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No One Can Touch My Retirement For Child Support or Alimony, Right?

No One Can Touch My Retirement For Child Support or Alimony, Right?

Retirement funds are not all safe from being taken to satisfy child support or alimony/spousal support obligations.

The post No One Can Touch My Retirement For Child Support or Alimony, Right? appeared first on Divorce Magazine.

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Child Custody Attorney

Child Custody in Texas: Who Can Claim a Child on Their Taxes?

Originally published by stark.

Child Custody AttorneyFollowing a divorce or separation, parents need to determine who will claim their children on their taxes. As the Internal Revenue Service (IRS) explains, only one parent can claim a child on their taxes. If both parents try to claim a child, it will cause problems. In this article, our Texas child custody lawyers explain the most important things separated parents need to know about the rules for who can claim a child.

The Parent Who Has Primary Physical Custody Has the Right to Claim the Child

Under IRS rules, the parent who has primary custody of a child has the first right to claim that child on their tax return. For example, if your child spends 75 percent of their time with you and 25 percent of their time with the other parent, then you have the right to claim your child on your taxes. When primary custody is clear, there is little dispute over who has the right to claim the child.

Tiebreaker: Parent with Higher Income Should Claim the Child

In some cases, parents have a genuine 50-50 custody arrangement in place. The IRS has developed a basic tiebreaker rule to deal with this: The parent who has a higher income for the tax year in question should claim the child. Often, the parent with the higher income will gain a larger tax benefit from claiming a child. This can free up some extra money in tax savings, which can be used to support the family as a whole.                                                                

It May Be Financially Advantageous to Allow the Non-Custodial Parent to Claim a Child

To be clear, a parent with primary custody does not necessarily have to claim their child on their taxes. In some cases, it will be advantageous for both parties to have the non-custodial parent claim the kids. For example, if the custodial parent has relatively little taxable income — at least in comparison to the non-custodial parent — they may not be able to fully utilize the benefits of child tax deduction and child tax credits.

In this situation, both parents can attach Form 8332 to their tax return. By doing so, they will be able to seamlessly allow the non-custodial parent to claim the child. Transferring the right to claim a child will sometimes free up some additional tax savings — which can be split between the parties or used to directly support the child. You do not want to leave money on the table: Make sure you and your former spouse/partner are using tax child deductions/credits in the most effective manner.

Get Help from Our Texas Family Lawyers Today

At Orsinger, Nelson, Downing and Anderson, LLP, our Texas family law attorneys are committed to protecting the financial interests of our clients. Our lawyers are consistently ranked among the best divorce and custody attorneys in the state. To arrange a strictly confidential initial consultation, please contact our legal team at (214) 273-2400. With offices in Dallas, Frisco, Fort Worth, and San Antonio, our family law practice serves clients throughout Texas.

The post Child Custody in Texas: Who Can Claim a Child on Their Taxes? appeared first on ONDA Family Law.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Parents call for reforms to protect families from mistaken child abuse allegations

Parents call for reforms to protect families from mistaken child abuse allegations

Parents call for reforms to protect families from mistaken child abuse allegations 1

Texas lawmakers pledge to “learn from past mistakes” as parents recall the pain of having children taken following disputed doctor reports.

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#MiracelsofFaith

Texas parents falsely accused of child abuse seek legislative change in 2021

Texas parents falsely accused of child abuse seek legislative change in 2021

Texas parents falsely accused of child abuse seek legislative change in 2021 2

The committee is discussing the system of checks and balances between DFPS, the judicial system and medical professionals when abuse reports are submitted.

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#MiracelsofFaith

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Originally published by Kelly McClure.

By

The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders.  Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services.  The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him.  The father was ordered to pay child support beginning in December 1996.  The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers.  The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

 

The father filed a motion alleging the OAG violated provisions of the Texas Family Code because it failed to obtain a cumulative money judgment within 10 years of the child becoming an adult.  The OAG did not appear at the hearing.  The trial court lifted the driver’s license suspension, rescinded the writs of withholding, declared the child support liens void, and ordered no further wage withholding.

