Understanding Child Custody Laws: A Parent’s Guide

Whether you are getting a divorce or have a paternity issue, you will have to resolve the matter of child custody. In Texas, child custody is known as ‘conservatorship,’ although many people simply refer to it as ‘custody.’ Below, our Houston family law attorney outlines the different types of custody, how the process works, and what you can expect as an outcome.

Different Types of Child Custody in Texas

There are two main types of custody in Texas. These are legal custody and physical custody. Legal custody gives one or both parents the right to make decisions regarding the child and their day-to-day life. When a parent has legal custody, they can make decisions about the child’s medical treatments, the education the child receives, the religion they are raised in, and other activities.

Physical custody refers to when a parent spends time with the child. In the majority of cases, both parents are awarded joint custody, meaning they will each spend approximately the same amount of time with the child. In the rarest of cases, the courts may completely deny one parent visitation or any access to the child at all. In these instances, it is usually due to domestic violence and abuse. 

Sole custody, which refers to a situation in which one parent lives with the child and makes decisions for them, typically requires the other parent to terminate their rights. This is extremely rare. It is also very difficult to prove that one parent deserves sole custody and the other does not deserve their parental rights.

The courts are much more likely to award joint custody when the parents can show that they are willing to work together in the best interests of the child. Additionally, when the parent who does not have primary custody can continue to live close to the child, they will likely be awarded more time with the child than one who moves further away from their child.

The Best Interests of the Child

In Texas, as in all other states, all child custody decisions are made based on what is in the best interests of the child. The factors that impact the best interests of the child are as follows:

  • The age and health of the child,
  • The age and health of the parents,
  • Whether the parents or the child has special needs,
  • The home environment each parent can provide the child with,
  • The relationship between the child and their siblings or other family members,
  • The preference of the child, depending on their age and maturity,
  • Any history of domestic violence,
  • Where the parent lives and works and how it impacts the amount of time they spend with the child,
  • The educational needs of the child,
  • The level of involvement each child has in their child’s life, and
  • Any other factor deemed relevant by the court.

How Does the Child Custody Process Work in Texas?

Child custody disputes in Texas begin when one parent files a petition for conservatorship with the court. The person who files must officially serve the other parent with the petition. The parent who is served then has 20 days to submit an answer to the court. If the parent who is served with the petition does not intend to contest the terms within the petition, they can waive the need for service.

If a child custody case is uncontested, both parents will agree on a custody schedule and parenting plan. When the parents cannot reach an agreement, it becomes a contested case, and more formal intervention is necessary. The court will likely begin a disputed child custody case by sending it to mediation. During mediation, the two parents and their lawyers will meet with a neutral third-party mediator. Mediators do not provide legal advice or make decisions. They only try to foster communication and compromise so the parents can ultimately reach an agreement.

When parents can agree, either before or after mediation, they will need to draft a parenting plan and submit it to the court. If the plan reflects the best interests of the child, and is fair to both parents, the court will approve the plan. To ensure this happens and that the process moves along as quickly as possible, it is important to work with a Houston family law attorney who can help you create your plan.

There are times when the parents cannot agree and mediation is unsuccessful. In these cases, the issue will have to be resolved in court, where a judge will make all final decisions.

How to Modify Child Custody Orders in Texas

Even when parents agree on a parenting plan, a judge will issue an order that makes the plan final and legally binding. However, just as with everything else in life, your circumstances may change at some point in the future. When this happens, you may want to change your child custody schedule. You can do this, but you cannot do it on your own.

To modify a child custody order, you must petition the court. This essentially means that you are asking the court for permission to change the order. When petitioning the court, you must present clear evidence showing why a change is necessary and argue your case. If you are successful with your case, the judge will modify the order, and the change will become legal.

Without petitioning the court, it is critical to keep custody arrangements the same. If you make changes on your own, you will be in violation of the custody order, and this carries serious penalties. These include high fines, being held in contempt of court, and even jail time. 

Our Family Law Attorney in Houston Can Help With Your Custody Matter

Whether you have an initial custody issue or you need to modify an order, our Houston family law attorney at Integrity Law Group, PLLC, can help. Our experienced attorney can help you draft a plan, petition for a modification, and ensure you receive the best possible outcome. Call us now at (832) 280-8874 or fill out our online form to schedule a consultation and to get more information.

