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Texas family attorney, Texas complex divorce lawyerA recently introduced bill could have a substantial impact on what courts are permitted to include in temporary orders during a family law dispute. The bill has not been passed, but is currently being reviewed by one of the House of Representatives’ committees.

Temporary Orders

Under current law, courts are permitted to grant temporary orders during appeals of family law matters. These orders can direct one or both parties to:

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Texas family law attorney, Texas complex litigation lawyer, Texas high asset divorce attorney, Could informal marriage be the next big transition in family law? Such relationships are already becoming the norm in many parts of Latin America, and the cultural shift could well follow these immigrants to the Lone Star State. For example, in Columbia, 84 percent of babies are born to unmarried mothers. There are similar statistics in a number of other countries, including Mexico.

The trend could most likely affect Texas because it is one of only a handful of states that recognizes informal marriage for all purposes. While it is relatively easy to enter into a common-law marriage, such a relationship can be difficult to dissolve, even in a high-asset divorce.

Formation

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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.

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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Little-Known Divorce Clause Causes Heartache in TexasA case earlier this year in Texas highlights a little-known immigration clause when it comes to divorce, according to Fox News. When Evangelina Zapata married Steve Summers, he signed an affidavit "vowing to support her so that she would not become a ‘public charge,'" Fox reports. Zapata was born in Mexico, and Summers needed to sign the affidavit as part of Zapata's quest for citizenship. The affidavit is formally known as Form I-864, published by the U.S. Citizenship and Immigration Services. According to NOLO, the affidavit is "a legally enforceable contract, meaning that either the government or the sponsored immigrant can take the sponsor to court if the sponsor fails to provide adequate support." NOLO states that the sponsor is responsible until the immigrant becomes a U.S. citizen, or has "earned 40 work quarters credited toward Social Security [about 10 years of work], dies, or permanently leaves the United States."

The little-known clause of the matter is that the sponsor, according to Fox, is still on the hook for the person he or she sponsored—even if the marriage dissolves. Divorce is not a reason for the sponsor to not fulfill his obligations. According to NOLO, "yes, a divorced immigrant spouse could decide to sit on a couch all day and sue the former spouse for support." NOLO suggests having a separate contract that states the immigrant spouse would not do this, but admits that the courts may not uphold a contract agreement such as this.

This, of course, is exactly what's happening in the Summers case. The couple divorced four years ago, according to Fox, and the affidavit "is being held up by Zapata in her push to get Summers to pay her alimony. She has sued Summers in federal court for breaking the contract to support her at 125 percent of the poverty level." The problem, as one attorney told Fox, is that people sign these documents, they get filed, and people forget. And then they're on the hook for something they hadn't even considered after divorce.

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Posted on in Family Law

Divorce in Texas- The BasicsKeeping kids sane during a divorce—especially one that's particularly nasty—can be one of the greatest challenges for divorcing couples. There's no shortage of psychological writings and evidence that points to the fact that divorce can be bad for children, though recent reports state that if the marriage was particularly difficult it may actually be better for kids that their parents divorce.

An article reported by Scientific American earlier this year stated that "researchers have found that only a relatively small percentage of children experienced serious problems in the wake of divorce or, later, as adults." Scientific American cites a Pennsylvania State University study that followed children of divorce "into later childhood, adolescence or the teenage years, assessing their academic achievement, emotional and behavior problems, delinquency, self-concept and social relationships." The study found that children of divorced parents had similar results to those from intact families, "suggesting that the vast majority of children endure divorce well."

That's good news for parents who are considering divorce—but there's still the question as to how to break the news to the kids and just how much information the kids should know. According to the Huffington Post, keeping the details of your split private—not allowing the children the details of your broken marriage—is likely much better for the kids and their future relationship with each parent. Knowing that their parents can't be together, and are no longer in love, is enough, clinical psychologist Edward D. Farber told the Huffington Post. "Your child has absolutely no need to know the reasons Mom and Dad don't love each other," he said.

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