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Special Needs Trusts: What they are and how they can impact your Texas divorce

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

Special needs trusts are designed to hold onto assets of a person who is receiving governmental benefits like Supplemental Security Income (SSI) and Medicaid. Whatever assets are held in the trust would be available to augment and add to the level of care that a disabled needs. The main force of the special needs trust is that the person would still be eligible to receive the government benefits that they need due to those assets being held inside of the trust, rather than at their ready disposal or usage.

There are two varieties of special needs trusts. For example, you could create a special needs trust for a child of yours who has a special need or a disability. That special needs trusts may be created by you, your spouse or by both of you under estate planning provisions. The other type of special needs trust is one where the trust is created out of the special needs’ person’s assets or money. These trusts will reimburse Medicaid for any funds spent on the special needs’ person’s behalf.

What impact will a special needs trust have on your divorce

If your child or you are receiving benefits from Social Security or Medicaid, those agencies provide only limited guidance for you and your spouse in a divorce setting. Special needs trusts can play an important role in the negotiation and settlement process in divorces because they allow for you and your spouse to plan on how finances will be handled immediately after a divorce. This is critically important when one of the parties or your children have a special need and rely in part on government assistance to receive medical care, pay bills or both. Spousal maintenance, child support, and other court-ordered payments can be held in these trusts.

Think about this example to better illustrate my point. Suppose that you have a fifteen-year-old son who receives $500 per month in SSI benefits as well as Medicaid. Within your final decree of divorce, your ex-spouse is ordered to pay you $750 per month in child support which is paid directly to you.

Under the rules of Social Security, 1/3 of the child support that you receive is excluded from income limits that go towards determining eligibility, only $500 goes toward the government’s calculation of income and assets to determine whether or not your child is eligible to receive SSI benefits and Medicaid. Even still, the $500 of support that counts towards the calculation will wipe out the $500 of potential benefits ($500-$500 = $0). That means no SSI benefit every month and no Medicaid to help pay for necessary medical treatment. You may have been planning the entire divorce to live in part on the child support and SSI payments. Now you are in a position where you have only one of those sums to count on for survival.

Here is how you can structure your final decree of divorce to protect yourself and your child in the future. The final decree of divorce should require your ex-spouse to pay the child support directly to your child’s special needs trust. That will allow you to slip by the government’s income/assets test and receive both SSI and child support. This benefits you and your child and does not harm your ex-spouse in any way. It is a win-win all the way around.

Yes, there are costs associated with creating a special needs trust. You may even have to hire an estate planning attorney to at least give guidance on the subject if not create the whole thing for you and your family. However, the short-term investment than hiring an attorney and creating the trust entails will be quickly canceled out by the increase in benefits and child support that you are fully able to take advantage of. Medicaid eligibility is a huge part of the equation, one that you may not be able to accurately project how much money you will save throughout your special needs child’s life.

The bottom line is that you can have your child support payments ordered to be put into a Special Needs Trust. The cash payments by your ex-spouse which instead be converted into distributions by the Trust whenever they are needed.

Take care of these issues before your divorce is over with

Another important point that I want to stress to all of you today is that you should do whatever it takes to have the issues settled before your divorce concludes. If you do not, you run the risk of having the SSI payments reduced by the child support (as we saw above) or lost completely due to your receiving child support payments.

Whenever a child support figure is set, whether by agreement or order from a judge, I would recommend that the attorneys in your case agree to hire an attorney who has experience creating special needs trusts. There are details that this attorney must be able to sort out and it is not common to find a family law attorney who is also a competent builder of a special needs trust.

As far as your final decree of divorce is concerned, it should order that your ex-spouse make a payment for your child’s special needs to the Trustee of the Special Needs Trust each month. The resources and programs that are available to you and your child should be considered when negotiating child support. A judge will do so, and it makes sense for you to consider that when making a settlement offer for child support. Also, you need to think ahead to the future to determine if your child will need either more or less care and therefore monetary support as he or she ages.