The Benefits of Having a Prenuptial Agreement: Protecting Your Future Together

It is a stat no one wants to think about, particularly when they are planning a wedding, but approximately half of all marriages end in divorce. A prenuptial agreement is a legal contract between two people who intend to wed. Also called prenups, these contracts settle many important issues. Through a prenup, you can outline who owned certain property before the marriage, how marital property will be divided, and more. 

While you may not want to raise the topic of a prenup as you plan your wedding, these legal contracts have many benefits. Below, our Houston family law attorney outlines what these are.

Avoid a Complex Divorce

Not all divorces have to be messy legal battles. When there are feelings of frustration and hard feelings, or the two spouses are very contentious towards each other, a divorce can become much more complicated. Add financial issues to these feelings of resentment, and a divorce case can become explosive. A prenuptial agreement can help you avoid all of this. With most financial issues outlined in the prenup, many of them are already resolved and your divorce can simply follow what the document stipulates.

Young Couples Can Benefit From a Prenup

 It is a common misconception that prenuptial agreements are best utilized by older couples. Today, many younger people are marrying later in life than their parents and grandparents did. When a person marries in their late 20s, early 30s, or even later, they have typically already amassed a significant amount of wealth and assets. A prenup can protect your existing investments and assets, including business ownership, inheritance rights, and other sources of wealth.

Older Couples Also Benefit

Anyone getting married can benefit from a prenuptial agreement, including older couples. When older couples wed, it is often their second or third marriage. Unfortunately, the divorce rate for these marriages is much higher than that of first marriages. A prenuptial agreement can make the divorce process much easier if the marriage does not work out. Additionally, older couples have also had more time to accumulate wealth, and a prenup can protect it.

Determine the Division of Marital Assets

The division of marital assets is one of the most complex issues during divorce. A prenup can outline how you will divide them in the event your marriage does not work out. For example, if you are a business owner and plan on operating it after you get married, a portion of the company will be considered a marital asset if you get a divorce. A prenup can stipulate that you retain all rights to the business after the marriage and that your spouse does not have a claim to any portion of it.

Resolve Spousal Maintenance Issues

A Houston family law attorney will tell you that you cannot include any provisions pertaining to child support in a prenuptial agreement. This is because the child has a right to support, and parents cannot waive that right on their behalf. However, a prenuptial agreement can resolve issues regarding spousal maintenance, commonly referred to as alimony. 

This is of particular importance when one spouse is planning to leave the workforce to maintain the home and take care of the children. Due to the fact that the stay-at-home spouse may have a reduced earning capacity post-divorce, a prenup can provide them with the spousal support they need.

Protect Against Your Spouse’s Debt

One of the main purposes of a prenuptial agreement is to determine how assets will be divided during divorce. However, these contracts can also protect you from being liable for your spouse’s debt. On average, American households carry approximately $140,000 in debt. If your soon-to-be spouse carries a lot of debt, or they will in the future, a prenup can protect you from it. For example, if you know your spouse is going to go to school during the marriage and will use student loans, a prenup can ensure you will not have to pay that debt post-divorce.

Clarify Financial Expectations

When drafting a prenup, you and your partner will have to disclose financial information, such as the assets and debt you currently have. While this process may not sound very romantic, that is not the case. In fact, a prenup can foster open communication and help you and your partner have a better understanding of the other’s obligations, financial goals, and responsibilities. If you can address these financial issues before the wedding, it can help you reduce misunderstandings and conflicts about money during the marriage.

Protecting Beneficiaries

It is not uncommon today for people to have children from another relationship when they marry. In these instances, a prenup can be especially valuable. A prenuptial agreement can define how assets will be distributed in the event of divorce or death, and provide for each of your beneficiaries, including children from a previous relationship. This can provide both of you with peace of mind and help you avoid future disagreements about financial support or inheritances.

Making the Marriage About the Relationship

If you have a great deal more wealth than your partner, a prenuptial agreement can make sure your property and assets are protected. It will also give you the peace of mind that your partner is marrying you for love, and not for what you own.

Providing an Easy Way Out

It is a sad but true fact that many people remain in unhappy marriages because they do not think they can financially support themselves. Or, one spouse may have become accustomed to a certain standard of living during the marriage and do not want to give that up. A prenuptial agreement can give both parties the confidence to leave a marriage in the event it ever becomes unhealthy.

Our Family Law Attorney in Houston Can Draft Your Agreement

A prenup can provide you with a great deal of protection, but they must be drafted properly in order for them to be enforced. At Integrity Law Group, PLLC, our Houston family law attorney can draft a contract that will protect your best interests now and in the future. Call us today at (832) 263-1828, or fill out our online form to schedule a consultation and learn more.

