Family Law/Divorce Law
The decision to marry may be the single most important decision a person makes. You should consult us from the beginning.
Whether to Marry: We are not substitutes for your priest, rabbi, preacher, best friend or family member. Only you can decide if you are ready for marriage. We can, however, go over the requirements of ceremonial marriage and then you can decide whether you can marry, when you should marry and what the legal consequences are of each decision.
Whether to Co-Habitate: In our opinion, this is not really a good idea in Texas. You have limited rights and remedies. Recent trends signal a further lessening of whatever rights or remedies may exist. We can, however, create a formal agreement that hopefully will provide a framework for your time together and for your time apart should the partnership fail.
Whether Common-Law Marriage: Texas recognizes common-law marriage (or marriage without the benefit of a ceremony). It has, however, recently limited, by statute, the applicability of a common law marriage. We can walk you through how to validly form a common-law marriage and whether you have a common-law marriage.
Marriage Planning: No, we will not help you pick out the caterer, the reception hall or the color of the bridesmaids’ dresses. We do, however, walk you through whether you need any of the following:
- Prenuptial agreements
- Living Wills
- Medical Directives
- Powers of Attorney.
These agreements are not only for the well off. We know of no couple that lost out by having a will, a living will, a medical directive and some measured guidelines when one spouse learns well into the marriage that the other spouse is credit or debt challenged. An ounce of prevention is worth a pound of cure.
So You Want to Marry Again: Multiple marriages are commonplace. Each multiple marriage requires each of the above considerations. Each such multiple marriage offers unique issues:
- Removal of all prior spouses from wills, retirement plans, bank accounts etc.; and
- Property and debt allocation so that a prior spouse’s debts are not paid by the new spouses income or assets (or how not to pass go and end up in the divorce realm because of remnants of the prior marriage)
So now that you have decided to marry. Good, now you need to learn about Community Property and Separate Property. There may be no more two misunderstood legal concepts. There is no other legal concept that you will hear more about (usually incorrectly) from well meaning friends.
Presumption of Community Property: Now you are married. The first bonus is that all real or personal property or assets acquired during the marriage is presumed to be community property.
How Title is Taken May Be Irrelevant: Notice that we said that all property and assets acquired during marriage is presumed to community property. We did not say that property acquired by both spouses or in both spouses’ names only is community property. One spouse, by himself or herself, can acquire property during marriage and it will be presumed to be community property.
Inception of Title: Notice too that we have talked about the status of the couple at the inception of the right to acquire some property or asset (e.g. when the earnest money contact is signed to buy the house). The status at the inception of title controls and usually not what comes later (even if one spouse helps the property to appreciate in value).
Exceptions: Now you really did not think that there would be no exceptions. Separate property is property acquired by gift, by will, by administration without a will or under a significant recital that expressly limits the acquisition by one spouse as that spouse’s separate property. It is also the portion of property acquired at the inception of title traceable through separate property or funds. It may also be certain personal injury awards.
Exceptions to the Exceptions: Now you really did not think that there would not be exceptions to the exceptions. Income from separate property can be community property. Separate property commingled with community property could become community property.
The Mythical Community Debt: There is community property, but there is no community debt. Just because a spouse creates a debt during marriage, there is no corresponding presumption that both spouses are liable for that debt. Instead, in the absence of an agreement between the spouses and the IRS (it always has its own rules), Texas law provides when community property is liable for certain debts created by a spouse and when separate property is liable for certain debts created by a spouse.
Post-Nuptial Property Division/Post-Nuptial Debt Allocation Agreements: Texas law allows the spouses to decide in writing to opt out of community property and separate property system and to draft an agreement that defines the property and allocates the debts as the spouses dictate (provided that nothing improper is intended). All too often, spouses think of pre- or post-nuptial agreements if one or both spouses have a lot of money or property. They forget that these types of agreements help out if one spouse is credit or debt challenged. Every married couple regardless of their well-being could use better debt management.