The OAG filed a restricted appeal.  The OAG argued the trial court did not have subject matter jurisdiction over the driver’s license suspension because the relevant statute required the father to file his petition for review in Travis County district court.  A proceeding regarding the suspension of a parent’s driver’s license for failure to pay child support is governed by the Administrative Procedure Act.  The Administrative Procedure Act requires a person seeking judicial review of a contested case to file the petition in a Travis County district court unless another statute provides otherwise.  TEX. GOV’T CODE ANN. § 2001.176.

The father did not file his petition in a Travis County district court.  The OAG argued that the trial court did not have subject matter jurisdiction over the issue.  The appeals court, however, found that that the statute did not grant Travis County district court with exclusive jurisdiction, but instead provided a mandatory venue.  Mandatory venue, the court noted, may be waived if a party fails to make a timely objection.  The OAG had not made a timely objection.

The OAG also argued the trial court had exceeded its subject matter jurisdiction in enjoining additional administrative writs of withholding.  Under TEX. GOV’T CODE ANN. § 22.002(c), only the Texas supreme court has the authority to issue a writ of mandamus or injunction against an officer of Texas’s executive departments to order or compel performance of a duty state law authorizes the officer to perform.  The appeals court noted  the OAG is an officer of the executive department and is authorized to enforce and collect child support through administrative writs of withholding.  Thus, only the supreme court could enjoin the OAG from issuing such writs in this case.  The appeals court found that the portion of the order stating that “no further wages be withheld in this cause…” constituted an injunction.

The appeals court vacated the part of the trial court’s order that enjoined the OAG from issuing additional administrative writs of withholding and affirmed the rest of the order.

The OAG will become involved in certain cases involving public assistance.  Although parents in other cases may seek the OAG’s assistance, parents should be aware of what OAG enforcement entails.  Once the OAG is involved, the parents are not able to choose which enforcement actions will be taken.  If you are facing a child support issue, an experienced Texas child support attorney can help you consider your options and protect your rights.  Call McClure Law Group at 214.692.8200 to set up an appointment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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child support

Child Support: Options For Enforcement Against The Non-Paying Parent

child support

 

Success!

You’ve received an Order from the Court that requires your Ex to pay you child support each month, as well as an Order that your Ex pay some percentage of costs for things like extracurricular activities and extraordinary medical expenses for your child. The long legal battle is over, and you can rest.

Then, a few months later, the inevitable happens.

Your Ex does not pay.

Now what?

Options For Enforcement Against The Non-Paying Parent

Fortunately, for those parents who have been awarded child support and/or reimbursement for extracurricular or extraordinary medical costs, the law provides several options for enforcement against the non-paying parent (“Obligor”).

Unfortunately, this process can be confusing, and many legal practitioners – and even Judges – struggle to understand which options apply in certain scenarios. (In any case, a party may seek a Citation for Contempt against a party that has failed to comply with a Court Order, but the focus of this article is enforcement, i.e.; how to get money in-hand).

To provide some guidance on enforcement options, the most common scenarios are addressed below:

My Ex has been ordered to pay a specific amount of child support each month and has not made the payment(s).

Under Colorado law, a child support payment is converted into an enforceable support judgment on the day that it is due and not paid, and immediately begins to accrue interest at a rate of 12%, compounded monthly. In cases where payments have not been made for many months or even years, the amount of interest owed on the unpaid child support can exceed several thousand dollars.

However, the operation of law that converts a missed payment into a support judgment does not magically deposit funds into your bank account. In order to obtain actual funds from the Obligor, you will need to file a “Verified Entry of Support Judgement” with the Court reflecting the timeframe at issue, the amount that should have been paid, the amount that was actually paid, and the interest accrued thereon.

Once this document is filed with the Court, you may seek enforcement against the Obligor’s employer, bank accounts, and property by way of liens or a Writ of Garnishment. There are pro’s and con’s to each method of enforcement, however, it is important to remember that support judgments are not dischargeable in bankruptcy.

While it may take some time to recover all of the funds owed to you, you will continue to accrue interest on the principal amount owed and the Obligor is unlikely to escape ultimately paying the judgment over time.

In the case of garnishment with an Obligor’s employer, you will begin receiving payments directly from the employer each time that the Obligor receives a paycheck. However, Colorado law sets limits for the percentage of earnings that may be garnished, so you may receive smaller payments towards the total amount owed until that amount is paid off.

When garnishing a bank account, you will be limited in the amount that you recover by how much money the Obligor has in the account. For instance, if you seek to recover $1,000.00, and the Obligor only has $100.00 in the account, you will only receive $100.00 until/unless the Obligor places more funds into the account in the future.

