Why Would Courts Order a Drug Test?
In child custody cases the best interest of the child is the standard in which a court of law in Texas abides by in deciding rights and duties, visitation, and possession and access to a child. This "best interest" of the child standard can be illustrated for a court in a vast multitude of ways. For example, a party to a custody case may argue that their house is better for the child than the other parent's house because the first parent's house is roomier than the other, or a parent could argue that the school district in which one parent is zoned is much better and higher ranked than schools in the other parent's school zone. Litigants may argue that one parent smokes cigarettes indoors and the air is cleaner at one parent's house than the other, there are so many possibilities. One issue that commonly arises in this argument of persuasion in front of a court is that one parent uses drugs and it is not in the best interest of the child to live with, or be around a drug user without supervision, or at all. It could be any type of drug, including marijuana.
Drug Use Can Be Harmful to a Child Custody Case But Don't Think It's Over!
If you have tested positive for any type of drug during your child custody case then the first thing you should do is stop using. You should also enroll in a drug treatment program to get yourself clean. The goal is to become a drug free parent for your child, but it will also help show the court that you are making an effort to become a better parent and to be permanently free of illegal drugs. If you have a drug problem then I encourage you to get help immediately. Texas courts do not have a desire to limit your rights regarding your children or your visitation, it is actually the public policy of Texas to promote parent's having access to their children and sharing the rights and duties in raising a child. That being said, what you need to do if faced with a positive drug test in a child custody case is make sure that you make substantial progress in getting the drugs out of your system and make sure that you can prove to the court that you are making significant strides in eliminating any drug problem that you have. You have to convince the court that although you have had difficulty in the past with illegal drugs you are making progress with the problem and it is not in your child's best interest for your rights to be limited in any way. If you are concerned about he other parent using drugs then keep reading.
Think Twice Before Asking a Court to Order Drug Testing
If a client comes to me and tells me that custody is at issue and that one parent is using drugs or has recently used drugs than one of the the first things I will ask them, other than questions pertaining to the safety of the child, is whether they also use drugs or if they could pass a drug test. The reason I would ask that is because if you request a court to order a drug test of the other party it is very likely that the requesting party is also going to have to test as well. The court can order that this happen on their own motion, it is not necessary for an opposing party or attorney to request a drug test for the party requesting a drug test. If both parties fail a drug test then it is very likely that in addition to harming your own case, Child Protective Services could get involved in your life and you will have a whole other big issue to deal with that you had not anticipated at all. If you know that you don't use drugs and that you could pass a drug test then asking a court to order a drug test of the other party could be helpful to your case if that other party is a drug user. Be wary here as well however because if the other side tests negative then you could end up paying for the drug testing, you could end up paying either way depending on how the court decides to divide up the costs, but the chances of paying are higher if the other party tests negative.
If You Need Help With A Child Custody Case then Hire an Attorney
One of the biggest mistakes people make in child custody lawsuits is thinking that they will be able to handle it all themselves. One extreme example of how do it yourself pro se litigants hurt themselves is the following, which pertains to drug testing. There was once an experienced attorney who asked a court to order drug testing of a father accused of using marijuana by his wife, and all the parties were standing before the court at the drug testing motion hearing. The father made a feeble attempt to defend himself and was shut down by the objections of the attorney at practically every sentence, the attorney made him look foolish and his side of the story wasn't presented properly at all. He probably had some good points to make, but he didn't understand what was important and what wasn't. The father also thought that it would be wise to announce to the whole courtroom that he has always used marijuana and it wasn't a problem with the mother before so why was it a problem now? In the end the court was not impressed with his statements and he still had to take a drug test and needless to say he practically destroyed his case, he was also on the brink of facing criminal charges. If an attorney were in a similar situation representing a father like that one it would not have been near as bad, and the attorney would at least have been able to present the father's side of the story properly and in an understandable way for the court to consider. In a nutshell, custody cases have too much at stake to risk losing the case because of a blunder that could be easily avoided so hire an experienced Houston or Texas family lawyer.
Disclaimer: this post is for informational purposes only and is not legal advice and does not create an attorney client relationship.
If you need help with your specific child custody case then give the Law Office of Chad Zubi a call at 281-962-3877.
