One of the most common concerns people have in a divorce is who is going to keep the house they have been living in during their marriage. The answer to that question can vary in each case depending on the facts of that particular case. This blog post is going to address some of the things that could happen to your house in your divorce.

If it is your Separate Property, you Keep it.

The concept of separate and community property is sometimes difficult. In Texas, the distinction on property is made based on the date the home is purchased, something referred to as “inception of title.” If the house is purchased in one person’s name before the date of marriage, it is their separate property. If it is purchased after the date of marriage, it does not matter whose name is or isn’t on the deed or purchase documents, it is community property. That means that if the home is purchased before marriage by one party the court doesn’t get to divide the house in the divorce because it is separate property. This doesn’t mean that the other party may not have the right to be reimbursed for value added to the house during the marriage, but it does mean that if it is your separate property, you keep your ownership interest in the house.

There are a lot of changes that happen because of a divorce. One that may not be at the top of people’s minds when going through a divorce is the impact their divorce is going to have on their property when they pass away. Divorce can change the way property is treated with respect to certain deeds, life insurance policies, wills, and other estate planning documents.

What Impact Does a Divorce Have on a Will?

In general, Texas law takes into account that people don’t want to leave things to their ex-spouse after a divorce. Without express language that says otherwise written into a will, anything left to a spouse will be treated as if the spouse is essentially dead at the time the will is probated under Texas law. This means that anything that was meant to go to an ex-spouse will now go to whoever is next in line. This could mean that an alternate beneficiary was designated and the property will go to that next person listed or it could mean that the property now will pass as if no will was drafted because no alternate beneficiaries were named.

Can I Make a Marital Property Agreement?

There has been a lot of discussion about pre-marital agreements in media and it is something most people are probably somewhat aware of. Follow this link: Premarital Agreements in Texas for more information on premarital agreements. So, what about after you are married, are you stuck with all of your property acquired after marriage becoming community property if you didn’t execute a pre-marital agreement? Of course not! I probably wouldn’t have dedicated an entire blog post to this subject if that was the case.

Why Does it Matter?

Many people are familiar with the standard possession schedule that is written in the Texas Family Code. It basically involves first, third, and fifth weekend possession with rotating holidays and extra time during the summer. Less people are familiar with section 153.015 of the family code that provides a way for judges to order electronic communication with a child as a way to supplement the time a parent has to spend away from their child under a possession order.

What does section 153.015 say?

The court may award a party reasonable periods of electronic communication with a child upon request of the party.  In determining whether to award electronic communication, the court will consider whether electronic communication is in the best interest of the child, whether equipment necessary to facilitate the electronic communication (phone/ipad/computer) is reasonably available to all parties subject to the order, and any other factor the court considers appropriate.

There are lots of things associated with Super Bowl Sunday. Snack food and memorable commercials are two that come to mind. Some other things associated with Super Bowl Sunday might not be such a good idea when it comes to your case that involves family law. This blog is going to discuss five of those things that you may want to keep in mind on Super Bowl Sunday.

  1. Lay off the obnoxious posts on social media. You may think you’re being funny by posting a mildly offensive meme about Tom Brady this Sunday, but as the saying goes, treat everything you put in writing as if it is going to be read aloud in open court. Your best option is to avoid posting at all in order to prevent anything being used against you in your family law case. If you must post, keep it positive and definitely don’t post any pictures that involve alcohol or drugs.
  2. Don’t drink around your kids. Many allegations get thrown around when parents are fighting over their children. One of the more common ones involve accusations of drinking or even doing drugs around kids. This can really hurt your case. Don’t give the other side any more mud to sling at you just because you wanted to let loose on Super Bowl Sunday. Also, it should go without saying, but never drink and drive.

Can you Modify a Judgment that is Currently Being Appealed in a Family Law Case?

 
What is an appeal?

Generally, in legal actions an appeal is an action you take when you think the judge you are in front of got it wrong. For the most part there must be a final order for a judgment to be appealable. Usually, an appeal means that the lower court holds off on taking any further action while a higher court reviews the case and reviews that everything was done correctly. Family law cases are unique for a lot of reasons, one of them being that they have a continuous nature when children are involved. When children are involved courts have what is called continuing, exclusive jurisdiction after a case involving a child is in their court. This makes the issue of appealing a case involving a child more complicated than a normal civil case in which the final judgment is going to be final and the last word that a judge has to say on the matter.

