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Austin TX Family Law Blog

Wednesday, March 30, 2016

Divorcing? Get Ready to Review Your Finances


How does a divorce affect a person’s finances?

When you have a significant life event such as a marriage, the birth of a child, or a death, you must usually evaluate how this impact’s our finances. It might not seem like it, but divorce has just as large of an effect on your finances as any other life event.


Read more . . .


Saturday, March 12, 2016

Prenuptial Agreements May Not Be Necessary, But Prenuptial Financial Discussions Are

What should young couples discuss about finances before they get married?

According to a 2012 study published in Family Relations, arguments about money are the most common predictor of divorce. Nonetheless, finances are at the bottom of the list of topics most young couples talk about. With the threat of divorce so prominent in modern society, is seems only reasonable that engaged couples should spend some time discussing their attitudes about, and expectations of, financial matters. Following are some themes to direct your discussions and hopefully put you both in a better place relative to the economic aspects of marriage.

[1] Individual Perspectives on Money

Each member of the couple has been raised in a different family and these differences have to be discussed in order for each to understand the other's perspective. It is important to know not only the level of wealth or poverty your intended grew up with, but the behavior surrounding that environment. Was the family prone to strict spending practices or did one member frequently splurge while the other scrimped? What were the family's priorities in terms of spending -- home furnishings?  clothing?   cars? education? vacations?  Did your fiancé(e)'s parents always consider "buying the best" to be a good investment or were they bargain hunters?

[2] Put Your Financial Cards on the Table

Unless both partners understand and communicate their individual financial situations, they will not be able to make reasonable decisions as a couple. They have to know one another's earnings, student loan debt, mortgage or rent, savings and credit score. They also have to fess up to any history of binge-spending, stinginess, or a tendency to lend or borrow.

[3] Show Each Other the Money

Since you are going to be married and, presumably, share a budget, you should show your partner an outline of your income and your expenses. It may be that you are already aware of one another's spending and saving habits, but there is no substitute to actually seeing the numbers in black and white. You may be amazed to find out that you spend more on entertainment than groceries or that your partner saves half of his or her salary. Revelations of this kind should be prerequisites of marriage so they don't become areas of contention and so that you can combine your budgets into a plan that suits you both.

[4] Look to the Future

While no one has a crystal ball and unforeseen occurrences are to be expected, you should discuss very basic futures plans, such as whether you want to live in a city, suburban or rural community and whether you want to have children.  Don't make the assumption that your spouse to be shares your desire of a large family unless you have discussed the matter. Also, you should both be aware that the U.S. Dept. of Agriculture estimates the cost of rearing one child at more than $245,000.

[5] Make Some Money Management Decisions

It is important to make a decision about whether you will keep separate bank accounts in addition to contributing to a joint account. You should also discuss who will pay the bills. Will one partner pay the rent or mortgage and the other pay for other expenses? Will the money simply be pooled? How much will each spouse require for day-to-day living expenses? How big must a purchase be for both parties to agree that it is necessary?

[6] The Uncomfortable Prenuptial Agreement

While not every couple signs a prenuptial agreement, it may show a certain amount of maturity to do so, particularly if the two members of the couple come to the marriage with widely varying assets, or if this is not a first marriage and there are stepchildren to be considered.

It is extremely helpful to be guided through premarital financial discussions by an experienced estate planning attorney who will know which questions to ask and whether you have need for legal documentation. Discussions about financial matters are not usually easy, but they are considerably easier before the wedding then after years of marriage. It is astonishing how quickly bills and spending habits can lead to marital discord.  You may be pleased, surprised, or dismayed by the results of a premarital financial discussion, but it's much better that these feelings be explored before, rather than after, the wedding vows are taken.


Monday, February 22, 2016

Alimony Changes When the Receiving Spouse Cohabits with Another

How is alimony affected by the cohabitation of the spouse receiving it?

Divorce is difficult under any circumstances, usually involving financial, as well as emotional, stress. In recent years, when many spouses are both working outside the home, alimony may not be part of the divorce agreement, or may be paid by either spouse to the other, regardless of gender, depending on income levels. How long alimony will be paid is variable.