Sometimes I get a call from someone who has an issue with the amount of child support they are paying or the amount that they may have to pay in the future. In Texas there is something known as guideline child support and it is presumed by the Texas legislature to be in the child's or children's best interest. A court can vary from these guidelines in certain circumstances but those are rare. This Texas guideline child support is based on a formula which is the average net monthly resources of the parent obligated to pay multiplied by a percentage that is established by the Texas legislature for a particular number of children. One child is generally 20% and you add five percent for each child after that up to not less than 40% for six children. For example, if an obligor parent's average net monthly resources is $2000.00, then the Texas guideline child support obligation would be $500.00 per month for two children which is 25% of $2000.00. If you have more than one child then as child support ends for each child there will be a step down. For example, if you have two children, like in the above example, and one of them reaches the age of 18, then your child support can be decreased from 25% to 20%. That would mean that your obligation would be $400.00 for the remaining child who is under 18. There will almost certainly be steps that need to be taken to make this step down actually happen and you should consult an experienced Houston or Texas family lawyer who deals with child support issues to help you figure out exactly what needs to be done in your specific case. Do not assume that the step down will just happen. You should be mindful that as of September 1, 2019, child support in Texas will be calculated on the first $9200.00 per month of the paying parent's income and there are caps of child support which are:
1 child: $1840.00; 2 children: $2300.00; 3 children: $2760.00; 4 children: $3220.00; and 5 children: $3680.00. You should know these limits because some parents unwittingly end up paying more than they should. There is a child support calculator that is available through the Texas Attorney General but it is possible to get a good idea of what your payment will be by following the next steps.
First: Figure out what your annual gross income is. Gross income includes things such as wage and salary income and other compensation for services such as overtime, commissions, tips, and bonuses, all interest, dividends, and royalty income, self-employment income, net rental income, all other income received such as pensions, retirement pay, severance pay, income from a trust, capital gains, annuities, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest from notes, spousal maintenance, gifts, prizes, child support, and alimony. Gross income does not include income by a new spouse, TANF benefits, payments received as a result of providing foster care, accounts receivable, or a return of principal or capital on a note that is not included in net resources.
Second: Figure out what your average gross monthly income is. This part is easy, you take your annual gross income and divide that by 12 which provides your monthly gross income.
Third: Subtract certain things from your monthly gross income to provide you with the amount of your average net monthly resources. The items you subtract are things such as federal income taxes paid, state income taxes, union dues, monies paid for child or children's health and or dental insurance, and social security taxes. Note: the amount of net resources you have can be calculated using what is known as a Texas child support chart and you find your gross income on the chart and it provides you with your average net monthly resources. Be careful of which chart you use because there is one for self-employed people and one for employed people.
Fourth: Figure out what your monthly child support obligation will be. To do this you will apply the following percentages to your average monthly net resources: One child is 20%, two is 25%, three is 30%, four is 35%, and five is 40%, six is not less than 40%.
If your income is more than $9200.00 then the amount of child support can be more if the child has proven needs that are more than the guidelines provide. A court can order the other parent to pay the difference or a court can order both parents to pay the difference. If a child receives social security or disability benefits from the obligor spouse's old age social security or disability benefits then the amount received are subtracted from the amount of guideline child support. It is also important to recognize that if you have a legal obligation to support a child that is not included in the case you are litigating then the percentages of child support applied will be lower.
This post is general in nature and your specific case should be carefully analyzed by an experienced Houston or Texas family lawyer. If you are dealing with a child support issue, then you should choose qualified counsel to guide you through the process. A mistake at calculating child support can be very costly and long lasting. You could end up overpaying because of a very minor mistake. There have even been cases where a parent owes thousands and thousands of dollars in child support many years after the child or children in question have aged out. Back child support will potentially follow you for the rest of your life and it accrues interest which makes it all the more difficult. You should take extreme care in making sure that the amount of child support that you pay is what you should be paying so as to avoid falling into this hole because you are unable to make the payments. Call the Law Office of Chad Zubi today to discuss your options.
DISCLAIMER: This site and any information contained herein in intended for informational purposes only and should not be as legal advice. Seek competent legal counsel for advice on any legal matter.
