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What to Know About Changes in Alimony Laws

Coming Changes in How the IRS Treats Alimony

Approximately 400,000 people per year receive alimony payments from their former spouses. Until the first day of 2019, alimony will continue to be treated as a tax deduction for the one who pays it and a source of income for the recipient. However, on January 1, 2019, this will no longer be the case.

Alimony Paid Will No Longer Be Tax-Deductible

Beginning on January 1, 2019, alimony payments will no longer be eligible for a tax deduction. If you are the one making the alimony payments, you are most likely in a higher tax bracket than your former spouse. Consequently, there is a general presumption that you would pay more tax on this money than your ex-partner would. Removing the deduction and shifting the tax burden to the one who makes the payments will most likely generate more receipts for the Internal Revenue Service.

The modification of the tax law could result in significant changes after it takes effect. In some cases, it might be possible to use money from a retirement account to make alimony payments. This could be a way to obtain some tax relief by meeting your alimony obligation with money that will be taxed in the future.
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Alimony Payments Received Will No Longer Be Considered Income

If you currently receive alimony, it is considered income that is to be reported on a tax return. If you’d prefer not to pay taxes on that cash this year, it can be used to fund an IRA or other retirement account. It can also be used to qualify for mortgages, home loans or credit cards. After the tax treatment of alimony changes, it may be necessary to find a job to fund a retirement account or obtain a qualifying income for a loan.

The Law Only Applies to Divorces Effective After 2018

The important thing to know about the new alimony rules is that they only apply to divorces finalized after the last day of 2018. Therefore, if you finalize your divorce at any point in 2018, alimony retains its current tax treatment. Furthermore, if your divorce was finalized at any point in the past, you will also receive the same tax treatment into 2019 and until the alimony period ends.

How Does the Change Impact Prenuptial Agreements?

It is unclear how the change will impact any prenuptial agreement that you have created with a spouse or future spouse. It may be a good idea to consult with an attorney who can review the agreement and analyze it in the context of future changes to the law. If necessary, now may be an ideal time to make changes to an existing agreement in order to protect yourself as tax laws are altered.

Make Sure That Payments Qualify as Alimony

Regardless of when your divorce takes place, it is important that any payments made or received qualify as alimony. Many general criteria need to be met. Payments made must be pursuant to a divorce decree or a separation agreement. They must also be made for the specific purpose of helping a former spouse maintain a reasonable standard of living.

If you are making or receiving an alimony payment, it cannot be given to or from someone who lives in the same household. Furthermore, you can’t file a joint return with the person from whom you receive or to whom you give spousal maintenance. Finally, the payment must be made in cash or a similar manner such as check or money order.

The IRS uses strict standards when determining if a person is entitled to special consideration regarding such a payment. These are unlikely to change going forward, so if you want your payments to qualify as alimony, it is important to understand the rules.

If you are looking for a family law attorney to advise you on these matters, contact Stewart Law PLLC at (281) 420-8020 at our practice in Baytown.

Understanding Retirement Fund Division During Divorce

Dividing Retirement Funds in a Texas Divorce

When people in Texas decide to divorce, they may be concerned about how it will affect their retirement years. Retirement accounts may be held in either person’s name, so the spouse who doesn’t own the account may be unsure about how the divorce will affect his or her ability to retire in the future. When you understand more about property division, it can help you make the right decisions for yourself and your family.

Marital Retirement Fund Contributions Are Community Property

Contributions that were made to retirement accounts during the marriage are considered community property. While premarital contributions are considered separate property, those made during the marriage are considered to belong to both partners regardless of whose name is on the account.

Different types of retirement accounts include:

  • IRAs (Individual Retirement Accounts)
  • 401(k) and 403(b) plans
  • Roth IRAs
  • Company pension plans
  • Defined contribution accounts

In some cases, a single retirement account can contain both community property and separate property. If contributions to the account began before the marriage but continued throughout its duration, it will be necessary to value the account properly in order to understand the extent to which it can be divided in the divorce.
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Marriage Length Can Affect Retirement Fund Division

For retirement plans like 401(k)s, 403(b)s or IRAs, the length of the marriage is not important. The retirement funds do not need to be split evenly between the spouses. Separate property and community property must be divided, but judges can also make decisions that reflect unequal wealth, parenting time and other factors.

