the item of value was acquired during the marriage, regardless of the name on the title, it is presumed to be community property. This means that, regardless of the name on the title, if the parties cannot agree on how to divide it, the judge must presume that it is an asset belonging to both parties and the judge makes the decisions about who owns it after the divorce. The caveat is that the presumption can be rebutted and the judge can make a different decision under the right circumstances. How can the presumption be rebutted? If the property was acquired during the marriage but was a gift or was inherited, and the party claiming it as such can prove how it was acquired, the property gets the label “separate property.” A party cannot be deprived of assets considered “separate property” under the Texas Constitution, so a party who has “separate property” in a divorce gets to keep that property and the judge cannot divide it with the other spouse. The judge divides only community property (and debt, which is an entirely different issue for another date).

How does the judge in a divorce divide community property? The Texas Family Code, which is the primary set of laws which divorce courts follow, says that the property division must be “just and right,” an altogether subjective phrase if I have ever heard one. The fact is, the judge listens to all of the evidence and makes a decision on how to award the property. He or she can take into consideration many other factors, such as whether one spouse has more skills and/or earning capacity than the other; whether one spouse has been out of the job market for a significant amount of time; whether one spouse has a significant amount of separate property; whether one has committed an egregious act such as blatant adultery, etc. The judge has the right to award all the items of value to one spouse and not the other, and any kind of division in between. In most cases, however, the judges in Harris and Montgomery County, Texas, where I practice, tend to divide the community property 50-50. In cases of vast differences in earning abilities or egregious acts, one spouse may get 5% or so more than the other, but it doesn’t vary much. In too many cases, there is NO community property to award and one spouse may be left to fend for herself or himself. That seems to be the hardest concept for people to understand. It seems very unfair, but if there is nothing to divide and the breadwinner is a low or medium wage earner, one spouse may be left with nothing, dependent on relatives or welfare.

This is the day and age of internet divorces and, as a divorce lawyer for 27 years, the scariest thing about people doing their own divorces is that they don’t usually have the legal knowledge, or the information about what is valuable in the community, to make an informed decision. Once the divorce decree is signed by the judge, changing the division of property in Texas is almost impossible. There is a tendency for people doing their own divorces to say, “I don’t care about his pension or her 401(k). I just want to get a divorce.” But what if you knew that the 401k is worth $50,000 or that pension is worth a lump sum of $250,000? Would the decision be the same? A lawyer will discuss all this with you so that when you make a decision, it is an informed one, just as if you were making a significant medical decision. Don’t be penny wise and pound foolish. Sometimes it just pays to pay – for a good lawyer.

Best Divorce Lawyer in Houston

Written by redheadedlaw on September 7, 2012. Posted in Divorce, Houston, Lawyer.

When a marriage relationship becomes a constant battleground that can not be quelled, unfortunately, it may end in divorce. The issues that come into play with the dissolution of a marriage partnership are varied and numerous. Depending on the individual circumstances, both partners can find themselves facing decisions about real estate, children, finances and other assets. At the time these decisions need to be made, frequently the two parties find that their emotions are running high, and anger may be surfacing.

Individuals who are facing a divorce in the state of Texas will be dealing with a number of issues for which they may or may not be prepared. Even in the most basic divorce, if there is such a thing, numerous documents and deadlines come into play. Dockets must be set, hearings must be attended, and paperwork must be filed on time. Some people try to swim the stream of the court system without the aid and assistance of a knowledgeable attorney. Equipped with only a set of papers generated by a computer, these individuals may very well find themselves stranded in the system with no idea how to proceed.

Marivonne Essex has experience in the Texas legal system with almost every kind of divorce situation that can arise. As a licensed attorney since 1985, she has chosen to focus on family law. Known as “The Red Headed Lawyer,” she is considered by many to be the best divorce lawyer in Houston.

Because children are such an important part of the marriage relationship, their needs and care for the future should be paramount in divorce situations. Marivonne can help see that children receive proper provisions for the future so that they are able to carry on a productive and enjoyable childhood even though their parents are not together any longer. While the process of divorce can be one of the most emotionally turbulent experiences that a family can go through, with the help of experienced legal counsel like Marivonne’s, the impact can be lessened tremendously.