During a divorce one of the most important issues to be decided is how to divide the community estate, or more precisely defined as, the property acquired during the marriage that is not separate property. (Complex issues can sometimes arise when deciding if something is community or separate property and you should enlist the help of a qualified Houston divorce attorney if you are facing this task). The question of how to characterize property as community or separate can be difficult when the parties are clearly married but can be even more dicey if the marriage is void under Texas law. Sometimes certain marriages are void and for that reason no property is "acquired during the marriage" because there was no marriage. Where does that leave an innocent spouse upon divorce in such a circumstance? Read on for some insight.
What marriages are considered void under Texas law?
Because of the public policy favoring the preservation of the sanctity of marriage the state of Texas has the power to regulate who can and cannot marry. If two people who are forbidden by law from marrying and they attempt to enter into either a ceremonial marriage or an informal marriage "common law marriage" then the laws of Texas consider such a marriage as void. Examples of certain people who cannot marry are people who are already married, certain relatives, and people who have been divorced in the last 30 days with the exception of divorcing spouses divorced within the last 30 days but who desire to marry each other again.
The Texas legislature has recognized the problem mentioned above and has attempted to protect the rights of an innocent spouse to a void marriage using what is known as the putative marriage. A "putative" marriage is one that is entered into in good faith by one of the parties but for some legal reason the marriage is void. The most common situation is where a person enters into a marriage with another who is already married but fails to disclose this fact to the first person. The good news is that the putative spouse has the same rights as a lawful spouse would have had during the putative relationship. There are some requirements to be met though.
What are the requirements to have a putative marriage?
To prove a putative marriage a party must show that they have entered into the marriage in good faith and without knowledge of the legal impediment to the marriage. Good faith means that an actual belief that the two people can be married lawfully and that the marriage was valid. If a potential putative spouse is not aware that there was some sort of legal impediment to the marriage then it is presumed that they entered into it in good faith. However, if the party becomes aware of the impediment the question of good faith becomes more complicated because you will have to prove certain actions or lack of action was reasonable on your part in investigating the possible legal impediment. If you need help deciphering if you entered into a potential putative marriage in good faith then you should contact a qualified divorce attorney to help you with that answer. The requirements of establishing the existence of a putative marriage is very important in securing your rights from the other party to a void marriage.
How long can a putative marriage last and is there any way to make the void marriage valid?
A putative marriage lasts as long as the impediment to the marriage exists and that one of the parties is unaware of that impediment. If the impediment is removed then the putative marriage becomes valid and a divorce case in this instance would proceed as though the marriage was valid from the beginning. If a party to a putative marriage discovers the impediment then they are no longer acting in good faith and the relationship is governed by the rules covering what is known as a meretricious relationship. If you find yourself in this position then contact a qualified Houston family and divorce lawyer.
What rights do I have if I am the innocent spouse in a putative marriage?
A party to a putative marriage who is the innocent spouse, unaware of the impediment, can obtain a division of property as if the innocent spouse was a party to a valid marriage. That is an innocent spouse is entitled to a just and right division of the property acquired during the length of the putative marriage. Further, a spouse has a right to seek support while a case for divorce proceeds and has a right to seek spousal maintenance.
These are all issues that can become very complicated very quickly and if you are contemplating divorce and think your situation resembles some of the things talked about here then you should definitely seek help from a qualified attorney who is familiar with the rules that govern these types of situations. I always advise people don't go at it alone.
Many people are familiar with the term "common law marriage", in Texas this idea is called an informal marriage. Texas recognizes the informal marriage to the same degree as a formal one. So if you are a part of an informal marriage then you cannot dissolve it merely by pretending it never happened. To dissolve an informal marriage you either need to get a divorce, annulment, or one of the parties must have died. To actually dissolve an informal marriage it is wise to seek the counsel of a Houston divorce lawyer.
You may think that you have are a party to an informal marriage but the question as to whether or not you are depends on your specific circumstances and whether or not you meet all of the requirements set out in the Texas Family Code regarding informal marriages.
What Does it Take to be Informally Married in Texas?