I know of some people who would tie the amount of child support paid to the amount of SSI benefits that are paid. They would take the amount of SSI benefits and subtract that amount from the amount of child support that would otherwise be agreed to. That reduced amount would be the child support figure that is agreed to. Here is why I think that is a bad idea and why I would advise a client against doing so.

If your daughter is disabled and your divorce decree states that there will be an offset of the child support obligation for each dollar received in SSI benefits, this does not take into consideration that your child’s needs may increase. You can try to go back to court in the future to have the child support orders modified based on a substantial change in the circumstances of your case and probably win on that basis. The increase would need to be reported to the Social Security Administration. This will cause a substantial decrease in the amount of SSI that your child can receive.

There is a chain reaction that follows this decrease in SSI benefits due to your divorce decree tying the amount of child support that your ex-spouse has to pay to the amount of SSI benefits that your child receives from the government. The lesser amount of SSI increases the child support obligation, so on and so forth. What you have done is set yourself up for a roller coaster ride of increases and decreases in the number of benefits you receive and child support that your ex-husband has been ordered to pay you. This will go on and on until the SSI benefits completely go away.

As far as I can tell, you should just agree to a specific dollar value for child support. Do not tie child support to the SSI benefits that are also received. Do not have the child support payments go to you directly, but rather into a special needs trust. Your case will not look exactly like any of these examples that I have provided you with today. With that said, I think these examples can paint a clearer picture of the circumstances that you need to be aware of. Along with your attorney, look into your options and you can plan a course for your case that benefits you and your child.

How will a judge determine that your child is disabled?

The definition of “disabled” changes depending on who or what group you are asking. The DMV may find your grandmother to be disabled just based on a note sent by her doctor. The military may declare you to be disabled when you are not able to pass several mental or physical tests. Social Security makes disability determinations based on the ability to work and earn a sufficient income for yourself to live on.

Your family court judge has their criteria to look to when determining whether or not your child suffers from a disability. Whether your child requires substantial care and personal supervision because of mental or physical impairment is an important part of the judge’s analysis. Those impairments must also render your child unable to care for himself or to provide a basic level of self-support. These impairments must be in place before your child’s 18thbirthday, as well.

If you are trying to establish in your divorce that your child is disabled, you are likely trying to do the same through Social Security to establish SSI benefits for him or her. The impairment must be expected to last for at least 12 months or result in the death of your child to be approved for SSI. AS I mentioned earlier, it is a job-based analysis that Social Security will undertake. If your child is not expected to be able to work on a full time, sustained basis.

It is likely that if your child has already been approved for SSI benefits, he or she would also meet the first part of the disabled test for Texas family courts. That is, your child would be unable to support him or herself absent monetary support from one of their parents (or both). Requiring constant supervision and care is not necessarily a part of the SSI analysis, but it would follow that requiring constant and around the clock, care would mean that your child is also unable to perform substantial gainful activities in the workplace.

If your child has not yet been examined by Social Security for benefits, then your child’s doctor’s will need to act as witnesses in a trial or hearing to help establish their disability. Often teachers will work closely with special needs children and are therefore great at testifying as to their limitations currently and their prognosis in the future. These folks have direct experiences with your child and are oftentimes stronger witnesses than medical experts who know nothing of your child beyond the medical records provided to them.

You may want to consider videotaping your child throughout a day just to give the judge an idea of what a typical day looks like for your child. What special needs does your child have? Do you have to go to great lengths to feed, bathe or care for your child? This can be especially powerful evidence if your ex-spouse testifies that your child’s condition is not that severe and that child support after adulthood is reached would not be necessary.

More on child support for disabled children in tomorrow’s blog post

Thank you for choosing to spend part of your day with us here on our blog. We enjoy sharing relevant information with you and helping the people in our community. If you have any questions about today’s blog 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. These consultations are a great opportunity to learn more about family law, to ask questions of an experienced family law attorney and to receive feedback about your particular circumstances.