The Terms of the Divorce Agreement Usually Determine When Alimony Ends

 

 

When the divorce is finalized, even if alimony is to be paid for an extended period, it typically is stipulated to terminate if the receiving spouse remarries, unless the original court document states otherwise. In some states, however, there are judges who, under certain circumstances, have the discretion to decide that alimony will continue after the receiving spouse remarries.

Does alimony stop if the recipient cohabits with another partner rather than remarrying?

Whether alimony will be terminated or reduced depends on where in the U.S. you reside and under the particular circumstances of your marriage and divorce. The following variations are possible:

  • In most states, alimony will be terminated or reduced only if cohabitation alters the recipient's need for economic support
  • Other states, however, will terminate alimony regardless of economic need once cohabitation occurs
  • In still other states, cohabitation will have no effect on alimony

Examples of Differences in Alimony Laws from One State to Another

In New York, alimony will only be terminated if the recipient not only lives with another, but also considers herself or himself to be a spouse of the other party. Since very few recipients are willing to do this if it means losing money, alimony is rarely terminated in New York.

In Illinois, on the other hand, a relatively recent ruling viewed a couple as cohabiting since they were intimate, sexually and otherwise, on an ongoing basis, even though the recipient's significant other lived in a separate residence.

In Arkansas, alimony cannot be terminated unless the cohabiting couple has a child together!

In Tennessee and California, it is assumed that the recipient's need for financial support is reduced or eliminated once he or she begins a relationship of cohabitation, so, unless the recipient can prove otherwise, alimony payments will be reduced or terminated.

In Texas, courts only award alimony if: [1] the marriage lasted for at least 10 years [2] one parent must care for a disabled child and therefore can't work or [3] the paying spouse has committed domestic abuse within two years of the divorce. In addition, in determining the length of time for which alimony must be paid, the court will consider each spouse's education, employment skills, age and health, and the duration of the marriage.

In states in which there are no specific laws to address the effect of cohabitation on alimony, the judge's ruling is difficult to predict. No matter what the state law is, however, if your particular divorce agreement stipulates what will occur if the receiving spouse becomes involved in a relationship of cohabitation, your agreement will remain legally binding.

In all situations, the onus is on the person requesting an alteration of alimony arrangements to prove that the ex-spouse's financial situation has significantly improved. If you are in the midst of setting up a divorce agreement to cover such situations, or if you are already enmeshed in a conflict in regard to alimony and cohabitation, it is essential that you contact an experienced family law attorney to vigorously defend your rights.


Wednesday, February 10, 2016

Divorce Filings Reveal Startling Domestic Strife for 'Affluenza Teen'

By now, many people nationwide have heard of the “affluenza teen” – a Fort Worth-area teen who obtained a shockingly light sentence after killing four people while driving drunk and underage. Citing the poor parenting skills of his mother and father, along with the irreversible effects of being spoiled his entire life, the child’s counsel somewhat successfully invoked the “affluenza” defense to help his client avoid the maximum possible adult sentence for his actions.

The perpetrator has since garnered additional nationwide scrutiny after apparently fleeing to Mexico with his mother, who is also facing charges for absconding with her child in violation of his probation. Now, after being thrust into the limelight, details of the parents’ 2006 divorce have emerged, shedding light on a little-known concept occurring with increasing frequency in divorces nationwide: adultification.

What is ‘adultification?’

When two parents go through a divorce, it is not uncommon for one or both to experience loneliness or isolation – particularly if the divorce was especially troublesome or came about unexpectedly. In some scenarios – as is alleged in this story – parents begin to treat their children as adult friends rather than vulnerable children, often asking them to fulfill inappropriate roles as the parent’s confidant and mentor. For a child enduring adultification amidst a divorce, the unsuitable changes in dynamics can create a confusing and dangerous mental health scenario for the child.

In the case of the “affluenza” teen, details of a divorce-related home study have been made public, revealing startling instances of adultification between the then nine-year old and his mother. More specifically, the psychologist detailed that “[the mother] has [the child’s] bed in her room and considers [the child] to be her protector….[the child] has a bedroom but prefers to sleep in a separate bed in his mother’s room.” The psychologist further noted that this arrangement was “very unusual and highly questionable.” The counselor further noted that the child commented he wished his parents wouldn’t “put him in the middle” – and was not surprised the child’s life had run its course the way it did.

