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Texas Divorce Basics

Texas Divorce Law—The Basics

If you are considering filing for divorce in Texas, you probably have a lot of questions—here are answers to some of the most basic questions about divorce.

Do I Have to Give a Reason for Wanting a Divorce?

No. In Texas, you can ask for a divorce with or without stating the grounds. In a no-fault divorce, you need only advise the court that you have irreconcilable differences. You can, however, state grounds, such as adultery, cruelty, abandonment, felony conviction or confinement in a mental institution. If the court agrees, you may be able to get more than an equal share of marital property.

Do I Have to Be a Texas Resident? If So, For How Long?

Texas does not have jurisdiction over a divorce proceeding unless one of the parties has been a resident of the state for at least six months, and a resident of the county in which the action is filed for at least three months.

How Long Will It Take for My Divorce to Be Final?

That will vary, depending on a number of factors, including the ability of the parties to agree on custody, visitation, support and property distribution. At a minimum, however, a divorce cannot be finalized for at least 60 days after the filing of the complaint.

How Will Property Be Divided?

Property will be divided under the community property laws of Texas.

Is Alimony Available in Texas?

Texas law allows alimony in limited situations, typically where the recipient lacks the ability to be self-supporting, has a physical or mental disability, or cannot take care of himself or herself.

How Is Child Custody Determined?

Ultimately, the court must be satisfied that the custody and visitation arrangement is in the best interests of the minor children. The parties may agree to a specific arrangement, but the court may reject that agreement if it determines that it was entered into under duress or coercion, or is not in the child’s best interests.

How Does the Court Calculate Child Support?

Texas uses a formula that includes the income of both parties, the needs of the child, and any other special factors.

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.

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Divorce at Retirement—Pay Attention to the Details

Late-in-Life Divorce—Watch Out for Impact on Retirement Assets

Over the last two decades, the rate of divorce among 50-somethings (and older) has more than doubled. Even though there is less likelihood of disputes over child custody, visitation and support, there are other factors that make these types of proceedings complicated and time-consuming. Marital estates tend to be more substantial and the parties often have significant retirement assets.

Paying Attention to the Details

If you are involved in a divorce, have substantial retirement plan assets and are at or near the end of your working life, you need to take great care when attempting to divide retirement or pension plan assets. With an IRA, you can split the value and roll a portion of the funds over into a new IRA without any tax consequence simply by setting up the new IRA and making the tax-free rollover. However, if your retirement is in a 401(k), 403(b), or other qualified plan, you will need the court to issue a Qualified Domestic Relations Order (QDRO) or you will incur tax on the transfer.

Another concern may involve your home. For many, the equity in their home is a substantial retirement asset. In a divorce, you may consider selling the home and splitting the proceeds, but there can be adverse tax consequences to doing this. You are best-served to discuss the matter with a tax professional and/or a lawyer before you make any decision.

You should also reexamine your insurance coverage as part of a late-in-life divorce. The policies will likely name your ex as a beneficiary. In addition, you may need to seek new source of insurance coverage.

Contact Stewart Law, PLLC

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 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.

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Chameleon Kids

The Adaptability of Children in Divorce—Pros and Cons

The Adaptability of Children in Divorce—Pros and ConsIt’s pretty hard, most of the time, to be a child of divorce. Kids look to their parents for guidance, acceptance, love, support and instruction. When they get dramatically different signals from one parent, they can become confused, anxious and depressed. Often, as a defense mechanism, they will simply adapt—be what dad wants at dad’s house and what mom wants for mom. Experts say that there are benefits to learning some level of adaptability, but that kids who continually play different roles and wear different “masks” when with different parents ultimately struggle to find out who they really are.

Learning to Be Flexible

To successfully function in society, we all need to learn some level of flexibility—to learn that we can’t always behave the same way in every situation. You wouldn’t want your child to act the same way at a classical music performance or at a funeral that they would at a birthday party or a rock concert. Everyone is different, and it’s inevitable that dad will respond differently to some things than mom does, or that dad will attach more or less importance to some rule or behavior than mom does. Being exposed to that can help children prepare for situations that are different or where circumstances are not as expected.

Children who are expected or believe that they must behave very differently when with different parents tend to become extremely vulnerable to peer pressure and abuse. They can associate the failure to adapt with a fear of abandonment or rejection. They may associate with peers, not because they have much in common, but because they feel sorry for those kids or they are simply afraid to be alone. The other common problem with over-adaptive kids is the inability to make decisions. They tend to believe that the parent with whom they are staying controls the agenda, so they often engage in a game of trying to guess what the parent wants, instead of expressing their own opinion or answering a question honestly.

Contact Stewart Law, PLLC

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 years of experience to clients in south Texas.

Concerns about Over-Adapting

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.

