Author: redheadedlaw

Credit Card Debt after Death

Written by redheadedlaw on September 9, 2019. Posted in Death, Debt.

‘Til death do us part?

Credit card debt can live on after a loved one’s passing – here’s what to do

We can all agree that families have plenty to deal with following the death of a member. There are funeral plans, mortgages, taxes and insurance issues, upkeep on properties, investment inventories, Social Security regulations, and this is all in addition to the emotional toll of the loss. Credit cards are probably at the bottom of the list of immediate concerns. But be careful – the road to managing and resolving the credit card debt of a deceased family member is full of potholes. Here are a few ideas on how to navigate this sensitive time while avoiding legal and moral risk.

#1 Define the scope

How many outstanding credit cards exist, and what are the current balances? If only a few hundred dollars are owed to one or more companies, then that is a far different situation compared to if someone was maxed out on several credit cards. One question to ask is this – will the estate be large enough to easily pay these balances out of current cash, or will asset sales be needed?

#2 Notify the credit card companies

Notifying the banks holding the debt will address several potential issues. First, the accounts will likely be frozen or closed, preventing any further use by other family members. Second, freezing the accounts will prevent the possibility of fraud (some shady folks use death notices for this purpose). To do this, you will need to obtain a dozen or so death certificates early in this process, as the companies will want these as proof after being notified. It is best to send these by certified mail so you can prove receipt.

#3 Notify the three credit bureaus

Once you have locked up existing accounts, you will need to prevent any new accounts from being opened in the name of the deceased. Call Equifax, Experian and TransUnion and request they flag the person as deceased, so no one will ever be able to open new credit in their name.

So what about those outstanding balances?

This is where it can get a little tricky. Many parents and spouses add others to their credit accounts as “authorized users.” Generally, authorized users are never liable for the balances owed on the card(s). However, sometimes those same individuals are added as joint accountholders – in this case, the debt is usually viewed as being owed by both accountholders. In this case, you could be on the hook for the whole balance even if none of the charges benefitted you in any way. It’s also possible you were never asked about being a joint owner on the account (yet another good reason to check your credit reports annually, as new accounts would be obvious).

It’s possible that you might get the estate to pay this debt for you (as a joint owner), but under the law, they have no obligation to do so.

A few other common traps to avoid

It may be tempting to use the card of your deceased relative for small purchases, even items related to the funeral, home repairs or expenses related to the deceased. Don’t do it. Even using the card as an authorized user can be construed as fraud. In the eyes of the credit card company, the rules changed with the death of the “primary” user. That person’s credit data was used to offer credit terms and continue the credit relationship – once that person is no longer part of the calculation the company would need to reevaluate the terms.

The flip side of the situation above is if you, as the authorized user, decided to pay the outstanding credit card balance with the expectation of being reimbursed by the estate. Again, don’t do it. Credit card debt is unsecured, and the card issuers are at the end of the line that forms to receive disbursements from the estate. If you pay off a credit card balance for someone else, then you become the new end of the line.

And keep an eye out for auto-payments. It’s very convenient to set up these payments to avoid credit card late fees, etc, but after the account owner passes these need to be stopped. Chances are, once you alert the company (see #2) they will stop these, but you should be sure.

Beneficiaries at risk

Keep in mind that with the passing of a family member, there may be the expectation among the related survivors that certain funds or assets will be distributed among them. Anyone that makes improper financial decisions pertaining to the estate is at moral and legal risk. These decisions could be viewed by others as morally wrong or self-serving, and cause a break in the family unit. Or even worse, these decisions could be viewed as fraud and grounds for a suit to recover the funds for the estate. Every dollar that is seen as misappropriated from the estate is one less dollar for beneficiaries and creditors, so you can see how emotions could take over in this situation.

If you have any questions about your legal obligations following the passing of a family member, please feel free to contact my office for an appointment.

Does A Family Have To Sell Their Home In A Divorce

Does the family home have to be sold during a divorce?

Written by redheadedlaw on April 17, 2019. Posted in Divorce, Property Division, Real Estate.

The short answer is, no it does not have to be sold and is usually not sold.