If you are looking for help in ensuring the best possible arrangement for your children post-divorce, please do not hesitate to contact a reputable child custody attorney today!


Monday, January 25, 2016

Grandparents' Visitation Rights

What are the grandparent visitation laws in Texas?


Divorce has many ramifications for families. The divorcing spouses must work through all the usual issues involving child custody and support, spousal support and the division of property. While child custody is usually handled jointly, there are other important people in a child's life who may have visitation rights, such as the grandparents.

In many families, bonds between children and grandparents are strong and can last a lifetime. In recognition of this fact, every state now has some type of grandparent visitation law. In Texas, a court can authorize visitation rights for grandparent, provided that such visitation is in the best interest of the child. Texas is viewed as a restrictive state in this regard, because the grandparent must overcome the presumption that a parent's barring visitation is in the best interest of the child.

This requires the grandparent to prove that denying visitation would significantly impair the child's physical health or emotional well being. This is also known as the harm standard and it is a higher burden of proof than in other states. The Texas standard, however, adheres to federal requirements established by the United States Supreme Court. In short, the Court has ruled that, as long as a parent adequately cares for his or her children, there is no basis for the government to impose in private family matters.

In addition to meeting this standard, one of the following conditions must exist in order for the court to authorize visitation:

• The parents divorced
• The parent abused or neglected the child
• The parent has been incarcerated, found incompetent, or died
• A court-order terminated the parent-child relationship
• The child has lived with the grandparent for at least 6 months

In the final analysis, the visitation laws in Texas do not give grandparents an absolute right. As with many child visitation issues, the courts will make decisions based on a determination of what is in the best interest of a child. There are also other issues that can affect a grandparent's visitation rights, such as adoption. On the other hand, in situations where a child lives with a grandparent, he or she may decide to seek custody of the child.

As with any other matter involving divorce, child custody and visitation rights, these are complicated legal issues. If you are a grandparent seeking visitation rights, you should consult with a qualified family law attorney.
 

Wednesday, January 20, 2016

Federal Government to Step In to Help State's Ailing Foster Care System

What is the latest news concerning the foster care system in Texas?


As practitioners of family law – which necessarily requires a keen awareness of issues impacting parents and children – we remain steadfastly dedicated to keeping abreast of advancements in applicable Texas and federal laws. In December, a federal judge issued a startling ruling concerning the current status of the foster care system in Texas – citing the system as violative of the constitutional rights of children. In a gut-wrenching opinion, the U.S. District Court in Corpus Cristi stated as follows:

Years of abuse, neglect and shuttling between inappropriate placements across the state has created a population that cannot contribute to society, and proves a continued strain on the government through welfare, incarceration or otherwise.

The ruling came approximately one year following the filing of a lawsuit against the state’s foster care system by child welfare advocates who decried the deplorable conditions many children were allegedly forced to endure. Specifically, the lawsuit targeted children placed in long-term foster care arrangements in the state, and argued that caseworkers are assigned too many children to properly monitor their progress. Moreover, children were allegedly placed in homes too far away from their families, and were not receiving appropriate supervision – especially in group homes lacking round-the-clock awake monitoring.

As a result of the ruling, a Special Master will be appointed to oversee the mandatory changes imposed by the District Court judge. As part of the process, the system must implement a complete overhaul, including mandatory maximum caseloads for workers across all 254 Texas counties. Moreover, children must have private access to their caseworker, and counties must implement services for children on the brink of aging out of the system.

Currently, Texas maintains one of the largest child welfare teams in the United States, with 8,000 full-time employees and a $1.2 billion budget.

If you are facing a difficult child custody or visitation situation, please do not hesitate to contact Stinson Moyle, PLLC today: 512-320-9070.

Thursday, December 31, 2015

Time Magazine Reviews 'Alimony Reform' in Light of Surge in Breadwinning Women

What are the latest trends concerning alimony and spousal support on a national level?



According to a recent article posted in Time magazine, a record number of women are paying alimony to their former spouses – an arrangement once unheard of just 40 years ago. As more and more women are stepping into the role of “breadwinner,” this change in family dynamics has led to a similar change in post-marital spousal support orders – and a growing number of opponents are seeking to have alimony and spousal support laws totally upended, if not eliminated altogether.