Securing Your Financial Future: Strategies for Protecting Your Assets During Divorce

You did not get married thinking it was going to end in divorce. Sadly, the divorce rate in the country shows that divorce is all too common. Ending your marriage will bring with it mental, psychological, and emotional hardships. Still, there are also many financial matters you must consider, as well. Our family lawyers know how to protect your property from divorce proceedings, even if your case seems extremely complex. Below are just a few ways to protect your assets during divorce.

Identify Separate and Community Property

If you know that divorce is inevitable, you should start creating a complete list of property owned by you, your spouse, or jointly. Separate property includes assets either of you owned before the marriage, while community property is considered jointly owned by both parties. Common examples of community property include:

  • Vehicles
  • Shared investment accounts
  • Bank accounts
  • The marital home
  • Retirement accounts
  • Real estate, such as an investment property
  • Personal property, including furniture
  • Equity or proceeds from a business
  • Pensions
  • Cryptocurrency

Remember that when creating a list of inventory, you must include all debts and liabilities, as well.

Determine the Value of Your Assets

After you have written a comprehensive inventory of your separate and marital assets, you then need to determine the value of the property. When resolving property division issues, a judge will consider the income level of each spouse before and after the marriage, as well as the amount of separate and community property owned by the couple. To obtain the most accurate valuation, it is important to speak to a professional.

Open Separate Accounts

As soon as you know you are getting a divorce, you should also open separate accounts. Open a separate bank account, apply for a credit card that is in your name only, and separate your personal property as much as possible. If you have a joint bank account or credit card with your spouse, try to remove your name from it as soon as possible. Gather the financial documents for all separate and joint accounts and transactions, as your attorney and judge will want to review them.

Consider Tax Implications

Taxes are commonly overlooked in divorce cases, but they are one of the most important things to consider. While the tax law on alimony changed several years ago, there are other implications to think about. 

For example, the tax law regarding retirement accounts still applies, and so when dividing this property, you must know how it will affect you. You do not want to agree to accept a taxable retirement account while your spouse receives one that will not be impacted by taxes. It is best to work with an asset protection lawyer who can advise on the tax implications of dividing certain types of property.

Change Your Will

State law will automatically revoke your spouse as a beneficiary in your will after you get a divorce. Still, it is important to review your last will and testament to revoke your spouse on your own and to confirm that all previous versions of your will are invalid. You may also want to change certain terms so your children or other trusted individuals receive what your spouse once would have. Of course, if you have a joint will with your spouse, you need to ensure you have one of your own after divorce.

Use a Trust to Protect Assets

A trust is a legal document that can also protect assets during a divorce. To shield the trust assets from being subject to division, the document must be drafted prior to the marriage. Still, any assets placed within it at that point can be classified as separate, and you can retain them after your divorce is final.

There are many different types of trusts that can protect your assets during divorce. A Domestic Asset Protection Trust (DAPT) is an irrevocable trust that can provide the protection you need. Some individuals choose to open an offshore trust, as this provides the highest level of protection. You should always speak to an asset protection lawyer who can advise on the best trust to use for your situation.

Draft a Prenuptial or Postnuptial Agreement

Most couples should have a prenuptial agreement prior to getting married. A prenuptial agreement mainly outlines financial provisions in the event you get divorced. A prenup can outline which property is considered separate and therefore protected from being divided during divorce. A prenup can also stipulate terms surrounding alimony and how income will be used during the marriage.

A postnuptial agreement can include all of the same terms as a prenuptial agreement. The only difference between the two is that a postnuptial agreement is drafted after the marriage. There are many reasons couples draft postnuptial agreements. For example, you may start a business after you get married. To prevent it from being divided during a divorce, you can draft a postnuptial agreement that classifies it as separate property.

Keep Inheritances Separate

Under Texas law, inheritances and gifts are generally considered separate property and, therefore, will not be divided during the divorce process. There is a large caveat to the law, though. If you commingle the inheritance with marital property, it will no longer be considered separate. For example, you may place your inheritance in a joint bank account you hold with your spouse. There would then be no way to determine which funds are from the inheritance and which are marital property. The entire account would be divided according to the state’s community property laws.

