Legal separation occurs when a married couple live separately but are not yet formally divorced. During tough economic times, couples often opt to legally separate rather than pursue a full-blown divorce.
When contemplating a serious step like legal separation or divorce, a couple should consider a number of factors.
]]> Above all, give yourself a financial reality check. Since legal separation doesn't require quite as many hurdles as the big "D," couples often assume that it will be cheaper than being divorced. But in the long-run, that's not always true.For example, joint-filing tax benefits aren't guaranteed. Generally, the IRS considers you married for the entire tax year when you have no separation agreement by the final day of the year.
Texas takes it one step further. In the Lone Star State, you remain married from a tax perspective until your divorce is final, even though you're legally separated.
Health and Social Security benefits can also get complicated. Separated spouses may be able to retain health insurance under their partner's plan. In addition, they might be eligible for greater Social Security benefits if they don't officially get divorced for at least 10 years.
If you're interested in moving on -- into the arms of another person -- then divorce is the way to go. At the end of the day, a legal separation is not the same as divorce. People that are legally separated can't remarry other people until their divorce becomes final. If you get hitched while legally separated, you are committing bigamy.
If your reason for splitting is less a matter of the heart and more a matter of your bank account, legal separation might be a good route. One of the most important elements of a legal separation is that during this time, a couple does not accumulate community or marital property.
Many people use legal separation as a "divorce test-run" or as a complete proxy for divorce. Either way, legal separation is a serious matter. Consider hiring an experienced Houston divorce attorney to get a complete understanding of the process.
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If waiting for the hormones to simmer down is off the table, Houston-area minors may want to consider these three options to gain some autonomy:
]]> 1. Emancipation.Generally, even if children run away to another household, parents are legally obligated to continue supporting and communicating with their children unless they've been legally emancipated.
In Texas, the law allows a minor to petition for emancipation if the minor is:
A parent or guardian must verify the petition, or if they are unavailable, a court-appointed attorney may verify it.
2. Marriage.
Texas is one of several states in which a minor can get married at 16, which may be advantageous for youth wanting to cut ties with their parents.
Unfortunately for petulant eloping teens everywhere, a parent must give consent to a minor's marriage in order for it to be legal. Parental consent has to be given 30 days before she applies for a marriage license.
This may be an upward battle, since teens in these situations are not exactly in a strong bargaining position to begin with.
If a parent can be convinced to sign off on a minor's marriage, they will be automatically emancipated by law.
3. Join the Military.
A minor can also get an automatic emancipation if she joins the military. But the minimum age of recruitment is 17, and you also need parental consent to enlist at that age.
This will grant 17-year-olds emancipation from their parents, but they will have to submit to the requirements of the armed forces -- which may be slightly more demanding than their families'.
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But getting stepparent visitation rights is no easy matter. In most cases, the court will show a strong preference to the natural parents' wishes.
Still, the court will consider a variety of factors to make a decision about granting visitation orders.
]]> Twenty-three of the 50 states statutorily authorize stepparent visitation. In 10 states, stepparents are explicitly named as having the right to request visitation.In Texas, however, stepparents are considered "interested third parties."
The guiding rule for the court is the best interests of the child. So if a court finds that the child is best served by stepparent visitation, the court can grant visitation rights.
Some factors that a court can consider in granting stepparent visitation rights include:
The last factor, "detriment to the child," is especially important because in Texas, the natural parents' wishes are given great weight. Stated simply, apart from extreme circumstances, the court will listen to the biological parents' wishes.
Although Texas does not provide strong legal support to stepparents in child custody and visitation matters, and shows strong preference to natural parents, the sage family law rule is the "best interests of the child."
Like grandparents in Texas, a stepparent is an "interested third party" and can prevail if denying visitation would be detrimental to the child. Factors the court will consider include the child's happiness, sense of security, mental health, or emotional development.
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In the divorce context, it raises the question of who has a say in key aspects of the child’s welfare, including schooling and religion. In fact, it is the parent who has legal custody, not just physical custody, who makes these important decisions about the upbringing of a child.
]]> Legal CustodyIt is "legal custody," and not physical custody, that gives a parent the right to make decisions about a child's upbringing. A parent with legal custody can make decisions about key aspects of a child's life, including:
Typically, courts award joint legal custody, which gives the role of decision-making to both parents. It is common for divorced couples who share physical custody to also share legal custody. The inverse is not as common. In many cases, although a couple might share joint legal custody, only one parent has physical custody. It is therefore quite common for parents who only have visitation rights to legally have a say in the child's upbringing.