The discussion about the family home can be an emotional one for a divorcing couple. There are many considerations and arguments for and against selling, but what happens if the parties cannot reach an agreement? Generally speaking, in Texas, if the home was purchased during the marriage, it is community property (with a few exceptions), and the court divides the EQUITY (not the home itself). Each spouse may have a community property interest, but the question of whether the home must be sold is not cut and dry. Let’s go into some detail on how these situations often play out.

What is Community Property?

Texas is a community property state, so, with some exceptions, all property acquired by either spouse during the marriage is known as community property. It doesn’t matter who is on the title or deed. For example, a home (or truck, or boat, etc.) can be titled in the name of one spouse, but in the eyes of the court, if it was obtained during the marriage it is community property. Property obtained prior to the marriage, on the other hand, or property that was inherited or received as a gift, is separate property. Unlike community property, which the court has the right to divide “in a just and right manner,” separate property is protected constitutionally and the court cannot divide it. Note that all property in the community estate is presumed to be community, and the person claiming property that is separate has the burden of proof on that issue.

If the divorcing parties are unable to reach an agreement on the division of the family residence, the general rule is that the house goes with the kids. The person who is the primary parent of the children will generally end up with the right of possession of the house, barring some unusual circumstances such as the primary parent is not employed or obviously cannot afford it. That goes along with the general rule that judges like to give children stability. If the choice is between one parent with whom the children are living and the other parent, the kids win. That does not mean that the other parent loses his or her interest in the real property. For spouses without children, other issues may determine what the court does, including whether one of the parents has minor stepchildren living in the home.

That brings up the issue of how real property is actually divided. It is the equity, the fair market value less the amount owed, that the court divides. If there is equity, the court will generally award the real property to the one with whom the kids are living and order that parent to pay the other person, in some form or fashion, for his or her share of the equity. There are many variations on how this is done and here at Essex Law we work with our client to propose what is most equitable and efficient and our aim is to convince the judge of that if the parties cannot agree

Obviously, this is not the recommended way to settle a divorce, as arguing about everything increases the length of the proceedings, increases the cost and may also reduce the proceeds generated by the sale(s). So how does this relate to the sale of the family home?

To Sell or Not to Sell

The bottom line is this — the spouses can agree to almost any division of assets as long as it is moral and legal (for example, it can’t place children at risk). One spouse can easily relinquish ownership of his/her share in the home by executing the proper warranty deed. Where problems often arise is when the home is the only large marital asset. Let’s say that a couple’s home currently has $100,000 in equity. If there aren’t $100,000 in other marital assets available to balance against this home equity, the relinquishing party has to be financially able to refinance or borrow from family or find some other way to compensate the other party. However, if, for example, the couple has $200,000 (or more) in total marital assets, an agreement could be reached where one spouse stays in the home (with any children) and accepts the $100,000 in home equity in return for transferring the other $100,000 to the other spouse. If one spouse has considerably greater assets (for example, vested stock options or retirement assets) than the other, an agreement could be reached where the wealthier spouse transfers all home equity and a portion of his/her existing assets to the other. In this scenario, the marital property is split in a just and right manner and further arguing and expense is avoided.

It’s a Numbers Game

So as you can see, the question of whether the family home will have to be sold as the result of a divorce is a question of numbers. Other wrinkles can arise — for example, what if one spouse used inherited money for the down payment on the family home? Even if the couple can reach a deal to transfer the property, the person who is relinquishing has to realize that his or her name will remain on the mortgage note until the property is divided or sold. Period. The judge cannot change that. The lawyer cannot change that. An agreement between the parties cannot change that. The lender is the only entity through which it can be changed, and in over 31 years of practicing law, I have never seen a lender release a party from a mortgage. That leaves the relinquishing party at risk for late payments by the other party post-divorce affecting the credit of the relinquishing party for years down the road. At Essex Law, we work with a party who is not remaining in the home to insure that the divorce decree properly reflects any agreement for how he or she will receive the agreed-upon share of the equity, and also to protect the credit of that person. It takes creativity as well as knowledge, and the patience to educate the client, to be sure no nasty surprises await in the future.

Why Am I Paying Child Support With A Joint Custody Arrangement

Why am I Paying Child Support in a Joint Custody Arrangement?

Written by redheadedlaw on December 26, 2018. Posted in Child Custody, Divorce, Money.

Why am I paying child support in a joint custody arrangement? This question comes up frequently in divorce negotiations, and it’s a good one.