However, Social Security benefits, military retirement funds and some pensions have alternative rules about spousal eligibility. In these cases, the length of the marriage is relevant, and people who have been married for longer have greater rights. A Texas divorce lawyer can help people understand the value of their retirement funds and how divorce will affect them.

Military Retirement and Social Security Benefits

In order to be eligible to receive benefits under your spouse’s Social Security benefits, you must have been married for 10 years or longer. This type of access is based on your spouse’s work record. It can help people in long marriages where one person stayed home with the children while the other spouse worked at outside employment. The entitlement to spousal benefits can also depend on your own Social Security benefits that you accumulated through your work career. Spousal Social Security benefits after divorce do not diminish your spouse’s ability to access his or her full benefit.

Depending on how long your spouse served in the military, you may be able to access spousal military retirement benefits after divorce. If you are eligible, you would be able to receive payments directly from the military retirement system.

Researching Spousal Retirement Accounts

In cases where a divorce is more heavily contested or financial secrecy is an ongoing factor, one person may be concerned that his or her spouse is hiding retirement accounts. Employer-based programs are generally visible on an earnings statement or paycheck stub. Other types of accounts will often send statements or tax information. A Texas family law attorney can also help you research whether your spouse’s employer provides pension plans even if he or she intends to hide the information.

In addition, once a divorce has been filed, generally, neither party can make withdrawals from retirement accounts without a court order. In many cases, this type of restriction is automatic. In other situations, your family law attorney can seek a specific order from family court.

Properly Dividing a Retirement Fund

After the divorce is final, you can take action to make sure the retirement accounts in question are divided according to the agreement or court order. To divide an IRA, you will generally need only the divorce decree to enforce the order. However, in most other cases, such as with 401(k) plans, 403(b) plans or pensions, you will need a Qualified Domestic Relations Order (QDRO), which is a specialized court order for this purpose. This court order will be drafted by your lawyer and signed by the judge, and it will lay out the specific division requirements for the account. It is critical to divide these accounts properly in order to avoid hefty taxes and fees.

If you are concerned about how divorce could affect your retirement and need to plan for the future, reach out to a Texas family lawyer. Call us at Stewart Law PLLC at (281) 420-8020 to schedule an appointment at our office in Baytown.

How a Contested Divorced Differs From an Uncontested One

Having a good understanding of the main differences between uncontested divorces and contested ones should provide you with the information you need to select the type of divorce that’s right for you.

Differences Between Contested and Uncontested Divorces

Even when you’ve done everything you can to make a marriage work, there are times when the only thing left to do is seek a divorce. In the state of Texas, the divorce rate was 2.6 per every 1,000 inhabitants in 2015. When you’re considering filing for a divorce, the two options available to you are a contested divorce and an uncontested one, and you should be familiar with each one before beginning your divorce proceedings.

What Is an Uncontested Divorce?

The big reason that there are two main types of divorce is because there are a variety of issues that must be agreed upon by both parties. These issues include:

  • The custody of any children
  • The division of property
  • Division of any debt
  • Payment of both child and spousal support

The only way to proceed with a divorce is for both parties to agree on each of these four issues. An uncontested divorce is one where both spouses will agree on every issue without needing to go to court. Determinations about child support amounts and spousal support will generally be made as an agreement between the two individuals that is binding when they’re filing for a divorce. This type of divorce is typically the less complicated one.

What Is a Contested Divorce?

The four issues mentioned previously can be very complicated to handle. Even if both spouses agree on 99 percent of the issues, that final percentage point can be the difference between a contested divorce and an uncontested one. There are times when a contested divorce will begin but an agreement is eventually reached before the case actually goes in front of a judge. This is referred to as a settlement and is largely similar to an uncontested divorce. Even if it appears as though a contested divorce is the only option left open to an individual, the assistance of a family law attorney may be able to help bring both spouses to an agreement.

courtA contested divorce can be a complex one. A judge will hear every detail of the case and make determinations on all of the aforementioned issues. A contested divorce will typically arise because of hefty financial stakes, technical aspects that may be difficult to resolve, or comprehensive issues that might require knowledge of the law to solve. While an uncontested divorce can be completed without ever going to court, a contested one must go before a judge. The process is a lengthy one that typically begins with the signing of a divorce petition and extends through the discovery process and the actual trial. Another option to consider during divorce proceedings is divorce mediation, which involves a third party that handles negotiations between each spouse.