Alternatively, a lien against property is a viable option and may result in a lump-sum payment, however, you may not receive the funds until the property is sold or otherwise transferred.

My Ex has been ordered to pay a percentage share of extracurricular expenses and extraordinary medical expenses but has failed to do so.

A distinction has been made, however, between amounts owed that are “sum certain,” such as the set monthly amount of child support, and payment of expenses that may fluctuate over time. Most often, this situation presents itself in cases where a party is ordered to pay a percentage amount owed towards extracurricular or extraordinary medical expenses for a child.

For example, if an Order requires that a party contribute 50% of the cost of extracurricular or extraordinary medical expenses for a child, the actual dollar value of that amount may fluctuate from month to month. Certainly, there will be months when there are no extraordinary medical expenses, and other months when there may be significant expenses (perhaps a child has broken an arm). The same is true for extracurricular costs.

This issue becomes even more complicated when there is specific language in the Court’s Order regarding notice to the other party about the amount of the expense, timelines, and requirements for exchange of receipts and/or invoices, and whether the agreement of both parties is necessary for the expense to be reimbursable.

When dealing with this scenario, the very first step is to ensure that you have complied with all of the notification and exchange of documentation requirements necessary under your specific Court Order. If you have done so, then any failure by the opposing party to pay the amount owed will result in a support judgment, subject to the same interest and enforcement procedures as described in the previous section.

However, because the amount owed can be subject to debate (the other party may claim that you failed to provide documentation or notice as required, or may even dispute the actual amount spent or owed), you cannot simply file a Verified Entry of Support Judgment and immediately seek enforcement. Instead, you must file a “Motion for Entry of Support Judgment” and request that the Court enter an Order awarding you the support judgment and certifying the amount owed.

In this scenario, the Obligor has a due process right to file a Response with the Court, disputing the amount at issue and/or your compliance with the notice and documentation requirements, and may even request an evidentiary hearing regarding these issues. Unlike enforcement of a “sum certain” amount of child support owed, you cannot seek a Writ of Garnishment or enter a lien against property in this scenario until you have received an Order from the Court regarding your Motion for Entry of Support Judgment.

However, once you receive an Order granting your Motion, you may seek the same enforcement options described above.

My Ex has failed to pay both the monthly child support amount AND their contribution to extraordinary expenses.

In the case that your Ex has failed to pay both a “sum certain” amount of child support and has failed to pay their portion of extracurricular and/or extraordinary medical expenses, you will need to seek enforcement under both options outlined above.

You will need to file a Verified Entry of Support Judgment for the amounts owed and not paid as specific child support, and a Motion for Entry of Support Judgement for any amounts that would have been subject to debate or fluctuation over time and seeking a Court Order establishing the amount owed as a judgment.

The post Child Support: Options For Enforcement Against The Non-Paying Parent appeared first on Divorced Moms.

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Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce?

Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce?

Originally published by stark.

Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce? 3Stepparents play a very important role in a child’s life. According to the most recent report from The Step Family Foundation, over 50 percent of U.S. families are recoupled. As blended families are becoming more and more common, this raises an important question: Do stepparents have any custody or visitation rights to their stepchildren after a divorce? The answer: “sometimes”—but those rights are limited and they are not automatic. Here, our Dallas child custody attorneys provide an overview of the key things that you need to know about step-parent rights after a divorce.

Texas Law: Step-Parents are ‘Interested Third Parties’

 Stepparents are not granted any automatic child custody or child visitation rights. Unlike a child’s biological parents, there is no assumption of parental rights. Instead, state law views stepparents as being “interested third parties.” Practically speaking, this means that a stepparent’s custody or visitation rights are similar to a child’s aunt, uncle, or another semi-close relative.

To be clear, stepparents have the right to petition for visitation with their stepchildren after a divorce. While it is often difficult to get court-ordered visitation rights over the objections of the child’s parent(s), it is legally possible. Should a dispute arise over step-parent visitation/custody, Texas courts will resolve issues under the state’s ‘best interests of the child’ standard (Texas Family Code § 153.002).

