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Am I Eligible For Spousal Support In Texas? – Alimony

Divorce is one of the most emotional proceedings in Texas courts. What can make divorce an even more emotional happening is the possibility of supporting an ex-spouse, oftentimes in addition to the division of community property and the payment of child support. This can be overwhelming for the spouse that is ordered to pay spousal support or maintenance. However, this may be a just and right solution to the ex-spouse who is unable to earn enough income due to barriers created during the marriage. Spousal support, or what the Texas statute refers to as spousal maintenance, is a fortunate solution for ex-spouses. What is spousal support and who is eligible? Let’s discuss. FAMILY LAW ATTORNEYS (832) 410-8935 Contents1 Spousal Support or Spousal Maintenance?2 Do I Have to Pay Alimony?3 Section 8.051 Tx Family Code Spousal Support or Spousal Maintenance? Chapter 8 of the Texas Family Code defines ‘maintenance’ as, “an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.” The Code states that the award of spousal maintenance would oblige one spouse to make periodic payments from future income to support the other spouse. Do I Have to Pay Alimony? An ex-spouse is not automatically eligible for spousal maintenance. Chapter 8 of the Texas Family Code also outlines who in fact may apply for and receive spousal maintenance. Section 8.051 Tx Family Code In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses […] the court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:  the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred:          (A)  within two years before the date on which a suit for dissolution of the marriage is filed; or(B)  while the suit is pending; or  the spouse seeking maintenance: (A)  is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an  incapacitating physical or mental disability; (B)  has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or (C)   is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs. In short, the court will consider whether the spouse seeking maintenance will lack sufficient property — including  the spouse’s separate property–on dissolution…
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Guardian Ad Litem vs. Attorney Ad Litem

Protecting the interests of a ward, or proposed ward is a Texas court’s primary interest. In order to protect those interests, the court may appoint individuals with distinct duties to represent a ward or proposed ward. Two of those individuals are called a guardian ad litem and an attorney ad litem. What are their roles and who do they differ? Let’s see. CALL (832) 410-8935 – DIVORCE ATTORNEYS Contents1 What is a Guardian Ad Litem?2 Duties of a Guardian Ad Litem3 What is an Attorney Ad Litem?4 Duties of an Attorney Ad Litem5 Significant Differences Between an Attorney Ad Litem and a Guardian Ad Litem What is a Guardian Ad Litem? To best understand the role of a guardian ad litem, it is best to look to the Texas Family Code for a definition. Section 107.001 of the Code defines a guardian ad litem as, A person appointed to represent the best interests of a child.  The term includes: (A)  a volunteer advocate from a charitable organization described by Subchapter C who is appointed by the court as the child’s guardian ad litem; (B)  a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests; (C)  an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or (D)  an attorney ad litem appointed to serve in the dual role. TRENDING TOPICS Best Interests of the Child | Retroactive Child Support | Temporary Restraining Order Duties of a Guardian Ad Litem According to Section 107.002 of the Texas Family Code, a guardian ad litem may: conduct investigations: review medical records, medical care, and school records; interview the ward or proposed ward –4 years old or older in an appropriate manner – and individuals with knowledge of the ward’s history; consider the ward’s expressed objectives; encourage settlement and the use of alternative forms of dispute resolution; and any other duty ordered by the court. A guardian ad litem is also entitled to receive copies of pleadings; attend court procedures; participate in case staffings by the Department of Child Protective Services; review and sign orders considering the ward or proposed ward; testify in court proceedings to the best interests of the ward; and the bases for the guardian ad litem’s recommendations to the court. Although the guardian may attend court proceedings, this is not to be confused with representing the ward or proposed ward’s legal interest. In sum, the guardian ad litem’s purpose is to push for a ward or proposed ward’s best interest. The guardian will push for the ward or proposed ward’s best interest without representing the ward in a legal manner. What is an Attorney Ad Litem? In order to represent a child, ward, or proposed ward’s legal interests, the court will often appoint an attorney ad litem which the Texas Family Code defines as, “an attorney who provides legal services to a person,…
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What Does “Best Interest Of The Child” Mean?