How to Navigate the Divorce Process

While it’s possible to navigate the divorce process by yourself, you might want to obtain the assistance of a family law attorney like ours. Our attorney can help you understand your rights when it comes to a divorce. If you decide to retain the services of our attorney, she will help you navigate the divorce process. A divorce can be as simple or as complicated as each spouse makes it. However, we understand that it can be difficult to divide marital property or make a decision on child custody without the advice of an attorney, which is why we aim to handle most of the work for you.

When you file for a divorce in Texas, there’s a large amount of paperwork to fill out and a substantial number of rules that can determine how and if you can file for a divorce. If you believe that you need assistance with these aspects of the process, our attorney is on hand to help you with whatever you need.

No matter which type of divorce you’re facing, call our family law attorney in Baytown at (281) 420-8020 to set up a consultation.

What You Need to Know About Establishing Guardianship for Your Child

When you have a teenage child with a severe lifelong physical or mental disability, you may need to establish legal guardianship in order to protect your child’s rights and make decisions for your child once he or she turns 18 years old.

When a Child With a Disability Needs a Guardianship

According to the 2010 U.S. census, 56.7 million people have a disability. The number of people in the United States with a severe disability has increased, and people with severe disabilities are often unable to hold a job or make decisions for themselves. If you have an adult child with a disability, you may need to establish legal guardianship in order to protect your child’s rights and make certain types of decisions for him or her.

What Legal Guardianship Is

Legal guardianship is the legal right for you to make decisions for a person who the court declares to be not competent to make their own decisions. There are two types of legal guardianship that someone with a disability might need. The first type is guardianship over the person. This gives you the right to decide where the person will live, which doctors he or she will go to and whether or not he or she will attend an adult day care program or other activities for people with disabilities. The second type of legal guardianship is guardianship of the estate. This refers to the management of the funds or assets of a person with a disability.

Who Needs a Legal Guardianship?

The courts determine whether or not a person with a disability needs a guardianship. The decision is based on whether or not the person is able to make competent decisions about their person or their estate. For nearly all children under the age of 18, parents are legal guardians authorized to make medical and financial decisions on behalf of the child. Once a child turns 18 years of age, that guardianship ceases. A person who is incapacitated may not be able to make decisions about their person or estate. As a parent, you can apply for legal guardianship of your child with a moderate or severe physical, mental or cognitive disability.

Legal Paperwork Related to Guardianship Applications

The first step of applying for legal guardianship of your adult child with a disability is the completion of signaturepaperwork. The court clerk can provide you or your attorney with the paperwork. A key aspect of the paperwork must be completed by your child’s physician or medical specialists. The physician’s explanation of your child’s physical, mental or cognitive disabilities will be closely examined by the family court judge. Some of the paperwork should be completed or reviewed by a family law attorney who is familiar with the guardianship process and laws in Texas. You may also need to arrange for a social worker to visit your home or the place where your child lives. An interview may also be a part of your application for guardianship.

Court Appearance for Legal Guardianship Applications

The final part of a guardianship application is the appearance in court. After turning in your paperwork, you’ll receive a court date. The family law judge will review your application before the court date. He or she may have some questions for you during the court hearing. Representation from your attorney can help you answer those questions, or your attorney may answer them on your behalf. You may have a second hearing if the judge requests additional paperwork or documentation of your child’s health status or disability. The court may grant you guardianship alone, or you and your child’s second parent or another responsible adult can be named as co-guardians of the child with disabilities.

Establishing a legal guardianship for your adult child with a disability provides you with a way to protect his or her rights. Without the legal guardianship in place, you may not be able to make decisions or represent your child’s interests. The court could appoint a legal guardian to your child if you do not apply to be one. Contact our associates at Stewart Law PLLC today at (281) 420-8020 to schedule a consultation at our office in Baytown about establishing legal guardianship for your child with a disability.