 How Our Child Custody Attorneys Can Help

 Stepparent custody and visitation cases are especially complicated. At Orsinger, Nelson, Downing and Anderson, LLP, we have the unique skills, experience, and training needed to help guide parents and stepparents through the legal process. With more than 100,000 attorneys practicing in Texas, there is no other law firm that has as many Top 100 Super Lawyers as we do. When you reach out to our firm, you will get a top-rated Texas child custody lawyer who will:

  • Conduct a confidential, in-depth review of your stepparent custody/visitation case;
  • Listen to your story, answer your questions, and devise a sensible strategy;
  • Look for mutually agreeable solutions that resolve conflict at the lowest possible level; and
  • Take whatever legal action is necessary to protect your rights and your family.

We know that there are no one-size-fits-all solutions in family law—especially when children are involved. Our custody & visitation lawyers provide each and every parent with the fully personalized legal assistance that they deserve. Our goal is to help you find an effective and low conflict resolution that works for you and your family. At the same time, we are trial-tested family law litigators. Our lawyers are always prepared to take aggressive action to protect your parental rights.

 Discuss Your Case with Our Texas Child Custody Lawyers Today

At Orsinger, Nelson, Downing and Anderson, LLP, our compassionate Texas child custody lawyers are experienced, effective advocates for parents. If you have any questions about stepparent rights, we can help. To schedule a strictly confidential initial consultation, please call us at (214) 273-2400 or contact us directly online. From our offices in Dallas, Fort Worth, and Frisco, we represent parents throughout North Texas.

The post Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce? appeared first on ONDA Family Law.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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What court will hear issues about your child in relation to an international divorce?

What court will hear issues about your child in relation to an international divorce?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

What court will hear issues about your child in relation to an international divorce?

There is a great deal of uncertainty associated with divorce. For starters, you have no idea how long your case could last. You’ve probably heard horror stories about divorces that have taken years to complete and are worried about yours ending up the same way. Tied to that concern you may be wondering how you are going to afford to pay for the divorce. Attorney’s fees, court costs are just the tip of the iceberg from what you can tell.

What if you were also in a position where you didn’t even know where you would need to ask for a divorce? Many Texas residents know that all we would need to do in order to file for divorce was to submit some paperwork at the local county courthouse in order to start the process. You may not be in that same position, however. If you have resided outside of the State of Texas- or outside of the United States altogether- you may have questions about what court will be able to hear your case in the first place.

Beyond any immediate concerns about yourself, you are likely concerned with what outcome your children will encounter because of your divorce. Kids are the innocent by-standards in any divorce. Because you and your spouse are ending your marriage your children are now facing up to the effects of that choice. You want to do every possible to shield them from the brunt of the divorce but are unclear on some issues associated with your potential case. For starters, what will happen if your child has ties to more than one state- or more than one country?

Custody options that are available when a child has lived in multiple countries

Knowing what options are available to you as well as what courts are available to issue rulings regarding child custody matters ought to be one of the first issues that you explore as you prepare to file for a divorce.

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) has been adopted by all fifty states and seeks to address jurisdictional problems that are relevant in our country and across the globe. Asking and answering a few questions within the framework of the UCCJEA can tell you a great deal of information about what court is the appropriate venue to file your divorce or child custody case within.

For starters, you will need to determine where your child has been a resident for the past six months. Next, consider whether or not your child has a true home country. If you and your spouse have moved so frequently that it would not be fair to call one country or another their “home” for the purposes of a divorce then you would be going off of where your child has lived during the past six months.

If your child does have a home country where he or she has been raised and is attending school, the next question you need to ask yourself is whether or not a court in that country has already stated that jurisdiction is proper there. However, consider that if you now reside in the United States and have done so for at least six months it may be better suited for your family to file your divorce in the U.S. All of these considerations go out the window if an emergency arises that requires intervention by a court at a moment’s notice, such as when an abduction of your child occurs.

Jurisdiction in international child custody cases is far from simple

As we have seen in the past few blog posts on our website, determining child custody jurisdiction in international cases is not simple at all, unfortunately. You need to be able to balance complex issues with one another while balancing what is in the best interests of your child throughout the evaluation.

Under the UCCJEA a court in the United States may be required to apply the custody laws or another nation in enforcing a foreign court order or even creating a brand-new order for you and your child. As with anything associated with family law, it is strongly recommended that your attorney not only have experience handling child custody cases but also have experience in handling cases that involve the UCCJEA.