Taking the time to decide what changes will need to be made because of the realities of the divorce is an important step in the divorce process. Many people enter into divorce without taking into consideration the changes that are going to need to be made after the divorce and without having a realistic idea of how much divorce costs. This blog post is going to address 5 financial issues that that should be considered when planning for your divorce.

  1. Where are you going to get your insurance from? One of the largest costs in most people’s budgets is the cost of insurance and healthcare. While people are married the cost of insurance may be coming from one employer and if you are planning on divorcing it is important to factor in how you will be covered for insurance after the divorce.
  2. How much is the divorce going to cost? Consulting with an attorney when contemplating divorce can be helpful in gauging how much money is going to be spent on the actual divorce and how that is going to impact your bottom-line for your divorce year. Costs of attorney’s fees can add up quickly in a divorce and it is important to factor them into your planning for your divorce. Attorneys can explain how much money will be spent on getting the divorce process started and the possible ways that the costs of divorce can be covered and how they may be changed throughout the process.

How does the default possession schedule work in the family code for winter break?

As school is letting out for the holidays families under new possession orders may be wondering how exactly December and January are going to work for them. The Texas Family Code presumes that a certain holiday possession schedule is in the best interest of children in section 153.314. This possession is something that has not always been the default in Texas so it may not sound exactly like what people are used to doing for holiday possession in the past. As of now, the family code allows for one parent to have possession of the child from the time that the child is dismissed from school for winter break (or at the time the public school district that the child lives in dismisses from school if the child is not in school for whatever reason) until December 28th at noon. The other parent shall have possession of the child from noon on December 28th until 6 p.m. on the day before school resumes at the end of winter break. This set up flips back and forth between parents each year with one parent having the first half of the break during even years and the second half of the break during odd years and the other parent having the first half during odd years and the second half during even years.

What does that look like using a real school district’s schedule?

We never encourage people to get divorced who aren’t ready. Divorce is not something to go into lightly and it can be a very expensive endeavor. With that being said, putting off an inevitable divorce can be much more expensive in the long run. In Texas, we are a community property state. That means that all property that is acquired during the marriage is considered a part of the “community estate.” All property that is part of the community estate is subject to being divided by the judge when the divorce is finalized. What this means practically is that in Texas once you are married to someone everything you buy and all debt you incur is basically equally the property of both spouses. This can be good or bad depending on where you are situated in a particular relationship. However, the risk with waiting to get a divorce is that your current spouse is incurring a large amount of debt that you can be on the hook for or that anything you buy and any income you get is going to be subject to being divided in your divorce.

Up to one in four couples who choose to divorce choose to do so in January according to some sources. This is often attributed to the fact that people are choosing to stay together during the holidays for the sake of their families, usually their children. Some say that the stress of the holidays is actually what causes the uptick of divorces after the new year. Whatever the cause, if you are thinking of putting off an inevitable divorce it is important to understand that waiting to get a divorce finalized can cost you. Texas has a mandatory sixty day waiting period once a divorce is filed that is rarely waived. So, even if you think you are only waiting until the beginning of the year to get divorced and then everything will be done, the reality is you still have at least sixty days left of being married, with the majority of cases taking much longer than sixty days to actually be finalized.

Additionally, there is nothing that says just because you file for divorce that you cannot still celebrate the holidays together for the sake of the kids. There is no reason to let children in on your adult problems over the holidays unnecessarily. Obviously at some point the children are going to figure out that you are no longer married, but if you are already not cohabitating as spouses, filing a divorce petition is not going to be something that you have to reveal to your children.

With the holidays approaching and many people spending money on gifts for their children some people may be left wondering whether they can count the money they spend on Christmas gifts as part of their child support payment. The short answer is no. The family code states that any order rendered by a judge after 1994 shall order that child support be paid through the state disbursement unit. In addition to the specific provision of where to pay child support each month, most orders include provisions that state that any payments or gifts made outside of the money paid to the state disbursement unit each month shall not count as a credit against any child support that is owed.

 

Child support is supposed to be set in an amount that is in the best interest of the child. The amount is based on the needs of the child every month. Those needs include food, shelter, clothing, and other basic necessities that are required to raise a child. A gift at Christmas does not change the fact that those needs for the child still need to be met that month. Basically, it is very unlikely that a Christmas gift, no matter how practical or expensive, will be counted as a credit toward child support that is due. Child support payments should always be made in the manner that they are ordered to be paid.

 

If you have any questions regarding child support or any family law matter contact Guest and Gray and we can schedule a time to discuss your issue and let you know your options.