Protecting Your Family's Future
 

Common Mistakes When Dividing a Marital Estate

Common Mistakes When Dividing a Marital EstateWhen your marriage ends, one of the most challenging jobs can be the division of the debts and assets of the marriage. In your rush to be over with the divorce, don’t make these common mistakes:

Make Sure You Account for All Assets and Income

According to a recent study, nearly 20% of all divorces proceedings involve assets hidden by one of the parties. Take the time to make certain you know what’s out there.

Don’t Forget to Change Information on All Financial Accounts

There’s no benefit to keeping any joint accounts with your ex. In addition to bank accounts, you need to change credit cards, investment accounts and any debts/loans, including your mortgage. It’s also critical to change the beneficiary on life insurance policies, annuities, retirement accounts and investment portfolios.

Don’t Ignore the Tax Implications

One of the ways in which people commonly don’t end up getting a fair deal has to do with the potential tax consequences of owning certain property. Experts say it’s important to determine whether the dollars you are receiving are pre-tax or post-tax dollars. For example, if you take assets in an IRA in exchange for allowing your ex to keep the house, you will incur a tax obligation when you take distributions. However, your ex may incur no tax consequence upon the sale of the house, provided the net gain on the sale is below that allowed under the Internal Revenue Code.

Don’t Let Your Decisions Be Affected by Your Emotions

When you let your emotions take over, it’s hard to make rational decisions. It can be hard, but you have to view the financial aspects like a business transaction. In addition, don’t try to establish your own value for a house, or for personal property. Always get a professional to appraise marital assets at fair market value.

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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Protecting Your Rights as a Single Mother—Paternity Disputes

Protecting Your Rights as a Single Mother—Paternity DisputesAs the unmarried mother of a minor child, it’s essential that you establish the paternity of your child. The father will have visitation rights, but will also have to provide some level of support, provided you are no longer living together. Paternity can also make your child eligible for a wide variety of benefits through the father of the child, including medical insurance, veteran’s benefits, Social Security and inheritance. Here are the ways to establish paternity in Texas.

Establishing Paternity

Under Texas law, you can successfully have the father of your minor child legally designated three different ways, all of which will qualify you to receive support and other benefits. The accepted methods are:

  • Presumptive paternity—if you were married to the father or lived continuously with him for a period of time before the birth of the child, paternity will be presumed, though the alleged father may challenge paternity through DNA testing.
  • A voluntary acknowledgement of paternity—if the alleged father signs a legally binding document stating that he is the genetic father of the child, you then have the right to seek all benefits.
  • Paternity by court order—either the mother or the alleged father of the child may ask the court to establish paternity. Furthermore, a child may also ask the court to order paternity testing, provided he or she has reached a certain age.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 years of experience to clients in south Texas. To learn about our services, call us 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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Relocating after Divorce in Texas

Relocating after Divorce in TexasOften, in the aftermath of divorce, you want a change of scenery. However, there can be other reasons for seeking to relocate after a divorce—you may get a new job or a promotion, you may want to be closer to family, or there may be a specific benefit for your children. What are the restrictions, if any, on moving after a divorce, particularly when there are minor children involved?

Under Texas law, as part of your divorce order, the court will set up a “managing conservatorship,” essentially what was formerly known as custody. As a general rule, the court prefers (and will establish) a joint managing conservatorship, consistent with the state’s stated objective of keeping both parents involved with the life and upbringing of the child. Achieving that objective can be complicated, though, even when both parents live in near each other. It becomes even more of a challenge when one of the parents wants to relocate.

You Must Get Permission from the Court

Almost universally, the court order in a Texas divorce prohibits the custodial parent (referred to as the “primary parent”) from relocating outside a certain area without first seeking and obtaining permission of the court. In most instances, permission must be sought if the custodial parent wants to move outside of any county contiguous with the county where the parties currently reside.

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Moving Forward after a Divorce

Moving Forward after a DivorceIn the aftermath of a divorce, you can be ready for a new life and a new direction. Here are some recommendations to help you put the past behind you and get on with your life.

Open New Financial Accounts

You should actually do this as soon as you know you are going to be a party to a divorce proceeding. Once you start putting your money into your own separate account, your ex won’t have access to it. You should also close any joint accounts you had during your marriage.

Close All Credit Card Accounts

Terminate any joint credit cards immediately and consider whether you want to open new accounts. Your finances may be unstable for a little while, so you may want to operate primarily on a cash basis until you have a greater sense of security and stability. In addition, divorce can be an emotional time—if you are prone to spending money in response to emotional trauma, you might be better served not opening a new credit card.