Be aware of child abduction issues in connection with international child abduction cases

It is not uncommon to encounter child custody cases wherein one parent attempts to ignore, brazenly, the child custody laws of one country in order to gain entry to a nation whose circumstances are more advantageous. If your child’s other parent believes the laws in their country of origin are “better suited” for him or her then it is not out of the question for him or her to attempt to remove your child without your permission from the United States or whatever country, you currently reside in.

I do not tell you all this in order to frighten or intimidate you. I mention it because it is a relevant consideration in an age where mobility has never been easier. Courts in the United States hear issues all the time of international child abduction cases. The goals of these courts are to quickly and correctly address the issues in that specific case with the goal of returning the children to their home country.

When courts are effective in addressing issues and returning children back to their parents, they not only help the family who is involved in the case but also discourage parents from taking matters into their own hands by attempting to create jurisdiction over a child by means of abduction. What these parents do not consider is that almost every country in the world has signed on to the UCCJEA and would apply the laws of the nation where the child just left in any custody case.

How you can present a case to have your child returned to you 

In the event that you are left behind by your child’s other parent, there are concrete steps that you can legally take in order to have your child returned to you. First, you must be able to establish that he or she was consistently a resident of that country. As a parent, you must next show that based on the laws of your home country you had parental rights. Keep in mind that if you are an absentee parent this could cause problems for you, given that those parental rights must be acted upon. If you do not have a minimal amount of contact with your child it will be difficult to convince a court to have your child returned home.

What can the “other” parent argue in a contested child custody hearing regarding abduction?

If you are in a position where your child has been removed from the United States and taken to another country, you may have some concerns about what your spouse or child’s other parent may be able to argue as far as why the abduction was justified under the law. As I just mentioned, one of the most effective means of legitimizing the actions of the abducting parent would be to argue that you as the non-abducting parent has not attempted to exercise your parental rights. Your not taking an active role in the life of your child could come back to haunt you if this is the case.

Next, if you agreed to the removal of your child from the United States at any point this could also hamper your argument that your child needs to be returned. An email from a few weeks ago where you and your child’s other parent outlined an agreement between the two of you to allow him to take your daughter to Saudi Arabia can diminish the strength of any arguments you have as to why your child needs to be returned to you.

At the very least, if the abducting parent can show a court that while you did not exactly endorse the move if you were not vociferous or took no action to prevent the abduction then it probably cannot properly be called an abduction at all.

Finally, your child’s other parent may attempt to present an argument that your child was facing a serious risk of harm by remaining with you in their “home” country. If there is an issue related to your family, or to the political climate of your home country this can be an effective argument to make. The best interests of your child are going to bee at the forefront of the decision making any court utilizes and showing that child abuse had been ongoing can be an effective tool to utilize.

The age of your child may be a relevant consideration, as well

Even if your spouse or child’s other parent cannot effectively present an argument such as the ones, we have just been discussing it is possible that if your child is old enough, his or her preference to remain in the new country could bolster the case of the abducting parent. The opinion and/or wishes of your sixteen-year-old are likely to be taken a lot more seriously than those of your six-year-old child, mind you.

Do not delay if you seek to challenge the abduction of your child to another country

Act quickly if your child has been abducted from the United States. Under the relevant international treaty, a case requesting the return of your child to this country must be filed within a year of the removal. Once you get beyond this one-year time-frame it is simpler for the abducting parent to make an argument that your child has become more familiar and comfortable in their surroundings. Finding a home, a place to go to school and friends will create a home-like atmosphere that will be tougher for you to counter with arguments of your own. Keep in mind that if you file your lawsuit to have your child returned to the United States within a year of their removal then the opposing party cannot present this argument.

The bottom line is that you need to have a sense of urgency when it comes to your actions that are taken in the time period immediately following the abduction of your child. I’m sure that this will not be difficult, as I can only imagine the fear and anger that would arise in me if this happened to one of my children. Do not let fear or the unknown or concerns about external issues weigh you down and prevent you from making a decision that could save your family from a great deal of hardship,

If you find yourself in a position where you need to hire an attorney to help you fight for you, make sure that you verify that the attorney has experience in international child custody matters. Family law experience is not good enough for one of these cases. When your relationship with your child is concerned you cannot afford to take any chances. Seek out representation that has had proven results in order to give yourself the best chance at a successful outcome.