Historically, the lower- or non-earning spouse was eligible for alimony payments from the higher-earning breadwinner for an indefinite period of time – provided the recipient did not get remarried or begin cohabitating with a romantic partner. Over time, however, the existence of the dependable alimony payment became almost a hindrance for the recipient partner in gaining valuable work experience – and payors began to complain that paying alimony for decades on end was not exactly fair.

In recent years, several anti-alimony lobbying groups have come to the forefront, demanding either strict limitations of alimony awards or an elimination of the practice (provided the lower-earning spouse would not be left destitute or impoverished). According to alimony opponents, the concept of “permanent alimony” should be erased from the law books completely. Instead, alimony orders should be for a limited period of time, perhaps to allow the recipient enough time to pursue an education or gain valuable work experience.

While opponents would still advocate for permanent alimony on behalf of disabled or elderly ex-spouses, the vast majority of the 400,000 Americans currently receiving alimony payments could – and should – find stable, gainful employment post-divorce. However, if an award of permanent alimony is already in place, it can be difficult to obtain a modification or revocation of the award unless the parties either consent to the change, or the financial situation of either party changes dramatically.

If you have questions about alimony or other aspects of the divorce process, please do not hesitate to contact Stinson Moyle, PLLC today: 512-320-9070.

Sunday, December 20, 2015

Child Custody in Texas

How are matters of child custody decided in Texas?

In Texas, child custody is referred to as "conservatorship," and the parent is referred to as a "conservator," rather than a custodian. Unless both parents agree on a custody plan, the court will establish such an agreement. The governing principle of child custody arrangements is always the "best interest of the child." There are two types of conservatorship in Texas: joint managing conservatorship (JMC) and sole managing conservatorship (SMC).

What are the rights of being a conservator?

Conservatorship entitles the parent designated to:

• Access information from the other parent re: the child's health, education, welfare
• Have access to the child's medical, dental, psychological and educational records
• Talk to the child's physician, medical specialist, dentist or psychologist
• Talk to any school personnel regarding the child's education or school activities
• Consent to medical, dental, or surgical treatment during emergency situations

What is joint managing conservatorship (JMC)?

In Texas, both parents are presumed capable of being part of a joint managing conservatorship, sharing the rights and duties of parenting, unless there is evidence to the contrary. Still, the judge may decide that, "in the best interests of the child," certain decisions are best left to one particular parent.
The decisions regarding visitation and custody are made separately, during the creation of a standard possession order.

What is sole managing conservatorship (SMC)?

SMC means that the judge decides to grant only one parent the ability to make certain decisions for the child, such as:

• Deciding on the child's primary residence
• Consenting to the child's medical/dental/psychological or psychiatric treatment
• Being the child's designated emergency contact
• Being allowed to attend the child's school activities
• Making decisions concerning the child's education

What possible reasons might the court have for awarding SMC rather than JMC?

In a few cases, one parent may not want to take on the responsibility of parenting. More frequently, the judge orders an SMC because the other parent:

• Has a history of domestic violence or other criminal activity
• Has a history of alcohol or illegal drug abuse
• Has been neglectful of the child, or absent from the child's life

It is also possible that the court will order an SMC because there is a history of extreme conflict between the parents in regard to educational, religious, or medical issues.

How does child visitation work in Texas?

In Texas, visitation is referred to as "possession and access." Unless the court deems it unwise because of a likelihood that contact with the noncustodial parent will endanger the child physically or emotionally, a schedule will be set up to provide both parents access to the child.

How does child support work in Texas?


In Texas, child support is almost always paid to the custodial parent by the noncustodial parent. This responsibility typically ends when the child reaches the age of 18 years. If the child is disabled, however, the judge can order child support to continue for a longer period. If you are contemplating divorce, and confronting issues of custody and child support, you should consult with a knowledgeable and compassionate family law attorney.