premarital agreement

Many times in legal proceedings that include children, the term “best interest of the child” arises. This term is most prominent in suits affecting the parent-child relationship. What is considered the best interest of the child and when is it important? Let’s discuss. CALL THE DIVORCE ATTORNEY IN HOUSTON (832) 410-8935. Contents1 Definition “Best Interest of the Child”2 Factors to Determine the Best Interest of the Child3 What About Child’s Preference? Definition “Best Interest of the Child” The best interest of the child is one of the most monumental considerations by the court when a child is involved. Section 153.002 of the Texas Family Code states, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Factors to Determine the Best Interest of the Child The Texas statute is very vague on what exactly this very monumental standard means. The Code does not list a set of factors to help courts determine the best interest of the child. In instances like this, where statutes are lacking in definitions, courts and legal professionals look to legal precedent set by previous cases that attempted to answer this question. Legal precedent has set the following as factors the courts may consider in determining the best interest of the child. These factors include, but are not limited to: What the child actually desires Present and future emotional and physical needs of the child Present and future emotional and physical danger to the child The ability of each each individual seeking custody to parent the child The income and home environment of each individual seeking custody Programs available to each individual seeking custody that may aide in promoting the best interest of the child Any history of family violence of each individual seeking custody The future plans set for the child made by each individual seeking custody The ability of each individual seeking custody to maintain stability in the child’s life Any act or omission of an act from each individual seeking custody that may potentially harm the child What About Child’s Preference? The Texas Family Code allows a child of a certain age to make a determination in writing of that child’s preference to a certain situation. Section 153.009 of the Texas Family Code states: “In a nonjury trial or at a hearing, on the application of a party, the  amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.  The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.” This section states that a child over 12 years of age may be…
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Retroactive Child Support – Back Child Support in Texas

Oftentimes, many parents believe that unless a court order is given, child support payments do not need to be paid. These parents are mistaken and will be unpleasantly surprised with retroactive child support. This article will discuss what retroactive child support means and how is it determined. CALL THE HOUSTON DIVORCE EXPERTS AT (832) 410-8935 Contents0.1 What is Retroactive Child Support?1 Back Child Support in Texas1.1 Factors Considered in Ordering Retroactive Child Support What is Retroactive Child Support? Retroactive Child Support occurs when a parent who should have been making child support payments, prior to the date the court order was established, fails to do so. Two statutes in the Texas Family Code discuss retroactive child support: Section 154.009 and Section 154.131. Back Child Support in Texas Section 154.009 of the Texas Family Code states, (a) The court may order a parent to pay retroactive child support if the parent: has not previously been ordered to pay support for the child; and was not a party to a suit in which support was ordered. (b)  In ordering retroactive child support, the court shall apply the child support guidelines provided by this chapter. (c)  Unless the Title IV-D agency is a party to an agreement concerning support or purporting to settle past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support that the agency may request. (d)  Notwithstanding Subsection (a), the court may order a parent subject to a previous child support order to pay retroactive child support if: the previous child support order terminated as a result of the marriage or remarriage of the child’s parents; the child’s parents separated after the marriage or remarriage; and a new child support order is sought after the date of the separation. (e)  In rendering an order under Subsection (d), the court may order retroactive child support back to the date of the separation of the child’s parents.   As outlined above, the court may order a parent to pay retroactive child support if the parent had not been ordered to have done so before. Note, according to this section, if an agreement to pay child support had been halted and later on needed to be reactivated, retroactive child support may also kick in. This will be better illustrated through an example. Suppose child support payments were halted due to a new marriage; when that marriage ends, the need for child support will be reactivated. The court then may order retroactive child support initiating at the date of separation. Factors Considered in Ordering Retroactive Child Support The court will consider many factors in rendering an order for retroactive child support. These factors are outlined in Section 154.131 of the Texas Family Code which states, (a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered. (b)  In ordering retroactive child support, the court shall consider the net resources…
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Temporary Restraining Orders in Texas, Harris County