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The Consequences of Lying to Your Children in a Divorce

It Doesn’t Pay to Lie to Your Children

The Consequences of Lying to Your Children in a DivorceMost parents would agree with the statement that it’s not a good thing to lie to your children. Unfortunately, most research shows that children learn to lie by observing their parents. Often, the parent who doesn’t tell his or her child the truth is acting out of perceived attempts to protect the child. A parent may worry that the child lacks the resources to fully understand an issue, and may tell the child that nothing’s wrong, when it’s clear that something is. The message to the child—it’s okay to lie in certain situations. The other potential side-effect of not telling your child the truth—he or she may start to doubt his or her perceptions or may stop trusting you.

So does that mean you reveal all the gory details of everything in your life to your child. No, say experts. For example, if you are upset about something and it’s apparent to your child, you may get the question, “Are you okay?” “I’m fine” is clearly not an honest answer. But you don’t have to disclose the full nature of your unhappiness. It can be enough to say to your child, “Thanks for noticing that I am upset. I will be okay. I just need to take care of some things.”

It’s also healthy to help you children understand that sadness and disappointment are part of life. If you acknowledge to your child that something makes you sad, but you have the ability to move forward, you child will learn that the same approach is possible for them. And when you make a mistake, don’t be afraid to admit it to your child. It will encourage them to be candid with you when they’ve done something wrong.

A common misperception is that kids don’t know what’s going on unless you tell them. The reality is that kids are far more sensitive to changes in routine, tone of voice, level of confidence and happiness than they are usually given credit for. They know when mom and dad aren’t talking to each other, or even when they are being testy with each other. They know something is different if you are a parent of divorce and you have a new girlfriend or boyfriend, even if you haven’t told them.

Contact Stewart Law, PLLC

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 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

Common Law Marriage and Divorce in Texas

Common Law Marriage and Divorce—Saying I Do without Really Saying “I Do”

Common Law Marriage and Divorce—Saying I Do without Really Saying “I Do”Currently, Texas is one of nine remaining states that sanction the concept of “common law marriage.” Essentially, common law marriage means that the state (and the law) recognize two people as being married, even though the parties may never have had a formal ceremony or exchanged vows. The practice is a carryover from old English tradition, where rural couples without access to a priest or official would live as a married couple and hold themselves out to the community as husband and wife.

Common Law Marriage

Texas validates common law marriages, provided you either:

  • File a certificate at your county courthouse swearing that you are married under the common law, or
  • Live with another person and hold yourself out to the community as husband and wife

For a common law marriage to be valid in Texas, both parties must be over the age of 18 at the time the marriage is declared, and both parties must voluntarily agree that they are married. The law requires that you live together in a residence that you both consider to be your home, though there is no specific amount of time required. You must hold yourself out to the community as married, typically referring to yourselves as Mr. and Mrs., or as husband and wife.

Divorce after Common Law Marriage

If your common law marriage was validated by filing a formal certificate in court, you must obtain a formal divorce to terminate all rights under the marriage. If, however, you never filed a certificate, you may not need to file for divorce, provided you can show that one of the four conditions to a common law marriage was not met. For example, if you allege that even though you held yourself out to the community as husband and wife, you never voluntarily agreed to consider yourself married, you may be able to simply terminate the relationship.

Contact Stewart Law, PLLC

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 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

Change Your Will after a Divorce

Change Your Will after a Divorce

Change Your Will after a DivorceIn the midst of the many emotions that come with divorce, one of the last things you often think about is what will happen to your property in the event of your death. But you need to attend to it as soon as possible. If you have put a will or trust in place, naming your soon-to-be ex as the beneficiary, there’s a good chance they will inherit a part of your estate, should something happen to you. If you don’t specifically name your ex-spouse, but simply state that you leave certain property to “my spouse,” your property may ultimately go to others (since your ex is no longer your spouse), but your heirs could face a long and expensive battle to accomplish that end.

Tear Up the Existing Will or Trust

The simplest way to invalidate the terms of a will or trust is to destroy it. When you execute a will or trust, you will have only one authentic copy of the document—the one with your original signature on it. Typically, you’ll put it in a safe deposit box or leave it with your attorney for safekeeping. If you tear up the document, it should no longer be binding. However, if others don’t know of your intent to revoke the will, a copy may potentially be used to show your intent. The other potential problem with simply revoking or tearing up your existing will—if you die, your estate will pass under laws of intestacy.

Your best move, then, is to prepare and execute a new will or trust, one that specifically revokes all prior wills and trusts. You can use one of the many simple will forms found online—provided they comply with the formality requirements of your state. You are generally best-served, though, by hiring an attorney to prepare and execute a new will for you.