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



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Unemployment & Slowdown: COVID-19’s Impact on Divorce and Dads

Unemployment & Slowdown: COVID-19’s Impact on Divorce and Dads

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The COVID-19 pandemic has left more than 30 million people unemployed. The financial hardship is even tougher if you are going through a divorce during this tumultuous time.

There are millions of divorced dads who can no longer afford
their child support or alimony payments because the pandemic has wrecked their
finances. Perhaps even more concerning is the number of fathers losing access
to their children because of custody exchange complications during stay-at-home
orders.

On April 30, Cordell
& Cordell hosted a Virtual Town featuring a panel of divorce lawyers
from across the United States who answered questions from viewers about the
divorce issues they are facing during this unprecedented time.

How to file for
divorce during COVID-19

The Coronavirus has closed many family courts, but that does
not mean there is no way to move forward with divorce.

Although you might not be able to appear in court for
in-person hearings and court appearances, you should still be able to file.

“In Florida, the courts are closed to the general public,
meaning that you can’t walk into the court and file an action, unless it’s an
emergency,” Cordell & Cordell Florida Litigation Manager Marc
Cohen said. “But they are open, in terms of us [attorneys] being
able to file actions, being able to get hearings before judges.”

How to modify support
orders during COVID-19

One of the biggest problems divorced fathers are encountering
is that their income has been dramatically reduced because of the pandemic and
they can no longer afford child support or alimony.

In those instances, it is important to file for a
modification as soon as possible.

“Whether you are looking to modify support or maintenance,
due to a job loss or you’re just starting out on a divorce, it becomes
especially important to modify if you’re now collecting unemployment and you
have had a significant decrease in your income,” Cordell & Cordell Regional
Partner Bridget Landry
said.

“In Minnesota, the support modification, which includes
spousal maintenance or alimony, and child support, are retroactive from the
date they are served. So, if already have a decrease in income, it’s very
important to get that motion served, as soon as possible, because even though
your court date may not be a month, or two, or three from now, the
retroactivity will go back to the date of service.”

The courts are unlikely to cut you any slack if you fall
behind on payments, even if it was because of the pandemic.

“When you say to judges ‘Well, it was Coronavirus. I didn’t
do anything,’ it’s not going to be an excuse,” Cordell & Cordell
CEO/Managing Partner Scott Trout
said. “We want to give the judge the maximum latitude across the country, where
ever you may be, to make that order retroactive and apply toward payments that
you couldn’t make.”

Extramarital affairs
during COVID-19

The Virtual Town Hall also briefly touched on the topic of
infidelity during the pandemic and how that can impact the divorce process. An
affair can potentially affect how much alimony is owed. At a time when the
economy is reeling, and employment is tough to come by, that determination can
end up being very costly.

“New York, like many states, is considered no fault, which
means you don’t have to show that somebody had an affair, in order to get a
divorce,” Cordell & Cordell New York Litigation Manager Asa
Neff said. “But it is certainly taken into consideration for a lot
of purposes. It can have a financial impact, certainly if you are spending
money on an extramarital affair. If that’s found out, a judge can order that
that money come back in and have to be redistributed and repaid to the marital
estate.

“If there are issues of custody in a case, a judge is going
to look at your behavior and make a decision about whether or not that should
impact the time you’re going to have with your children.”

Child custody during
COVID-19

The top issue divorcing men are struggling with during the
Coronavirus might be sorting through child custody exchanges while still
following quarantine and stay-at-home orders.

Some dads fear traveling with their children for custody drop-offs
will risk exposing them to the virus. Other fathers are missing out on parenting
time because their ex is withholding custody and using the virus as an excuse.

During the Virtual Town Hall, Cordell & Cordell Regional
Partner Erica Gittings
explained steps to take when debating whether to withhold your child and refuse
to give up custody during the pandemic. She suggested providing written
communication expressing your worries to the other parent and documenting your
actions during this time.

