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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

after divorce, Texas family law attorney, moving on after divorce, divorce decree, filing for divorce, No matter the circumstances, divorce is a scary and emotional process to go through. After constantly being one-half of a couple for so long, it can be difficult to start fresh and be single again. However, there are several steps you can take to make the transition easier.

First, do not waste time with regret. You have no way to go back and change what happened with you and your ex, but you do have the option to get back out there and start living the life you want. And you can begin by getting all of the required paperwork in order, so that your divorce can be finalized quickly and it can become a reality for which you can adjust.

Second, easing into a new lifestyle is difficult and overwhelming, but it can become manageable when you have the right people behind you every step of the way. According to Dr. Phil, it is critical that you put together a "support squad" composed of friends, family members, co-workers, and anyone else that can provide you with encouragement, support, and guidance. People enjoy being asked for help, so do not hesitate to reach out. Find those you can speak openly to without feeling judged. Finally, rediscover old passions and explore new ones. Now that you are on your own, you have a chance to create the life you always wanted. Perhaps you enjoyed a hobby before you met your ex-spouse, but once you got married he or she did not support it and you pushed it aside. Now is the time to reconnect with the passions that make you happy, and through these passions you can embrace your new life after divorce. No matter what advice you take, moving on after divorce will not be a walk in the park. However, you can manage the pain and work through it by taking the right steps. If you or someone you know is contemplating divorce, feel free to contact an experienced Texas family law attorney to assist you with the process.

protective order, domestic abuse, restraining order, Texas, San Antonio, family law, lawyer, attorneyFor victims of domestic abuse and violence, it may appear that there is no hope for escape. However, that is not the case. The most effective way to escape domestic abuse is through a protective order. According to the Texas Council on Family Violence, a protective order is a "civil court order issued to prevent continuing acts of family violence."

There are three types of protective orders in Texas: temporary ex parte, final, and magistrate's order of emergency protection. A temporary ex parte protective order will provide a victim of domestic abuse with immediate protection. These may be obtained without the presence of the abuser in court, so long as the judge believes the abuser presents a clear danger of violence to the victim. However, an abuser cannot be arrested for violating this type of order. Temporary ex parte orders generally last for 20 days and can sometimes be renewed for an additional 20-day period. Next, we have the magistrate's order of emergency protection, sometimes referred to as simply an emergency protective order. These are issued by the criminal court after an abuser has been arrested for committing family violence, sexual assault, or stalking. This type of order is generally good for 31-61 days, but will last from 61-91 days if the abuser was arrested for assault with a deadly weapon. The third and final type of protective order is called a final protective order. These orders are effective for the time period specified in the order itself-which is typically up to two years. There are a few different circumstances, however, that will allow a final order to be effective for more than two years. The abuser may petition the court to ask for the discontinuation of the order after it has been in effect for one year. Victims of domestic violence may feel that they have no place to turn, but there is hope for safety. If you or someone you know is a victim of domestic abuse, do not go through it alone. Contact a dedicated Texas family law attorney to assist you in obtaining a protective order.

adoptDeciding to adopt a child is a deeply personal decision. Couples may choose to pursue a closed adoption, where the child and family has no contact with the birth mother, or an open adoption where the child and family has access to a degree of personal information, and may choose to maintain contact with each other once the adoption is complete. According to The Minnesota/Texas Adoption Research Project, having an open adoption may affect the child's self-esteem and adjustment.

According to the study, in children between the ages of 4-12 the level of openness in the adoption didn't affect self-esteem or adjustment. It did however seem to have an impact during middle childhood for adopted children. The empathy and mutual respect generated by an open adoption between the adoptive and birth parents had a significantly positive impact during this time.

In adolescents, the level of openness wasn't significantly important to the child's adjustment levels. Instead, qualities such as relationship collaboration and compatibility were more likely to impact an adopted child's self-esteem. Another somewhat surprising result from the study was that the level of openness in the adoption did not seem to result in any differences in a child's degree of preoccupation with being adopted, or their adoptive identity.

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Posted on in Divorce

divorce-mens-healthDivorce is rarely described as easy.  Despite the frequency of divorce, the impact of divorce is often significant.  And it seems to be particularly difficult for men.  An article in the Journal Of Men's Health, a peer-reviewed publication that addresses the disparity in life expectancy between men and women, discusses how divorce affects men's psychological, biological, social, and spiritual health.

Psychological Health

From a psychological and behavioral standpoint, unmarried men are more prone to depression, anxiety and substance abuse.  Men who divorce have lower levels of happiness and self-acceptance.  In fact, the article states that divorced or separated men are ten times more likely to undergo psychiatric care than married men.

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texas-open-adoptionAdding a child to your family is a very exciting prospect, but it is also a process that can feel confusing and emotionally overwhelming if it is your first time. One way to ease your anxiety is to work with a family lawyer experienced in adoption. This will give you more information about what to expect and how to structure the adoption in a way that is best for you and the child.

The Minnesota/Texas Adoption research project explored two waves of children who were adopted. In their first wave of research, the project creators found no relationship between adoption openness and self-esteem, but those results changed as time went on, possibly reflecting a greater trend about the desire for open adoption.

The first wave of research worked with adopted children between the ages of 4 and 12, and the second wave worked with children between 11 and 21 years old. For older adopted children, there is a positive aspect of having an open adoption: those teens who had birth mother contact were the most satisfied of all research groups with their level of birth parent contact overall. Most of the adolescents wanted more contract with their birth parents in the future, too.

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