Austin Divorce Attorneys

Prenuptial Agreements: A Logical Need In Many Situations

Clay Butler — Mon, 29 Nov 2010 22:28:32 +0000

Prenuptial Agreements: A Logical Need In Many Situations

Prenuptial agreements can be a somewhat awkward subject to discuss, especially for those in committed and loving relationships. Such agreements are often mistakenly perceived by many, as reducing the institution of marriage to a business relationship bound by strict contractual obligations on both parties. Such perceptions can be hard to overcome. Even so, prenuptial agreements can be invaluable in certain circumstances and may actually contribute to stronger, more trusted marital relationships in the right contexts.

A prenuptial agreement, or a prenup, as it is more commonly referred to, is an agreement that typically covers the financial implications of an ended marriage. It basically spells out the financial obligations of both the husband and the wife in the event they decide to mutually end their married relationship. A prenuptial contract clearly describes how the two sides will split their financial assets, their physical assets and their financial obligations and liabilities if the marriage ends in a divorce. Each state, of course, has its own set of divorce laws that cover many of these same issues. However, quite often couples find that such laws are too generic for their situations and prefer drawing up a more customized prenuptial contract for their specific requirements.

A prenuptial agreement can be especially vital in certain situations. For example, when one partner is significantly wealthier than the other, a prenuptial contract can ensure that the marriage is not being motivated by money. Similarly, if one partner earns a lot more than the other, a prenuptial agreement can be used to limit child support or other payments. Sometimes, individuals who are remarrying, use such contracts to ensure that children from the current marriage and those from the previous one get their fair share of any inheritances that might need to be distributed upon that individual’s passing. These are by far, not the only situations were marriage contracts make sense. Situations in which one partner has a high debt load, or where one spouse may be part-owner of a business for instance, also can benefit from a prenup.

As with any contract, prenuptial agreements too have their limitations. For instance, such contracts are not enforceable when it comes to issues such as child custody or child visitation. Nor can they address issues such as the religion in which to raise a child. Several states also allow courts to invalidate agreements relating to issues such as alimony or division of household duties, if the court feels that the contract unfairly favors one spouse over the other.

Custody battle tips

Clay Butler — Thu, 25 Nov 2010 22:27:04 +0000

Custody battle tips

Custody battles are a major part of the family law process. In order to keep the custody battle from becoming too contentious for all parties involved, there are several tips the involved parties can take. The smooth transition from the custody battle to a cordial relationship between both parents is essential for all children involved.

Individuals should communicate primarily through their attorneys whenever possible. This is especially important if a couple is facing challenges communicating directly with each other in a productive way. When the conversations start to take a turn for the worse, both individuals should reach out to their respective attorneys to handle all future communications.

It is important for all parties to be reasonable in their requests and expectations. The time spent in court can quickly add up for both parties. Countless appearances in courts over trivial matters can also make the process arduous. It is always best for both parties to put personal feelings and anger aside to consider the needs of the children.

Approach the custody battle strategically. The attorney will be able to lead and develop the most appropriate strategy for a situation. Keeping all documentation, such as letters or personal accounts, can all be helpful in a person’s case. It is important for individuals to be as open and as honest as possible with the attorney to make sure that he or she is suddenly caught off guard by potentially damaging information that could affect the outcome of the custody battle.

At the center of the custody battle is the child. Remember to shield the children from damaging information about the other parent. Avoid coaching the children or manipulating them in any other way. Protecting the overall mental health and stability of the child is extremely important during the custody battle.

If a person has hired an attorney to handle the case, then one must ultimately trust the professional. The family attorney is trained to handle legal disputes. It is important that the skilled professional take the lead in all aspects of the case. Although the custody battle could get heated and extremely contentious, the individual must refrain from acting independently of counsel to receive the most favorable outcome.

What Is Common Law Marriage?

