Protecting Your Family's Future
 

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

Do You Have a Valid Prenuptial Agreement?

PrenuptialAgreementIf you are considering getting married and you’re bringing substantial assets into the marriage, or you have children from a prior marriage and want to protect their rights to assets, you may want to consider preparing and executing a prenuptial agreement. There are circumstances, though, that can invalidate a prenuptial agreement, even if it seems clear that you came to terms. Here are some things to avoid, so that your prenup protects your interests.

  • Get it in writing—Some oral contracts are enforceable—as a general rule, a prenuptial agreement is not one of them. If you want to enforce a prenup in court, it must be in writing.
  • Take your time—Most courts will be disinclined to honor a prenuptial agreement if the parties did not have sufficient time to understand its impact and make an educated decision. Don’t ask your intended to sign a prenup as you’re walking into the church or the justice of the peace. Make certain there’s adequate time to consider the document.
  • Avoid unnecessary pressure—If it appears that you coerced your spouse to enter into the agreement, the court may throw it out. A prenuptial agreement is a contract and one of the essential elements of a valid and enforceable contract is that both parties willingly entered into the agreement.
  • Don’t lie or misrepresent—If one of the parties signed the agreement based on misrepresentations or misinformation, the court has the power to void the contract. Make certain you are truthful in all representations in the prenup.
  • Have your own legal counsel—It can be tempting to have the prenup drafted by one attorney and then signed by both parties. Unfortunately, if the parties to a contract have different interests (which you will), the same attorney cannot represent and promote the separate interests of both parties.

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 Bills Would Increase Cost of Texas Divorce, Impact Privacy

Proposed-BillsTwo changes to Texas divorce law proposed by Republican Matt Krause would significantly increase the time and cost involved in a divorce, and would have a devastating impact on the privacy of individuals involved in divorce proceedings. Krause has filed SB 93, which would eliminate “insupportability” as a legal cause for divorce in Texas, effectively doing away with no-fault divorce in Texas. The other proposed statute, HB 65, would extend the current 60 day waiting period to 180 days for couples with minor children.

Under the current law in Texas, a party seeking divorce must provide a reason, but can cite “insupportability” as the cause, essentially saying that the bonds of marriage have been broken and the differences are irreconcilable. If Krause’s proposed law is adopted, that option will no longer be available and parties will have to cite one of the following reasons:

  • Adultery
  • Abandonment for a minimum of one year
  • Failure to cohabitate for at least three years
  • Commitment to a mental hospital
  • Cruelty
  • Conviction of a felony

Warren Cole, president-elect of the Texas Family Law Foundation, says the proposed statute, if enacted, would necessarily lead to significant increases in the cost of a divorce, as parties would have to spend money to prove adultery, abandonment or one of the other causes. He says that simply making it harder for people to get a divorce doesn’t get at the issue of whether or not the marriage is working, and that forcing parties to stay in an unhealthy relationship because they can’t afford a divorce serves no meaningful purpose. He also notes that parties who cite insupportability often do so to avoid publicly accusing a spouse of infidelity. If the law passes, he says, all that dirty laundry will have to be a matter of public record.

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

When is Paternity Presumed under Texas Law?

When is Paternity Presumed under Texas Law?

Child Custody in TexasOne of the most frequent, and often contentious, issues that can arise in family courts in Texas involves the rights of fathers to visitation with and access to minor children, particularly when the parties were unmarried at the time of conception or birth, or there are other uncertainties about paternity. The Texas Family Code has specific definitions of who qualifies as a “parent.” With respect to fathers, a man will meet the definition of “parent” if he:

  • Is presumed to be the father
  • Is legally determined to be the father
  • Is adjudicated by a court to be the father
  • Has acknowledged his paternity

Presumption of Paternity

The Texas Family Code holds that a male will be presumed to be a child’s father if any of the following conditions is met:

  • The man is married to the child’s mother and the child is born while the marriage is still valid
  • The man was married to the child’s mother and the child is born within 300 days after divorce, annulment or the man’s death. This applies even if the marriage is or could be declared invalid, provided the marriage was in "apparent compliance" with the law
  • The man married the mother after the birth of the child and voluntarily declared his paternity of the child, and he has either promised to support the child as his own or his declaration of  paternity is filed with the bureau of vital statistics
  • The man lived in the same household as the child for the first two years of the child’s life and told others he was the child’s 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

Grandparents’ Rights in Texas

Grandparents' Rights in TexasWhen couples divorce and there are minor children in the home, the breakup can have a devastating impact on more than the parental relationship. A child’s bond with grandparents can be strong, and the loss of that interaction can be detrimental to the child, as well as the grandparent. Like all other states, Texas has laws governing visitation and custody of minor grandchildren.

Grandparent Visitation in Texas

Under Texas law, a grandparent can successfully petition the court for visitation rights, but must show the court that visitation will be in the child’s best interests. The right to visitation is entirely at the discretion of the court—there is no absolute right to visitation with a grandchild. In addition, the grandparent must show that one of the following situations has occurred:

  • The child’s parents have divorced
  • The child has been abused or neglected by the parent
  • The parent has died, is in jail or prison, or has been determined to be legally incompetent
  • The parent-child relationship has been terminated in a court of law
  • The child has resided with the grandparent for a minimum of six months

If a child has been successfully adopted by someone other than a step-parent or other family member, the grandparents’ rights to visitation are terminated. In addition, a grandparent cannot petition the court for visitation if such an adoption takes place.
Grandparent Custody in Texas

The court may grant physical custody of a minor child to grandparents, but only if it determines that doing so is in the best interests of the minor child. A grandparent who successfully requests custody is also entitled to request child support.

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

Advocates Call for More Funding to Stop Domestic Violence in Texas

Advocates Call for More Funding to Stop Domestic Violence in Texas According to the Texas Council on Family Violence (TCFV), the agencies that provide support to victims of domestic violence in Texas are bursting at the seams, with nearly half of all requests for services denied, primarily due to a lack of resources. Last year, more than 72,000 victims of domestic abuse found shelter or other services from state-run programs across the state.

Leigh Anne Fry, chairperson of the TCFV, said that the state’s shelters only have enough room to house about two out of every three persons seeking a safe place to stay. Agency staff often find themselves in the difficult position of trying to determine which applicant has the greatest need for shelter. In 2016, shelters had to turn away 39% of those needing temporary housing.

In response, advocates have begun to lobby the Texas legislature to increase funding for domestic abuse programs. They’ve sent thousands of purple postcards to the state capitol in Austin, asking for additional funding request of up to $60 million. Purple was one of the colors commonly associated with the National Women’s Party in the early 1900s and has long been the color of choice for individuals promoting domestic violence awareness. It’s also linked to the Purple Heart, a symbol of peace, courage and dedication to fighting domestic abuse.

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

Grounds for Divorce in Texas

01

Texas now recognizes “no-fault” divorce, so it’s no longer necessary, to finalize the end of your marriage, that you identify the “grounds” upon which the divorce is based. However, you can still file an “at-fault” divorce complaint in Texas, and may use proof of fault to gain advantage in custody, support and property disputes. Here are the acceptable grounds for filing an “at-fault” divorce in Texas:

  • Adultery-If your spouse engaged in an extra-marital affair, with a person of either gender, it will be grounds for divorce
  • You have lived separate and apart for at least three years-Texas essentially considers the marriage ended if you have not cohabitated for three years and there’s no known intention for you to live together again
  • You abandoned your spouse—If you have not been in contact with your spouse for at least one calendar year, your spouse can use that as grounds for divorce
  • Mental cruelty—If one spouse engages in a degree of mental abuse or cruelty that makes it impossible for the parties to live together, the other spouse may seek an at-fault divorce
  • Conviction of a felony-You can seek an at-fault divorce if your spouse is convicted of and imprisoned on a felony charge, unless you testified against your spouse.
  • Confinement in a mental institution for at least three years-When one spouse is committed to a mental facility with no prospects of improvement, it will 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 281-420-8020 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

