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Austin TX Family Law Blog

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.


Monday, October 12, 2015

Divorce: Facts, Myths and Explanation

Please tell me more about divorce law in Texas: what do I need to know?

A good place to start learning about divorce law is during the period before the divorce is filed. Some people believe that gathering evidence that casts your spouse in a negative light, such as listening in on your spouse’s phone calls, intercepting your spouse’s emails, or tracking your spouse’s movements via use of a GPS tracker, is beneficial But be forewarned -- such actions can expose you, and whomever assists you, to civil and criminal penalties. This is because such actions violate privacy laws. It helps to understand where the line is drawn in the law on this topic.

Another major consideration at this time is one of finances. Can you afford to file for divorce? Know now that, even if your spouse is the one who controls the finances, you can still file for divorce without apprehension. This is because the court is authorized to grant temporary orders of support while the divorce is pending, effectively prohibiting the other spouse from financially cutting you off. These orders can also prevent a spouse from damaging the marital finances by doing such things as stopping any sale of marital assets or by forcing the payment of marital bills.

Lastly, before filing for divorce you have to consider whether you are in a situation where domestic violence exists. Such a situation may make the contemplation of filing for divorce frightening. The law, however, has specific provisions allowing the court to grant various kinds of protective orders to restrict the offending party. Such protective orders come with serious penalties, civil and/or criminal, to ensure compliance.

During the period when the divorce is pending, Texas has a few laws that may make the process smoother. You may be interested in learning about collaborative law, as well as equitable distribution of assets. Also, you should be aware that Texas judges will consider the wishes of the child in determining child custody. Be sure to remember that experienced and trained legal counsel from knowledgeable attorneys, like those at Stinson Moyle, will be able to assist you as you navigate these points of law and the process as a whole. Call us today at 512-320-9070.


Monday, September 28, 2015

Why and How to Pursue a Supervised Visitation Order

I am concerned about my child’s safety with the other parent. Can I require supervised visitation?

In some families, there exists an unfortunate reality that one parent simply isn’t as well-suited to the parenting role as the other. Sadly, children are made to endure issues like domestic violence, substance abuse, neglect, or abandonment – requiring the imposition of a supervised visitation order. With supervised visitation, the child is not completely cut off from spending time with the other parent, however the visits are fully monitored and often take place at a state visitation center.

The reasons to pursue a supervised visitation order are varied, and the family court will require some kind of evidence to support the notion that the parent should not be left alone with the child. If the parent has a history of intoxication, violent behavior, or of leaving the child with strangers, this could serve as proper underlying evidence to support a petition for supervision.

Likewise, the format of supervised visitation can vary from family to family. In some families, a strict weekly, bi-weekly, or monthly schedule at a state visitation center is necessary to ensure the parent is at all times cooperating with the terms of the order and the law. In other situations, supervision at the parent’s home by a trusted family member (e.g., grandparent) may be all that is needed to maintain the child’s safety.

While it may seem easier to try and avoid visitation with a wayward co-parent all together, it is still important for the child to maintain a positive relationship with that person – provided this goal can be accomplished safety and is in the child’s best interests.

If you are considering establishing a visitation arrangement and you would like discuss your questions and concerns with a reputable family law attorney in Texas, please do not hesitate to contact Stinson Moyle, PLLC today: 512-320-9070. 


Monday, September 14, 2015

Reluctant Texas County Grants First Same-Sex Divorce

With the nationalization of same-sex marriage, are spouses also guaranteed equal rights to the divorce process?

In June, 2015, the U.S. Supreme Court issued its historic ruling in Obergefell v. Hodges, which opened the doors for same-sex marriage in all 50 states. For states like Texas, which did not officially recognize marriage between same-sex partners, this ruling clarified the status of marriage as a fundamental right that cannot be denied to consenting, unrelated, unmarried adults – regardless of their gender.

With that issue out of the way, the ruling also brought to light another seemingly fundamental right within the marriage context: divorce. Intuitively, same-sex partners who are now allowed to marry should also be allowed equal access to divorce, right? Well, for one Texas county, the dissolution journey was a long one – and finally reached its conclusion in August, 2015.

Several years ago, two current Tarrant County women were lawfully wed in New Hampshire – a state which has recognized same-sex marriage for several years. After moving from the Northeast to the Fort Worth area, the couple opted to split – and filed the requisite paperwork to seek a divorce. Problem was that, at the time, Texas did not recognize same-sex marriage – and accordingly refused to grant a same-sex divorce. Moreover, the spouses tried an alternative option known as annulment – which nullifies a marriage as if it never took place. Unfortunately, this attempt was also struck down by the county court, prompting the women to appeal the rulings.