Marriage in Texas happens in two ways, formally and informally. A formal marriage requires a marriage license obtained by the future spouses and a wait of 72 hours followed by a ceremony completed by someone who is permitted by law to perform a marriage ceremony, (a religious leader or a judge for example). An informal marriage comes into being when two people who are over 18 years of age agree to be married, live together in Texas as a married couple, and represent to others that they are married. If you ever need to prove an informal marriage, then those are the items that will certainly need to be addressed. An example of one thing that can help prove that you hold yourself out as spouses is filing taxes together as a married couple and introducing each other to others as husband and wife.
If I am in this Situation is There a way for Me to Prove My Informal Marriage Before Divorce?
There is a way to help prove that you and your spouse intended to be married. Texas has something called a Declaration of Informal Marriage. You can get one of these forms from your county clerk's office and file a completed form with the clerk. The form is very powerful and is similar in effectiveness as a marriage license. It isn't a foolproof way to prove an informal marriage but it certainly makes it much more difficult for someone trying to disprove the existence of a marriage. If you are a party to an informal marriage and you choose not to file a Declaration of Informal Marriage then to obtain a divorce you must be ready to prove that you meet all of the statutorily required elements of an informal marriage.
Should I get a Divorce if I am a Party to an Informal Marriage?
Although there is an expense involved in hiring a divorce lawyer to obtain a divorce, and you may think that because there are no records of the marriage that one is not needed, there are several good reasons to get a divorce rather than just going your separate ways. Firstly, Texas is a community property state which means that everything that was acquired during marriage is divisible between the spouses upon divorce. So if you and your spouse have acquired a great deal of property during the time you were together then you will be entitled to a portion of certain things even if they are not in your name. For example, if your spouse has a retirement account that he or she built up during marriage then you would be entitled to a share of it. You wouldn't get any of it if you just went your separate ways. This idea also is indicative of why one party may want to dispute the existence of an informal marriage.
A person may want to obtain a divorce to divide up the marital property now before it becomes much greater. For example if you anticipate making much more money in the future. If you did not get a divorce and chose to go your separate ways then you stand a chance of your partner returning much later and suing you for a divorce and potentially being entitled to community property that was acquired during separation. (Yes that is right, even if you are separated community property can still be acquired).
What are the Best Ways to Defend Against a Claim of Informal Marriage?
If you stopped living with the other party two or more years before the filing of the claim of informal marriage then the party who is trying to validate the marriage must overcome the presumption that no marriage existed. Another way would be if either of the parties lacked the capacity to enter into a marriage, what constitutes capacity to marry is defined by statute. Additionally if a party was already married before entering into the agreement to be married to you then the marriage to you would be considered void.
Informal marriage and divorce in general is a complicate process with many statutorily defined rules that will need to be addressed. If you are contemplating divorce then it would be wise for you to consult with an experienced Houston divorce attorney to help you navigate your way through all the pitfalls that could potentially develop if you decide to go at it alone.
The situation sometimes arises when one party to a divorce or other family law matter is a non-resident of Texas who resides in another country and it is imperative that you hire an attorney who has experience in this area if you are in such a situation. It is important to follow the procedures for service overseas so as to avoid any judgment that you may obtain at the trial court level from being declared void.
Why is Service Necessary?
Each party to a lawsuit is constitutionally entitled to notice that a lawsuit has been initiated against them. This is in order that they may properly defend themselves. You can imagine the chaos that would ensue if people could sue others without telling them and then win by default when the other party doesn't answer.
Why is It Important that Foreign Countries have Procedures in Place for Service of Process?
Previously, there were confusing and conflicting rules in place for individual countries regarding how to serve residents of those countries. A complicated and time consuming process using letters rogatory was formerly the status quo and that process is time consuming and expensive and in many cases a foreign attorney had to be hired. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (The Hague Service Convention) seeks to streamline the process and to provide a uniform way to serve process on people who are residents of countries that are contracting parties to the convention and to lower the time and expense needed to serve a party overseas. Not every country is a signatory to the convention so it is important to verify if the person you want to serve is a resident of a country that is a signatory. There are over 70 states that are contracting parties of the Hague Service Convention. It is also important to note that if the address of the person is unknown the Hague Service Convention does not apply.
How does the Hague Service Convention work?