Fathers’ Rights: Increasing Your Chances of Getting Physical Custody of Minor Children

Custody of Minor Children

For most of the history of divorce, mothers have been favored by courts for physical custody, often under what was known as the “tender years” doctrine, a theory that mothers were biologically better equipped to nurture small children. Though Texas has rejected the tender years doctrine, it’s still overwhelmingly more likely that a court will award physical custody (now known as managing conservatorship). There are, though, specific things that you can do to increase your chances, as a father, of securing physical custody of your children.

The Best Interests of the Child Standard

For decades, the primary consideration when establishing custody in Texas has been the “best interests of the child.” The court will typically look at a wide variety of evidence and factors, all with an eye toward what will best promote healthy a emotional and physical environment for the child. With that in mind, here are some of the questions the court will likely ask:

  • What has been the nature of your relationship with your child?—How does the child view you? Have you been an active and meaningful presence in their lives? The court will be inclined to grant primary custody to the parent with whom the child has spent the most time and has the strongest bonds. Accordingly, did you participate in all the daily routines—dropping off and picking up at school, disciplinary measures, doctor’s appointments, baths and bedtime? The more you did, the better your chances of getting custody.
  • Can you get along with your ex-spouse?—The courts in Texas prefer that both parents have a meaningful role in the lives of minor children, and look with disfavor on a parent who belittles or denigrates the other parent. If you can show that you will maintain a positive relationship with the child’s mother, that will be viewed positively in custody determinations.
  • Are you prepared to be a parent?—If  you want custody, you have to be able to show the court that your primary focus, after the divorce, will be on parenting your children. If the court perceives that you’ll be more interested in your own personal development, or in new relationships, they may conclude that such a lifestyle is not in the child’s best interests.

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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When Can You Get an Annulment of a Marriage in Texas?

Annulment-of-a-Marriage

As a general rule, when your marriage has fallen apart in Texas and there’s no reasonable prospect to fix things, one of the parties will file for a divorce. There may be other options, however, depending on the circumstances. One of those options is an annulment. What is an annulment and when is one available?

What is an Annulment?

An annulment is a legal a finding of law that treats the marriage as if it never existed. Accordingly, the typical issues addressed in a divorce—custody and visitation, support and property division—are irrelevant. Both parties can move forward with their lives accurately stating that they have not been married.

When Can You Get an Annulment in Texas?

There are very specific instances in Texas where an annulment is available:

  • Where one of the parties is over 16, but under the age of 18 and was married without either parental consent or a court decree
  • Where, at the time of the wedding, one of the parties lacked legal capacity to consent to marriage. This may be as a result of intoxication or mental illness.
  • Where one of the parties used fraud, misrepresentation, undue influence or duress to compel the other party to go through the marriage ceremony
  • Where one of the parties was permanently impotent at the time of the wedding and the other party had no knowledge of that fact
  • Where one of the parties was divorced within 30 days of the marriage, and the other party had no knowledge of that fact
  • If the annulment if filed less than 72 hours after the marriage license is granted

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 Impact of Adultery in a Texas Divorce Proceeding

Divorce-Proceeding

It’s a well-known fact that marital infidelity is the single most common cause of divorce, both in Texas and across the United States. Even though Texas has adopted no-fault divorce, you can still allege adultery as the cause of the breakup of your marriage, and you can obtain an advantage in divorce proceedings.

Adultery and Alimony

Though a court always has the discretion to award alimony in a Texas divorce, the court may deny spousal support if it finds that the spouse requesting alimony was unfaithful during the marriage. The court will customarily look at whether both parties engaged in extra-marital affairs. In situations where the person who participated in an adulterous relationship is asked to pay alimony, and it can be shown that the marital infidelity was the cause of the dissolution of the marriage, the court will almost always require alimony.

Adultery and Property Division

Under the community property laws in Texas, the fact that one of the parties was unfaithful can be used to reduce that person’s share of the marital estate. In addition, the court can also take money spent on an affair into account when dividing property.