“Document what you are doing to make sure that you are
following all of the Governor’s orders for your state and making sure you’re
following all of the social distancing requirements,” Ms. Gittings said. “Also
make sure to document any evidence you may have that your co-parent is not
following the isolation orders or the social distancing orders.”

She also emphasized the importance of consulting with your
divorce attorney before proceeding with any actions outside the guidelines laid
out in your custody order.

“In the state of Wisconsin, we have the statute, a motion to
enforce placement, and if you withhold the children and the court finds out
that it was intentional and unreasonable, you could be subjected to paying the
other side’s attorney’s fees,” she said. “So it is important to put all of your
ducks in a row, in order to show the courts your concerns, which are real and
are expressed appropriately, and that you’re taking the right steps.”

Proactiveness is key

Repeatedly, the attorneys stressed the importance of being
proactive on family law matters during this time.

Always document any interactions you might have with your ex
regarding co-parenting. Pay what you can in child support and alimony. Stay up
to date on the guidelines your state and local governments provide – especially
as it relates to custody exchanges and modification issues. And contact your divorce attorney
when you are uncertain how to proceed.

The post Unemployment & Slowdown: COVID-19’s Impact on Divorce and Dads appeared first on Dads Divorce.

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How To Survive Co-parenting In Quarantine – The Impact Of Coronavirus

How To Survive Co-parenting In Quarantine – The Impact Of Coronavirus

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I honestly never expected to be writing a blog like this.  We are in uncharted water and very scary times. On top of health concerns everyone is worrying about their financial futures as this virus is sure to have an economic impact on the whole world.  

For some parents, there is also the added worry of how this is going to affect their co-parenting relationship and contact with their children.

I can’t do anything to offer any support around the health and financial issues so I wanted to offer my advice on something I do know about.

corona virus briefing

Current Situation

At a national level the current advice from the UK government is to avoid “non-essential contact”, stay home for 14 days if you live with someone with a cough or temperature and schools to remain open for now.  Things are changing on a daily basis as we learn more about the virus but this is where we stand and that is already causing issues for parents.

Many parents are refusing to return children after contact or claiming self isolation and cancelling contact.  Whilst I am not saying that in some cases this is absolutely the right thing to do, I am also aware that there are cases where parents are using this to restrict contact and alienate the other parent.  Essentially the government are giving permission for abusive people to isolate their victims.  Again, this is not to say that reducing contact isn’t a necessary step, just an acknowledgement that abusive parents will and are using the advice to their advantage (as predicted in my previous blog).

Reality 

What is confusing for many parents is the dilemma of following government advice and reducing contact and self isolating to protect others including their own children, knowing that if they cancel, it will be used as a weapon to beat them by the other parent who will create the narrative of “they don’t care about you”.  Some parents may even accuse the other parent of being unsafe because they take them out and so refuse contact to keep them safe.  It is a real mine field.

The reality of this is that it has created a real paradox and cognitive dissonance in many people.  They hold two very different but valid opinions about the same thing.  This confusion can be very triggering for victims of abuse because this is exactly what they experienced during the relationship.  So not only are people confused and scared by the outbreak, they are also reliving their past trauma at the same time.  Which is why it is so important you learn how to manage this situation.

3 Ways To Manage Quarantine

Practical Steps

If you aren’t able to see your children, keep communication lines open.  Arrange regular telephone or video calls, send letters, care packages, use social media.  Get creative in ways to stay in touch.  Military families spend months away from their families and the bond between them and their children does not diminish and so this doesn’t have to either.

If your ex is not supportive of contact, record videos and either save them to your phone, laptop or upload them onto video sharing platforms (private setting) so that you can show them your “video diary” at a later date.  This is one of the biggest things we as a society will ever go through in our life time and so keeping a record will be really helpful for both you and your children once everything settles.  You can send letters (unless you have a court order which specifically states you can’t) but there is no guarantee they will get them but if you send them recorded you can again provide evidence when you are able to. 