In Texas, the term “joint custody” is often misunderstood by non-lawyers. In a divorce, parentage, or other action regarding children, each parent is given the label “joint managing conservator” except in extreme instances such as child neglect or abuse. The rights and duties of a parent and the possession and access of each parent are what truly determines a “joint custody” arrangement.

In theory, if parents are sharing possession and access equally and are also sharing the rights and duties, shouldn’t all expenses incurred be handled equally as well?

First of all, be aware that in Texas, at least in Harris, Montgomery, and Ft. Bend counties, judges seldom order 50-50 possession. I have seen a judge do that only once in the 31 years I have been practicing law, and when I polled my fellow attorneys I got a similar response. Judges are of the opinion that it is extremely hard to maintain a 50-50 possession after a divorce or final court order. Parents move, remarry, good intentions evaporate, and most judges are of the opinion that if they order 50-50, a parent will be facing litigation again within a couple of years. Judges also are extremely reluctant to enter a “no child support” order. If parents enter into a mediated settlement agreement for 50-50 possession and/or no child support, however, a judge’s hands are tied as that agreement is binding on both the parents and the judge.

For those parents considering why they would agree to pay child support in a 50-50 arrangement or agree to accept a “no child support” order, the answer is, that in the real world, two divorcing parties are rarely equal. They have different jobs, different work hours, different work histories, education and skills. Also, one will often stay in the marital home, requiring the other to find new housing. And most importantly, one will likely earn more than the other (often considerably more) over the short and long term.

So the determination that child support is warranted should be based not only on possession and access, but on the resources and potential earning power of each party. And let’s face it, it is pretty unlikely that even in a 50/50 custody agreement, children will actually split their time equally between parents. It’s not possible, but more importantly, it’s not practical either. The majority of kids impacted by custody agreements are still in school, and school districts are not easily circumvented. So chances are, school-age children will need to live in the district they attend. This guarantees a certain amount of inequality in residence, and also in expenses. The parent handling the school issues will undoubtably pay numerous fees, buy supplies and subscriptions and be responsible for the day to day existence of the kids. So lunches, snacks, gas, etc. will usually wind up falling primarily on one parent.

Also, kids inevitably incur surprise expenses, some of them quite large. While a few of these (orthodontia, etc) are somewhat predictable and can be covered in the settlement agreement, others are surprises, or the amounts tend to vary widely. For the rare hypothetical couple with joint custody and no child support, they might agree to split those expenses down the middle. For the parent with part time job, splitting the $350 lab fee or $500 cost for a band trip might be a hardship. This is where child support comes in.

In divorce cases, courts are looking to guarantee (as much as possible) the “best interest” of the children. This is why the concept of “two halves make a whole” is so important. By assuring that the appropriate resources are available in the appropriate amounts, kids of divorced parents can grow up with many of the same experiences as their peers in intact family units. This is also why divorce judgments are not (except in egregious cases) punitive – it usually does not serve the long term interests of the child if one parent is bankrupted by a divorce judgment.

If you have any questions on child support or other family law matters, please contact the Essex Law Firm for an appointment.

When Your Ex Comes Back from the Dead

Written by redheadedlaw on October 29, 2018. Posted in Divorce, Finances, Privacy, Social Media.

Considering all the scary things that could happen during and after a divorce, most of us would be most happy if the ex simply went poof and disappeared. And why not? Aside from financial obligations and scheduling activities for the little goblins, you probably aren’t too interested in maintaining friendly relations at this point. To test your resolve, here is an easy quiz – please choose the correct answer.

Since the successful conclusion of your divorce, the punishment you would most likely seek for your ex would be:

Taking a bath in a bubbling vat of Sriracha sauce,
Performing 1,000 push-ups over a swarming nest of fire ants, or,
Hanging upside down in a dank, humid cave trying to learn the bat alphabet.

The correct answer is yes. In that order.

Since everyone aced the quiz, it’s safe to say that having as little unnecessary contact as possible with an ex-spouse is a highly desirable outcome. And let’s face it, most of the time the feelings are mutual. No one goes through the time, expense and anguish of a divorce looking for more quality time with the ex.