Child Custody in Texas – The Factors the Court Will Consider

Child Custody in Texas

Under Texas family laws, the courts are required to give priority to the “best interests of the child” when making determinations related to custody in a divorce proceeding. Among the factors the court many consider when determining what’s best for the child are:

  • The respective parenting abilities of the parties
  • The existing and potential needs of the child, both physical and emotional
  • Any potential or existing risks to the child related to either parent
  • The stability of the respective parental homes
  • Whether either parent has engaged in any activity (or failed to engage in any necessary actions) that may reflect unfitness as a parent
  • Any programs available to help parents meet the standards set by law
  • The preferences of the child, if the child is at least 12 years of age

Custody in Texas can take a couple forms—a managing conservatorship or a possessory conservatorship. A managing conservatorship addresses decisions about a child’s welfare, whereas a possessory conservatorship simply looks at access to and visitation with a child. Courts prefer to award joint managing conservatorship, but it’s pretty typical that the child still reside primarily with one of the parents.

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

Child Custody in Texas – An Overview

child custody divorce texas

If you are involved in or considering a divorce and you have minor children in the home, one of your primary concerns will be the determination of custody and visitation. You want what’s best for your children, but you also want to have regular and meaningful contact with your children.

In Texas, the courts give priority to the best interests of the child when assessing custody (actually referred to in Texas as “managing conservatorship”) and visitation, known as “access.” There are actually two different types of custody in Texas—physical custody and legal custody. Physical custody refers to where the child resides, whereas legal custody addresses the rights of a parent to be involved in decision-making about the child’s welfare, looking at choices involving educational, medical, religious and other needs. The courts have a number of options:

  • A sole custody award—The courts can give one parent primary physical custody of the minor child and allow visitation with the other child. The courts try to strike a balance between offering stability for the child and ensuring that the child maintains a meaningful relationship with both parents.
  • Joint or shared custody—A joint custody award gives both parents equal rights. It’s pretty common for the courts to grant joint legal custody, so that both parents have a right to be consulted about crucial decisions that affect the child. The courts can also grant shared physical custody, where the child maintains two substantial residences.
  • Split custody—This arrangement, rarely implemented, involves families with more than one minor child. The court may grant custody of one child to one parent and another child to the other parent.

As a general rule, unless the court waives the requirement, both parents in a divorce must complete a mandatory parenting class before the divorce decree will be finalized. This requirement can be met with an online course.

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 Community Property Laws in Texas

Property Laws

As part of a divorce proceeding, you and your spouse will need to divide the debts and assets accumulated or acquired during the marriage. In Texas, as in a handful of other states, community property laws apply to the distribution of a marital estate.

Understanding the Concept of Community Property

Community property laws essentially hold that all property obtained during a marriage is considered equally owned. Accordingly, in a divorce proceeding, the parties are entitled to an equal split of the property. There are a few exceptions to the rule:

  • Any property brought into the marriage is considered separate property, not subject to equal distribution
  • Any property obtained through inheritance is excluded
  • Any items gifted to one spouse by the other are not subject to equal division
  • Any recovery for personal injury is not included, unless it was intended as compensation for lost wages

Though Texas is a community property state, the courts still have discretion to consider certain factors when allocating property, as the law requires the court to make a distribution that is “just and right.” Accordingly, the court may consider the needs of minor children, any marital infidelity or even a disparity in education and earning power when dividing the marital estate. If the marital estate includes a retirement plan, you will need a qualified domestic relations order (QDRO) to effectively allocate those funds.

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

 
Stewart Law PLLC