The Hague Service Convention is a treaty in which many countries including the United States are a signatory. In general, this treaty imposes on its signatories specific rules that must be followed for service of process to be valid. Each country who is a signatory to the convention must designate a central authority in which legal documents to be served must be sent. The central authority then arranges for service on the non-resident individual by a method that is permitted within that receiving country. This can take time, but it is an effective way to put another party on notice that a lawsuit has been initiated against them and it must be followed.
Is there any other way to serve process on a person overseas that is compliant with the Hague but is not through the designated central authority?
Yes, Article 10 of the convention provides permissible alternative methods of service such as through postal channels. However, before you breathe a sigh of relief you should be fully aware that the country in question may have objected to some or all of the alternative methods of service under Article 10 so you must find out if this is the case before using any alternative method of service. For example, India has objected to all forms of alternative service under Article 10. Do not think that if a party has actual notice of a lawsuit that you are automatically off the hook from following the terms of the convention.
If you seek to divorce or litigate a family law matter against a person who is a resident of a foreign country then you should obtain counsel who has dealt with this issue previously and can adequately safeguard your rights. It will be a very frustrating, time consuming, and expensive to have a judgment overturned because the proper procedures were not followed regarding service under the Hague Service Convention. If you need more guidance in your specific matter then I encourage you to call the Law Office of Chad Zubi to help resolve your issue. The office offers free 30 minute consultations and will be happy to give you some insight into how to set your case on the right track to a proper resolution.
First of all, you may be wondering where to find the laws on child custody in Texas. The answer is that Texas child custody laws in are codified under Title 5 of the Texas Family Code. The rules are very complex and this article is just a brief introductory guide. To get specific details about your case please call my office to schedule an appointment.
What is a Child Custody Determination?
Texas family courts consider two prongs of what is commonly referred to as child custody in everyday language. The first prong I will talk about is possession, what most parents may think of first when it comes to child custody. Possession means which parent is physically in possession of the child, a court will consider when and where both parents should have possession of the children and for how long. Conservatorship refers to the right and duty of a parent to make decisions about a child and the duties that a parent has towards a child. Texas family courts determine a parents rights and duties using what is known as the best interests of the child standard. It isn't about what the parents want, it is about what is best for the child in the court's eyes after an interpretation of the Texas Family Code and Texas case law.
A More Detailed Explanation of Conservatorship in Texas Family Law?
Conservatorship is the term that describes the rights and duties that you have towards your child such as the right to make decisions. As you are probably aware, there are many decisions that need to be made when raising a child and you may not have specifically pondered all of them, it may have been something that you just did. In the child custody context the court will decide if one or both parents should make certain decisions, and what decisions are to be made. Sometimes parents make decisions jointly and are called joint managing conservators or conversely one parent makes all the decision and they are called a sole managing conservator. An example of a decision that a court may assign to one or both parents is the right to make educational decisions or the right to make decisions about an invasive medical procedure, or the right to designate where a child primarily resides. (This decision is usually by only one parent). A court may decide that only one parent is to make a decision or both parents are to agree to the decision. There are also other options that a court may consider. There are some rights that parents have at all times and some rights that parents only have when the child is in their possession. An example of a right that a parent has at all times is the right to attend school activities or to be informed about how a child is doing in school. Another is the right to be notified in the event of an emergency regarding the child or to make an emergency medical decision. An example of a right and duty that a parent may have only during their period of possession is the right to exercise reasonable discipline on a child or the duty to feed and clothe the child. There are many rights and duties and some of the issues surrounding who should make those decisions or perform certain duties can become contentious in child custody litigation given the complexity of many specific circumstances in which people operate. If you need help with a child custody case then you should hire a competent attorney at the Law Office of Chad Zubi to aggressively pursue you getting the rights and duties that you should regarding your child. You can get a free consultation by calling 281-962-3877 or by sending an email at firstname.lastname@example.org or by clicking here and leaving your contact information.
Possession and Access and Child Custody
Under Texas family law there are managing conservators and possessory conservators. A managing conservator is the parent who has primary possession of the child meaning that the managing conservator has the exclusive right to determine where the child lives. This parent is commonly called the primary parent. Usually the primary parent will have the child for the majority of the time and the other parent will be given a visitation schedule. The other parent is called a possessory conservator. A common visitation schedule in Texas child custody cases is the standard possession order which in a nutshell is every first, third, and fifth weekends of each month and alternating holidays. It is possible to come up with a custom visitation schedule and that is commonly accomplished in mediation more than it is in front of a judge.