Clay Butler — Mon, 22 Nov 2010 22:25:51 +0000

What Is Common Law Marriage

A common law marriage occurs when a couple proclaims themselves to be married by their words and actions, and live together as husband and wife. These actions can include filing joint tax returns and the wife taking on the last name of the husband. In some jurisdictions, a significant time period also must have passed during the time in which the proclamations have been made.

Simply living together is not enough to constitute a common law marriage.

In the United States, common law marriages can be created only within ten states. Alabama, Colorado, Iowa, Kansas, Montana, North Carolina, Oklahoma, Rhode Island, South Carolina, and Texas, as well as the District of Columbia, consider common law marriage as legally binding as any other recognized marital status.

In all other states, common law marriage – known outside of the United States as marriage by habit and repute, de facto marriage, and informal marriage – has no legal consequences. If, however, a common law marriage between a couple was created validly within a common law state, all other states will recognize it also. It simply cannot be created within them. For example, a common law marriage which was created in Alabama will also be valid in California, even though California has no common law marital status itself. This is done under the principles of comity.

Utah will recognize common law marriage only when it has been validated by a court, and New Hampshire will allow it for probate purposes alone.

In comparison to regular ceremonial marriage, a common law marriage is not licensed by governmental entities and they are not solemnized. There is no such thing as a “common law divorce,” although Texas will allow common law marriages to be annulled. In order to dissolve the marriage, the process is the same as with a ceremonial marriage; it must be done through a trial court. A probate or family court will normally be used.

As with ceremonial marriages, a common law marriage cannot be created when one or both partners are at that time married civilly to other parties, until dissolution of the previous marriage is complete.

The only state to currently recognize same-sex common law marriages is Iowa, but this has been untested in court. No other states permit common law marriages between same-sex couples.

Community Property

Clay Butler — Thu, 18 Nov 2010 22:24:08 +0000

Community property

The process of going through a divorce can be a difficult one, as the marriage evolves from the loving unity of a couple to the inevitable separation of two individual people. The subject of real estate, property and assets can be complicated, as the items that were acquired during the marriage must now be divided at the termination of the relationship. Community property states somewhat simplify this process, as it is generally decided that the property and income that was earned during the course of the marriage belongs to both individuals. This information can be used as a general guideline during the asset distribution process, and so the property is usually divided equally between both parties. Community property can make for a fair and equitable distribution of the marital assets.

Dividing property and assets is not always so simple. Sometimes the couple owns assets that belonged to them as individuals before they were married. There may also be individual gifts or inheritances that were obtained during the marriage. Stocks, bonds, 401k plans and pensions can also be a challenging topic. An individual may have had a pension that was acquired before the marriage, but when the couple contributed to the pension together throughout the marriage, it can be difficult to decide how to distribute the pension. The division of these types assets may need to be decided in a court of law, especially if the couple is unable to come to a mutual agreement on their own.

There are many complex laws that dictate the rules of property distribution during a divorce. There may also be Federal tax implications that will need to be seriously considered prior to or immediately following asset distribution. Asset distribution laws will also vary widely among different states and may or may not be impacted by the divorce itself. Some states are community property states, while other states are equitable distribution states. Both types of property distribution have their own advantages and disadvantages, and it is important to have an experienced attorney evaluate your situation to ensure that you receive a fair share of the marital assets.

Some of these issues may be completely avoidable if there is proper estate planning during the course of the relationship. Estate planning can simplify the process of property distribution in the event of a divorce or sudden death, yet is rarely considered at the onset of the relationship.

Considering Adoption

Clay Butler — Mon, 15 Nov 2010 22:24:02 +0000

Considering Adoption

Seeing parents walking with or caring for a child of another ethnicity than themselves is a common occurrence. It has become popular for couples to adopt some or all of their children from families who can’t adequately care for those children– often families from another country and culture than the adoptive parents.

These new families are almost always beneficial to the child being adopted and the parents adopting, forming loving bonds between the parents and child, rooted in compassion. However, there are many implications when adopting inter-culturally– things prospective adoptive parents and parents who have already adopted children can be sensitive to in order to make the most compassionate choices and to make the self-understanding of their adopted child as natural as possible.