Circumstances arise in which parties are in need of immediate protection from certain individuals. Fortunately, the Texas Family Code provides an immediate response to potential danger and provides protection to a party, a child, or property. This protection comes in the form of a Temporary Restraining Order (TRO). What is a TRO and what does it do? Let’s discuss. Need help now? If you are in danger, then contact the police. If you need to speak to a family law attorney call (832) 410-8935. Contents1 What is a Temporary Restraining Order?2 Applying for a TRO3 How Long Does a TRO Last? What is a Temporary Restraining Order? A TRO serves the purpose of restraining a party from a specific behavior that is prohibited by the TRO. Section 6.501 of the Texas Family Code outlines about 23 behaviors that a TRO can be issued to restrain. In short, the court states upon filing of a suit for the dissolution of a marriage, the court may grant a TRO without notice to the adverse party for the “preservation of the property and for the protection of the parties as necessary”. The TRO can prohibit one or both parties from – including but not limited to— the following: Communication or threatening the other party with the intent to annoy or alarm the other party. This includes placing anonymous phone calls repeatedly to offend or annoy the other party; Intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party or threatening either party with imminent bodily injury; Threatening the other party or a child of either party with imminent bodily injury; Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party; Falsifying a writing or record; Refusing to disclose important information to the other party or court; Refusing to disclose the amount or location of certain property; Intentionally damaging or destroying or tampering with property to create substantial loss or substantial inconvenience to the other party; Selling or transferring property of either party unless authorized by the court; Incurring debt; Withdrawing money from any financial institution or spending money in either party’s possession; Withdrawing money for any purpose from a retirement plan or life insurance policies; Entering a safe deposit box of either party; Changing or altering the name of a beneficiary of a life insurance policy; Canceling, altering, or failing to renew all insurance policies; Opening mail or communication addressed to the other party; Signing or endorsing the other party’s name on any negotiable instrument, check, or draft; Taking any action to terminate or limit credit or charge credit cards in the name of the other party; Destroying, disposing of, or altering any financial records of the parties; Destroying, disposing of, or altering any e-mail, text message, video message, or chat message or other electronic data relevant to the subject matter of the suit for dissolution of marriage; Deleting any data or content from…
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Grounds For Annulment

The terms annulment and divorce are oftentimes confused. Although, at first glance, these terms might seem similar, they are actually very distinct. In short, a divorce occurs to end a once valid marriage; an annulment occurs to end a marriage that was never valid.  In order to determine whether or not a marriage is valid, it is important to review the grounds for annulment. Contact our Texas Family Law Attorneys Today (832) 410-8935. Contents1 Grounds for Annulment in Texas2 Annulment of Marriage of Person Under Age 183 Annulment of Marriage Made Under the Influence of Alcohol or Narcotics4 Annulment of Marriage Due to Impotency5 Annulment of Marriage Due to Fraud, Duress, or Force6 Annulment of Marriage Due to Mental Incapacity7 Other Grounds for Divorce Grounds for Annulment in Texas Chapter 6 of the Texas Family Code allows an annulment in the following circumstances: annulment of marriage of a person under age 18; under the influence of narcotics; impotency; fraud, duress, or force; mental incapacity; concealed divorce; marriage less than 72 hours after issuance of license; and the death of party to voidable marriage. Annulment of Marriage of Person Under Age 18 Section 6.102 of the Texas Family Code states, “The court may grant an annulment of a marriage of a person 16 years of age or older but under 18 years of age that occurred without parental consent or without a court order as provided by Subchapters B and E, Chapter 2.” It is important to note that the suit to annul a marriage under this section may not be filed by a parent or guardian of a person after the 18th birthday of the person. Annulment of Marriage Made Under the Influence of Alcohol or Narcotics Section 6.105 of the Texas Family Code states, The court may grant an annulment of a marriage to a party to the marriage if: at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended. Annulment of Marriage Due to Impotency Section 6.106 of the Texas Family Code states, The court may grant an annulment of a marriage to a party to the marriage if: either party, for physical or mental reasons, was permanently impotent at the time of the marriage; the petitioner did not know of the impotency at the time of the marriage; and the petitioner has not voluntarily cohabited with the other party since learning of the impotency. Annulment of Marriage Due to Fraud, Duress, or Force Section 6.107 of the Texas Family Code states, The court may grant an annulment of a marriage to a party to the marriage if: the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and the petitioner has not voluntarily cohabited with…
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Annulment Marriage vs. Void Marriage