Child support in Texas is almost always paid by the parent who does not get to decide where a child lives. The non primary parent. Child support in Texas is based on the payor's income level and is based according to certain guidelines that were developed by the Texas legislature and are presumed to be in the best interest of the child. You can calculate your child support amount by visiting the resources page of this site by clicking here. If a court is going to veer from guideline child support then the judge is going to have to have a reason why veering from the Texas guidelines is in the best interest of the child. In mediation it is much easier to agree on a child support amount that is different from the Texas guidelines.
Contact the Law Office of Chad Zubi if you need help with your case
If you have a child custody case then I urge you to hire a compatant lawyer to represent you. There are many more complexities to the relevant law other than what is mentioned here. You can schedule an appointment for a free case evaluation at the Law Office of Chad Zubi by calling 281-962-3877 or sending an email to email@example.com or by clicking here and leaving your contact information.
What is a Protective Order?
The state of Texas has enacted legislation, under the Texas Family Code, that allows a victim of domestic violence to ask a Texas family court of law to render an order that is designed to help stop an abuser from contacting, threatening, physically harming, a victim or a victim's household, and ordering the abuser to stay away from the victim's residence or place of employment.
When does a Texas Family Court Issue a Protective Order?
The Texas Family Code states that "A court shall render a protective order if the court finds that family violence has occurred and is likely to occur in the future. Family violence means an act by a member of a family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.
Who Can Get a Protective Order?
Members of a Household
If family violence has occurred (an act by a member of a family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself) or if abuse has occurred against a child of the family or household by a member of a family or household then an adult member of the family or household may file an application for a protective order to protect the applicant or any other member of the applicant's family or household. That is a mouthful. Stated more simply, if a person who is a member of a home acts in a way that harms, or causes fear of harm, against another member of the household then they may qualify for a protective order. An adult may file for a protective order to protect themselves or another victim member of their household including children. It is also important to note that any adult can file for a protective order to protect a child from family violence.
Victims of Dating Violence May be Eligible for a Protective Order
If an adult person is a part of a dating relationship with the abuser then that adult person may file a protective order if dating violence has occurred against the adult person. Dating violence is defined as an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault or sexual assault but does not include defensive measures to protect oneself.
Who is a Part of a Dating Relationship According to the Texas Family Code?
Obviously, not all relationships can be considered dating relationships. The Texas Family Code defines a dating relationship for purposes of obtaining a protective order as a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. That is a fairly vague definition and is open to several interpretations at first glance. Therefore, the Texas legislature has determined that the existence of a dating relationship is determined by three main factors and a certain type of relationship is specifically excluded. The first factor that a court examines in deciding if a dating relationship exists or existed is the length of the relationship, the second thing is the nature of the relationship, and the last thing is the frequency and type of interaction between the persons involved in the relationship. These factors give a court the tools they need to determine if a dating relationship exists or existed. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship." If you, a child, or a member of your family or household is a victim of physical violence or the threat of physical violence then you should get help immediately by calling the police, but additionally a protective order is an option that you have. You should get a qualified lawyer to help you with all of the complexities involved in obtaining a protective order in Texas. The Law Office of Chad Zubi can help you determine if you qualify for a Texas protective order and can aggressively represent your interests. You can call 281-962-3877 or click here to send your contact information. You can also reach the Law Office of Chad Zubi by sending an email to firstname.lastname@example.org.
Emergency Protective Orders
In certain circumstances an applicant for a protective order needs immediate temporary protection to protect themselves or another member of the family or household of the applicant from violence or the threat of violence of an abuser while the protective order proceedings are going on. Texas family law allows for a temporary protective order to be issued without giving notice to the other party if certain requirements are met. If a Texas court finds from the information contained in an application for a protective order that there is a clear and present danger of family violence, the court without further notice to the alleged abuser and without hearing may enter a temporary order for the protection of the applicant or any other member of the family or household of the applicant. If you or a member of your family or household is in danger then call the authorities. The Law Office of Chad Zubi can help you decide if you qualify for a temporary ex-parte protective order and help you obtain one. Call the Law Office of Chad Zubi at 281-962-3877 to schedule a free consultation. You can also send an email to email@example.com or leave your contact information by clicking here.