However, if circumstances make joint legal custody impracticable, possibly because one parent is unfit or is incapable of making decisions about the child's upbringing for sensitive matters like religion, the court may grant one parent sole legal custody. Since many states exercise a preference for joint legal custody, a parent who seeks sole legal custody will have to demonstrate to the court why sole legal custody is in the best interests of the child.
Regardless of the court process, for important decisions like schooling and religion, it is almost always better for the parents to work together and try to resolve any issues regarding these matters outside of court.
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What is a financial affidavit? An affidavit is a sworn written statement made under oath; a financial affidavit describes your assets, your income, and other financial information.
It's very important for divorcing parties to understand what a financial affidavit is and how it can affect you, if you're going through a divorce.
]]> Why It MattersIn a battle for alimony, it's important for both sides to know what the finances are and how the financial affidavit plays into the whole proceeding. As such, it's important that both sides understand the risks in messing up the financial affidavit.
In a divorce proceeding, there are many things that need to be disclosed. Of these disclosures, one of the most important disclosures is finances.
Now, that's not just for the party against whom alimony is sought. That's also the case for the party seeking alimony.
Basically, your finances will be scrutinized by the court to determine your current state of affairs. The court wants to see, for example, how much child support you should pay or receive. A judge can only make that determination if she has your facts and figures on hand.
Filling Out Your Affidavit
A financial affidavit is very important, but it can also be a pain to fill out. A divorce lawyer can help, but you'll still need to do some work. You still have to disclose your finances to your lawyer. And in many cases, this means that you need to go through your papers and accounts all by yourself.
As with any affidavit, it's executed under oath. So lying will only get you into trouble.
Everything we talked about above sounds complicated. But don't fret. Here is a quick summary of everything discussed above:
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It may not be as hard as it looks to get a prenup tossed out in court. The simple fact of having a prenuptial agreement in place doesn't necessarily mean that it can't be found invalid.
At the end of the day, a prenuptial agreement is a contract. And if a contract isn't done right, it may not be enforceable.
]]> A prenuptial agreement is an agreement made in anticipation of marriage. (Take a look at a sample here.) It specifies the rights and obligations of the parties and typically includes terms for property distribution in the event the marriage terminates.There are several ways to potentially invalidate a prenup. Here are some arguments that may work:
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]]>Much of that is due to the fact that divorce rates peak in March, according to NPR. That makes March one of the busiest months for divorce attorneys.
Why?
]]> One theory attributes the spike in divorces around this time of year is due to a "seasonal enlightenment."Basically, the winter holiday season drives couples crazy. The holidays are busy, stressful, and full of potential issues for those on the brink of divorce.
They're also a time that revolves around family, so if a couple is not feeling it, the holidays can only aggravate negative feelings. Having to deal with in-laws, tight budgets, holiday depression and infidelity are four reasons why the holidays can test a marriage.
Valentine's Day can also be a divorce trigger, reports The Huffingotn Post. In fact, the international day of love might serve as a wake-up call for couples who may already be on the path to slowly drifting away from one another.
The improving economy could also be an explanation to the rising divorce rate. When times are tough, money concerns overshadow marital concerns. But once the economy picks up, people find themselves with more cash on hand to pay the fees for a divorce attorney.
A last thought: Tax season may also play a role in the March divorce spike. Tax filing status is determined at year-end. So if you're married on December 31, you can still file jointly on April 15, even if you filed for divorce in March.
Whatever the cause, divorce is a long and painful process. If you're considering divorce, talk to a divorce lawyer and find out what is involved. It may be wise to start doing your research early.
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Next stop: Splitsville.
Now is the time to start planning ahead and strategizing for what could be a long and painful ordeal -- divorce. Here are three things you should know before getting a divorce:
]]> 1. Do your online research.In Texas, there is such a thing as a no-fault divorce, where a party can split because things just aren't working out. In fact, it might turn out that you can pursue an uncontested divorce.
An uncontested divorce may cut down your legal expenses dramatically. Check out some online legal forms that can help you work through an uncontested divorce.
2. Don't post too much online.
Beware of online posting. Many divorce lawyers look to Facebook and even online dating profiles to gather information that can be used against you in a divorce proceeding. It's wise to have an attorney at your disposal as soon as you decide to file for divorce. This attorney can help you avoid making some huge mistakes as your divorce unravels.
