Austin Family Law Blog

There are instances when a client will contact an Austin divorce attorney about having a marriage annulled, when in actuality what they want is to have the marriage declared void. It is not uncommon for a person to confuse annulment with having a marriage declared void.

Only voidable marriage may be annulled. A voidable marriage is a legal and valid marriage which may be set aside under certain circumstances. Your Austin divorce attorney will tell you that the few examples of voidable marriages are:

• A marriage where one or both parties were under the age of 18 at the time of the marriage and did not have parental consent;
• A marriage where one or both of the parties were under the age of 16 at the time of the marriage and did not have court authorization to get married; and
• A marriage that occurred before expiration of the 72-hour waiting period after issuance of the marriage license.

A voidable marriage can only be dissolved by filing for an annulment. If the parties continue to reside together and otherwise conduct themselves as a married couple, they will be recognized as much under the law.

Your Austin divorce attorney will advise you that having a gestational surrogacy agreement is critical to protecting your rights. Not only should the biological parents have a gestational surrogacy agreement, they should have the agreement validated. The Texas surrogacy law allows courts to validate surrogacy agreements if the following criteria are met:

ï The biological parents are married;
ï The egg used is from the biological mother or a donor, rather than from the surrogate;
ï The biological parents have demonstrated a medical need to use a surrogate; and
ï The surrogate has had at least one successful pregnancy and delivery.

Under Texas law, validation of the surrogacy agreement is not required. However, if it is not validated before transfer of the embryo, the agreement is unenforceable. In instances where validation has not occurred before transfer of the embryo, the biological parents would have to establish a parent child-relationship via a family court proceeding after the child is born.

Having a child is a dream for many couples and surrogates play a crucial role in making that dream come true for some these couples. However, things can sometimes go wrong in gestational surrogacy cases. Hiring an Austin family law attorney with experience in gestational surrogacy law to draft a surrogacy agreement can help reduce the possibility of conflict and heartbreak if conflicts arise between the biological parents and the surrogate.

More and more frequently, as an Austin Divorce Attorney, I'm consulting with clients about gestational surrogacy agreements and the issues that arise from such agreements. Because Texas is one of the few states which has enacted surrogacy legislation, it's imperative that Austin family law attorneys be familiar with the important issues which arise in gestational surrogacy cases.

A gestational surrogacy agreement is an agreement between biological parents and a carrier, known as a surrogate mother, whereby the surrogate agrees to have the embryo of the biological parents placed in her uterus in the hopes of impregnating her. If the procedure is successful and the surrogate becomes pregnant, she is obligated to make every effort to carry the pregnancy to term. Under the terms of the typical surrogacy agreement, the surrogate has no legal or physical claim or obligation to the baby, including parental rights.

A surrogacy agreement will address issues relating to:

ï Compensation to be paid by the biological parents to the surrogate;
ï Additional compensation in the event multiple births;
ï Compensation for incidental expenses related to the pregnancy, including travel expenses, telephone calls, and baby-sitting expenses for the surrogates other children;
ï Unreimbursed and uninsured medical expenses related or incidental to the pregnancy, including psychological counseling for the surrogate;
ï Life insurance on the life of the surrogate; and
ï Compensation in the event of a miscarriage.

We will discuss more issues that come into play with these types of agreements next time.

Your Austin divorce attorney can assist you with minor emancipation issues. The petition must be verified by a parent of the petitioner unless a managing conservator or guardian of the person has been appointed by the court. If there is a managing conservator or guardian of the person, the petition may be verified by that person. If the person who is to verify the petition is unavailable or cannot be located, the amicus attorney or attorney ad litem appointed by the court must verify the petition.

The petition for removal of disabilities of minority must be filed in the county where the minor resides and must be accompanied by the appropriate filing fee. Once the petition has been filed, the judge will appoint an amicus attorney or attorney ad litem to represent the minor in the emancipation proceedings. The minor is responsible for paying the fees of the amicus attorney or attorney ad litem.

In Austin, family law judges only grant emancipation petitions if it appears that doing so would be in the best interests of the child. The Texas Family Code does not define ìbest interests of the childî. Therefore, it is a subjective standard and may vary from judge to judge. If a petition for general removal of the disabilities of a minority is granted, the minor is given the status of adult and may enter into contracts and other legal agreements. However, the child must still abide by laws which establish minimum age requirements for drinking, smoking, and driving.