They’re baaaaaack

But what if the unexpected happens? Maybe you’re at a neighborhood Halloween party, rocking your latest Dracula costume, and out of the corner of your eye, you spot something. Familiar yet frightening, casual yet caddish, holding a beer at a ridiculously rakish angle – could it be? After a few minutes of scaracter observation, you know that sarcastic, smothering, sanctimonious succubus is your ex. But why show up here? Particularly when he/she is way behind on child support payments and has taken every opportunity to throw stones your way.

Idle ex-spouses = trouble

This is profound, so get ready – divorces create animosity. This shouldn’t be surprising, considering one spouse is suing the other. And you can usually see this problem escalating. Does your ex slip little insults into your phone calls or emails? Are plans changed at the last minute, always to your detriment? Is information you divulged as a courtesy later used against you? If this sounds familiar, you can be sure that some of your former friends are getting an earful of post-divorce propaganda – either in person, via social media, through third parties – by any means possible. There is an old saying that a bored dog is a bad dog. If your ex has time on his/her hands, scheming will likely result.

What can be done?

This kind of behavior (subtle harassment) usually isn’t specifically forbidden in a divorce settlement. Even if it is, these actions can be tough to prove. So start with your agreement – does it prohibit bad-mouthing you to your kids? To your employer? To your friends and other family. Even if it isn’t specific, it may be possible to initiate a modest action (like a letter) that will put your ex on notice. This will usually cure the late child support problem as well. Here’s another tip – nature abhors a vacuum. If you aren’t talking to your family and friends, you are providing your ex with a forum to make mischief. Your family might be wondering why you don’t call, and then bang – your ex fills in that thought with a spectacular fib that they might start believing over time. Be sure your friends and family hear your side of the story early and often.

Use the “hide and write” method

An effective strategy to counter an ex spouse, in case of future litigation, is to hide personal information, and to write (record in a journal) what snide actions they are performing. For example, block your ex on all social media, along with anyone else who might pass info behind enemy lines (hide), but do record what you know to be true, like your ex’s overseas trip with a “friend” (write). Do not reveal improvements made to your new home (hide), but feel free to record that new car your ex just acquired (write). Never discuss anything pertaining to your current relationship (hide), but recording the shortcomings of your ex’s dating life is fair game (write). A good rule of thumb is this – if you want to brag about something or are upset about something, it probably shouldn’t be divulged (hide), but anything your ex brags or frets over is fair game (write). When you are recording him or her, don’t let them know you are doing so, and don’t use any methods that violate privacy laws (which includes accessing email, social media, or bank accounts, even if you still know the passwords). Only record what is easily said or made available.

Emotions can certainly run hot during and after a divorce. Always consider your agreement before discussing any issues concerning your ex. You don’t want to do anything that makes you look petty, mean or (worst of all) unstable if the worst happens and you wind up before a judge again. If you have any questions on how to prevent such harassment before, during and after a divorce, please contact my office and set up a consultation.

Health Insurance and Divorce in Texas

Written by redheadedlaw on September 24, 2018. Posted in Divorce, Health Insurance.

Health insurance availability and premium costs have for the past few years been major topics in the U.S. news. Premiums have skyrocketed and discussions of “preexisting conditions” are common.

Health Insurance for Spouses

When parties are divorcing, health insurance costs often become a major concern, especially when older parties are divorcing. It is the norm for one person to carry health insurance for the family, usually through an employer. If one person is ill or has preexisting conditions, it becomes critical to determine what health care will be available both pre and post-divorce and at what cost.

Once a divorce is finalized, the person carrying the health insurance will no longer be able to carry a spouse on his or her employer’s health insurance. This sometimes results in a delay in finalizing the divorce because the party who is not covered will be trying to delay the divorce as long as possible to take care of as many medical procedures as possible.

What about while the divorce is pending? Some counties in Texas have standing orders, which automatically go into effect when a divorce is filed. A standing order, which is an order put into place by the local courts who handle divorce cases, goes into effect when a divorce is filed and the opposing party has been served. It is supposed to prevent divorcing spouses from altering health insurance benefits while the divorce is pending. I say “supposed” because although these standing orders are valid and binding, violations of them are not uncommon and enforcing them is expensive. Also, if one spouse removes the other spouse from the policy during a pending divorce, the insurer may not cooperate in restoring the coverage when the cancellation is discovered. On the bright side, many large employers will not remove a spouse from coverage without a certified divorce decree. For counties where there is no standing order, a person to whom the health insurance coverage is important MUST advise the attorney in the FIRST interview that health insurance is critical. The attorney will then file the necessary legal documents to prevent the spouse carrying the health insurance from canceling or removing the other person while the divorce is pending.