Contact Stewart Law, PLLC

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 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

Visitation and Co-Parenting in Texas

Visitation vs. Co-Parenting

Visitation and Co-Parenting in TexasIn Texas, as in other states, courts in custody proceedings give priority to the “best interests of the child.” The courts also distinguish between physical custody (now called “managing conservatorship” in Texas) and legal custody. Managing conservatorship or physical custody refers to the actual physical residence of the child. Legal custody addresses the rights of the parent to participate in decisions regarding the child’s welfare, such as medical, educational, religious or other special needs.

With respect to physical custody, courts in Texas prefer to grant “joint managing conservatorship,” where both parents have access to the child, and the child spends some time in the home of each parent. In many instances, the child will spend a greater amount of time with one parent, who is labeled the “primary joint managing conservator,” or custodial parent. The other parent is customarily granted visitation (now referred to as “access”) with the minor child.

There is no “standard” co-parenting arrangement, though. The parents are typically free to work out agreements, such as alternating weeks with each parent, provided the court finds that such an arrangement is not disruptive to the child. Parents also have the ability to negotiate all other issues related to custody and visitation, from holidays and vacations to participation in extra-curricular activities.

If the parents cannot work out an acceptable arrangement, the court will order conservatorship and access, based on a number of factors, including:

  • The stability of each home
  • The fitness of each parent
  • The current and prior relationship between parent and child
  • The physical and emotional needs of the child
  • The input of the child, if the child is 12 year of age or older

Contact Us

At the law office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 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 office is 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

Legal Issues for Single Moms

Legal Issues for Single Mothers—Establishing Paternity

Legal Issues for Single MomsIf you are an unmarried mother of a minor child, there are a number of legal issues about which you need to be concerned, so that you can protect yourself and your child. One of the most important is determining who the biological father is.

Establishing Paternity

Unless you can establish paternity or get the father to agree to paternity, you won’t be able to collect child support, and will have to support your child entirely on your own. Paternity can also make your child eligible for a wide variety of benefits through the father of the child, including medical insurance, veteran’s benefits, Social Security and inheritance.

Paternity may be established three different ways in Texas:

  • By presumption—if you were married to the father or lived continuously with the father for a period of time before the birth of the child, there is a presumption of paternity. The alleged father may challenge paternity through DNA testing
  • By voluntary acknowledgement—the alleged father may sign a legally binding document stating that he is the genetic father of the child
  • By court order—the mother or the alleged father of the child may ask the court for an order establishing paternity. A child who is old enough may also ask the court to order paternity testing.

Contact Us

At the law office of Linda Stewart Law, PLLC, in Baytown, we bring more than 10 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 office is 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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Can I Get Back Child Support to the Date of Birth?

Retroactive Child Support—When Does the Obligation Start?

In Texas, the custodial parent of a minor child has a right to pursue child support from the non-custodial parent, whether they were married or not. Especially in cases where the alleged parents were not married, and there are no divorce proceedings, it can be months before the mother asks the court for an order of child support. If the court grants the request, when will the obligation to pay support begin? Will the court automatically include support from the date of birth of the child?

Married vs. Unmarried Parties

If the parents were married, the court will usually order support effective to the date of separation or filing of a divorce complaint.

If the parties were not married, the court has the discretion to order support as of the date of the birth of the child. The court can also require that the non-custodial parent pay some portion of medical expenses associated with the birth of the child, including pre-natal exams and hospital/delivery costs, provided those expenses are not covered by insurance. As a general rule, though, Texas courts typically do not order retroactive child support for a period of more than four years.

Retroactive support is not automatically granted, though. If the custodial parent does not ask for retroactive support, the court will typically not grant it.

Contact Us

At the law 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 office is 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

Common Visitation Mistakes

Visitation Mistakes Parents Often Make

Divorce and visitation are really hard on kids. As a parent, you don’t want to make a difficult situation even worse. Unfortunately, many custodial and non-custodial parents do just that. Here are some of the worst things you can do with visitation.

  • Use visitation as a tool to either punish or reward your ex-spouse—This applies to both sides. Custodial parents may falsely claim that children are sick. Non-custodial parents may claim they are unable to take children as agreed upon. In both instances, the children become pawns and they know it.
  • Use the time when children are picked up to discuss difficult issues—Disagreement is a part of life, but it doesn’t have to take place in front of your children. If you have a conflict that is between you and your ex-spouse, don’t discuss it in front of your children. They usually lack the development to understand that a simple disagreement won’t lead to a serious result.
  • Make your children feel guilty about visiting the other parent—It may often be entirely unintentional, but when you tell your children that you will miss them when they are with the other parent, they are inclined to feel responsible and guilty for leaving.
  • Let your children make the decisions about when and how long they will visit their non-custodial parent, or when they will go home—This puts unnecessary pressure on the child, as they don’t want to hurt anybody’s feelings, but find themselves in a no-win situation.

Contact Us

At the law 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 office is 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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