Protecting Your Family's Future
 

Fathers’ Rights: Increasing Your Chances of Getting Physical Custody of Minor Children

Custody of Minor Children

For most of the history of divorce, mothers have been favored by courts for physical custody, often under what was known as the “tender years” doctrine, a theory that mothers were biologically better equipped to nurture small children. Though Texas has rejected the tender years doctrine, it’s still overwhelmingly more likely that a court will award physical custody (now known as managing conservatorship). There are, though, specific things that you can do to increase your chances, as a father, of securing physical custody of your children.

The Best Interests of the Child Standard

For decades, the primary consideration when establishing custody in Texas has been the “best interests of the child.” The court will typically look at a wide variety of evidence and factors, all with an eye toward what will best promote healthy a emotional and physical environment for the child. With that in mind, here are some of the questions the court will likely ask:

  • What has been the nature of your relationship with your child?—How does the child view you? Have you been an active and meaningful presence in their lives? The court will be inclined to grant primary custody to the parent with whom the child has spent the most time and has the strongest bonds. Accordingly, did you participate in all the daily routines—dropping off and picking up at school, disciplinary measures, doctor’s appointments, baths and bedtime? The more you did, the better your chances of getting custody.
  • Can you get along with your ex-spouse?—The courts in Texas prefer that both parents have a meaningful role in the lives of minor children, and look with disfavor on a parent who belittles or denigrates the other parent. If you can show that you will maintain a positive relationship with the child’s mother, that will be viewed positively in custody determinations.
  • Are you prepared to be a parent?—If  you want custody, you have to be able to show the court that your primary focus, after the divorce, will be on parenting your children. If the court perceives that you’ll be more interested in your own personal development, or in new relationships, they may conclude that such a lifestyle is not in the child’s best interests.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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When Can You Get an Annulment of a Marriage in Texas?

Annulment-of-a-Marriage

As a general rule, when your marriage has fallen apart in Texas and there’s no reasonable prospect to fix things, one of the parties will file for a divorce. There may be other options, however, depending on the circumstances. One of those options is an annulment. What is an annulment and when is one available?

What is an Annulment?

An annulment is a legal a finding of law that treats the marriage as if it never existed. Accordingly, the typical issues addressed in a divorce—custody and visitation, support and property division—are irrelevant. Both parties can move forward with their lives accurately stating that they have not been married.

When Can You Get an Annulment in Texas?

There are very specific instances in Texas where an annulment is available:

  • Where one of the parties is over 16, but under the age of 18 and was married without either parental consent or a court decree
  • Where, at the time of the wedding, one of the parties lacked legal capacity to consent to marriage. This may be as a result of intoxication or mental illness.
  • Where one of the parties used fraud, misrepresentation, undue influence or duress to compel the other party to go through the marriage ceremony
  • Where one of the parties was permanently impotent at the time of the wedding and the other party had no knowledge of that fact
  • Where one of the parties was divorced within 30 days of the marriage, and the other party had no knowledge of that fact
  • If the annulment if filed less than 72 hours after the marriage license is granted

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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The Impact of Adultery in a Texas Divorce Proceeding

Divorce-Proceeding

It’s a well-known fact that marital infidelity is the single most common cause of divorce, both in Texas and across the United States. Even though Texas has adopted no-fault divorce, you can still allege adultery as the cause of the breakup of your marriage, and you can obtain an advantage in divorce proceedings.

Adultery and Alimony

Though a court always has the discretion to award alimony in a Texas divorce, the court may deny spousal support if it finds that the spouse requesting alimony was unfaithful during the marriage. The court will customarily look at whether both parties engaged in extra-marital affairs. In situations where the person who participated in an adulterous relationship is asked to pay alimony, and it can be shown that the marital infidelity was the cause of the dissolution of the marriage, the court will almost always require alimony.

Adultery and Property Division

Under the community property laws in Texas, the fact that one of the parties was unfaithful can be used to reduce that person’s share of the marital estate. In addition, the court can also take money spent on an affair into account when dividing property.