When a child is adopted from an overseas orphanage, they are sometimes being rescued from poor situations. Many international orphanages are understaffed or underfunded. The children who are adopted from these orphanages are the lucky ones, moving on to families who can adequately love and care for them. However, rescuing one child at a time is like patching a leak in a ceiling that’s flooding. It is life-changing for an individual but does nothing to help alter the social system that creates and cannot support these orphans. The dedication, self-sacrifice, and financial stability often found in adoptive parents make them candidates to look at the big picture and help support whole orphanages and communities– perhaps in addition to adopting a child of their own.

When they do adopt, the child they take into their home is given the gifts of love and opportunity. However, in exchange the children do not grow up in their own culture. How this does or does not affect the child’s mentality and the mentality of the community they are being adopted out of varies greatly by situation. Still, adoptive parents may want to consider educating their child in the culture or language of the country from which they are adopted.

Finally, prospective parents may want to consider whether they want to adopt before or after having their own children, if they plan to have biological children as well as to adopt. Many families, after having a child or two of their own, decide to adopt the youngest member of their family. On the other hand, some couples choose to adopt a child first, before having any children of their own, so that the adopted child never feels like an afterthought or a way to fill a void, such as providing parents who have only boys biologically the chance to parent a girl.

All adoptions are different and the considerations of each set of adoptive parents vary. The most important factor is that parents who have adopted or are looking to adopt think carefully about the important decisions they make that affect not only their lives but the life of the lucky child who gets to become part of their family.

All About Alimony

Clay Butler — Thu, 28 Oct 2010 18:48:16 +0000

The Ins and Outs of Alimony

Alimony is a form of monetary support during and after a divorce. Sometimes referred to as maintenance or spousal support, alimony may be temporary or permanent. The concept of alimony is based upon a man’s obligation to financially support his wife forever, even after a separation or divorce. Although the actual marriage is over, the man’s duty to provide for the woman he married continues.

Not so long ago, the only way the court would allow people a divorce was if one person proved marital misconduct of the other. Consequently, whoever caused the marital misconduct had to pay the victimized spouse alimony. In most cases, it was assumed that the husband was always at fault for misbehavior; thus ordered to pay alimony to his now ex-wife continuously. On the other hand, if the husband proved the wife guilty of misbehavior, then she did not have to pay alimony, but did forfeit her right to any type of spousal support.

Today, in all states except New York, the court grants no-fault divorces; which means neither the husband nor wife must prove marital misconduct. However, in most states “unspoken” or innuendo of spousal misbehavior plays a role in alimony rulings. Still, men are typically ordered to pay alimony to the woman for a specified period of time. In fact, only 3.6% of men receive alimony from their ex-wives. Statistically, men do earn more money than women do; therefore, the case for alimony is fairly strong in the woman’s favor.

Alimony is completely separate from child support and varies from state to state. Some states, such as Mississippi and Texas only award alimony in marriages that lasted ten years or longer. In others, the duration of alimony payments is limited to three years. In still other states, a civil union or common law marriage that dissolves may warrant alimony payments. Usually the presiding judge in family court determines the amount of monthly support; however, it is typically less than two thousand five hundred dollars or forty percent of the person’s income.

There are three classifications of alimony. They are temporary, rehabilitative, and permanent. Judges order temporary alimony when the spouses are no longer living together during divorce proceedings. Rehabilitative alimony is temporary and designed to allow the non-working or underemployed spouse time to find full-time employment. Permanent support is paid forever, unless the spouse remarries.

Collaborative Family Law

Clay Butler — Mon, 25 Oct 2010 18:26:54 +0000

The Outcome of Court Cases can be Uncertain

When couples decide to separate or end their marriage the thought of going to court to resolve personal differences is not only stressful it can have an uncertain outcome that may not serve the needs of either party. Resolving conflicts using the court as the mediator is an experience that should be avoided in most cases. Thanks to a Minnesota lawyer a new approach to conflict resolution was created in 1990.