After nearly four years of legal wrangling, the Supreme Court’s holding in Obergefell finally solidified the notion that a state required to issue same-sex marriage licenses is also compelled to issue same-sex dissolutions – paving the way for equality in both marriage and divorce.

If you are considering a divorce and would like to discuss your options under current Texas law, please do not hesitate our experienced and dedicated family attorneys at Stinson Moyle, PLLC today: 512.320.9070.


Monday, August 31, 2015

Dealing With Child Support Evaders Who Purposely Seek Work as "Contractors"

As we all know, monthly child support amounts are calculated based on the payor’s monthly income and other financial factors, including monthly obligations to debts or other children. As is also common knowledge, it can be difficult to ensure that monthly child support amounts are paid on time and in full – prompting many recipient parents to seek alternative methods to guarantee payment.

In Texas, there are a number of ways to force a payor to make payments. One of the most popular and hassle-free options for forcing payment is through a wage garnishment. In this scenario, an employer must deduct the appropriate amount from each paycheck and withhold that amount for the payment of child support. However, even this seemingly foolproof method is not without glitches, since  some evaders have found a way around this method.

According to recent reports around Texas, an influx of child support payors have begun seeking work as independent contractors as opposed to full employees, thereby avoiding the imposition of a wage garnishment. When a worker is categorized as an independent contractor, the employer is under no duty to withhold anything on behalf of the worker, including taxes, Medicare, Social Security, and child support.

The misclassification of workers is an expanding problem in Texas, as many employers, also perceive benefits in it as a route to avoid paying payroll taxes. Nonetheless, a  worker who has no control over his or her daily tasks and is under constant direct supervision cannot actually be considered an independent contractor under state and federal rules. Likewise, misclassifying employment as contractual to avoid and evade child support is illegal, and can result in criminal and/or civil penalties.

If you are facing a difficult situation relative to child support payments or wage garnishment and would like to speak to a reputable attorney about your issues, please do not hesitate to contact the Texas law offices of Stinson Moyle at 512-320-9070.


Tuesday, August 18, 2015

Texas Authorities Take Stronghold on Wayward Employers Alleged To Be Pocketing Child Support

What happens if an employer diverts child support funds from a payor’s check?

Once a child support order has been entered, it becomes the payor’s legal responsibility to keep monthly payments current and up-to-date. If a payor gets behind on payments, the recipient may try and negotiate payment terms to correct the arrears, but this is often difficult to achieve. In many cases, the recipient parent must file a petition alleging the payor’s contempt of a court order and failure to pay according to the terms.

When this happens, the state of Texas will undoubtedly implement an alternative arrangement to essentially force the payor to make regular payments. One of the most common options is to garnish the payor’s wages, which is usually handled by the employer’s Human Resources Department or payroll personnel. However, as one recent headline points out, this option is not always the most secure either. Distressingly,employers have been known to redirect child support payments to themselves unbeknownst to the payor who is making a good faith effort to stay current.

In one recent case, an East Texas mechanic was paying child support through his employer – or so he thought. At the beginning of his employment, he informed the company that he had six children who were not in his custody, and 50 percent of his wages should be earmarked for child support payments. However, the employer ended up pocketing a total of $32,000 over seven years that was meant for the care of the employee’s children – and the employee had no idea anything was amiss.

Despite receiving sporadic phone calls from the custodial parents of the children about the status of payments, the employee was under the impression that his payments were being sent to the right place and handled according to the terms of the order. In 2013, the Office of Attorney General was finally notified, and it confirmed it took “aggressive steps” to hold the employer accountable. In the end, the money has been repaid to the children, and the employer will be held liable for the balance, plus fines and penalties.

If you have questions or concerns regarding child support or would like to discuss a possible modification of your current order, please contact one of our dedicated attorneys at Stinson Moyle, PLLC, proudly serving Austin and surrounding counties. We can be reached at 512.320.9070.


Tuesday, August 11, 2015

Could the Latest AshleyMadison.com Hack Provide Divorce Litigants With Admissible Evidence?

I have proof my spouse is cheating. Can I use this to gain leverage in my divorce proceeding? 

There are a couple different ways to go about a divorce in Texas. Most commonly, spouses opt for the less-intensive “no fault” divorce option, which allows the petitioning spouse to cite “irreconcilable differences” as the reason for the split. Historically, however, a spouse seeking a divorce needed to have grounds to do so, and had to essentially “sue” their partner in court, prove the allegations, and “win” their case in order to obtain the divorce. 