Adultery and Child Custody

As a general rule, evidence of infidelity cannot be entered into proceedings involving custody and visitation, unless it can be shown that one parent abandoned minor children while engaged in an adulterous relationship.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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Why Mediation May Be a Good Option in a Custody Dispute

Custody Dispute

In a divorce, one of the most difficult, and often painful, parts of the process is the determination of custody. As a parent, you want regular and meaningful access to your children, but you also want what’s best for them in the long run. With the emotions that accompany a divorce, it can be difficult to view such issues objectively. If you can’t come to an agreement, you can ask the court to determine the arrangement. However, that can be messy, and can often cause more harm than good. There is another option—mediation.

How Mediation Works

Mediation can offer a “win-win” approach to the resolution of custody issues. In mediation, you work with a third party neutral, someone who does not represent either one of you, but it tasked with helping you identify and implement a mutually beneficial solution. The mediator will listen to your stories and then work directly with both of you, seeking to identify exactly what you need, and ways that you can compromise to get what you need.

The mediator won’t make decisions for you. In fact, the mediator doesn’t take testimony from witnesses, doesn’t consider physical evidence, doesn’t make any rulings of law and won’t decide who’s right and who’s wrong. You will always have the right to reject a proposal by your ex, and you’ll always have the ability to suggest or propose an alternative. You’ll be actively involved in the final resolution of the issues, rather than waiting for a judge or jury to make a ruling based on evidence and legal arguments.

There are other benefits to mediation as well. Because you don’t have to go through the discovery phase of a trial, where you take depositions and gather evidence, mediation typically takes far less time, and usually involves a lot less expense.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Understanding the Best Interests of the Child in a Texas Family Law Dispute

Interests-of-the-Child

In Texas, when there are unresolved legal issues as part of a divorce, and there are minor children who will be affected by the ways those controversies are settled, the courts are guided by the principle known as the “best interests of the child.” Accordingly, the court must give priority to an outcome that best serves the emotional, physical and mental needs of the child.

For example, when establishing conservatorship and access (formerly known as custody and visitation), the court may grant sole legal and physical conservatorship to one parent, or may confer joint legal and physical conservatorship to both parents. As a practical matter, the court always seeks to encourage participation and involvement by both parents in the growth and development of minor children, but may opt to limit one parent’s access if there has been physical abuse, substance abuse or other violations of the law.

When determining the best interests of the child, the court will typically look at a number of factors, including:

  • The demonstrated ability of each parent to nurture and raise children
  • The stability of each parent’s home and work life
  • The future plans each parent may have for the child
  • The willingness of each parent to support the child’s relationship with the other parent
  • The child’s physical and emotional needs

In addition, if the child is more than 12 years of age, the court may factor in the child’s preferences.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas.

To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Establishing Paternity in Texas

Establishing Paternity in Texas

Whether you are the “putative” father or the biological mother of a child either born out of wedlock or with disputed parentage in Texas, there can be significant reasons to either confirm or refute paternity. A determination of paternity essentially identifies who is (or is not) the legal father, and confers rights on both the legal father and the mother of the child. The father will have the opportunity to petition the court for reasonable visitation, and even custody, if circumstances warrant. The mother can use the establishment of paternity to obtain an order of child support.

In Texas, there is a presumption that a child born to a married couple is the offspring of that couple. If the parties agree that they are the parents, paternity is automatically established. However, if the parties are not married at the birth of the child, or if there are allegations of marital infidelity, the child will have no legal father until paternity is determined.

The Ways Paternity Can Be Determined in Texas

The Lone Star State allows paternity to be confirmed either voluntarily or involuntarily. If both parties agree on paternity, they can sign a document called an “Acknowledgement of Paternity.” Most hospitals carry the form. After it’s signed, it will be sent to the Vital Statistics Unit in Austin, and the legal father’s name will be listed on the birth certificate.

Involuntary determinations of paternity are always done through a court. Either party can file a “Petition to Adjudicate Parentage,” and the court will hold a hearing to gather evidence. If either party denies paternity (or is uncertain about paternity), the court can order DNA testing. If the court establishes paternity, it will issue an order adjudicating parentage, granting all rights as a legal father.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas.