So please visit us so that we may:
- Draft or review deeds, assignments or other documents regarding community property or separate property
- Determine whether property is community property or separate property
- Draft property division/debt allocation agreements
- Draft, revise or update wills, living wills, trusts and medical directives
DIVORCE. Enough said. Things have gone wrong. If the spouses have not already planned for a divorce through a pre-nuptial agreement or a post-nuptial agreement, then its time to time to navigate the shoals of a divorce with a measured compass and the steady hand of Maurice Bresenhan, Jr. .
Think About it First: Emotion, more often than not, drives the path to and from a divorce. Niceties aside, raw hatred, fear, spite and imbalanced thought often fuel the divorce engine. That is not a way to make a decision. We still are not your priest, rabbi, preacher, best friend or family member. But, you must not lightly go for a divorce.
Divorce is a Business Transaction/Planning is Key: Unless it is an uncontested divorce without kids or property, there will be property to split up; there will be businesses to split up; there will be economic consequences. Neither spouse will enjoy the same economic advantages. You must plan a divorce like you plan any business transaction.
It is Not Easy: You will not enjoy the divorce process. It is not efficient. It is the systematic undoing of a relationship between two people.
Uncontested Divorce: We will accept uncontested divorces, but only if we represent one side only and both spouses understand that they each need their own legal representation.
The First Meeting: Having decided that you want a divorce, you need to meet with us before we file the petition for divorce. At the first meeting, we will discuss:
- Any emergencies
- Family violence issues
- Identify the kids and the needs of the kids
- Identify the basic necessities
- Practical ways to identify, preserve and inventory all assets
- Begin to characterize the assets
- Identify ways of tracing funds
- Begin to plan the divorce
We have forms that we will help you complete.
The Petition or Cross-Petition: As merited, we will file a petition to start the divorce proceeding. If your spouse beats you to the punch, then, as merited, we will file a cross-petition to ask for a divorce.
No California Style Split Process: In California, a divorce court can divorce the spouses and later divide the community property. That is not the case in Texas. The divorce and the division of the community estate must occur at the same time. That means that any property acquired during the divorce, absent an agreement, will be either community property or separate property regardless of the fact that spouses now share only a community of contempt for each other.
Temporary Restraining Orders: With most petitions, we will ask the divorce court basically to issue order to preserve all assets and to maintain how things are until there can be a formal hearing.
Temporary Orders: This is a critical early step in the divorce. It usually occurs within 10 to 30 days after the other spouse is served. The divorce court will receive evidence from the spouses. It will essentially set up a series of ground rules that will govern until the final divorce trial. In the temporary orders, we will address:
- Interim child support
- Interim possession of the kids
- Interim schooling and visitation for the kids
- Interim alimony
- Interim attorneys’ fees
- Interim property use and allocation
- Interim debt allocation.
This will be a full evidentiary hearing. You must be able, to the maximum extent possible at the early stage of the divorce, to support your positions with proof. That why planning is always critical.
The Inventory: We must identify all of the assets and debts. We must know, to the maximum extent possible, when the asset was acquired or the debt incurred, the funds or property used to acquire the property to incur the debt, any liens or debts against any asset and the value of each asset.
Written Discovery: There will be written discovery. Each side will serve questions or interrogatories, requests for admission of facts, requests for disclosures and requests for the production of documents. Each side usually has thirty (30) days to respond. You must work with us to answer this written discovery.
Depositions: There may be oral depositions. That means that you may have to appear under oath before a court reporter and that you will answer questions from the lawyer for your spouse. We will prepare for a deposition together. We may depose your spouse. Either side may depose key witnesses.
Mediation and Counseling: The divorce court will require us to go to non-binding mediation if both sides are unable to settle the case otherwise. We will work with you to create a settlement plan. We will then try to settle with your spouse’s lawyer or through mediation.
The mediation is non-binding, but it will cost a mediation fee (between $500-$1,500) and our attorneys’ time. At the mediation a former judge or an experienced lawyer will try to find some way for the parties to settle the case usually based upon the inventory and any prior settlement offers. The mediator cannot force a settlement; merely try to facilitate one.
Each spouse will have to go to a family counseling session. Now you know why we previously emphasized filing a divorce as a last resort absent an emergency.
The Divorce Decree: By agreement or trial, the goal of the divorce action is a signed divorce decree. The decree will cover:
- A divorce
- Custody of the kids
- Child support
- Visitation for the kids
- Health and schooling for the kids
- Characterization of property
- Division of property
- Allocation of debts
- A QDRO.