Today, the vast majority of Texans opt for the no fault divorce route, however a fault-based divorce option is still available pursuant to Tex. Fam. Code § 6.001 - 6.007. Under this code section, a spouse may seek divorce based on any of the following: 
• Insupportability;
• Cruelty;
• Adultery;
• Conviction of a felony;
• Abandonment;
• Living apart; and/ or
• Confinement in a mental institution.
In order to successfully sustain a divorce petition under one of these grounds, the petitioning spouse must present sufficient evidence that the issue is occurring, which may be accomplished through the use of social media or evidence of electronic communication between the cheating spouses and the alleged paramour. 

Impact of AshleyMadison.com hack

While the fallout from the AshleyMadison.com hack remains to be seen, any evidence that a spouse has signed up for the site and engaged in an extramarital affair may be admissible against that spouse in a fault-based divorce action citing adultery. If the non-cheating spouse obtains the information in a lawful way, preserves the evidence properly and that spouse can properly authenticate it during the hearing, it is quite possible the court will allow evidence of site membership as possibly inferring adultery. There are a number of evidentiary and procedural hurdles to overcome, however, and an experienced family law attorney in Texas can help prepare a spouse for the potential obstacles of divorce litigation. 

If you are contemplating divorce or have questions about the best way to proceed, please contact the family law professionals at Stinson Moyle in Austin, Texas today! Call (512) 320-9070. 



Thursday, July 30, 2015

Texas Senate Advances Law Prohibiting Use of Unconstitutional Foreign Laws in Family Court Matters

Can a Texas family court incorporate foreign laws, customs, or traditions in its decision-making process?

Family law is known for its multi-jurisdictional component, with parents often living in separate states or countries. Also, new Texas residents with out-of-state judgments must go through the exercise of enrolling their foreign judgment in the state of Texas to ensure its enforceability in the event of a conflict. In the end, the procedural and jurisdictional considerations involved in a complex family law matter can quickly reach global proportions – prompting lawmakers to consider whether certain customs and practices in other nations are appropriate for inclusion in Texas family law orders. 

Legislature takes aim at ‘unconstitutional’ practices 

With thousands of cultures and standard practices at play across the globe, it is not uncommon for a family law order to reach Texas courts containing a questionable requirement or mandate – particularly with regard to divorce or child-related orders. As a result, the Texas legislature made certain the American constitutional laws protecting children take precedent over any Full Faith and Credit argument, and included the following language in the recent Senate Bill 531: 

A ruling or decision of a court, arbitrator, or administrative adjudicator in a suit affecting the parent-child relationship may not be based on a foreign law if the application of that law would violate a fundamental right guaranteed by the United States Constitution or the constitution or a statute of this state.

The bill, which becomes fully enforceable as of September 1, 2015, works to ensure that all children are afforded the same constitutional protections regardless of their nation of origin. More specifically, the bill seeks to avoid the unintentional enforcement of orders which work to oppress or subjugate foreign-born children, or unlawfully prevent children from accessing their parent or siblings. 

If you are in need of assistance with your family law matter and would like to speak to a reputable attorney, please do not hesitate to contact the Austin, Texas family law attorneys at Stinson Moyle today: (512)320-9070. 

Friday, July 10, 2015

Why Prenups Aren’t Just for the Rich and Famous

How can the ordinary person benefit from a pre-nup?


Marriage is one of the most serious contracts you will enter into during your lifetime, but unlike other contracts - think mortgages, car loans, and employment agreements- the terms aren’t in writing. That’s why we encourage every married couple to enter into a pre- or post-nuptial agreement. 

Marital agreements get a bad rap because the only time most people hear about them is when a celebrity or ultra-wealthy couple is getting divorced. However, being rich and famous is not a prerequisite for entering into a marital contract. Nor do you need to be getting divorced to find a pre- or post-nuptial agreement useful. 

Here are a few examples of situations normal people may find themselves in where a marital agreement would be useful:
• Business owners and partners should always get a prenuptial agreement. If not, his or her new spouse could become liable for business debts. In addition, if the business owner were to die without an estate plan in place, the spouse could be forced to take on the role of business owner or partner.
• If one or both partners have children from a prior relationship, a marital agreement can help ensure that commitments made to those children are known and honored by the soon-to-be-step-parent. 
• If either partner is bringing a large amount of money, or a large amount of debt, to the relationship, a pre-marital agreement can shield that asset or liability from the other spouse. Nearly everyone today has some debt before marriage - be it credit card or college loans - so this is a real issue that needs to be dealt with that older generations just didn’t have to think about.
• Other assets can also be mentioned in prenuptial agreements. For example, a woman might have inherited a share in a family-owned vacation home at the shore. The house was to be shared by the woman and her sisters, and then passed down to the woman’s future children and her nieces and nephews. By putting information about the cabin in her prenuptial agreement, she can ensure that the wishes of her family are carried out.
Having an open conversation about assets, including businesses and property, debts, and children is something all couples should be doing. Writing a prenuptial agreement just takes that conversation one step further by putting it into writing. If you aren’t discussing these serious topics with you future partner you are doing more to damage your relationship than the supposed “curse” that comes with creating a prenuptial agreement ever will. 