Monday, November 30, 2015

Texas Man Sleeps on Front Lawn for Five Months in Fierce Divorce Stand-off

Texas Man Sleeps on Front Lawn for Five Months in Fierce Divorce Stand-off

Divorce can be difficult, but working with the right attorney can help stave off situations like that out of Seabrook, Texas. According to reports, a 69-year old divorce litigant was reduced to sleeping on the front lawn of his multi-million-dollar home – a situation which went on for nearly five months before being finally resolved in the divorce courts. While undoubtedly a wild example, it is not uncommon for seemingly simple divorces to take a turn for the worse, which is why working with an experienced family law attorney is an essential step in the process. 

Allegedly, the 69-year old was facing allegations of spousal abuse by his wife, which he has staunchly and publicly denied. Nonetheless, a Texas judge ordered him to stay out of the marital home for the duration of the divorce proceedings. In protest, the man has remained a permanent fixture in the front yard of the home, living out of the family dog house, and encouraging the neighbors to inquire into the situation. In a statement to the media, the man stated that he remains on the lawn as an embarrassment to his wife, and so that “[p]eople will know, the neighbors and everything else. Everybody will ask her, put her down, let her know what you’re doing to your husband.”

While stories like this serve as fodder for the news media, this is certainly not an ideal for couples facing divorce – particularly if abuse allegations are involved. With the help of a competent and knowledgeable divorce attorney, you can navigate the divorce process with as little conflict as possible – without anyone having to sleep on the lawn!


Saturday, November 21, 2015

Child Support in Texas called “Purgatory” by Some Custodial Parents

Why has my child support payment been collected by the state, but not then distributed to me?



Recently, some are calling the massive number of undistributed payments in the Texas Office of Attorney General “purgatory.” This is because the custodial parent is put in the precarious position of waiting for money needed to make ends meet. This is money that has been allocated by the noncustodial parent to the state of Texas, but has not thereafter been distributed to the custodial parent. This can be a poverty-inducing experience for some parents in the system. Often, after the custodial parent fights the noncustodial parent for payment, the former faces a second fight with the state for the disbursement of funds.

In the third quarter of the 2015 fiscal year, Texas did not distribute $55 million in child support payments. This pales in comparison to the $21 million figure from this time last year. Clearly, this dismal situation, damaging to so many families, is getting worse.

The state has given a variety of reasons for this delay in distribution.of monies intended to support dependent children, including:

• Custody disputes regarding the amound of payment
• State interception of millions from the IRS that must then be verified as legitimate
• Erroneous information about the custodial's parents personal information, such as
home address or place of employment

In many instances, hiring an attorney can speed the process along.. Attorneys can petition the court for a hearing, and thereafter push the state to provide answers as to why the payment has been delayed. This may be especially helpful if the state is not providing answers to the distributee through the normal channels. If you are having troubling getting responses from the state's 800 telephone number, for example, or have had no success even when you visit a state office, it may be time to hire a family law attorney who is familiar with precisely how to expedite the process.

Wednesday, October 28, 2015

Basics of Spousal Maintenance in Texas: How Much & How Long?

Must I keep paying spousal support after my ex gets remarried?

Spousal support is a component of many Texas divorces, and is designed to ensure that neither spouse experiences significant financial hardship nor impoverishment in the months or years following the dissolution of the marriage. Historically, one spouse had served in the primary “breadwinning” role while the other tended mostly to domestic matters, childrearing and homemaking. In the event of a divorce in this situation, the homemaker spouse often experienced an inability to find gainful employment – prompting the advent of spousal support laws to ensure that divorce did not necessarily lead to financial ruin to the spouse unprepared for the job market.

In Texas, a court may order spousal maintenance only if the “spouse seeking maintenance will lack sufficient property… to provide for the spouse's minimum reasonable needs.” Moreover, the court must find that the spouse seeking maintenance also fits into one of the following categories:

  • Has been a victim of domestic violence at some point during the marriage
  • Has a physical or mental handicap making self-support impossible or unduly burdensome
  • Has been in the marriage for at least 10 years and “lacks the ability to earn sufficient income to provide for the [his or her] minimum reasonable needs”
  • Is the primary custodian of a child of the marriage who needs continual care due to a mental or physical handicap

In most instances, spousal support does not last forever. Undoubtedly, the recipient spouse foregoes the right to support upon remarriage – and, possibly, cohabitation in a subsequent romantic relationship. In many cases, a divorce decree will specify a definite length of time for support payments, and will generally require the recipient to make reasonable efforts to secure a regular income.


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