Many folks who are going through a Texas divorce or are contemplating a divorce in Texas wonder what is going to happen to the property that they have acquired during their marriage. Many people worry that they are going to get cleaned out because they are a male or operate under the common misconception that a division of property in a Texas divorce is automatically 50/50 or that you can marry a billionaire for a week and get half of what they own by getting a divorce a few days or weeks later. The truth of the matter is that many factors come into play when a Texas divorce court decides how to divvy up a marital estate. The answer to the question on how will the marital property be divided is; it depends.
WHERE DO TEXAS COURTS BEGIN IN DECIDING HOW TO DIVIDE THE MARITAL ESTATE?
The cornerstone rule under the Texas Family Code is that a Texas Family court, in a divorce or an annulment shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. You may be saying that there is a very broad discretion given to a Texas court of law by the legislature in dividing the marital estate, and you would be correct. However, a Texas divorce court, although able to award a disproportionate share to one party, can do so only when a reasonable basis exists for granting that relief. The division of the property must not be so disproportionate as to be inequitable, and the circumstances must justify awarding more than one-half to one party. On a side note, a the foregoing statement applies to community property, a divorce court in Texas does not have the authority to divest a person of their separate property. Separate property is property that was acquired before marriage, by gift, devise, or from certain personal injury settlements excluding monies recovered for lost wages.
WHAT SPECIFIC FACTORS DOES A COURT CONSIDER WHEN DIVIDING COMMUNITY PROPERTY IN A TEXAS DIVORCE?
You may be asking what does reasonable mean? Are there specific factors that a court takes into consideration in dividing Texas community property? The answer to the last question is yes, a court does take certain things into consideration. Some of the factors that a court takes into consideration are each of the spouses capacities and abilities, benefits which the party, not at fault in the breakup of the marriage, would have derived from the continuation of the marriage, business opportunities of both parties, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of the separate estates, and the nature of the property, the earning capacity of the spouses and fault in the breakup of the marriage. This is not an exhaustive list and a Texas divorce court has a very high level of authority in determining what is a "just and right" division of the community estate. You should talk to an attorney if you have questions about your particular case.
FAULT IN THE BREAKUP OF THE MARRIAGE? WHAT DOES THAT MEAN AND WHAT DOES A COURT CONSIDER WHEN DECIDING WHO IS AT FAULT?
Fault in the breakup of the marriage is a factor that a Texas divorce court considers in awarding a disproportionate share of the community estate, and a factor that Texas divorce attorneys deal with on a near daily basis. Some things that contribute to a spouse's fault in the breakup of the marriage are cruelty, abuse, adultery, and desertion. A Texas litigant in family court should be prepared to convince a judge that the fault in the marriage occurred and contributed to the breakup in the marriage. Being able to back up what you say in a Texas family court of law goes a long way in helping a judge determine whether or not they should give you more of the property because of your spouse's behavior towards you. They have a difficult decision to make so as a litigant you must convince them that the decision you are asking for is just and right. If you are experiencing abuse by any person you should call the police immediately and report it.
If you are contemplating divorce or are involved in a divorce case I encourage you to contact the Law Office of Chad Zubi. This article is just a very brief discussion of some of the things Texas Family courts take into consideration when dividing community property in Texas divorces. It is not meant to be taken as legal advice. The laws in this area are very complex and litigating alone without competent counsel can have devastating and lasting consequences and each case is different. You should have a competent lawyer represent your interests in your divorce. You can obtain a free case evaluation by calling the Law Office of Chad Zubi at 281-962-3877 or by contacting the office by email at firstname.lastname@example.org or by filling in your information into the contact form on the contact page by clicking here.
Many people are anxious to know how much marital property they are going to be able to walk away with after a Texas divorce. As background, everything acquired during marriage is community property; regardless of whose name is on the item in question. What that means is that the item belongs one hundred percent to you and one hundred percent to your spouse. A court will seek to make a just and right division, how a court divides property is the subject of a separate article that can be found here: "Dividing Property in a Texas Divorce, Is it Just and Right?".
