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Texas Divorce Code, grounds for divorce, Texas divorce lawyer, Austin divorce lawyerAlthough Texas does allow for no-fault divorces, the Texas Family Code also allows for fault ground divorces. One of those grounds is adultery. In TFC  6.003, adultery in a divorce proceeding is defined as "voluntary sexual intercourse of a married person with one not the husband or wife of the offender". It's important to note even after the parties have separated and divorce has been filed, any acts would still legally be considered adultery.

Accusations of adultery are not enough to bring to court. You must provide solid evidence of the adultery. Text messages, emails, receipts, photos and any other evidence should be gathered and presented to the court. Adultery is also grounds for a judge to award a disproportionate award of the marital estate. TFC 7.001  states, "In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." In a recent case that occurred in The Woodlands, an appeals court awarded the wife 81 percent of the marital estate after she proved that her husband had committed adultery. The couple decided to separate in March and the wife moved out of the marital home. The wife had hoped to reconcile and suggested counseling, which the husband refused. In June, she suspected he was having an affair, but really had no evidence at this point. The wife filed for divorce in August. In September, after finding another woman's underthings in the master bedroom of the marital home, the woman hired an investigator to gather proof of the husband's infidelity. Although the wife had already moved out and filed for divorce before she was able to obtain evidence that her husband was cheating, the court ruled that the husband was at fault for the breakup of the marriage.  The marital estate was worth $1.6 million. The wife received over $1.3 million and the husband received a little over $300,000. If you have discovered your spouse has been cheating and you are considering a divorce, contact an experience Austin family law attorney to make sure you receive the divorce settlement that you deserve.

divorce settlement, debt, jail, Austin divorce lawyer, Austin divorce attorneyOn April 25, 2013, Cherilyn Kinney, of Hunt County Texas was granted a divorce from her husband Robert Kinney. The final decree was May 22, 2013. As part of the divorce settlement, Cherilyn was to pay Robert $40,000. This amount was referred to as a debt in the settlement paperwork. The divorce judge gave her six months to pay the funds to Robert. The final due date was on November 22, 2013.

On November 23, 2013, because Cherilyn had failed to make the payment, Robert filed a contempt of court charge against her. A hearing was held on February 7, 2014, and the judge found Cherilyn in contempt. He ordered her held at the Hunt County jail until the entire $40,000 payment was made.

Her attorneys immediately filed a writ of habeas corpus with the Appeals Court in Dallas. Habeas corpus means a person is required to be brought before a judge or court who can decide if the person is being detained or held unlawfully or without just cause.

 The Appeals Court threw out the lower court's contempt order. In making its ruling, the court cited three Texas laws:

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prenuptial agreementIt is rare that a prenuptial agreement is dismissed as invalid in divorce proceedings. But the recent case in New York where a the wife of a Long Island real estate mogul convinced the judge that the prenup she signed before their marriage was invalid is considered precedent setting in legal circles. Elizabeth Petrakis told the court that she was coerced to sign the agreement, only four days before the wedding, because her husband, Peter Petrakis, threatened to call off the wedding. Petrakis said she felt pressured because her father had already spent $40,000 in wedding costs.

In the agreement, Peter Petrakis would keep everything if they should divorce. Elizabeth Petrakis said her husband told her he would tear up the agreement as soon as they had a child. But two children later, he still did not tear it up. Elizabeth Petrakis has been arguing the validity of the agreement for seven years. Two prior Nassau County courts said that Peter Petrakis "fraudulently induced" Elizabeth to sign the agreement and those decisions were affirmed by a Brooklyn appellate court. So what are some of the grounds where a prenuptial agreement could be overturned?
  1. Fraud is one reason why a judge could throw out an agreement. If one party fails to make full disclosure of all their assets, the court considers that fraud.
  2. If someone can prove they signed an agreement while under duress or with coercion, the agreement may be thrown out. Each state does have different standards of what is considered duress or coercion.
  3. If an agreement was signed when a person lacked mental capability, a judge may order it invalid. For example, if the person was under the influence of drugs when the agreement was signed, they may not have fully comprehended what they were signing.
  4. Improper filing of paperwork or incorrectly drafted can also end up making a prenup invalid.
  5. If you sign a prenup without having your own, impartial legal representation can invalidate an agreement.
  6. What the court would consider asinine provisions – such as not having to pay child support in the event of a divorce – will more than likely have a judge stamp the prenup as invalid.
If you are planning a marriage and are discussing drawing up a prenuptial agreement with your future spouse, it's important to have your own independent council. Contact an Austin family law attorney to represent your best interests in this process.