Even when the divorce is finalized, a spouse may still be able to maintain his or her coverage through a federal law called COBRA. COBRA allows a divorcing spouse to buy health insurance coverage through their ex-spouse’s employer for up to 36 months. The cost of COBRA coverage must be within 102% of the combined total of a similar employer’s and employee’s contribution to the plan. There may be less expensive options available for relatively healthy spouses, but COBRA can be a good option to maintain coverage. You must notify COBRA according to federal guidelines and provide a certified copy of your divorce decree according to COBRA deadlines to be eligible.

A person who is divorcing and to whom health insurance is critical will often tell me, “My spouse has agreed to keep me covered on his or her policy.” Unless the spouse is maintaining coverage through COBRA, this is simply not going to happen. The divorce court cannot order the insurer to carry health insurance on an ex-spouse, and insurers simply do not do it. One option, depending on the income and assets of the parties, is for the party who carries the health insurance to pay contractual alimony to the other party in the amount of the health insurance premium cost. Any such agreement would take into consideration the value of the assets of each, the total amount of such contractual alimony, and many other factors.

Health Insurance for Children

For counties in which there are standing orders, discussed above, parties are barred from canceling or altering health insurance coverage for children while a divorce is pending. (This does not specifically cover step-children, but divorce courts do not look kindly on any health insurance being altered while a case is pending, even if the children are step-children.) For counties without standing orders, it is again important to remember to discuss that with your lawyer in the first visit.

Some aspects of health insurance for children post-divorce are not as clear cut as health insurance for spouses. The non-custodial parent, or the parent with whom the children do not reside, is the party who is usually ordered to pay child support. That person is also required, under the Texas Family Code (the set of Texas laws that governs divorce) to provide health insurance for the children. The cost of that health insurance cannot, except by agreement, exceed 9% of that person’s gross income. Careful analysis has to be given to what coverage is in place when the divorce is filed and what will be required when the divorce is granted. If the non-custodial parent is required to maintain the health insurance and decides to get a high-deductible policy after the divorce, that can have the effect of no health insurance at all. Also, if the non-custodial parent cancels the policy without notice to the custodial parent, the custodial parent could be facing a situation where the children are not covered and have not been for some time. When I am representing the custodial parent, I advise, if at all possible, for that parent to provide the health insurance because it provides the kind of control that the parent with whom the children are living needs. If the custodial parent provides the policy, the court will require the non-custodial parent to reimburse the custodial parent the cost of the children’s health insurance, up to a maximum of 9% of the paying person’s gross income.

Parents who have children on government health insurance such as Medicaid or CHIPS have unique considerations also. Although the custodial parent may not realize it, if that parent receives State services such as food stamps or any government assistance, the State will be looking to the other parent to reimburse the State for at least some of that cost. If a child is covered by Medicaid at the time of the divorce, the non-custodial parent should be ordered to pay $50-$75/month, depending on the paying parent’s income, to cover that cost. The State will then, when that money is paid through the disbursement unit for child support, pay the State that money instead of the custodial parent. Non-custodial parents need to be especially careful not to make direct payment to the custodial parent because in doing so they could end up with a large debt owed to the State for the services it has provided. Paying through the disbursement unit insures that the non-custodial parent will not be hit with a large bill to the State later.

The importance of health insurance considerations is often over-looked by inexperienced or less careful lawyers. To avoid major problems later, it is important to hire a divorce lawyer who will discuss all this with you so that you can make the right decision for your family.

Don’t Pay Directly; Pay Through the System

Written by redheadedlaw on May 3, 2018. Posted in Child Support.

Are you a non-custodial parent who is ordered to pay child support in Texas? If so, listen up. This article may save you a ton of money.