Our Family Lawyers in Houston Can Protect Your Assets

At Integrity Law Group, PLLC, our Houston family lawyers have the knowledge about real estate and business law to protect what is most important to you in the event that you get a divorce. Call us now at (832) 280-9576, contact us online, or email us to schedule a consultation with one of our skilled attorneys and to learn more about how we can assist with your case.

Why do you need a Texas Prenuptial Agreement?

There’s a social stigma attached to prenuptial agreements. Sometimes happy couples think that they don’t need one because they trust one another and would never plan on getting a divorce. However, a prenuptial agreement is similar to an insurance policy, we all have one, and we hope not to have to use it, but in any event, if something bad happens, we have it to take care of us. Similarly, we get married in hopes of staying with our partners forever, but things change, people change and we want to be prepared for those situations. 

In fact, a prenuptial agreement can make a relationship stronger because it requires couples to talk about hard issues like their finances and estates.

A prenuptial agreement is a contract entered into by partners before they become spouses. Although we know them as prenuptial agreements, Texas recognizes them under the Texas Uniform Premarital Agreement Act or the Texas Family Code as a premarital agreement. In Texas a premarital agreement can include terms regarding rights and obligations regarding property and disposition of property in the event of divorce. In addition to that a prenuptial agreement can lay out other terms between you and your partner such as: 

  1. Creation and utilization of a joint bank account, 
  2. Dispute resolution methods (such as marriage counseling or mediation), and 
  3. Confirmation and characterization of separate property. 

There are a few requirements to ensure that a prenuptial agreement is enforceable in Texas. For instance, the agreements must be in writing and signed by the parties. Generally, both partners will have an attorney represent them and review the agreement to ensure that they are each signing the agreement knowingly and voluntarily. Additionally, the agreement may have the parties exchange inventories or understand the assets and liabilities each are bringing with them into the marriage. Lastly, the agreement must not violate public policy, implicate criminal culpability or be unconscionable. 
If you already have an agreement and would like it reviewed by an experienced family law and real estate attorney, contact our office. A married couple may jointly amend or terminate their current agreement and enter into a new agreement. Or, if you do not have anything in place but are interested in inquiring more about premarital agreement, schedule a free consultation here.

The Difference between Community Property vs. Separate Property in Texas

Most individuals don’t consider the difference between community property and separate property until they are facing a divorce. At Walter & Truong PLLC we educate our clients on the importance of how property is characterized in the state of Texas because Texas is one of a few  community property states. Upon divorce in Texas all community property is subject to division by a just and right manner. However, a court may not divide a person’s separate property. Therefore, understanding the definition and how property is characterized in Texas is important. 

The Texas Family Code Chapter 3 defines separate property as: 

SEPARATE PROPERTY.  A spouse’s separate property consists of:

(1)  the property owned or claimed by the spouse before marriage;

(2)  the property acquired by the spouse during marriage by gift, devise, or descent;  and

(3)  the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

On the other hand, community property is defined as: 

COMMUNITY PROPERTY.  Community property consists of the property, other than separate property, acquired by either spouse during marriage.

In Texas, there is a presumption under the Texas Family Code that all property acquired during the marriage is presumed to be community property unless proven otherwise by clear and convincing evidence. 

PRESUMPTION OF COMMUNITY PROPERTY.  

(a)  Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

(b)  The degree of proof necessary to establish that property is separate property is clear and convincing evidence.

Some examples of community property assets include: 

  • Money, 
  • Stocks, 
  • Retirement accounts (such as 401(k)s, IRAs, etc.) 
  • Real estate, and 
  • Cars. 

During a divorce if one spouse is claiming that a particular asset should be characterized as separate property, they have the burden of proof. This can typically be proven by showing when the property was received by them through a recorded title (before marriage), or that the asset was a gift or inheritance (through a properly probated will). 

One of the many common mistakes that are made is that if an asset is titled in your name separately that it belongs solely to you. This is oftentimes incorrectly assumed because the Texas Family Code presumes that any property possessed by the parties during or on the dissolution of marriage is community property. As such, a court may conduct its due diligence and determine that an asset titled in one party’s name is in fact characterized as community property. It is not the end of the world and an experienced attorney with a background in real estate and family law can assist you. However, we believe that it is best to take precautions and be proactive rather than reactive. So, the best plan of action is to discuss a prenuptial agreement with your significant other before tying the knot. Read more about prenuptial agreements.

Regardless of where you are in the process of your divorce, contact an attorney at our office to seek legal advice in your matter. We have experienced attorneys in real estate and family law who can help guide you through your case. 

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