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Recent Blog Posts
From Green to Gray: Issues in an Over-50 Divorce
Two or three generations ago, divorce was not a realistic option for most people, due largely to moral, religious, and economic reasons. This was especially true for those over 50. Instead, many couples opted to lead separate lives, and perhaps even lived in separate households, but remained legally married.
However, divorce lost much of its moral stigma in the 1970s, through the advent of no-fault marriage dissolution laws. During roughly that same time, the earnings gap between men and women began to close. Although this gap still exists, it is nowhere near as yawning as it was in 1970. Finally, as for the religious objection, Pope Francis recently softened the Catholic Church's position on divorce.
Beyond the Numbers: Deviating from Child Support Guidelines
To determine the amount of child support, the judge mechanically applies the guidelines in Chapter 154 of the Family Code, at least in the vast majority of cases. However, especially if there is a complex child custody dispute, these guidelines are not always reflective of the child's needs. What must a party do to convince a judge to depart from the guidelines, and how is the amount set in these situations?
Unjust or Inappropriate
In the case of Section 154.122, these two words are not synonyms. Instead, they give both the mother and the father a basis to request an increase, or decrease, in child support payments.
"Unjust" implies that the guidelines would require the non-custodial parent to pay too much, because this person's income is lower than the custodial parent's income. Such a situation was essentially unfathomable when this section was first codified in the 1970s, and even when the Family Code was rewritten in the 1990s. However, in today's world, it is not unusual for the mother and father to switch breadwinner and caregiver roles, at least to some extent.
Spousal Support and Income Taxes
The Internal Revenue Service recently released supplemental guidelines regarding spousal support payments and income tax consequences.
These payments are tax-deductible, but the IRS will scrutinize the deduction to ensure that the tax return meets certain qualifications. An obligor spouse must make payments in cash or cash equivalent directly to the obligee spouse; these payments are specifically designated as "maintenance" in the temporary or final order; the spouses are physically living in separate households; and the obligation ends upon the payor spouse's death.
"Alimony" does not include voluntary payments or use of property, and the obligor spouse does not have to itemize to claim a deduction.
Spousal Maintenance Eligibility
If followed to the letter, payments under Chapter 8 of the Family Code qualify for tax purposes. It is a popular myth that the payments must be periodic or equal; unequal or lump sum transfers may also qualify as alimony in a high-asset divorce.
Same-Sex Marriage Dissolution Comes to the Lone Star State
In July 2015, a Bexar County district judge gave the green light for a same-sex divorce to proceed through the system. The case has enormous implications for high asset divorce cases in Travis County and elsewhere in Central Texas.
The women legally married in Washington in 2010, and subsequently settled in the San Antonio area. One partner was artificially inseminated in February 2013, and the couple separated later that year. The child's non-biological mother had not been allowed visitation, until Judge Renée Yanta entered temporary orders in the divorce case. The woman's attorney applauded Judge Yanta for "follow[ing] the law," adding that "in San Antonio and Bexar County we take the lead on these issues."
Paternity: A Journey from Father to Dad
Paternity is one of the most important concepts in the Texas Family Code. For mothers, it helps guarantee financial support for their children. For fathers, paternity is the only way to legally share in their children's lives; moreover, in most cases, only legal fathers can petition for child custody. Finally, for children, a paternity action gives the feeling that they belong to a family, regardless of who lives where.
Chapter 160 of the Texas Family Code, which is also known as the Uniform Parentage Act, sets out the procedure for establishing paternity. Unlike some other states that have administrative shortcuts that only settle a few issues, paternity in Texas is a once-and-for-all proposition.
Presumption
A man is presumed to be a child's father if they were married at the time of birth, or the child was born within 300 days of the marriage's legal dissolution. The same presumption applies if the couple voluntarily cohabitates for at least two years after the child's birth, or the man makes takes certain actions, including a verifiable promise to provide financial support and placing his name on the child's birth certificate.
Collaborative Law and Mediation
When asked for a quick definition of collaborative law, many attorneys may say something like "ongoing mediation." Although this synonym is not entirely inaccurate, it does not capture the essence of collaborative law nor does it explain why it is a viable alternative, at least in many cases.
To briefly summarize, collaborative lawyers work with the parties to resolve property division in a high-asset divorce, complex custody disputes, and related matters.
Structure
Almost everyone knows that divorce litigation takes place in a courtroom, where either a judge or a jury decides factual and legal issues. The attorney's role is to "win" the case by "beating" the other party, although these terms mean different things to different people in different cases. Mediation is typically part of the litigation process, although sometimes the parties simply go through the motions.
Premarital Agreements: Always Be Prepared
Purchasing a car is nearly always a happy experience. Buyers are understandably focused on the cars' features and their plans for years of freedom on the open road. Auto insurance is only a necessary afterthought. In some ways, marriage is much the same. The bride and groom are understandably focused on their love for each other and their plans for a life together. A premarital agreement is only a necessary afterthought. Although no one plans to get in a car wreck or get divorced, responsible owners, and spouses, should be prepared for any possible outcome.
Content
Especially in a second or subsequent relationship, a premarital agreement can put inheritance plans in writing, virtually eliminating the possibility of a future battle in probate court that no one really wants.
By and large, however, most premarital agreements focus on property division matters, and Chapter 4 of the Family Code lays out the parameters of these documents. A premarital agreement may address almost all property obligations and rights that may be part of a high asset divorce, including:
Evidence to Decide Complex Child Custody Issues
All parents share a common goal: the best interests of the children. That being said, parents often have very different opinions of what is "best." Moreover, they often sharply disagree as to the methods used to achieve that common goal.
In terms of their approach, many lawyers are far too aggressive in child custody disputes. A court hearing is unlike some other forums, where the people with the loudest voices typically get their way. In fact, this approach often backfires. Many judges rightly believe that parents who recklessly attack the other side lack the co-parenting skills needed for a successful post-divorce parent-child relationship.
Controlled aggression, along with thorough preparation, often achieves the best results in complex custody actions. What evidence can support a party's arguments in court?
Retirement Accounts in High Asset Divorce Settlements
With the possible exception of the marital residence, a retirement account is typically the largest asset in a high net worth divorce. After years of saving and planning, it can be quite disconcerting to learn that a retirement nest egg is divisible just like any other marital asset. But, from both a legal and practical perspective, both spouses have made contributions to this account over the years, either by investing money in the plan or investing time in the marriage.
Most employer-sponsored plans, like a 401(k) or pension, require a Qualified Domestic Relations Order (QDRO); many IRAs can be divided without a QDRO. Many government-sponsored plans, most notably military retirement accounts, require a Division Order (DO), which is similar to a QDRO.
The Formula
In a typical 401(k) or other defined contribution plan, meaning that the level of benefits is tied to the plan's monetary value, a court will divide the portion of the account that is community property.
Marital Fault in Texas
Although the vast majority of Texas divorces are filed under the no-fault law, there are times that an evidenced-based action may be more appropriate, particularly in a high-asset divorce.
For many people, a no-fault divorce is not a good option for religious or moral reasons. An evidenced-based divorce helps them paint a picture of an out-of-control relationship which was far beyond salvaging. In a similar vein, some spouses may want to portray themselves as victims. There is another reason. Texas is rather unique in that a judge may consider fault in the marriage as a basis for an unequal property distribution. Specifically, "marital misconduct" is one of the listed factors to determine the amount and frequency of maintenance payments.
The grounds for divorce, as well as some possible defenses, are laid out in Section 6 of the Family Code.
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