Questions about international divorce or child custody cases? Contact the Law Office of Bryan Fagan

Thank you for your interest in this topic. If you have any questions about the material that we presented today or seek clarification on anything please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns in a comfortable and pressure-free environment. Our attorneys and staff take a great deal of pride in providing comprehensive, family law services to our clients.

No matter where you live in southeast Texas, we are here to serve you. From Baytown to Waller and up to Conroe, our attorneys will put your interests first and advise you to take steps that will seek to improve your family’s well-being.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Mediation and its impact on your Texas Child Custody Case

Mediation and its impact on your Texas Child Custody Case

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

It has become a trend in recent years for courts in southeast Texas to mandate that parties must attend at least one session of mediation (and likely more) before they ever are able to have their case presented in front of a judge during a trial. As far as alternatives to having to go the “distance” in a contested child custody case, mediation is at the top of the list as far as places to go when you need a resolution to your case.

The benefits of meditation are many. You and your opposing party are able to take an active and participatory role in the process that will determine the outcome of your case. This is the case to an extent in a trial, but keep in mind you are only able to present evidence once you get in front of a judge. It is the judge who will be making the final decision in your trial.

Domestic violence and mediation in Texas

Child custody cases that involve domestic violence can be especially troublesome when taken in the context of mediation. For one, if you are the victim of acts of domestic violence as perpetrated upon you by the opposing party in your child custody case that you may not be able to negotiate to the fullest extent possible. This is often times the case because you are not only fearful of your own well-being during mediation but can also be “under the thumb” of the opposing party due to their role in supporting you economically. If you haven’t worked in a decade or more, how freely can you negotiate in mediation knowing that your well-being is tied up in the other person paying your bills?

It is for this reason that the requirement for you and your opposing party to mediate your case is waived in many southeast Texas courts when family violence is an issue. Furthermore, even if the requirement to mediate your case is not waived automatically due to family violence being involved, it can happen that if you object to having to go that the objection will likely be upheld by the judge.

In cases where there is domestic violence that has occurred between you and your opposing party do not be surprised if the judge takes extraordinary steps to ensure your protection. I have seen judges appoint third parties to attend mediation as an extension of the court in order to help prevent additional acts of violence from occurring. Many judges have “go-to” mediators who have specific experience one expertise in handling cases where there have been acts of domestic violence perpetrated by one party against the other.

If you have been the victim of family violence it is ultimately up to you whether or not you will attend mediation in your case. Some people believe that there are still benefits to be had with the process if, in fact, you feel that you can negotiate freely, considering the circumstances. On the other hand, you may feel constrained for multiple reasons and can choose to opt out of the mediation requirement of your court. Either way, this is a decision that is fact-specific and ought to be discussed at length with your attorney prior to arriving at a final decision.

International divorces- how where you’re from can impact your Texas divorce

In a city like Houston, it is not at all uncommon to encounter families who have one or both parents born internationally or at least have roots in another country. You may be in a position where you are currently living abroad while your spouse lives here in the United States. Or, you both may live here in the United States but you could own property in foreign countries. Your having had children may have created opportunities for you to visit family abroad more often. There are certainly numerous ways that your family could have international ties.

Family law in Texas becomes a tad more complicated when you consider the implications of an international divorce. The more diverse the set of facts and circumstances, the more crucial it becomes for you to be able to sort through them in a logical and clear-headed manner. In today’s blog post from the Law Office of Bryan Fagan, we will discuss this topic in greater detail.

What are the main issues relevant to an international divorce?

From my experiences, there are basically six topics that we have to discuss that relate in some way to an international divorce. Those issues would be jurisdiction, service of process, choice of law, discovery, property division and then the enforcement of the orders that are arrived at in the child custody or divorce case. While we can say with some confidence what the issues are that we need to discuss, the fact that they are all interconnected can make things more complicated.

Let’s take each of those six issues and discuss them in greater detail.

Jurisdiction- who gets to decide what?

If you are like most people who go through a divorce, you are likely chomping at the bit to have the important questions of your case decided. Who gets what property? How much child support are you going to have to pay? To what extent will you be able to see your children? These are all relevant questions that need to be answered. Unfortunately, they are questions that cannot be answered without first determining whether or not Texas has jurisdiction to hear the case. If, in fact, the state of Texas lacks jurisdiction to hear your case then you are in a position where you need to figure out what venue is appropriate.