Collaborative Family law also known as Collaborative Divorce and Collaborative Practice is a process that helps couples work through their differences using lawyers and other family professionals. This collaborative choice gives both parties the opportunity to focus on what is important in terms of individual needs as well as present and future family and personal expectations.

Another important feature of this process is the initiation of pre and post martial agreements which are executed in a consensual fashion rather than with an oppositional attitude. Couples are able to begin married life on firm legal ground where all of the financial issues that can ruin a relationship are discussed and confirmed legally.

When a couple agrees to use Collaborative law instead of litigation they sign a Participation Agreement which is a binding contract that stipulates that both parties will take into consideration the needs of each other as well as the children. The agreement also specifies that if a settlement cannot be reached the lawyers will remove themselves from the case and help clients make the transition to trial attorneys. In most cases Collaborative law establishes an open and cooperative environment where each party and their lawyer can work out a settlement that benefits everyone involved.

The Collaborative Law Process Has Spread Across the World

The damaged caused by court proceedings outweighs the positive features of divorce cases especially when cost and personal well being are considered. The idea of controlling emotions and looking at both sides of the issue can be exceptions in typical court proceedings. The Collaborative Practice spread rapidly across the US, Canada, Australia, and Europe because it does address emotional well being and personal integrity. Individuals walk away with some semblance of dignity.

There are more than twenty-two thousand lawyers trained in Collaborative Law worldwide according to the International Academy of Collaborative Professionals. There are Collaborative lawyers in forty-six US states and in some states it has become the predominant method of resolving family disputes and divorce issues.

Child’s Bill of Rights: Divorce, Children, and Full Protection Under the Law

Clay Butler — Thu, 21 Oct 2010 18:23:35 +0000

Anyone who has been involved in a divorce, is the child of divorce, or is acquainted with someone who has been through a divorce knows that things can get real ugly, real fast. In child custody cases or paternity cases, the adult participants can become so engrossed in their own emotional needs, passions, and desires that the needs of the children are sometimes ignored or forgotten. Those children, who do not always have the emotional coping skills necessary to weather a divorce, should be protected. And as it turns out, they are protected under the Child’s Bill of rights.

This document has been especially created and endorsed as the standard set of guidelines for treatment of children who are victims of divorce or paternity legal battles. This country was built on the notion that people have inalienable rights to live free and pursue happiness in life. These rights were fought for and people gave their lives in hope of gaining for themselves, their families, or their countrymen these very inalienable rights. All U.S. citizens can claim protection under the first ten amendments to the U.S. Constitution, better known as the Bill of Rights. It was this very idea of protection from which the Child’s Bill of Rights was created.

Originally designed by the Wisconsin Supreme Court, the Child’s Bill of Rights was established and endorsed by the courts in all 50 states. It is a document which outlines and ensures fair treatment for the sometimes forgotten victims of divorce–the children. This document states that parents who divorce will not hinder the child having a continuing relationship with both parents, that kids will not be treated as pieces of property, but that they will be recognized to have unique feelings and desires. The document also states that children can count on the ongoing care and get proper guidance from both parents and that they will not be unduly influenced by either parent to view the other parent differently.

Other important aspects of this Child’s Bill of Rights are for the parents to provide an explanation that the divorce or break-up was in no way caused by the child’s actions, a continued need to freely express love and respect for both parents, and the freedom from having to hide or be ashamed of these emotions. Kids are having to go through enough turmoil and trauma when parents decide to divorce. These kids do not equipped to handle the separation of parents or dissolution of family. Kids need security, especially when they are going through what they may see as the end of their world. A Child’s Bill of Rights is designed to remind adults that sometimes kids deserve a little extra care, concern, and consideration.