To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Modifying a Support Order in Texas

Support Order in Texas

Change is a constant in life, and that applies in divorce as well. When your divorce is finalized, the court will carefully determine the amount of child support that needs to be paid. But circumstances may render that order ineffective. The payer may become unemployed or be forced to take a job with less pay. The needs of the child may increase. Fortunately, while it can be difficult to modify a child support order, they are not set in stone, and can be amended in certain situations.

Either parent in a divorce can petition the court to change the amount of child support being paid. To qualify to modify the payment amount, however, the parent seeking the change must show that the circumstances of the child, or of either of the parents, has changed substantially since the support order was issued.

If more than three years have elapsed since the current order was put in place, the party requesting a modification of the support order must demonstrate that the amount that would be ordered under current guidelines would different by a minimum of 20% or $100 from the amount initially ordered. Accordingly, a payer seeking a change must show a 20% reduction and a recipient must be able to show a 20% increase.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Frequently Asked Questions about Alimony in Texas

about Alimony in Texas

Though alimony or spousal maintenance is not as common in Texas as it was a generation ago, the court still has the discretion to order payment of spousal support, based on a variety of factors. This blog answers some of the most common questions parties to a divorce have regarding the payment of alimony.

What Are the Different Types of Alimony?

In Texas, alimony can take three different forms: temporary, contractual or spousal maintenance. A grant of temporary alimony is in force only while the divorce proceeding is still pending. It ensures that the recipient has some means of support until a final divorce decree is entered. A “contractual” grant of alimony allows the parties to put spousal support payment in the final divorce order. The parties have the flexibility to negotiate the amount, as well as the duration of payments. If the parties cannot agree to a contractual grant of alimony, the court will order “spousal maintenance,” a grant of periodic payments after a divorce is final.

What Are the Factors the Court Considers When Granting Alimony?

The court has absolute discretion to grant alimony, based on the following factors:

  • the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently
  • the education and job skills of the spouses
  • the length of the marriage
  • the age, employment history, earning ability, and health condition of the spouse seeking maintenance
  • the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs
  • the dissipation of any marital assets
  • the financial resources of the spouses
  • the contribution by one spouse to the education or earning capacity of the other
  • any pre-marital property
  • the contribution of a spouse as homemaker
  • any marital misconduct of the spouse seeking maintenance
  • the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code

How Do You Enforce Payment of Alimony?

It depends on the type of alimony. If it’s spousal maintenance, and there’s a court order, failure to pay is considered contempt of court. If, on the other hand, it’s contractual alimony, the failure to pay is breach of contract and must be enforced through a breach of contract action in court.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Seasons Greetings and Happy New Year!

happy-new-year-2018

Frequently Asked Questions about Child Support in Texas

Child Support in Texas

If you are involved in a divorce in Texas and there are minor children involved, you need to understand your rights with respect to child support, whether you are the payer or the recipient. Here are some of the most common questions parents of divorce have with respect to the payment of child support.

How Is Child Support Calculated?

The first step in determining the amount of child support to be paid is to establish net income for the payer. Net income includes wages, salary, rental income, retirement income, disability income, commissions, tips, bonuses, dividends and interest and trust income. It can also include alimony from a previous marriage. The following expenses are then deducted from that total:

  • Social Security and federal income taxes
  • Union dues
  • Health insurance costs and medical expenses incurred for minor children

Once the net income is calculated, you multiply that number by a specific percentage, based on the number of children for whom support will be paid. For one child, it’s 20% of the net income, and it increases by 5% for each additional child, up to a maximum of 40%.

How Long Does It Take Before Child Support Payments Start?

The amount of time it takes depends on a variety of factors. If the payer is employed and can be located, and you have a Social Security number, you can ask the court to issue an administrative withholding order. This goes directly to the payer’s employer, who then withholds the amount due from the payer’s wages and pays it directly to the state’s child support enforcement agency, or to a local registry, which then sends it to the custodial parent. Customarily, that will happen within two t0 four weeks. The child support order is retroactive to the date the divorce is filed, so it’s not unusual for a payer to start with an arrearage, which can typically be paid off over time.

If I Am Being Denied Visitation, Do I Still Have to Pay Support?

Absolutely! Under Texas law, support is not conditional on access to your children. If your ex is in violation of the court order regarding visitation, you need to file an enforcement action.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas.

To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

 
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