First, a little background. Child support is ordered initially as part of a divorce, paternity case, child support review order (Attorney General action), or suit affecting the parent-child relationship. The judge or the Attorney General signs an Income Withholding for Support Order (IWO) along with the case order. The paying parent (or the attorney) pays a $15 fee and requests that the clerk issue notice to the employer of the IWO. The IWO is then sent to the paying parent’s employer. The employer has a duty to begin withholding from the paying person’s wages within 14 days after receipt. The employer is ordered to send the funds withheld to the Texas Child Support Disbursement Unit in San Antonio. The disbursement unit then disburses the funds to the receiving parent. (Note: if a paying parent changes jobs, he or she gets a simple form from the district clerk and pays the $15 fee and the district clerk then sends the IWO to the new employer.)

Wage withholding for child support is mandatory in Texas, and this is a seamless process which occurs thousands of times a year. It works best for those paying parents who have an employer and are not self-employed or unemployed.

Most orders also contain an order directing that all child support payments be made to the disbursement unit. Thus, self-employed or unemployed persons who are not subject to an IWO make their payments directly to the disbursement unit. This can be done by mailing the payment directly to the unit to the address in the order or by paying through an authorized facility such as a grocery store or other entity which accepts those payments.

Important: All payments made to and accepted by the unit are what in law is known as prima facie evidence of payment. What does this mean to the paying parent? It means that the person does not have to have a copy of paycheck stubs, money orders, or payment receipts of any kind if payment is ever disputed. A printout of the payment history from the unit proves without question that the payment was made. Getting a printout is as simple as going to the Attorney General’s website and printing out a payment history.

So if the process is so seamless, what can go wrong? Actually, a lot, but almost all of it arises by parents deciding to use their own methods of payment or with a few attorneys whose clients convince them to use methods to circumvent the system. In some cases, a receiving parent will convince the paying parent that it simply takes too long to get the money from the unit, that direct payments are much faster, and that a canceled check or money order receipt will be proof of payment. If an IWO has been issued and the clerk has sent a notice to the employer with the IWO, the employer is obligated to withhold, that won’t work. If, however, nobody pays the $15 administrative fee to have the IWO sent to the employer, the employer will not receive the IWO and will not withhold funds. Some paying parents will convince their attorney not to have the IWO sent, saying they prefer to pay directly to the receiving parent. In other cases, the paying parent prefers to pay directly to the receiving parent, believing that the employer will be angry at the extra work involved or it will somehow reveal details of their lives they prefer to keep private. The paying parent may request the attorney to include language suspending payment through a wage withholding order and requesting that an IWO be issued only if there is a delinquency.

Important: If a dispute over payment arises, a judge has the discretion not to count payments not made through the unit, even if they are such things as canceled checks. Many judges in fact WILL NOT accept proof of payment which has not been done through the unit.

Important: To recap, if you are a paying parent, you are AT RISK at having to pay again, even if you have already paid, if you pay directly to the receiving parent and do not pay through the disbursement unit or through an IWO. Fact: if you decide to do this, you have to keep proof of all the payments and HOPE the judge will accept your proof. Another fact: Most banks allow a customer access to canceled checks for a limited time, usually about three years. Do not think you can easily retrieve anything before that period, EVEN IF the judge would accept it.

Important: You can be AT RISK for having to reimburse the State if the receiving parent at any time uses State services for the children such as food stamps, Medicaid, or any such available services. The State charges a fee for those services, even though it is not usually apparent to either the paying or receiving parent. If you are making child support payments directly to the receiving parent, YOU will be obligated for reimbursing the State for those services. If you are paying through the unit or an IWO, the State will withhold those charges from the receiving parent’s child support.

Case in point: I recently had a case where a father made direct child support payments for about 8 years, all timely made. Suddenly, he received in the mail notice from the enforcement unit of the Attorney General’s office that he owed approximately $200,000 in past-due child support. Luckily for him, his current wife had kept a ledger with a record of each payment and had a canceled check for each payment. We were able to get him credit for the payments through an agreement, even though we were in a court which does not accept proof of direct payments. It turns out he owed the State almost $4,000 in reimbursement because the receiving parent used State services, and he was required to pay that to the State. Many hours in court and the cost of taking off work, many dollars in attorney’s fees, money for State reimbursement, which he would not have had to pay. You have to ask yourself, is it worth it? So simple just to pay through the unit or IWO. No excuses.

In summary, don’t pay directly for child support; pay through the system!

Happy New Year?

Written by redheadedlaw on January 16, 2018. Posted in Divorce, Marriage.

