Our divorce lawyers will assist you, our client, through the legal process to develop a legal divorce action between you and your spouse to terminate your marriage relationship. When children are involved, there are, of course, child support, child custody and visitation rights to be addressed. A divorce attorney experienced in Houston, Clear Lake, Galveston and all of Harris County, Galveston County and Brazoria County courts will be of great assistance. We will attempt to answer some of the most common questions people seem to have when considering divorce, however, if your question is not answered please " ASK KATHY."
- What is a "no-fault" divorce?
A "no-fault" divorce is one where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault". To file for a no-fault divorce, one spouse must simply state a reason recognized by the state. In Texas it's as easy as stating that the marriage has become insupportable because of conflicts of personality.
- Do I have to go to court to obtain a divorce?
A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, nullity or other form of terminating a marriage. Each jurisdiction has established its own body of law by which this procedure is accomplished to give it full legal effect.
The various states have enacted statutes that govern the procedures by which this is done. Other than the termination of the marital estate the court also has jurisdiction to resolve the other issues that are intertwined in the existing marriage, which include but are not limited to, custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.
- What is involved in starting the process for a divorce?
The first step would be the filing of a properly executed petition with the appropriate court. The court must have what is called subject-matter jurisdiction that would entail satisfying the requirements of residency or domicile within the state and county dictated by the statute. In Texas you must be a resident of the state for six months and you or your spouse must be a resident of the county where the divorce is filed for 90 days.
- How long does the process take to obtain a divorce?
The time period involved is dependent upon the law of the state. In Texas a divorce may be granted after the petition has been on file for 60 days; however, it can be longer if the parties do not immediately agree on all issues.
- What is an annulment?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
- How are custody and visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality. Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger (the judge) is rarely completely acceptable to each parent. The family court system usually has several layers of counseling and mediation to attempt to bring warring parents together for the purpose of resolving the issue of what it is in the best interests of their children.
What are some preliminary considerations?
The court is vested by the state with the authority to determine issues related to the custody of children of a marriage and for whom support is authorized, as well as emancipation, guardianship and other similar matters. It should be noted that the existence of a valid marriage bears absolutely no relationship to the determination as to custody and visitation of minor children. Obviously there is no requirement of marriage for children to be brought into the world, but the issue of custody is ripe for resolution within the family law context, whether it be a divorce, establishment of paternity or a child support action. When custody determinations are fully litigated it involves different phases...
Typically the first phase is initiated by way of an order to show cause or ex parte application for custody, requesting temporary restraining orders. If the person requesting such an order is capable of showing an immediate threat of harm to the child or an immediate risk that the child might be removed from the state, such orders can be granted. The next phase typically involves mediation, counseling and child custody evaluation/investigation. Generally it entails a series of court-appointed mediators and counseling professionals. Its purpose is to move toward a mutual agreement between the parties. Child custody evaluation/investigation comes about in two ways. The court may appoint on its own motion for a mental health professional, and/or it may appoint an experienced child custody evaluator to investigate the situation and report back to the court as an aid in making the determination.
If an allegation of child abuse or child endangerment is lodged, a county agency may institute such an investigation as well. Beyond the allegation being lodged the process is governed by statute and regulatory authority. The concept of legal custody pertains to the rights and responsibilities of the legal custodian to make decisions relating to the child's health, education and welfare. This is a broad grant and is liberally construed to include most of the significant decisions in the child's life. The concept of physical custody refers to where the child will reside. The parent exercising physical custody over the child will generally be thought of as the custodial parent, while the other parent is commonly referred to as the noncustodial parent. An award of physical custody is more significant than an award of legal custody because the parent with whom the child is residing typically will exercise the lion's share of the disputed decision-making in issues pertaining to the child. The court will not contemplate an award of physical custody without an award of legal custody, either sole or held jointly with the other parent. Legal custody can be divided jointly between the parents. While not an exhaustive list, the following sets forth some of the considerations the courts have grappled with in this area of awarding custody and establishing visitation: abuse of alcohol or drugs, change in the child's residence, child's preferences, issues of nonmarital cohabitation, conduct of the parents in general, day care issues, history of domestic violence, ethical and emotional guidance, expert recommendations, finances, frequent and continued contact, frustration of visitation, future relationships of the parents, gender of the parents, sexual orientation, past criminal activity, physical or emotional handicap, psychological issues, race and ethnicity issues, religion, schooling, status quo, unconventional lifestyle and work-related issues.
- What about visitation?
Generally a court will grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child. A nonparent can, at the discretion of the court, also be granted visitation if he or she has an interest in the welfare of the child. This is generally considered for grandparents, stepparents and other nonparents. It should be noted that this is discretionary. The court may also approve visitation plans and restrictions considering factors relevant to the best interests of the child.
- What kind of documents will be needed to put together what the court will need to decide all of the issues involved?
List of documents: Address book names, addresses and telephone numbers will help your lawyer prepare subpoenas for documents, depositions and court appearances. Don't forget mystery numbers, i.e., those without names, or just initials. Identify them with the cross directory. Look for the following professionals and businesses: accountants - personal and business; bankers - personal and business, including trust officers; bookkeepers; computer consultants - they know how and where data is hidden. Also, provide tax returns and retirement statements.