3. Watch your finances.
This will be a difficult time. You may find yourself on the losing end of an alimony battle. You may have to say goodbye to some cherished personal belongings. And most notably, you might have to shell out a chunk of change to pay your divorce lawyer.
In a traditional legal arrangement, your lawyer bills you for all the time you spend on the phone with him. But imagine if you could have unlimited calls with an attorney. Luckily, prepaid legal plans like those offered by LegalStreet give you unlimited phone consultations with local lawyers; the cost averages out to less than $13 a month. If you later need to retain a lawyer for your divorce, LegalStreet also offers discounted rates for legal plan members.
Divorce is a very contentious process. Having an attorney in your corner makes a tough process that much easier.
Disclaimer: FindLaw and LegalStreet are owned by the same company.
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The American Taxpayer Relief Act (ATRA) seemed to alleviate many tax woes. But the American Taxpayer Relief Act had some deep implications for those with impending divorces.
]]> In a strange way, as one Forbes writer put it, the provisions of the Act put those people in the midst of a divorce over a fiscal cliff of their own.For those going through a divorce, particularly those dealing with high-dollar divorce, there could be some serious implications. As a result, it becomes more important than ever for divorcing couples to seek proper financial advice.
This advice could come from a lawyer or from a financial consultant. But when going through a divorce, the most important thing could just be having the ability to have a lawyer on the other end of the phone, taking your calls.
Let's discuss some of these financial issues and hwo they play into a divorce. Take alimony, for instance. Alimony is that income paid pursuant to a separation agreement in a divorce. This income is paid in intervals. Alimony payments are those laid out in the divorce or separation agreement.
In most cases, these alimony payments will count as income to the recipient. This makes the income taxable at a 39.6 percent tax on any income above and beyond $400,000, based on the ATRA.
Child support, however, is not taxable income. As a result, a creative attorney can often work around this tax issue.
When dividing assets, capital gains tax can become an issue. Those single filers with income over $400,000 will now have to pay 20 percent in capital gains.
There's a lot of financial planning to do in a divorce.
For some, the division of assets is simple, and uncomplicated. For others, particularly those with higher net-worth, it's not that easy. It's a good idea to have an attorney on board, helping out and lending an ear.
It's not always easy to have an attorney around and it can get costly. But having alegal plan in place can help. Under some legal plans, for less than the price of a one hour consult, you can get an attorney for the whole year who will take your calls for free.
During a divorce, that's a piece of good news.
Disclaimer: the legal plan LegalStreet and FindLaw are owned by the same company.
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But it looks like things may be a little different now. It doesn't look like pre-marital cohabition has necessarily sealed your fate for divorce, according to the New York Daily News.
The Daily News points to a study conducted by the Centers for Disease Control and Prevention, in which engaged couples and co-habiting couples had as much success in their marriage as those who had not lived together prior to marriage. Some of these couples made it to the 15-year mark in marriage.
]]> But research was not so positive about non-engaged couples who were living together before getting hitched. Those couples often didn't hit the 10- or 15-year marks at all.Those weren't the only things to consider in divorce, the study said.
For starters, 20 years appeared to be the magic number for first marriages. Nearly half of all first marriages fizzle out after 20 years.
Education levels also come into play, when looking at the longevity of a marriage. The study shows that women and men with bachelor's degrees tend to marry later in life. But they also stay married for a minimum of 20 years.
Race affects how long and successful a marriage is, according to the study. The study showed that Asian woman marry less often and stay married longer. Nearly 70% percent of Asian women were still in their first marriage and most stayed married for at least 20 years.
Compare this to black women, 37% percent of whom were not in their first marriage after 20 years. Also, 62% of Hispanic men were still in their first marriage at 20 years.
Interesting statistics.
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For many more, it’s a day of heartbreak, deceit and divorce.
Valentine’s Day has been called the “coming out” day for cheaters. It’s the day when incriminating receipts are inadvertently left lying around. It’s a day when needs aren’t met.
A day when true feelings are exposed.
And in the midst of what is supposedly a celebration of love, people break up.
Marriages break up.
So in light of Valentine’s week and the aftermath of Valentine’s Day, we’ll discuss a few legal issues that may come to the forefront this week.
]]>Whether you're headed to the altar or headed to divorce court after this Valentine's Day, a divorce lawyer can help you figure out the legal issues.
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And a large part of financials involve tax planning. With the tax season upon us, many people are wondering what issues they need to consider regarding their taxes.