It may be time to face relationship reality.

For many of us, the holidays are a joyous and relaxing time filled with hours of celebrating and reminiscing.

(Unless you are hosting everyone, then there is absolutely no relaxing until January!)

Spending time with family and close friends should be relatively stress free, but this isn’t always the case. What if you and your spouse were hanging by a thread before the holidays? In such a situation, the expectations of your remaining family members (who probably aren’t aware of anything yet) will likely exacerbate the division, rather than make it better.

So let’s say you and your spouse were having serious problems in 2017. Maybe one or both of you were attending counseling. Maybe you’re still under the same roof but in different bedrooms. It’s now January and the holidays are history. What should you do?

It’s time to face relationship reality.

So things were terrible last year, but how do you feel today? Was the holiday stretch a prolonged ordeal or did it offer a glimmer of hope? Was the holiday decorating, shopping and cooking fun, or were those activities just another round of torture? Over the years I have worked with many couples. In my experience, the holidays often provide the answer to the question, “Is my relationship over?”

Think about what you just lived through — was it a good feeling sitting on the couch with everyone, serving food and drinks and swapping stories? Did you feel any warmth toward the occasion and (most importantly) toward your significant other? Will you miss those gatherings with the current cast of characters? If so, ask your partner if he/she felt it too. There is nothing like sharing a moment to get two people focused on what is possible.

However, there is also a chance that your feelings are not shared. There is no longer room in the other’s heart for reconciliation. If this is where you are, I can make two promises to you:

1. You are definitely not alone, and
2. You need to begin the new year with your head on straight and looking ahead.

Don’t beat yourself up

There’s no sense in beating yourself up at this point. If you know that it’s time to face reality and take the necessary steps to protect yourself, first, have the talk. Sit down with your partner when things are quiet, where there won’t be anything else competing for attention, and speak from the heart. If you are willing to find a way forward with your partner, say so in the strongest possible way. In my experience, this meeting of the hearts can culminate with a joint agreement to save the relationship. If you find that you cannot stay in the relationship, be honest and tell your partner that. Don’t, however, make this a confessional. While it might make you feel better to confess all, you may find that it doesn’t make your partner feel better to hear about your misdeeds. Worse, you may find your words repeated in a courtroom later.

Divorce is always gut-wrenching, but by working together you both can make it much easier, less contentious and expensive, and shorten the entire process. If any of this describes where you are today, please call my office. I have helped couples for many years in this capacity, and understand what both parties need to move on.

Don’t forget — you are not alone, and you can begin the New Year looking ahead.

Common Misconceptions about Homeownership and Divorce in Texas

Written by redheadedlaw on December 21, 2017. Posted in Uncategorized.

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Good morning, I’m Marivonne Essex, and I’d like to talk to you today about some common misconceptions that people have when they come in to talk to me about getting a divorce. One of the most common misconceptions is, what happens with real estate, with a note on it that people have when they get a divorce. What I help them to understand is that homeownership is in two parts. The first part is who owns the property. Who actually owns it. Who’s name is on the deed. That part is very easy to take care of in a divorce. If the people agree or if the judge decides that one person is awarded the property, it’s very easy to do a warranty deed that awards that property to them. But the second part of homeownership is, who owes for the property. If there is a mortgage or lean on the property, then the judge unfortunately does not have the discretion to tell that lender, “Okay, this person will pay or this person will not pay.” The person or persons who’s names are on the lean are going to continue to be responsible for that note no matter who’s name is on the deed later, so it’s very important to understand that, for example, if you say to me, “Well, my husband can have the house, I don’t want the house, he can have the house, just let him have the house. Get me off the note.” It’s important to understand that that is not going to happen. It can only happen in one of two ways. One of those ways is if the house is refinanced, and the other way is if the house is sold. If those two things, if one of those two things does not happen, and your spouse is awarded the real estate, then you’re going to lose control over that aspect of your credit report, and if that person does not pay the note, then it’s going to show up on your credit report, as well as your spouse’s credit report. This will be true, even though that you no longer own the property. So these are decisions that have to be made very carefully in a divorce and these are things that I explain and talk to my clients about and be sure they have a thorough understanding of it before they make any decisions about who will be awarded the community real property. I’d love to talk to you about it. We’re always available in my office and we spend whatever time we need to make sure you understand these complicated issues.