The best Austin divorce attorney will usually discourage minors from seeking emancipation because of how difficult it is for most minors to adjust to managing all aspects of their lives. Moreover, an emancipation proceeding can have a devastating psychological and emotional impact on the entire family unit from which it may never recover. This is especially true if the parents contest the emancipation. If you have questions about Texas minor emancipation law, contact the experienced family law attorneys at the Law Office of Willie and Dasher.

As an Austin Divorce Attorney, I'm frequently contacted by teenagers with questions about emancipation. In Texas, minor emancipation is known as removal of disabilities of minority. Before filing a petition for the removal of disabilities of minority, it's important for a child to understand the process and consequences of becoming emancipated.

Under Texas law, a minor may petition to have the disabilities of minority removed for general or limited purposes. In order to petition for emancipation a minor must be a resident of the state of Texas and 17 years of age. However, a minor who is sixteen years of age may petition for removal of the disabilities of minority if he has been living separate and apart from his parents, managing conservator, or guardian. Additionally, the minor must demonstrate that he is self-supporting and managing his own financial affairs.

In emancipation cases, an Austin divorce attorney will prepare the petition which must include:

ï The name, age, and residence of the minor child (the petitioner);
ï The name and place of residence of each parent;
ï The name and place of residence of the guardian of the person and the guardian of the estate;
ï The name and place of residence of the managing conservator, if one has been appointed;
ï The reasons why removal would be in the best interests of the child; and
ï The purposes for which the removal is being requested.

We will look at additional aspects of minor emancipation soon.

Senior couples in Austin divorce cases also have concerns over health and health insurance. The fact that one or both spouses have serious health issues could impact the division of community property and the award of spousal support, including the requirement that one party carry the other party on his or her health insurance.

Additionally, if one of the spouses suffers from Alzheimer's disease or dementia, it may be necessary for the court to appoint a attorney ad litem to ensure that spouse's interests are protected.

When a divorce involves seniors, the best Austin family law attorneys will incorporate estate planning into the divorce settlement as a means of protecting their client's interests. Not only is it critical for divorcing seniors to review the beneficiary designations on life insurance policies, bank accounts, and retirement accounts, it may also be necessary to amend wills, powers of attorney, and medical directives. A divorce settlement can include provisions which address a variety of estate planning issues including:

• The establishment of trusts to carry out agreed upon or shared financial responsibilities such as the education of grandchildren or financial support of adult-children;
• The receipt or provision of death benefits from a will, trust, life insurance policy, or retirement plan; and
• The establishment of a life estate in real property to ensure that the other spouse always has a place to live.

Continue reading "Austin Family Law Attorneys - Divorce and Seniors Part II" »

Although the reasons older couples get divorced are similar to the reasons younger couples get divorced, it's important that older couples hire an Austin divorce lawyer who understands their special needs. The needs of divorcing seniors are permeated by concerns over aging and mortality and require a higher degree of sensitivity, compassion and empathy.

Of primary concern for many seniors who are divorcing is financial stability - "Will I be able to survive on my own?" While a senior couple may be able to live comfortably on their retirement income, a divorce may make it much more difficult to survive as household income decreases and it becomes necessary for each spouse to maintain a separate household. These concerns are exacerbated by the fact that older couples have less time to recover financially after a divorce, making it necessary, in some instances, for one or both parties to return to work in order to make ends meet.

In an Austin divorce case involving a senior couple, how assets will be divided is of critical importance. Among the factors to be considered in deciding how community property will be divided are:

• How much it costs each month to maintain the marital home and other real property holdings;
• Whether either spouse is eligible for a reverse mortgage;
• Whether either spouse is eligible for property tax exemptions;
• Whether either spouse receives public assistance and how residency will impact the eligibility for those benefits;
• Tax benefits of owning real property;
• Eligibility to receive Social Security benefits; and
• How retirement benefits, including military and civil service retirement benefits, will be divided.

The parties in an Austin family law case may also resolve their issues in an arbitration proceeding. An arbitration is more formal than a mediation and is usually heard by a retired judge. Arbitration is similar to a courtroom hearing in most respects, but usually takes place in a private setting outside the courtroom.