family business, divorce, division of property, Texas family lawyer, Austin divorceA big task during a divorce proceeding is determining what property is separate property (belonging to a particular spouse) and what property is marital property (to be divided in the divorce). Marital property is all property, other than separate property, acquired during the marriage until the date of separation. Marital property may include the family home, the family car, or a retirement account. Separate property is all property acquired by either spouse before the marriage, or all property acquired during the marriage by inheritance or gift. Separate property may include an inheritance from a parent or a cash gift from a friend.

 For some types of property, determining whether it is marital property or separate property can be challenging. One piece of property of particular concern to many divorcing couples is the family business.  Where the Family Business is Jointly Owned or Separately Owned In some instances, the court may determine that the family business is marital property (i.e., owned by both spouses). For example, a business that was started during the marriage, and with funds acquired during the marriage, may be considered marital property. During a divorce, the court will determine a value for the business and divide that value between the divorcing spouses. Where the court determines that a business is owned by just one of the divorcing spouses, the court will award the business to that divorcing spouse.  Where the Family Business is Part Separate Property and Part Marital Property Determining what happens to the family business can get complicated, however, when the business is a mixture of both separate property and marital property. For example, instances when a business may be part marital property and part separate property include:
  • Income received from a business - Even if a business is considered the separate property of one of the spouses, income received from the business may be considered marital property, provided such income is attributable to the personal efforts of either spouse. For example, if both spouses work at the business producing income, that income will be considered marital property, even though the business is the separate property of just one of the spouses.
  • Increase in value of the business - Even if the business is considered the separate property of one of the spouses, an increase in the value of the business during the marriage may be marital property, provided that such increase was due to the personal efforts of either spouse. For example, if one spouse owns the business before marriage, but either spouse's personal efforts cause the business to substantially increase in value during the marriage, the increase in value may be marital property. Such personal efforts may include labor, effort, inventiveness, skill, creativity, or marketing activity applied to the business.
Attorney Help If you are considering divorce and have questions about a business owned by either you or your divorcing spouse, it is vital that you contact a skilled Austin family law attorney. The attorneys at our firm are dedicated to helping individuals involved in divorce proceedings understand their rights and reach the outcomes they desire. Contact us today to schedule your consultation.

domestic violence, financial stress, recession, abuse, violence, Austin, divorce, lawyer, attorneyFinancial stress and economic downturns may have serious consequences for victims of domestic and family violence. As tensions rise due to financial pressure, victims may be subject to more severe forms of violence, or an increased frequency of violence.

In one 2012 study, researchers found that eight out of 10 domestic violence shelters in the United States reported an increase in women seeking help following the economic downturn in 2008. Unfortunately, although demand for help was up, funding for services and prevention efforts were down overall nationwide. This lead to many abuse victims staying with their abuser for longer periods of time. In fact, 74 percent of victims who participated in the study reported that they stayed with their abuser longer due to economic concerns. Though the weak economy cannot be blamed for creating abusers, the study did find that it lead to an increase in the frequency and severity of abuse. According to shelters, 70 percent of women listed financial issues as a factor in their abuse, while 45 percent named job loss as a contributing factor. Unfortunately, these same factors led to the reduction of services by many shelters across the country. Nearly half of all participating shelters reported they had to cut services, with 40 percent of those cuts occurring to services such as transitional housing, individualized support, or advocacy efforts due to financial constraints. Additionally, many shelters were forced to cut child care, which can make it more difficult for abuse victims to find jobs. Domestic violence is a serious issue. While it can be incredibly stressful and frightening, there are services and help available to you if you are a victim of domestic violence. A qualified attorney can help you with legal concerns, including getting an order of protection if necessary. If you are a victim of domestic violence, contact an Austin family law attorney today.