Common Misconceptions about Property Division in Texas

Written by redheadedlaw on November 27, 2017. Posted in Property Division.

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Good morning, I’m Marivonne Essex, and I am the Red Headed Lawyer. I want to talk to you today about some common misconceptions that people have about property division in Texas. These are the things I see when people come in to talk to me about getting a divorce. Property division in Texas is very misunderstood. The first thing to understand is that Texas is a community property state. What that means is that anything accumulated during the marriage, as long as it was not given to a person, or they did not inherit it, is community property. Anything that was accumulated prior to the marriage, or was given to a person, or was inherited, the judge doesn’t get to divide. He or she divides what was accumulated during the marriage under these circumstances. What I hear from people is, “Well, I know the judge will make the division and he’ll make it 50-50” or “I’m really sure that the judge will just make a decision in my favor because that’s what’s fair.” Neither one of those is true unfortunely. The standard in Texas is a just and right division, not a 50-50 division. The judge may consider a 50-50 division unfair, although it is common to see a 50-50 division. So the most important thing about property division is to understand that we are a community property state, that a 50-50 division is not necessarily the division that will take place. Then the next important thing to do, in which we do very carefully in my office is, document the community property that was accumulated, and we do that in a spreadsheet form so you see exactly, in dollars and cents, what you have and what that’s worth, and what we think, and we believe, based on our 32 years of experience, a judge will decide as to your community property. I would really love to talk to you about this in person. It’s much more complicated than it appears, and it is important and can affect you for the rest of your life, so please give us a call.

Common Misconceptions about Child Support in Texas

Written by redheadedlaw on October 27, 2017. Posted in Child Support.

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Good morning, I’m Marivonne Essex and I’m the Red Headed Lawyer, and I’d like to talk to you today about some common misconceptions that people have about divorce, and children in Texas. One of the most common misconceptions is how child support is calculated in Texas. People frequently come in to me and say, “Oh we’ve already agreed on the child support. We calculated it. We know what it is” and it is my job to make sure they understand what the process is and to determine if the amount that they came up with is really the amount that would be calculated according to Texas law. People use the internet, they will go on the internet and they’ll say, “We’ll I looked and it’s 20% if you have one child, and I’ve already figured that out”. So today what I would like to tell you is how that process works so you will not get misled by what you see on the internet, or when you try to calculate it on your own. Child support in Texas is according to a formula. Except in very, very unusual circumstances, no matter what judge you are standing in front of in Texas, or any other person making a legal determination in Texas, the calculation is going to be done the same way. What you have to start with is, you have to start with the chart that the attorney general of Texas puts out each year. There’s a chart that they put out, and that’s easily accessible on the internet. To find the chart is not the problem. It’s easy to find the chart. But you start with the chart. So you’ve got the chart in front of you, and it tells you what a person, if a person’s gross income is this amount of money, what will be deducted, and then what will the net amount be for child support purposes. So you have the chart in front of you. The next thing that you do is you calculate the average monthly earnings before anything is taken out of the person who will be paying child support. For example, let’s say the person makes $2,000 a month before anything is taken out, no taxes, no amount for retirement, nothing. You start with $2,000. So you have the chart in front of you, and on the left you will see, you will find the figure gross income $2,000, then you will see the other amounts as you follow along to the right of the chart an amount is deducted for Medicare, an amount is deducted for withholding, an amount is deducted for social security taxes. It doesn’t matter what is actually taken out of the paycheck. Those are the amounts that the state of Texas allows a person to deduct who is paying child support. Then you come up with a net income for child support purposes. The net income then … the next thing that is deducted is, if a person is providing health insurance for children, you then deduct that amount from the net income. Then what you have is a net income for child support purposes, and then that is when you apply the percentage. If the person is paying for one child, it’s 20%, if they are paying for two children, it’s 25%, and it goes up from there. Also, calculations must include if a person is court obligated to pay child support for any children of any other relationship. So as you can see, the formula can be more complicated than it seems, and it is very important to have a knowledgeable person, a lawyer to guide you through this process so that whether you are paying or receiving, you are sure you are using the calculations correctly to come up with the right amount. In my law office we go over that with you. We are happy to discuss that with you. We want to be sure that any decision you’re making is made using the right information.