Emancipation: Legal Independence for Minor Children

Clay Butler — Mon, 18 Oct 2010 18:03:06 +0000

These days, the definitions of a traditional family and the definition of traditional values are constantly in flux. It seems that the old, seemingly reliable rules and values of the past are quickly being replaced by situational ethics or personal preference. This creates a legal environment in which people sometimes need to re-evaluate or re-define the rules. Sometimes, the legal system has to be called upon to settle disputes in a society that has so many different values and social mores.

Because of these changes in differing values and changing societal standards, and for other reasons as well, minor children sometimes desire to be legally separated or emancipated from their parents. Most cases of a minor desiring emancipation from parents or guardians are due to a child moving out of the home for any number of reasons. Sometimes, a minor child will need to be emancipated because they have become financially independent, have joined a branch of the military, or have married.

In a few cases, kids will seek emancipation for medical treatment. The 2009 motion picture, “My Sister’s Keeper,” addresses the issue of an eleven-year-old minor wanting to be emancipated from her parents for medical reasons. With society’s growing acceptance of the gay and lesbian lifestyle, particularly for minors, some children are seeking emancipation stating irreconcilable differences over beliefs in a particular lifestyle the minor may have chosen to pursue.

Emancipation can be established by a mutual agreement between the parents and child. Emancipation may also be ordered by the court in some cases. If a child can show that they are not relying on the parents for support because they are now self-supported financially, emancipation may be ordered by the court. In such cases of a minor establishing emancipation, the parents are no longer held responsible for the financial support or for their care. Children who pursue this course need to realize that they alone will now be responsible for their own living expenses, medical care, insurance, and any other expenses incurred.

When a court reviews a petition for emancipation, the one factor that will be most important is what’s in the best interest of the minor child. Before granting emancipation, the court will likely also look for proof of financial independence in the present and in the future, adequate housing arrangements, whether or not the minor is in school or has completed school, and the maturity level of the minor. One thing is for certain, as society continues to change and values continue to differ, the courts may need to change the way emancipation of minors is handled.

The Importance of Knowing How to Prepare Yourself for Divorce

Clay Butler — Thu, 14 Oct 2010 18:02:38 +0000

When a couple decides to pursue and go through divorce, it’s certain to change just about everything about their lives in a huge way. The family relationships are going to change, some will become worse, others will get better, all will change. Friends, acquaintances, mutual business contacts, even which friends your kids will play with are all going to change. Divorce is a drastic step and guaranteed to bring about big change. It just makes sense to get prepared for this inevitable change.

First, take a good, hard look at the marriage relationship. It may be possible to work things out before it’s too late. Perhaps you can discuss the possibility of counseling, or recommitting to the relationship and working harder. Don’t give up on the marriage if there is still a chance. Divorce is a life-altering decision that should be carefully considered. If you have already decided that divorce is the only way to resolve the issues between yourself and your spouse, then it’s time to stop a moment, take a deep breath, and prepare for what’s coming.

One of the biggest changes that occurs from a divorce is your legal learning curve. Before initiating divorce, make sure you understand all the laws, especially the custody and property distribution laws in your state. Most states will grant access to the children by both parents because the courts know this will serve the best interest of the children. If sharing custody of your children is an issue, then think long and hard before proceeding with divorce. Also property will most likely be divided evenly and fairly, so you need to know what you may end up with, and what you may lose.

Before divorce, be prepared to be on your own financially. Sometimes the job you have now isn’t going to cut it after a divorce so you may want to start looking for another job before the divorce. If your spouse handled all the money, paid all the bills, and had credit cards in their name–you’ll want to change that. Get a credit card in your name before the divorce. Debt is another critical concern. Make sure the debts are in the name of the actual person to whom they really belong. After a divorce, if your name was on a debt, credit card, account, etc., they can and will come after you for payment.

If it seems like a lot to consider, it is. Most big decisions in life require some help and divorce is no exception. A good, experienced divorce or family law attorney is the best place get some help and to seek legal advice before deciding to divorce.