In any divorce, especially those involving estates of considerable size, the division of property is complex and vital to the protection of a client's fortune and family. Any assets acquired during the course of a marriage may be eligible for equitable distribution.
Often, assets may have been hidden by a spouse prior to a divorce. These assets must be discovered for a fair and equitable division of property during the divorce. Hiding assets is not just for the wealthy or business owners, anyone may have a rainy-day account that is not included in divorce documents. At the Lamar Legal Group, sophisticated asset tracing is a critical step to ensure the transparency of the divorce and the financial stability of a client and children involved.
Spousal support is another delicate matter related to divorce. Texas law allows two types of spousal support: contractual spousal support based on a contract between the divorcing spouses, or court-ordered spousal maintenance that is generally limited to a period of three years, and caps the amount that can be ordered, except in the case of disability.
Under the Texas Family Code, spousal support is intended to assist a divorced spouse who was out of the job market for many years, lacks job skills, and does not have enough assets to provide for their own reasonable minimum needs.
The statute states that spousal support is not justified unless the partner seeking alimony demonstrates that he or she tried to seek suitable employment or to develop the necessary skills to support themselves during the separation period.
In addition, if a spouse has no skills or assets and has been married for at least 10 years, a spouse may be entitled to spousal support for a period of up to three years, and up to a maximum of $2,500 per month or 20% of the former spouse's average monthly gross income.
Whether there is a law in place or not, divorcing parties can and often agree to pay contractual spousal support. Under the Internal Revenue Code, spousal support payments are a deduction from the gross income of the payor, and reportable gross income to the receiving spouse.
While working to protect your fortune and family, the Lamar Legal Group strives to minimize the potentially negative impact divorce can have on children and relationships.
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POST DIVORCE MODIFICATIONS
Your life may change dramatically after a divorce. Over a lifetime, it is common for people to experience changes in income and accidents or medical emergencies that temporarily or permanently alter their ability to work. Children's needs and relationships also change. Sometimes aspects of your divorce decree need to be modified along with those changes. At the Lamar Legal Group, we can help you fight for or against a post-divorce modification in such matters as but not limited to child support, child custody, or spousal maintenance.
Pursuing or Responding to a Post-Divorce Modification Request
Many situations may call for a modification of a divorce decree or another family law order. If you are the person seeking a modification, it is important that a modification to the existing order be sought before you become unable to comply. To ask for a modification in child support, for example, you will often need to prove that there has been a material and substantial change in your circumstances.
One example of a material and substantial change in circumstances could be if you were paying child support to a custodial parent and lost your job. In that case, you may ask the court to order a reduction in your child support payments. If you simply stop paying child support, you will be in arrears and subject to unpleasant enforcement actions, so it is important to request a modification rather than simply stop paying as much. In another example, if your child is suddenly diagnosed with learning disabilities or a medical problem, the noncustodial parent may need to provide increased payments to contribute to the treatments that may be necessary.
Parents should be aware that even when a noncustodial parent gets behind or in arrears on payments, possession and access rights may not be withheld by the custodial parent. Similarly, noncustodial parents are not allowed to stop paying support because possession and access rights have been withheld.
You may request a modification in a child custody or possession schedule only under limited circumstances. Most of the time, you will need to establish that there was a material and substantial change in circumstances, and that the change is in the best interests of the child. However, you may also request a modification if you can establish that it is in the child's best interests, and either your child is at least 12 years old and wants to tell the court that they want a change, or the custodial parent voluntarily relinquished primary care and custody to someone else.
During a divorce, the court will make a distribution of property. Sometimes after the divorce, an ex-spouse fails to turn over items of property or refuses to pay court-ordered spousal maintenance. Our law firm can help you enforce a property division after the divorce is complete; however, the division itself is not subject to modification. Spousal maintenance, on the other hand, is subject to potential modification.
PRE AND POST MARITAL AGREEMENTS
It is common for separate property to be commingled with community property after a couple marries. When a couple gets divorced, the commingling may create significant obstacles when determining the character of various assets. Drafting a pre-marital or post-marital agreement may provide some measure of security to both spouses in the case of a divorce. If you are considering this type of option, the Lamar Legal Group may be able to provide sound advice and representation.
Retaining an astute attorney to draft your pre-marital or post-marital agreement may give you the peace of mind that you have created a legally binding contract. A premarital agreement must be in writing and signed by both prospective spouses prior to their getting married. No consideration is necessary, unlike with other contracts. Both prospective spouses should disclose all of their assets and liabilities prior to signing the agreement, and they must have negotiated and signed the agreement in contemplation of getting married.
A failure to fully disclose your assets or debts may result in a court later voiding the agreement due to the lack of disclosure. This is because your premarital agreement may alter your default property rights under existing law, so you can only evaluate the risks and benefits of the agreement if you have a full disclosure of your partner's financial situation. An agreement may also be unenforceable if a spouse did not sign voluntarily or if the agreement is unconscionable. Preferably, each of the parties has his and her own attorney so that each understands the agreement. It is unethical for a single attorney to represent both parties.
Under Texas law, there is a rebuttable presumption that property during a divorce is community property. Community property is subject to a just and right division. A premarital agreement allows someone who is going to marry to protect his or her separate property by deciding in advance what the character of particular property or income is going to be at the time of the divorce. For example, you might agree with your spouse that each of you will keep as separate property your wages and income throughout the marriage when they would otherwise be considered community property. Premarital agreements may also establish the right to control property during a marriage, provide for the division of retirement and employee benefits, and either set or waive alimony and cost of living adjustments.
There are certain areas that are off-limits in premarital agreements in Texas. For example, you may not limit the amount of child support that one parent would need to pay to the other in case of divorce or a child custody dispute. The right to child support is the child's right, rather than the parent's right. Judges are supposed to award whatever child support is appropriate under the circumstances and the law, regardless of what the parents agree. Child custody is also off-limits. These decisions are supposed to be made based on a child's best interests at the time of the divorce.
Sometimes, couples decide during a marriage to create a post-marital agreement that spells out how marital property will be divided in case of divorce. Sometimes this becomes necessary to protect one spouse's assets from the debts of another spouse, or to protect certain assets of a spouse from the risks associated with an entrepreneurial effort. The agreement must be in writing, and no consideration is necessary.
A post-marital agreement may be unenforceable if it is not signed voluntarily or if it is unconscionable. The agreement may be unconscionable if a spouse against whom enforcement is sought was not provided with a fair, reasonable disclosure of the other spouse's financial situation; did not voluntarily and expressly waive that disclosure; and did not have adequate knowledge of the property or financial obligations of the other party. This applies to premarital agreements as well.
Protect Your Interests by Retaining a Divorce Attorney who cares
Although it may seem more romantic to get married without considering the possibility of divorce, it may help to think through various scenarios and make certain financial decisions in advance. If you are considering a pre-marital or post-marital agreement, the Lamar Legal Group can advise you and represent you as appropriate. We also represent people in Fort Bend, Chambers, Brazoria, and Galveston, as well as other counties in Texas. Call us at 832-767-1976 to set up an appointment.