Change Your Beneficiaries

If your ex is named as a beneficiary on any type of insurance policy, IRA, retirement plan or in a will, contact the provider and change the beneficiary immediately. With respect to insurance, you may want to obtain a life insurance policy on your ex (owned by your ex) to cover alimony or child support in the event of his or her premature death. In addition, if you have a will or trust, you want to meet with a lawyer to change the provisions.

Notify any Government Agencies

The IRS and the Social Security Administration should be notified of your divorce.

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

The Factors to Be Considered for an Alimony Award in Texas

The Factors to Be Considered for an Alimony Award in TexasThough the frequency with which alimony or spousal support is granted in divorce proceedings has dropped significantly over the last half century, either party to a Texas divorce still has the right to petition the court for some type of payment from the other spouse to defray the cost of living. Alimony or support orders typically take one of three forms:

  • Temporary support—An award for a very specific, and usually short, period of time, designed to be primarily transitional, until the recipient becomes self-sufficient.
  • Rehabilitative support-Also a temporary award, but put in place to allow the recipient to undergo training or education to develop skills that allow for gainful employment.
  • Permanent support—Typically granted when the recipient is either too old to reasonably become self-sufficient, or has some other condition that will likely preclude self-sufficiency

When determining whether alimony is warranted and how it should be structured, the court may consider a wide range of factors, including:

  • The needs of the potential recipient and the ability of the other spouse to make payments
  • The financial resources of both parties
  • The length of the marriage
  • The age and health of both parties
  • The employment history and potential earning capacity of both spouses
  • Whether either of the parties engaged in the dissipation of marital assets
  • The contribution by one party to the earning capacity of the other party
  • The contributions of one spouse as a homemaker
  • Whether either spouse engaged in marital misconduct
  • Any pre-marital property owned by either party

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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What Not to Do When You Are a Noncustodial Parent

What Not to Do When You Are a Noncustodial ParentThere’s simply no way around it—divorce is hard on kids and it’s hard on parents, too. Unfortunately, with good or bad intentions, custodial and non-custodial parents can make the situation much worse. Here are some of the most frequent ways adults complicate matters for children of divorce:

  • Discuss things in front of the children that should be addressed privately—It’s not realistic (and probably not healthy) to expect that you’ll never have a disagreement with your ex. But don’t air that laundry in front of your children!! Your kids aren’t mature enough to understand that disagreements can be worked out. In addition, they may assume they have caused the problem.
  • Use visitation as a tool to either punish or reward an ex-spouse—Visitation is a right of the child, as much as it’s a right of the parent. Custodial and non-custodial parents should never use it as a bargaining chip or to punish an ex. The ones who suffer the most from this type of behavior?—the children.
  • Make a child feel guilty about being with the other parent—It may often be entirely unintentional, but when you tell your children that you will miss them when they are with the other parent, they may have a vision of you as sitting home sad and alone..and they may blame themselves for your condition.
  • Let your children make the decisions about when and how long they will visit their non-custodial parent, or when they will go home—This puts unnecessary pressure on the child, as they don’t want to hurt anybody’s feelings, but find themselves in a no-win situation.
  • Set your expectations too high—It’s common, especially for non-custodial parents, to want the time spent with children to be special. That puts a lot of pressure on your kids. Try, instead, to integrate your children into your life. Don’t plan all your activities around your children, but let them participate with you in deciding what you’ll do. But do as many of the things you normally do as possible. That’s how your kids really get to know you.

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 Community Property Laws of Texas

Understanding the Community Property Laws in TexasIn a divorce, determining how to divide of the assets and obligations accumulated and incurred during the marriage can be a challenge. For centuries, the prevailing approach was the concept of “equitable distribution,” where the court would try to find a “fair” solution if parties could not come to agreement on their own. In those jurisdictions, unfortunately, significant time and money can be spent trying to determine what is fair.

Texas, however, has joined a minority of states in implementing a different system, one designed to simplify the process—the community property approach. Under the Texas community property laws, the court starts by identifying the character of marital property—is it separate property or is it community property. As a general rule, any property owned and brought into a marriage is separate property and rightfully goes back to the owner in the event of divorce. All other marital property is considered community property, with two exceptions:

  • Property obtained by gift or inheritance
  • Property that both parties agree is separate property

It’s also important to understand that all property generally retains its character as separate or community property, even if it changes form. For example, if you own a home before the marriage, but sell it, the cash proceeds will be separate property, unless you commingle it with marital property. Accordingly, you don’t want to put proceeds from the sale of separate property into a joint marital account.

The parties to a divorce can agree to property settlements that are contrary to the Texas community property laws, but the court will always have the discretion to review and reject such agreements, should there be evidence of fraud and misrepresentation, undue influence or duress.