Simply put, jurisdiction refers to a court’s authority to make rulings and issue orders in a specific legal matter that is brought before it. These rulings, in a divorce context, are usually tied to property rights and child custody. In an international divorce, you not only have to contend with the questions of whether or not Texas has jurisdiction over your case but whether or not any U.S. state has jurisdiction over your case.

Personal jurisdiction is the first issue that we have to tackle. Ask yourself whether or not you and your spouse have sufficient ties with Texas in the event that it is here that you want your case to be heard.

Next, you will need to determine whether or not a court in Texas has the authority to handle your divorce case and all the issues that are connected to it.

Finally, it could be the case that Texas and another jurisdiction both have equally strong claims to hearing your case. In that event which court should and would your case be heard in?

From the beginning of your case until its end, these are the dominant themes and questions that you will be asking yourself. The difficult part of the process is that determining jurisdiction is not always a straightforward issue. A judge in Texas may have jurisdiction over your case while a judge in another country may have an equally strong claim to having jurisdiction. In those type of situations, you and your attorney will need to determine where your case ought to be filed from a strategic standpoint.

What country’s laws should apply to your international divorce?

Family laws differ significantly from state to state in our country so I’m sure it wouldn’t surprise you to find out that the laws of divorce can vary even more so from country to country. Once you have determined which court will actually be hearing your case the next question that needs to be asked is what set of laws will be determining the contested issues in your case.

First of all, how will you file for divorce? Do you need to assert “fault grounds” for your divorce? Texas allows you to file for divorce for any reason under the sun- including no particular reason at all. However, some foreign countries do not allow you to do so. Will you need to prove adultery or domestic violence in order to get your divorce if you have to file in an international divorce?

Next, does the law of the country that will govern your divorce require that you divide the property up in your divorce along with a 50/50 basis? Texas is a community property state that, absent other circumstances, will usually require a fairly even split of the marital assets (property that came into being during the course of your marriage).

Will prenuptial or postnuptial agreements be honored?

The concept of prenups has become fairly well known through our popular culture in the United States. Coming to an agreement with your spouse-to-be while you are still on good terms regarding certain property related issues is a good idea in the eyes of the State of Texas and property agreements like this are honored in most cases.

This may not be the case for your foreign courts. When considering where you should file your divorce and attempt to establish jurisdiction this is a question you need to ask yourself: whether or not you have come to an agreement on a premarital or post-marital agreement. If you have done so it would be unwise to file for divorce in a jurisdiction that would not honor the agreement.

Spousal maintenance: to pay or not to pay?

If you are in a position where you will need to be requesting spousal maintenance be paid from your spouse to you at the conclusion of your divorce you need to do your homework to determine what laws are most favorable in this regard. Texas only recently began to allow judges to impose orders regarding the payment of spousal maintenance. Even then, these payments are typically only allowed for a relatively short period of time and under limited circumstances. The length of your marriage, for instance, must be at least ten years and you must also show that you cannot provide for your minimal basic needs otherwise.

Service of process issues for international divorces

Typically, when you file for divorce in Texas you will have a constable or private process server pick up the divorce paperwork from the courthouse, drive out to your spouse’s residence or business and have him or she served personally with notice of your lawsuit having been filed. The process can take a few days but it is typically a low-key and simple transaction to complete. It is important, nonetheless, because your case cannot proceed without your first having provided notice of the lawsuit to your spouse.

There are international treaties that are in effect that govern how you can provide notice to any person who is a resident of a country that has signed on to that treaty. While the United Nations has a treaty in place that governs this subject, each member nation interprets its contents a bit differently. From personal experience, I can tell you that this step is one that can delay a case for weeks and even months. You are best served by hiring an attorney who knows how to quickly and correctly serve an opposing party with an international service of process.

More on international divorces to be posted tomorrow

In tomorrow’s blog post from the Law Office of Bryan Fagan, we will discuss more issues related to divorce from an international perspective. In the meantime, if you have any questions about the material that we have covered please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. It would be an honor to meet with you to discuss your case and answer any questions you may have.

Our attorneys and staff share a commitment to putting your interests ahead of our own and to provide the best legal representation of any family law attorneys in southeast Texas. To find out what sets us apart from our competitors please give us a call today.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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