Author: redheadedlaw

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.

Houston Child Support Lawyer

Written by redheadedlaw on August 28, 2012. Posted in Child Custody, Child Support, Divorce, Houston. No Comments on Houston Child Support Lawyer

Divorce is not an easy experience, but many people find themselves walking through this situation, nonetheless. In most cases, when two individuals get married, they do so with the best intentions of staying together. Life does have uncertainties, though, and sometimes a marriage unfortunately ends in divorce. More complications are definitely brought into the mix when children have been born to the couple.

Custody issues come into play, as well as visitation and child support arrangements. One of the parents may be named as the custodial parent. In Texas, this scenario is also referred to as a conservatorship. There are occasions when the court may determine that both parents will share joint custody of the children.

The needs of the children are a critical issue in the eyes of the legal system. It is deemed to be highly important that children of divorced parents should not do without food, clothing, schooling needs and recreation. Child support payments are generally paid by the non-custodial parent to the parent who has been decreed as the custodial parent.

There are occasions when the amount that has been ordered by the court to be paid needs to be re-evaluated. For example, if a father has been paying a large amount of money each month to provide for his children’s needs, but now his pay rate or his work hours have been permanently cut, he will probably want to contact a qualified Houston child support lawyer to seek a modification of the monthly amount.

Additionally, there are situations where the parent who has been ordered by the court to pay child support simply chooses to ignore the order. In such cases, rather than allow the children to suffer the results of lack and neglect, it is sometimes necessary for the custodial parent to obtain the assistance of a skilled attorney to ensure that the proper payments are received at the proper time each month.

There are a number of factors that make up the formula for determining child support amounts. Items such as the number of children involved, the amount of income each parent makes, and how much time the children are spending with each of the parents are taken into consideration by the court. There is no hard and fast rule, though, so it is important to seek the advice of an experienced Houston child support lawyer when circumstances arise concerning support for children of divorced or divorcing parents.

Closure on Marriage, Foreclosure on House

Written by redheadedlaw on August 22, 2012. Posted in Attorney, Debt, Divorce, Real Estate. No Comments on Closure on Marriage, Foreclosure on House

Original Article by Ronald Lipman for Chron.com

Q: I agreed to let my ex-wife have our home when we divorced. However, she recently let it fall into foreclosure, and now my credit is ruined. I was going to buy a new home, but the lender has pulled my funding. Now I can’t find a company to finance the purchase. Plus, I can’t find relief with credit companies to clear my name.

A: It’s too late now, but there was a way for you to have avoided the foreclosure altogether. You could have required your ex-wife to sign a “Deed of Trust to Secure Assumption” when you got divorced. That way, you would have been able to make the payments when she defaulted, and the home then would have belonged to you.

Of course, you would have had to monitor her mortgage payments to make sure she was keeping current. Typically, notices of non-payment are sent to the home-owner’s address. As soon as you found out that she was behind, you could have stepped in, made the payments, and taken the home from her.

Note, though, that even when a Deed of Trust to Secure Assumption exists, the unpaid mortgage payments are sometimes so large that the home still gets lost to foreclosure. In addition to the cash needed to make the delinquent mortgage payments, you would need to make all future mortgage payments, and pay for the upkeep, utilities, property taxes and insurance on the home.

The bottom line is that when you and your ex-wife bought the home and agreed to make payments to the lender, you did so jointly. The lender doesn’t care that you two got divorced. Even though the home was awarded to her, the lender was still looking to both of you for payment. You were both still jointly liable for all the payments that needed to be made on the note even after you divorced.

Her default unfortunately has ruined your credit for years, but there is nothing you can do to change what has happened.

Q: My mother died in 2011. Her house makes up virtually all of her estate, the total value of which is less than $500,000. Are capital gains taxes due when we sell the house?

A: When your mother died, the cost basis of the home was changed to the home’s fair market value on her date of death.

If you sell the home for less than that new cost basis, you won’t owe any capital gains taxes. If you sell it for more than the cost basis, you’ll owe capital gains taxes, but only on the increase in value from your mother’s date of death until the date of sale.

Houston Female Divorce Attorney

Written by redheadedlaw on August 3, 2012. Posted in Attorney, Divorce, Lawyer. No Comments on Houston Female Divorce Attorney

Choosing a Divorce Lawyer – Should You Choose a Male or Female Lawyer?

by Marivonne Essex, The Red Headed Lawyer

In the 27-plus years I have been practicing family law, I have on many occasions had a potential client tell me, “I chose to come to you because you are a woman. I want a female lawyer.” Often it will be a male client making this statement. The perception seems to be that as a female lawyer, you will be able to make the soon-to-be ex-wife “come to her senses” about the divorce issues. Or, if the judge is a female, the judge will be more likely to respond and be favorable to a female lawyer. Women who choose a lawyer because she is female seem to do so because they feel that a woman will better understand their concerns. Are these perceptions valid and what should go into deciding which lawyer to hire for your divorce?

First, the perception that a female lawyer will be better able to convince the other spouse of anything because she is female, and the perception that a female judge will be more favorable to a female lawyer are both totally false. These simply do not happen in the real world. The perception that a female lawyer will better understand the concerns of a female client may or may not have a grain of truth to it. It is true that many people relate better to those people who they perceive to have more in common with them. But there are always exceptions to this. I once had a client who was female who needed to attend counseling. She could not afford to pay the normal fees for a professional counselor so she went to one of the United Way agencies. The only counselor available was a male of a different race from her. She was skeptical that the counselor could relate to her enough to help her. After months of counseling, she ended up believing that the man had helped her more than anyone else in her life had.

If gender is not the primary reason upon which to base your choice of a lawyer, what should you use? There are two very important considerations when choosing a lawyer, aside from fees, of course. First, do you feel comfortable with this person? Are you able to relate your concerns to the lawyer, tell him or her what it is most important to you in the divorce action, tell him or her in detail everything about your case, both the good and the bad? Do you feel that the lawyer is listening and understanding your concerns and positions? Second, would you walk through fire with the person? Do you trust the lawyer that much? Because going through a divorce is often a walk through fire and you better trust without question the person who is holding your hand and leading you through that fire.

Yes, gender can be part of your decision, IF you feel you can relate to the lawyer better because he or she is the same gender as you. It is by no means the only reason to choose a lawyer.