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 Different Types of Divorce in Texas

The Different Types of Divorce in TexasThough, as we informed you in an earlier blog, a Texas legislator has introduced a bill that would end “no-fault” divorce in Texas, there are still two approaches you can take in the Lone Star State: you can state a specific basis, or ground, for the divorce (an “at-fault” divorce); or you can simply allege that the marriage has become “insupportable” (what is known as “no-fault divorce”). There can be good reasons for identifying specific grounds for your divorce—you can benefit in a custody or support proceeding if you can show that your ex caused the split.

Here are the grounds that are currently accepted for divorce in Texas:

  • Marital infidelity—Adultery, or cheating on your spouse, is far and away the most common ground stated for divorce in Texas. However, you have to do more than simply allege infidelity—you must convince the court that your spouse had an extramarital affair.
  • Failure to cohabitate—If you have stopped living with your spouse, even if you are in continual relationship with him or her, and the two of you have lived apart for at least three years, you can allege that as a basis for an at-fault divorce.
  • Abandonment—If you cease having any type of relationship with your spouse, and that abandonment continues for at least a year, your spouse can state that as a cause for divorce
  • Confinement in a mental institution—If, at the time the divorce complaint was filed, one of the parties was institutionalized in a mental hospital or facility, either private or state-operated, and there was no prognosis for improvement or recovery, you may be able to state that as a reason for divorce. However, a person must be institutionalized for at least three years before the other spouse can allege it as sufficient cause for divorce.
  • Incarceration for a felony—If a spouse has been convicted and incarcerated for more than one year on felony charges, the innocent spouse may use that as a basis for an at-fault divorce.
  • Cruelty—Physical or mental cruelty that makes it unbearable to live with a spouse will also be grounds for divorce.

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 Tax Implications of Divorce

Understanding the Tax Implications of DivorceDuring a divorce, your focus is on custody and visitation, child support, alimony (perhaps) and the division of marital debts and assets. It may not even occur to you to consider the potential tax consequences until the divorce is finalized. But thinking about the tax impact beforehand can benefit both parties.

The Treatment of Child Support and Spousal Support for Tax Purposes

With both child support and alimony, one of the parties is receiving income from the other. However, for tax purposes, the two types of payment are treated differently.

Under IRS rules, child support payments are not considered as income by the recipient. Accordingly, the person paying child support cannot claim any kind of deduction for the payment.

As a general rule, however, spousal support qualifies as reportable income and must be included on state and federal tax returns, as long as the payments are made because of a valid divorce or separation agreement, and the payments are monetary—gifts of real or personal property, or services (gifts in kind) are generally not taxable. If the payments qualify as income to the recipient, they can also be deducted by the payer.

What Filing Status Should You Claim?

If your divorce in still in process at the end of the tax year, you can still choose to file a joint return, or you can file as “married filing separately.” However, if the divorce decree is entered before the end of the tax year, you must file as either single or as “head of household.”

To claim your children as exemptions on your return, you must generally be considered the custodial parent. In most instances, the parent with whom the child spent the most amount of time will be considered the custodial parent for tax purposes. You can, however, claim your child if the custodial parent waives the exemption in writing.

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

Proposed Law Would Create Database for Protective Orders

Online DatingUnder a proposed statute, Texas would create an online database that would identify all residents who have ever been subject to a restraining or protective order, regardless of whether they were arrested, charged or convicted of a criminal offense. The bill, proposed by state representative Brooks Landgraf, (R-Odessa) would create a registry similar to the sex offender registries now implemented across the country. Landgraf is dubbing the proposed statute “Monica’s Law,” named after Monica Deming, a woman from Odessa who died in a murder-suicide, there the perpetrator had been named on protective orders sought by two other women.

Supporters of the proposed law say it would help innocent people be better informed in a world of online dating. Landgraf said the online registry would allow people to do a background check before going on a date.

Deming’s father, a former police officer, says he is confident his daughter would still be alive if the database had existed. He says that he ran a background check on the man who killed his daughter, but no criminal charges had ever been filed, so nothing showed up. He argues that th existence of such a database would help protect other women.

Criminal defense attorneys, though, say there are a number of legitimate concerns with such a database. They say such a system has the potential for significant abuse and may subject innocent people to retaliation or other unintentional consequences. Attorney Allen Place, of the Texas Criminal Defense Attorney Association, says that the burden of proof to get a restraining order is significantly less than in a criminal prosecution, and that many family law attorneys routinely recommend that their clients get a protective order, even if there’s been no indication of violence in the marital home. Place also says that, because many parties to divorce choose not to contest the proceedings, they may choose not to attend the hearing and may have the protective order entered without their knowledge or the opportunity to challenge.

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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