If you would like to learn more about the benefits of prenuptial agreements, call our Austin family law and matrimonial attorneys today at 512-320-9070 to set up a confidential consultation. 


Monday, June 15, 2015

Texas Officials Redesigning Foster Care System

When can the state remove children from parents?

Texas has deemed approximately 45,000 children unable to safely live with their parents. About one-third of those children are in state custody. The foster care system in Texas is difficult to navigate and has dealt with serious incidents of child abuse, children moved hundreds of miles away from a previous home, children not receiving proper doses of medication, and deaths due to neglect. A news station in Northern Texas created a multi-part report about the current reforms taking place to overhaul the system.

Children entering the foster care system come from a range of backgrounds and have experienced harm to their physical, emotional, developmental, and educational well-being. The previous foster care system failed in alleviating some of these issues by placing children far from their original families, separating siblings and repeatedly moving the children, sometimes up to 40 times. Officials are concerned because these children constitute the next generation, and without proper care and attention, the risk is great that their problems and challenges will carry on when they have children of their own.

The new system divides Texas into 16 regions. The state limits contractors from hundreds to only one per region. This smaller system reduces the amount of area and number of children each region manages. By managing a smaller area, the regions can focus on providing more effective care for kids. The region is able to hire subcontractors to help integrate children into the system, but the state has the final say. The regions would have more control for the day-to-day protocols. Some oppose the redesign viewing it as a shortcut in addressing the problems rather than appropriately investing in the current system for improvements.

The current system is strict on parents working to get children out of the system and back home. Parents have to follow a family service plan which can include parenting classes and drug tests. Many parents want to see improvements in the system for children and for themselves to maintain healthy, happy relationships until the state awards custody back to the parents. In the redesign, foster parents and biological parents will have more contact. The state hopes this will help parents and children alike realize their full potential.

Stinson Moyle, PLLC specializes in family law and handles all aspects of family law matters in Austin, Travis County, Williamson County and Hays County. Our attorneys are Texas board-certified family law attorneys who will provide you with sound legal guidance. Contact us today at (512)320-9070 to arrange a consultation.


Thursday, June 11, 2015

U.S. Tax Court Rules Against Texas Payor in Complex Alimony Deduction Case

How are alimony payments treated from a tax perspective? 

For payors of alimony, there may be special tax considerations applicable to the monthly payments mandated by court order. As a general principle, alimony payments are deductible from the payor’s annual income provided several conditions are met, including: 

• The payments are mandated by court order or provided for in a written separation agreement;
• Spouses are not filing a joint tax return;
• The payor pays in cash directly to the other spouse;
• Liability to continue payments ceases upon the death of the recipient; and
• The payment is not considered a child support payment or property settlement agreement.

Moreover, non-deductible support payments include voluntary gifts/support, payments allocated to keep up the recipient’s property, and any noncash asset transfers. 

Tax court considers deductibility of wages garnished after death of recipient 

In May, 2015, the U.S. Tax Court considered a dispute between the IRS and an individual taxpayer regarding the deductibility of alimony payments that were being automatically withheld from obligor’s wages each pay period. Under typical circumstances, this arrangement would be considered a valid method for providing support and would be undoubtedly deductible from the payor’s annual adjusted gross income. 

However, in this case, the wage garnishment took place as a result of a state-sanctioned action for support arrears, and the obligor owed over $64,000 in back alimony payments. Accordingly, he was set up on a payment plan wherein the amount would be steadily deducted over time until the debt was repaid. Contrary to the IRS’s requirements, the terms of the payment plan did not allow for a suspension of liability upon the death of the recipient, and accordingly did not meet the criteria for deductibility described above. Consequently, the entirety of the obligor’s payments will not be deductible on his tax return, and the payments will continue even in the event of the recipient’s death. 

If you have a question about alimony or the tax consequences of divorce, please do not hesitate to contact the Austin, Texas divorce attorneys at Stinson Moyle right away! You can reach us by calling 512-320-9070 today. 


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