The dissolution of marriages is a common happening in Texas Courts. Dissolution could occur through proceedings such as divorce or annulment. A marriage may also be considered completely void. What is the difference between a marriage dissolved by annulment and a marriage that is voided? Let’s see. If you are considering a divorce in the Houston area, then contact our family law attorneys at (832) 410-8935. Contents1 Texas Marriages Dissolved by Annulments2 Void Marriages in Texas3 Consanguinity4 Marriage During Existence of Prior Marriage5 Marriage to a Minor6 Marriage to a Stepchild or Stepparent7 Annulments vs. Void Marriages Texas Marriages Dissolved by Annulments Chapter 6 of the Texas Family Code allows an annulment in the following circumstances: annulment of marriage of a person under age 18; under the influence of narcotics; impotency; fraud, duress, or force; mental incapacity; concealed divorce; marriage less than 72 hours after issuance of license; and the death of party to voidable marriage (See Grounds for Annulment Article). In short, an annulment occurs to end a marriage that was never valid to begin with. Void Marriages in Texas Annulments and void marriages are oftentimes confused. However, Section 6.201 through 6.206 of the Texas Family Code describes the instances in which a marriage can never occur. These instances will automatically make a marriage a void marriage. Under the Texas Family Code, a marriage is void [never occurred] if: consanguinity exists; a marriage is entered into when either party is already married; marriage with one party being a minor; marriage entered into when either party is a stepchild or stepparent. Consanguinity Section 6.201 of the Texas Family Code declares a marriage void due to consanguinity if, one party to the marriage is related to the other as: an ancestor or descendant, by blood or adoption; a brother or sister, of the whole or half blood or by adoption; a parent’s brother or sister, of the whole or half blood or by adoption; or a son or daughter of a brother or sister, of the whole or half blood or by adoption. In short, blood relatives are off-limits in Texas. Marriage During Existence of Prior Marriage Section 6.202 of the Texas Family Code declares a marriage void if, “entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.” If this circumstance exists, the Texas Code declares that the later marriage that is void under this section, becomes valid when the prior marriage is dissolved, and the new spouses live together as husband and wife. Marriage to a Minor Section 6.205 of the Texas Family Code declares a marriage void if, “either party to the marriage is younger than 16 years of age, unless a court order has been obtained under Section 2.103.” Marriage to a Stepchild or Stepparent Section 6.206 of the Texas Family Code declares a marriage void if, “a party is a current or former stepchild or stepparent of…
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Service Of Process For Divorce In Texas

There are six main steps in the divorce process in Texas: filing a petition for divorce; formally notifying the non-filing spouse of the divorce; agreeing to temporary orders; learning about assets and debts through discovery; negotiating a final settlement; and finalizing the divorce. This article will focus on the second step – formally notifying the non-filing spouse of the divorce. The process in which divorce documents are to be served are outlined in the Texas Family Code and the Texas Rules for Civil Procedure. Considering Divorce? Houston Divorce Attorney (832) 410-8935 Contents1 Obtaining the Proper Documents2 Serving the Spouse3 What if the Non-filing Spouse is not Located? Obtaining the Proper Documents After filing a proper petition for divorce and retaining an attorney, the next step would be to formally notify the non-filing spouse of the divorce or properly serving the divorce documents to that spouse. This step is monumentally important in order for the rest of the divorce process to go smoothly. When filing a divorce petition, the local district clerk will be able to provide a citation form (a one-paged document). That document should be attached to the very front of the petition. The citation form provides instructions of relevant deadlines and subsequent steps to the non-filing spouse. It is important to note that the state of Texas provides distinct forms depending on whether the spouse lives in the same county in which the petition is filed, or elsewhere. It is greatly important to indicate to the local district clerk the county in which the non-filing spouse lives. Also, the clerk will provide, upon request, a copy of the Information for Service of Process document. This form will be completed with the information that would indicate the physical appearance and location of the non-filing spouse. Serving the Spouse When all proper documents are gathered, it is then appropriate to present the documents (which include the citation and the Information for Service of Process form) to the sheriff. It is important to note that the location of the sheriff must be in the county in which the non-filing spouse resides. It is then the duty of the sheriff to search for the non-filing spouse as by the information provided in the documents. Generally, the sheriff will then locate and present the non-filing spouse with the documents. Upon service, the filing-spouse will receive a receipt in the mail declaring that the non-filing spouse has been served. This receipt should then be filed with the court. What if the Non-filing Spouse is not Located? There are situations in which the sheriff will be unable to locate the non-filing spouse for service. This scenario is common – oftentimes, the non-filing spouse will be aware of an oncoming divorce and will attempt to avoid it for as long as it is possible. In this circumstance, the filing spouse will be able to file what is called a “special motion” with the court. The filing spouse will then be able to obtain special permission from…
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Texas Homestead Law