An agreed divorce decree is preferable to a court imposed divorce decree after a trial. Consider briefly:
- The parties, by agreement, can divide the property without regard to whether it is community property or separate property. A divorce court can only divide community property.
- The parties, by agreement, can divide all assets however they choose. The divorce court can only make a fair and equitable division of the community assets. Divorce courts have broad discretion in dividing the community property in a “fair and equitable manner.”
- The parties, by agreement, can structure alimony or reimbursement provisions. The divorce court is limited in awarding alimony and reimbursement.
- The parties, by agreement, by structure creative visitation with the kids. The divorce court will tend toward standard visitation routines.
The Third Party Debt Mistake: Both spouses may have signed a promissory note to the bank during the marriage. In the divorce decree, the divorce court may require the husband to pay that debt. The husband may further be required to indemnify the wife regarding that debt. The husband leaves the country. The bank tries to collect from the wife. The wife states that the divorce decree makes him responsible. The bank says that both of you agreed to pay the debt and ignores the divorce decree. The bank is correct. Many parties believe that a divorce decree changes the nature of the underlying debt to the third party. It does not. It merely allocates the payment of that debt between the spouses. If both spouses were liable on the underlying debt, then they remain liable on that debt no matter what the divorce decree recites (unless the bank/creditor agreed to the allocation of the debt in the divorce decree).
You are not rid of us yet. Close, but not yet. The divorce decree may be final. The prior chapter may be closed to you, but is it really closed. We’re back to document review and planning.
You need to visit us (unless the divorce did not change your feelings about your ex-spouse):
- To make sure that the ex-spouse is no longer in the will
- To make sure that the ex-spouse is off of bank and other accounts
- To make sure that the ex-spouse is not longer the beneficiary of any plan
- To make sure that the ex-spouse no longer makes your medical decisions and has no power of attorney
- Draft new wills
- Draft new living wills
- Draft new medical directors
- Draft new Powers of Attorney
- Change account and plan designations and beneficiaries
It’s been awhile. We’ve not gone away. We hope that you have no further problems, but we are there to:
- Seek to enforce unpaid child support
- Defend against child support actions by the Texas Attorney General’s Office or an ex-spouse
- Reduce child support obligations
- Enforce the provisions of the divorce decree
- Defend against suits to enforce filed by the ex-spouse
- Try to modify visitation or custody
- Prevent family violence
- Defend against family violence suit
Modification suits are difficult. There is a natural predisposition by the divorce court not to change what has already been completed. Texas law, moreover, makes it hard to modify a divorce decree.
There is a common misconception that one spouse will agree to a divorce decree and the custody arrangement with the idea that later that spouse will seek to modify the custody arrangement. This is generally a mistake. It is usually better to challenge for custody in the divorce trial than to wait and try to modify the custody arrangement later.
THE PRIOR NARRATIVE IS AN INTRODUCTION TO TEXAS FAMILY LAW. IT IS NOT, WE REPEAT NOT, THE PROVISION OF LEGAL ADVICE. EACH TEXAS FAMILY LAW MATTER HAS ITS OWN UNIQUE FACTS THAT CANOT BE FULLY ADDRESSED BY AN INTRODUCTORY NARRATIVE THAT BARELY SCRATCHES THE SURFACE OF TEXAS FAMILY LAW. MAURICE BRESENHAN, JR. WELCOMES THE OPPORTUNITY FOR YOU TO SCHEDULE AN APPOINTMENT SO THAT THEY MAY DISCUSS THE DETAILS OF YOUR CASE.
MAURICE BRESENHAN, JR. WAS ONE OF THE FIRST BOARD CERTIFIED FAMILY LAWYERS IN TEXAS. HE HAS OVER THIRTY YEARS OF FAMILY LAW DRAFTING AND TRIAL WORK. HAS OVER TWENTY YEARS OF FAMILY LAW DRAFTING AND TRIAL WORK. THEY HAVE HANDLED UNCONTESTED CASES TO COMPLEX BUSINESS DIVORCE CASES.