Because arbitration usually takes place after the entry of temporary orders and after discovery, the parties to the divorce or family law case must submit a written agreement indicating their desire to arbitrate. The agreement must state whether the arbitration will be binding or non-binding. If the arbitration is binding, the decision of the arbitrator is final. The parties in a non-binding arbitration, on the other hand, have the right to return to court and have the case heard by the judge if they disagree with the arbitrator's decision.

An Austin divorce attorney may advise clients to choose other alternative dispute resolution methods such as collaboration or an informal settlement conference. These forms of alternative dispute resolution are often most useful when the parties already have an open line communication and are willing to actively work to resolve the issues in their case.

Continue reading "Austin Divorce Attorney On Alternative Dispute Resolution" »

A qualified Austin family law attorney plays a critical role when alternative dispute resolution is utilized in divorce and other family law cases. Alternative dispute resolution is a method of bringing the parties in a lawsuit or other dispute together in a neutral and non-threatening environment in an effort to resolve their issues.

The parties to an Austin family law case are authorized under Texas law to resort to a number of alternative dispute resolution methods including mediation and arbitration. Mediation is a private and informal meeting in which a neutral third party, known as a mediator, works to help the parties reach an agreement on all unresolved issues in their case. If the parties are able to resolve all of their issues, the mediator will draft a written agreement setting forth the terms of the agreement and the parties will sign it and file it with the court. If the parties able to resolve some, but not all of their issues, the mediator will reduce the terms of the parties agreement to writing and they will sign it and file it with the court. Any unresolved issues will be decided at a hearing or trial.

A mediated agreement is a legally enforceable contract and is binding on both parties. This means that if either violates the terms of the mediated agreement, he or she may be subject to sanctions.

We will talk more about ADR soon...

An Austin divorce attorney would agree that, generally, prenuptial agreements are written defensively; they are written in an effort to protect against all the "what if's" that might happen.

The great thing about a prenuptial agreement is that it is not written in stone. As with any other contract, a premarital agreement can be amended. So, as the marriage progresses and withstands the test of time, a couple may choose to amend the agreement or do away with it all together, depending on the circumstances.

The majority of Austin family law attorneys would probably agree that the benefits of having a prenuptial agreement far outweigh the disadvantages. The biggest disadvantages are that prenuptial agreements are not romantic and they force couples to address uncomfortable issues such as money management, property rights, debt, and estate planning at the early stages of a relationship.

Continue reading "Prenuptial Agreements Part II" »

Divorce attorneys in Austin are frequently asked "Why do I need a prenuptial agreement?" The quick answer to that question is that a prenuptial agreement will protect your separate property and any appreciation in value or interest earned on that property from becoming community property.

There are other benefits to having a premarital agreement especially for people with significant assets, such as a family business or family heirlooms. A premarital agreement may also be a good idea for people with children from a previous relationship. In addition to protecting separate property, a prenuptial agreement can:

• Support your estate plan;
• Identify marital property vs. community property;
• Set forth the terms and conditions under which spousal support will be paid as well as how much spousal support will be paid in the event of a divorce;
• Set forth and clarify special agreements between you and your prospective spouse;
• Save time and money in the event of a divorce;
• Help couples maintain control over how assets are distributed in the event of divorce rather than leaving the decision to a judge;
• Help couples protect and maintain financial privacy in the event of a divorce;
• Reduce the emotional fallout of a divorce by addressing division of assets and debt in advance; and
• Establish parameters for addressing future issues which may arise, such as infidelity.

An Austin divorce attorney can consult with you on what to do if you are simply unable to agree on custody of a pet. Typically the court will decide the issue. A party seeking custody of a pet should be prepared to satisfy the "best interests of the pet test" by showing the court that:

• He or she has been the primary caregiver of the pet since it joined the family;
• He or she has paid the expenses for the pet, including vet bills, food, and grooming, since it joined the family;
• He or she is in a better financial position to continue to care for the pet;
• His or her lifestyle is more conducive to the daily requirements of the pet, including feeding and exercise;
• He or she has more space for the pet (especially if it is a large pet).

Another important consideration is whether the children have bonded with the pet. Because divorce takes such an emotional toll on children, it's usually best for the family pets to reside with the managing conservator of the children. This way, the children will not suffer the additional heartbreak of losing their beloved pets.