Homestead protection laws in Texas are designed to help people in the event of a foreclosure, death of a loved one, or any change in economic circumstances that an individual may face. What is a homestead and who is entitled to a homestead protection? Let’s see. Contents1 What is a Homestead?2 Texas Homestead Protections3 Creditor Protection Before and After Death4 Special Occupancy Rights for Surviving Spouses and Minor Children What is a Homestead? In order to discuss homestead protections, one must first understand what a homestead is. In the legal field, a homestead is defined as the house, outbuildings, and adjoining land owned and occupied by a person or family as a residence. Chapter 41 of the Texas Property Code differentiates homesteads as being urban or being rural. The Code states determines if the homestead is urban or rural based on the following: (a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single, adult person, not otherwise entitled to a homestead, shall consist of not more than 10 acres of land which may be in one or more contiguous lots, together with any improvements thereon. (b)  If used for the purposes of a rural home, the homestead shall consist of: for a family, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or for a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon. (c)  A homestead is considered to be urban if, at the time the designation is made, the property is: located within the limits of a municipality or its extraterritorial jurisdiction or a platted subdivision; and served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality or under contract to a municipality: (A)  electric; (B)  natural gas; (C)  sewer; (D)  storm sewer; and (E)  water. (d)  The definition of a homestead as provided in this section applies to all homesteads in this state whenever created. Note, Texas no longer provides a homestead exemption to businesses exclusively; instead, the statute allows the urban classification to apply to both home and businesses. Texas courts have repeatedly determined that the homestead lies on the intent of how the individual plans to use the property even though the individual does not necessarily have to reside on the property. Texas Homestead Protections Now that it is established what a homestead is, it is proper to discuss what protections it extends. Establishing a homestead extends the following protections: Creditor Protection before and after death; Special occupancy rights for surviving spouses and minor children; and Tax Savings. Creditor Protection Before and After Death According to the Texas Constitution and Section 270 of the Texas Probate Code, the homestead of a family, or of a single…
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Reporting Child Abuse

Sometimes, it is difficult to draw a line between child abuse and disciplining a child. Other times, it is not as difficult. Luckily, Texas outlines what it considers child abuse and the proper guidelines to report it. Contents1 What does Texas Consider Child Abuse?2 Reporting Child Abuse What does Texas Consider Child Abuse? The Texas Family Code is far from vague on what it defines as child abuse. Chapter 261 of the Family Code lists abuse as: mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning; causing or permitting the mental or emotional injury; actual physical injury that results in substantial harm to the child; failure to make reasonable effort to prevent action from another person that causes injury to the child; sexual conduct that harms the child’s mental, emotional, or physical welfare; failure to make reasonable effort to prevent the sexual conduct; compelling or encouraging a child to engage in sexual conduct; encouraging, permitting, causing, or engaging in photographing, filming, or depicting of a child in obscene or pornographic content; harming the child through the use of a controlled substance; encouraging a child to use a controlled substance; causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child; allowing the sexual trafficking of a child; or neglecting a child. Reporting Child Abuse Now that child abuse is defined, it is appropriate to discuss who is obliged to report it. Chapter 261.101 of the Texas Family Code states dictates the persons required to report any suspected child abuse and at what time: (a)  A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. (b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. The Code goes on to state that a professional may not delegate the duty to make a report to anyone else. It is important to note that under the Texas Family Code, there lies no exception to the duty to report for, “any individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or healthcare facility that provides reproductive services.”…
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