Adultery and Child Custody

As a general rule, evidence of infidelity cannot be entered into proceedings involving custody and visitation, unless it can be shown that one parent abandoned minor children while engaged in an adulterous relationship.

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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Why Mediation May Be a Good Option in a Custody Dispute

Custody Dispute

In a divorce, one of the most difficult, and often painful, parts of the process is the determination of custody. As a parent, you want regular and meaningful access to your children, but you also want what’s best for them in the long run. With the emotions that accompany a divorce, it can be difficult to view such issues objectively. If you can’t come to an agreement, you can ask the court to determine the arrangement. However, that can be messy, and can often cause more harm than good. There is another option—mediation.

How Mediation Works

Mediation can offer a “win-win” approach to the resolution of custody issues. In mediation, you work with a third party neutral, someone who does not represent either one of you, but it tasked with helping you identify and implement a mutually beneficial solution. The mediator will listen to your stories and then work directly with both of you, seeking to identify exactly what you need, and ways that you can compromise to get what you need.

The mediator won’t make decisions for you. In fact, the mediator doesn’t take testimony from witnesses, doesn’t consider physical evidence, doesn’t make any rulings of law and won’t decide who’s right and who’s wrong. You will always have the right to reject a proposal by your ex, and you’ll always have the ability to suggest or propose an alternative. You’ll be actively involved in the final resolution of the issues, rather than waiting for a judge or jury to make a ruling based on evidence and legal arguments.

There are other benefits to mediation as well. Because you don’t have to go through the discovery phase of a trial, where you take depositions and gather evidence, mediation typically takes far less time, and usually involves a lot less expense.

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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Understanding the Best Interests of the Child in a Texas Family Law Dispute

Interests-of-the-Child

In Texas, when there are unresolved legal issues as part of a divorce, and there are minor children who will be affected by the ways those controversies are settled, the courts are guided by the principle known as the “best interests of the child.” Accordingly, the court must give priority to an outcome that best serves the emotional, physical and mental needs of the child.

For example, when establishing conservatorship and access (formerly known as custody and visitation), the court may grant sole legal and physical conservatorship to one parent, or may confer joint legal and physical conservatorship to both parents. As a practical matter, the court always seeks to encourage participation and involvement by both parents in the growth and development of minor children, but may opt to limit one parent’s access if there has been physical abuse, substance abuse or other violations of the law.

When determining the best interests of the child, the court will typically look at a number of factors, including:

  • The demonstrated ability of each parent to nurture and raise children
  • The stability of each parent’s home and work life
  • The future plans each parent may have for the child
  • The willingness of each parent to support the child’s relationship with the other parent
  • The child’s physical and emotional needs

In addition, if the child is more than 12 years of age, the court may factor in the child’s preferences.

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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Establishing Paternity in Texas

Establishing Paternity in Texas

Whether you are the “putative” father or the biological mother of a child either born out of wedlock or with disputed parentage in Texas, there can be significant reasons to either confirm or refute paternity. A determination of paternity essentially identifies who is (or is not) the legal father, and confers rights on both the legal father and the mother of the child. The father will have the opportunity to petition the court for reasonable visitation, and even custody, if circumstances warrant. The mother can use the establishment of paternity to obtain an order of child support.

In Texas, there is a presumption that a child born to a married couple is the offspring of that couple. If the parties agree that they are the parents, paternity is automatically established. However, if the parties are not married at the birth of the child, or if there are allegations of marital infidelity, the child will have no legal father until paternity is determined.

The Ways Paternity Can Be Determined in Texas

The Lone Star State allows paternity to be confirmed either voluntarily or involuntarily. If both parties agree on paternity, they can sign a document called an “Acknowledgement of Paternity.” Most hospitals carry the form. After it’s signed, it will be sent to the Vital Statistics Unit in Austin, and the legal father’s name will be listed on the birth certificate.

Involuntary determinations of paternity are always done through a court. Either party can file a “Petition to Adjudicate Parentage,” and the court will hold a hearing to gather evidence. If either party denies paternity (or is uncertain about paternity), the court can order DNA testing. If the court establishes paternity, it will issue an order adjudicating parentage, granting all rights as a legal 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

 
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