Posted on in Divorce

infidelity social media cheating divorceWhile every newlywed couple would like to believe that their marriage will beat the odds and last forever, nearly 50 percent of all married couples end up filing for divorce. After years of studying both successful and failed marriages, the American Psychological Association has identified several factors that may indicate a marriage is more likely to end in divorce.

 According to the National Center for Health Statistics (NCHS), demographics may play an important role in predicting whether a marriage will last until its 20th wedding anniversary. Statistics show that African-American women have the lowest chance of a lasting marriage, at 37 percent, while Caucasian men and women, as well as African-American men's chances stand at just over 50 percent. Male Hispanic immigrants and Asian women stand the highest chance of achieving a lasting marriage, at 70 percent.

A couple's financial situation also plays a vital role in determining whether the marriage will last. According to a study completed by the University of Virginia's National Marriage Project, couples with little or no assets are as much as 70 percent more likely to divorce within three years than those who have at least $10,000 in assets. This comes as little surprise to most marital therapists, who state that money and finances represent the most common source of tension in most marriages.

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Posted on in Divorce

The holidays can be stressful for everyone. The season is spent buying expensive presents, travelling in cold weather and spending time with family members. These stresses can further divide married couples who may have relationship problems throughout the whole year. But couples often stick together through the holidays even if their relationship has run its course.  That phenomenon has lead attorneys to call January "divorce month".

Divorce SeasonResearch has also shown that January is the month to consider filing for divorce. An analysis by FindLaw.com has shown that between 2008 and 2011 there was an increase in divorce filings in the month of January. This increase sees an apex in the month of March and then tends back down through the rest of the year until September when it increases again.

The website also looked at search activity for their website and found a similar increase in the month of January. Phrases like "divorce", "family law" and "child custody" increased 50 percent from the month of December to the month of January. This increase peaked in the month of March. If people are not filing for divorce, they are at least considering the possibility.

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Keeping your marriage healthy in order to avoid filing for divorce may depend on both parties in the couple completing some simple psychological exercises. As we head into the New Year, many couples will be making resolutions to work on themselves and their marriages; keeping these few simple thoughts in mind may help save your marriage.

healthy marriage According to the American Psychological Association (APA), nearly 50 percent of all marriages end in divorce. Couples who spend some time focusing on the following five psychological tasks set forth by the APA, however, stand a better chance of beating the odds. In order to help make a marriage work, couples should:

  • Establish a new identity as a couple that is separate, though not estranged from, the families they grew up in;
  • Establish boundaries that protect their individuality while still working on building a sense of intimacy and togetherness;
  • Establish a healthy and pleasurable sexual relationship, and then nourish and protect it against intrusions from family and stress
  • Continue to protect your intimacy and closeness as a couple even after the birth of children, while learning to deal with the stresses that parenthood brings;
  • Practice good communication as a way to establish the marriage as a safe haven from the stress and pressure of the world, where both parties are able to express their differences and frustrations.

Unfortunately, there are times when no amount of work, communication, or counseling can save a marriage. If you find yourself in a situation where you are considering filing for divorce, it is important that you have a qualified attorney on your side. Contact one of the experienced family law attorneys at Powers and Kerr, PLLC today. We can help ensure that your divorce proceeds smoothly and that you receive the custody, support and property that you are entitled to by law.

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