What are some tax issues in divorce you should be aware of? Here are three to keep in mind:
]]>These are only a few of the tax issues in a divorce. Take a look at our related resources below for more information on divorce, taxes, and your money.
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If divorce is on the horizon, what are some ways a couple can try to steer clear? And if divorce is inevitable, are there ways to make divorce less painful?
Divorce will never be painless. But there are ways to work through a divorce. Here are a few ways to make it potentially less painful:
]]> Couple's therapy. This might be a way to work things out so that a couple doesn't get divorced. But in many cases, couple's therapy will lead to divorce, as many issues will finally be discussed in the open. The other thing about marriage counseling and couple's therapy is that it allows for a mediator to look in from the outside and help the couple isolate their issues -- issues that may come up later during the divorce, the Toledo Free Press reports. In fact, one state actually tried to require marital counseling prior to a divorce!Mediation and collaborative divorce. This can be a more collaborative approach to divorce. And it keeps you out of court, for the most part. This doesn't mean that you don't file for a divorce with the court. But it does mean that you can avoid a lot of the messy litigation involved with a divorce if you choose to go the collaborative divorce route.
A collaborative divorce still involves lawyers. But it's a lot less litigious than a regular divorce proceeding. Essentially, you begin the process with your lawyers. If things start getting more contentious, you bring in mediators.
Divorce is generally not a pretty process. Sometimes, the parties are not willing to come to the table amicably and litigation simply cannot be avoided. Take a look at our related resources below for more information on how to handle a divorce. You may also want to consult an experienced Houston divorce lawyer to learn more.
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A prenuptial agreement is an agreement between two soon-to-be spouses about the terms of their marriage. Prenups are, for the large part, financial contracts.
The point of a prenup is to lay out the terms and conditions in case the couple gets a divorce.
]]> These typically cover financial terms and conditions, such as what property belongs to a spouse during the marriage and what will go to each spouse in the event of a divorce.Of course, some things are not allowed in a prenup, such as issues regarding child custody. Similarly, many personal issues need to be left out of a prenup as well.
But what about a fidelity clause? Are those types of clauses acceptable in prenuptial agreements?
The term "fidelity clause" can mean many things. In a typical scenario, it's a clause in the prenuptial agreement that says one spouse is entitled to a certain amount if the other one cheats, Yahoo! explains. A fidelity clause can also say that one spouse is entitled to nothing if he or she cheats.
In fact, fidelity clauses are very common in celebrity prenups.
Texas pre-marital agreements.
In Texas, prenuptial agreements must be in writing and signed by both parties. The content of the prenup can relate to property owned by the spouses, life insurance, and alimony in the event of divorce.
Texas law, like many other states, prohibits a prenup from affecting child support payments.
Nothing in Texas law explicitly precludes a fidelity clause. However, if any clause is against public policy, the it's void under the prenup. For example, a clause allowing a spouse to have multiple spouses would violate the laws of bigamy and would be void.
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Under Texas law, there is an obligation to report child abuse or elder abuse. That means that if you believe someone is being abused, you have to report it to the Texas Department of Family and Protective Services.
Failure to report child abuse could result in a misdemeanor charge, or even a felony.
How do you know that someone is a victim of child abuse?
]]> Here are the Top 10 signs of child abuse, according to SafeHorizon.org:
- Unexplained injuries. While children tend to be brutally honest, they still might be afraid to "out" an abuser. If your gut tells you that a child's (or adult's) explanation of a child's injury is fishy, go with your gut.
- Behavioral changes. According to Safe Horizons, an abused child will come off as scared, have anxiety, be withdrawn or even suffer from depression.
- Fear of going home. If you notice that a child is afraid to go home or hesitates to go home, then it may be a sign the child is being abused at home.
- Change in school performance. Teachers are often in the best position to be able to see the daily changes in an abused child. One of these changes is in school performance. When a student's grades unexpectedly plummet, it could be a warning sign that things aren't right at home. The same can be said for numerous unexplained absences.
- Lack of personal hygiene. Abused or neglected children sometimes exhibit a lack of personal hygiene.
- Return to younger behavior. You might notice a child regressing in behavior. This may include bed-wetting, stranger anxiety or even loss of language skills.
- Nightmares or trouble falling asleep.
- Changes in eating.
- Risk-taking. Older children who are abused might start abusing drugs.
- Inappropriate sexual behaviors. Be on the lookout for overly sexualized behavior or the use of explicit language as these could be signs.
To report a case of suspected child abuse, call the Texas child abuse hotline toll-free at (800) 252-5400.
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