The question here is whether or not it is worth fighting over items such as that comfy beige couch in the guest bedroom or the 70 inch high definition tv over the fireplace? The answer is that it depends. Everything in the community estate is something that can potentially be fought over. Including that delicious ice cream in the freezer as the title suggests. If the property was bought during marriage it is community property and a part of the marital estate. Let's think about the ice cream again for a moment, imagine two people fighting over who is going to get the ice cream outside of the divorce context. They fight, they yell, they scream, but after it's all said and done the ice cream has melted and all that is left is a sticky mess. Nobody gets any satisfaction. Was it worth it, I don't think so. So Let's apply that idea to a your potential Texas divorce.
As I stated before, everything that is acquired during marriage is one hundred percent the property of you and your spouse so almost everything that is spent on litigation comes out of the same pot so to speak. When you decide to have your attorney call the opposing counsel to argue and fight about who is going to get the yard tools or who gets that old picture picture of Elvis you should keep in mind that the fees that you are going to be paying to litigate and argue over small items are going to add up. Many times the value of the item in question is far outweighed by the amount of money that came out of the community estate to win it. In other words you are depleting the community estate (letting the ice cream melt) by fighting over small items that are easily replaced. So keep an open mind during your divorce and don't let animosity and a desire to punish the other spouse cause you to waste away the community estate where no-one, including yourself, walks away satisfied.
some things are worth fighting over, your spouse shouldn't be able to take certain things from you and sometimes 50/50 just isn't fair.
That foregoing in the previous section being said, some things are definitely worth fighting for. There are many instances where one spouse claims that something is community property and subject to division during a Texas divorce when it is certainly not. Sometimes they know they are making a baseless claim and sometimes they don't. Regardless, anything that is not community property is separate property. The presumption is that everything is community property unless proven by clear and convincing evidence otherwise. Separate property is anything that was acquired by gift, devise, or prior to marriage. Certain personal injury settlements can also be considered separate property if they are not for lost wages. If you have an item that is important to you that falls into one of the categories above then it may just be worth fighting over. The Law Office of Chad Zubi will fight to help you overcome the community property presumption.
Other than separate property claims there is another situation where fighting over property may be appropriate. According to the Texas Family Code a Texas court is required to divide the community estate in a manner that is just and right. The Family Code doesn't say that the estate is always to be divided equally. Sometimes a judge will divide property in a disproportionate manner for a variety of different reasons. One of the reasons for a disproportionate division of the estate is fault in the breakup of the marriage. Did your spouse commit adultery? Were they cruel and abusive? Did they abuse alcohol and drugs? All of those things and others can lead a judge to believe that a larger share of the community estate should go to one souse over the other. Other factors that could cause a judge to believe one spouse should get more than the other include: Does one spouse earn far more than the other? Does one spouse have a much higher level of education than the other causing that more highly educated spouse to have a higher earning capacity after the divorce? Does one spouse have a disability? There are several different reasons for a disproportionate share of the marital estate to go to one spouse instead of the other. A judge could consider: who is going to recover from the divorce the fastest and easiest? You may have certain reasons why you believe you should get more out of your Texas divorce. The Law Office of Chad Zubi will fight tooth and nail to get you what you deserve. Whether it is proving an item or items are separate property or showing that you should get more than your spouse. Call today to schedule a no obligation free consultation with this Houston, Texas divorce and family law attorney.
People get divorced for many different reasons, the reasons for divorce are not the topic of this post. The topic of this post is what do you want once you have actually decided to obtain a divorce. Is directing where your children live your biggest concern? Is your retirement account what matters the most to you? Or maybe you just want to be done with the relationship and you aren't really concerned with anything but that. At the Law Office of Chad Zubi we realize that each person who talks to us has specific goals that they are trying to achieve and our goal is to do as much as possible to help our client reach the end that is the most desirable to them. For example, if the most important thing to you is making sure that your child continues to live with you then one of the first things that we would try to do is articulate why it is in that child's best interest to live with you and to gather evidence that shows that. If your goal is to make sure that the gun collection that you inherited from your great grandparents stays in your possession then we would need to dig deep in preparation of overcoming the Texas community property presumption regarding marital property. Whether you have one issue or many that are important to you in your divorce the Law Office of Chad Zubi will work hard to achieve your goal. Call the office today at 281-962-3877 or by clicking the button below.