Once you make the decision to divorce, you should tell your Austin divorce attorney early on if you believe you and your soon-to-be ex-spouse will be unable to agree on custody of the pet. This is important because you want your attorney to appreciate how much your pet means to you and you want to be sure that he is willing to do everything within his power and the bounds of the law to help you get custody of your pet.

If you have questions about pet custody issues in a divorce, you should contact an experienced Austin divorce lawyer.

As an Austin divorce attorney, I'm all too aware that for many divorcing couples a major source of contention can be the family pets. For many people, their dogs, cats, and other pets are a part of the family and the thought of being separated from Fido or Ms. Kitty is unbearable.

When "custody" of the family pet is an issue in an Austin divorce case, it's imperative that the attorney prepare his client for the realities of how family court judges view custody disputes over pets.

• Under Texas law, pets are considered personal property. They are not considered children and will not be treated as such regardless of the "parental feelings" the parties may have for them.

• Because pets are considered property, there is a presumption that they are community property. As community property, the pet will either be awarded to one spouse or the other. However, if one spouse is able to overcome the presumption that the pet is community property and prove that it is his or her separate property, the pet will be awarded to that spouse.

• If the parties are unable to agree on custody of valuable pets, such as purebred dogs and cats, horses, or show animals, the court will order the pet sold and the net proceeds from the sale will be divided between the parties.

Next time we will look at what happens when you are unable to agree on custody of pets.

One of the most important functions of an Austin divorce attorney is to ensure that his client gets the best possible property settlement under the circumstances. In an ideal world, both spouses would make an honest disclosure of their assets and would agree on how those assets will be divided. Unfortunately, that's just not how things typically play out, especially in fervently contested cases.

When most people think about hiding assets, they think of physical concealment. However, it is not uncommon for a party to an Austin divorce case to undervalue an asset. Certain assets are more susceptible to undervaluation than others, including:

• Collections;
• Artwork;
• Jewelry; and
• Antiques.

It's also possible for one spouse to conceal income. This is most easily done by failing to disclose income that is not reported on tax returns, depositing funds in custodial accounts in the names of the children, depositing funds in the bank account of a girlfriend or boyfriend, or depositing funds in a secret account or an offshore account.

When an Austin divorce attorney or his client suspects that assets are being hidden or undervalued, it may be necessary to hire a forensic accountant, an appraiser, and a private investigator. A forensic accountant will closely review bank statements, credit card statements, receipts, tax returns and other financial documents to discover discrepancies. An appraiser can examine real estate, jewelry, artwork, collections, antiques, and other property to determine its fair market value. A private investigator may be able to locate hidden assets.

An Austin divorce attorney may decide that it's necessary to use formal discovery in an effort to locate hidden assets. Discovery methods authorized under Texas law include:

• Interrogatories (written questions which require the other party to respond in writing);
• Requests for Production of Documents;
• Requests for Admissions;
• Requests for Disclosures; and
• Depositions.

If you suspect that assets are being hidden, you should do some legwork before you file for divorce. Gather as much of the financial documentation as you can gets your hands on and make copies. Keep your copies in a safe place outside of the home so that your spouse cannot gain access to them. By taking these steps you will be prepared and will not be scrambling to find these documents once you file for divorce.

If you have questions about divorce and finding hidden assets, you should contact a qualified Austin family law lawyer as soon as possible.

One of the most important functions of an Austin divorce attorney is to ensure that his client gets the best possible property settlement under the circumstances. In an ideal world, both spouses would make an honest disclosure of their assets and would agree on how those assets will be divided. Unfortunately, that's just not how things typically play out, especially in fervently contested cases.

When most people think about hiding assets, they think of physical concealment. However, it is not uncommon for a party to an Austin divorce case to undervalue an asset. Certain assets are more susceptible to undervaluation than others, including:

• Collections;
• Artwork;
• Jewelry; and
• Antiques.

It's also possible for one spouse to conceal income. This is most easily done by failing to disclose income that is not reported on tax returns, depositing funds in custodial accounts in the names of the children, depositing funds in the bank account of a girlfriend or boyfriend, or depositing funds in a secret account or an offshore account.

We will look more at hidden assets in an Austin divorce case next time