Computer on-line services - obtain passwords to access information; computer message center and voice mail codes; financial planners; friends - those close enough to be trusted with money; insurance agents - including life, annuity, casualty and key man insurance; lawyers; mailing services - such as Mail Boxes etc.; mini-storage and office record storage; physicians; stock brokers; telephone answering services; telephone long distance companies; therapists; travel agents - personal and business; federal and state tax returns for past years of the marriage with supporting documentation, including all filed schedules for both individual and businesses involved. Relative to the tax returns, look for refunds and/or deficiencies.
If you believe that the document produced is a forgery, have your lawyer insist that Form 4506 is signed by your spouse. The IRS will photocopy the actual return filed. Partnership tax returns (Form 1065) look for net operating loss adjustments. Gift and estate tax returns. Has your spouse made or received any gifts? Has he or she inherited any property? Business records, financial statements and credit card invoices are important. Personal property includes: annuities, antiques, art work, automobiles, planes, boats, china and crystal, coins collectibles, frequent flyer miles, furniture/furnishings, furs, guns, jewelry, rugs and bills of sale (all property over $200).
Also locate certificates of title for automobiles, boats, planes, trailers and heavy equipment. Homeowners insurance scheduled property often states a value for insurance purposes and appraisals contain detailed descriptions of marital property. Note that appraised values may depend on the reason for the appraisal. For example, replacement value appraisals are often inflated while tax appraisals minimize value. Be sure you know the purpose for which the appraisal was prepared. Personal property also includes life insurance policies with information on beneficiaries, cash surrender value, loans against policies other encumbrances against policies, e.g., using the policy as collateral for a loan.
Banking information is also important, including savings, checking and credit union accounts. Note: If your spouse's name is second on a joint account with a third party, interest income will be reported by that third party. Your spouse will not receive a 1099, and the account will not show on your income tax return. Look at monthly statements (look for payment or debit memo for safe-deposit box rental), passbooks, canceled checks and drafts (front and back) Note: Make sure you photocopy the backs of checks, especially those made out to cash, to your spouse or to any unknown third party.
Account numbers of secret accounts may appear along with the name of the depository bank. Also, check cashing card, check register, check stubs, cashier checks (carbon or photocopy), cash transactions, certificates of deposit, children's Uniform Gift to Minors Act bank records, Christmas club accounts, deposit slips, linked mutual fund and stock brokerage account, loan and credit applications, numbered accounts (often Swiss), passbooks (check to see if there is a loan against it), wire transfers and withdrawals. Look for any suspicious activities, such as repeated withdrawals of sums such as $505, suggesting conversion to traveler's checks for $500 plus a 1 percent fee of $5.00.
In addition there may be information on securities accounts; securities certificates; stocks and bonds; stock brokerage account statements; lists of securities; mutual fund statements; agreements relating to the account, such as option trading, etc.; and applications to trade certain securities. Note that if your spouse is a sophisticated investor, he or she may have options or commodity trading ability. Stock brokerages require customers to fill out lengthy questionnaires before opening accounts for certain risky activities, such as options. These questionnaires are a good source of information regarding investment experience and objectives. IRA's, Keogh's and SEP-IRA's pension, retirement and survivor benefits.
Small-business ownership records are also important and any information you obtain is helpful in appraising the value of the business, including buy-sell agreements, key-man, life, and property insurance, casualty insurance, leases, noncompete agreements, financial statements, balance sheet, shareholder equity investments, asset list and depreciation schedules, corporate redemption agreement to purchase stock rights of first refusal, major contracts, pension and profit sharing budgets, projections, marketing literature and loan applications.
Employment benefits: Look for any sign that your spouse has deferred income, commissions, bonuses, royalties or has had salary converted into a noncash benefit, which would include the following: clothing allowance, company car, credit union statements, contracts of employment, employee benefits brochures, pension benefit statement, plan booklet and amendments actuarial report on the pension plan, expense accounts, expense reimbursements, housing/relocation programs, in-kind compensation, meals, medical insurance, life insurance, loan programs, pay stubs (show certain benefits not part of taxable income), pension, profit sharing, stock purchase plan, travel and entertainment allowance.
Litigation: If your spouse is suing, what's the value of his or her lawsuit? If your spouse is being sued, do you have any legal/financial exposure? Are there any prior divorce proceedings - will a first spouse's right supersede yours? Court papers relating to pending matter(s) including statement of damages (to ascertain the value of the case). Look for court records of final adjudication and liens placed on assets. Loan documents and applications, financial statements tend to show inflated asset values, income and net worth. Collection agency letters, home equity loans/lines of credit, mortgages - home and business notes, passbook loans and payment schedules. Look for recent payment of loans to family members, business associates and friends.
Also, look for accelerated payments. Your spouse wants to show he has no money for you. Also, promissory notes both payable and receivable. Miscellaneous income and assets: royalties, severance pay, workers' compensation, annuities, rental income, prizes and awards, trust and estate income, capital gains, gift certificates, unemployment compensation, pension, veterans benefits, Social Security, lottery or gaming winnings, life insurance income or proceeds, notes payable to your spouse, partnership agreements etc. Basically, any document or information that can track money or property and its character should be obtained, preserved and turned over to your attorney.
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