As adults this is a really scary time and the children will pick up on that even if they are not old enough to know what is going on.  Help to reduce their anxiety by exploring their understanding of what is going on and offer an explanation (age appropriate) if necessary.  If you are stuck at home, plan activities and keep them entertained.  The truth is being stuck indoors without a break for 14 days (or however long this goes on for) is not going to be fun for anyone.  There will be a lot of pent up energy and anxiety which can cause arguments and definitely put a strain on even the best relationships.  Think of ways you can work through that.  Having a plan in advance really will help.

Finally, keep yourself safe and well.  Follow the guidance but try not to get obsessed with it.  The press and even social media are fear mongering and that can add to your anxiety.  Limit your news watching/paper reading/ social media time to reduce your anxiety levels.

Responses

If your ex is playing up and refusing contact on the grounds of self isolation which you feel is unnecessary, let it go.  The reality is that there is nothing you can do.  They have a legitimate excuse now to cut contact and arguing with them only fuels their ego.  They love to know they are hurting you so a simple “thank you for keeping our child safe” will suffice.  Again this is unprecedented territory and we have no way of knowing what is coming next.  Save your energy for the long game. 

If they refuse to allow you to talk to your children during this, again save your energy.  Yes it is cruel and vindictive and not in the child’s best interests but there is nothing you can do.  In all likelihood courts will be closed shortly and so there is nowhere to turn.  You have to find your own way through this.  I do not say that flippantly, I appreciate how tough this is.  But I have learnt the hard way that worry and anger do nothing to move you towards your goal and so focus on what you can do rather than what you can’t.

Your children may have a lot of questions about what is happening.  Be aware of your own feelings about this before you respond.  It can be really easy to transfer our fears onto our children and so being aware of how we feel can help to manage that.  They are seeking reassurance and comfort from you and so try to stay positive.  We will get through this.

Emotions

You may feel scared.  You are probably worried about yourself, your children and elderly relatives.  Maybe even for society as a whole.  That is normal and natural.  It is something we have no idea of how it is going to go. The unknown is scary.  Add to that the added implications on our finances and it could be easy to drown under all the difficulties.  Managing fear can be difficult, especially when we are being bombarded with worse case and apocalyptic scenarios.  As previously stated, I recommend limiting your time watching the news/reading newspapers/social media to keep on top of the fear. 

Get in touch with where in your body the feeling is because the simple act of acknowledging the physical sensations can be enough to reduce the feeling.  

Practice 4-2-4 breathing if you find yourself becoming overwhelmed with panic.  Breath in for a count of 4, hold for 2 and out for 4.

It can be frustrating being kept from your children and also being told by the government how to live your life, it can feel very controlling and abusive when this is the environment you have experienced in the past.  But it really is a wasted emotions.  It achieves nothing.  Right now there is no rule book about what is happening and so where possible, you have to go with it.  Try to keep your emotions in check and focus on staying safe and healthy. 

Obviously being way from your children will feel like a terrible loss and you may experience grief.  It’s important to allow those feelings to flow.  Grief is a cycle between denial, anger, depression, bargaining and acceptance.  Try not to get stuck in any one of those stages.  The next stage will come but it isn’t linear.  You will go back and forth.  It’s all normal and natural.  Don’t fight it, it shows how much you love them and that in itself can be a comfort.  It wouldn’t hurt so much if you didn’t love them so much.

If you are self isolated or we are forced into lockdown, try to stay busy.  Talk to friends over Skype, Facetime or other video call services.  Read the books you have always meant to.  Start a new hobby.  You could start a business.  Make some changes round the house.  I always find moving my furniture quite therapeutic!  If you can find the best in this situation, you will fare far better.

Finally the prospect of being in isolation can be very worrying and scary to many people.  Humans are social creatures and to be potentially forced to stay away from others is going to feel really unnatural.  Please know that support is out there. Just because it isn’t face to face doesn’t mean that you can’t get help.  We at The Nurturing Coach have introduced weekly online support groups to help you through this period of uncertainly.  Do join us, it can really help to talk to others.  

 

I hope this has offered some guidance for you.  I appreciate it is a difficult time and I certainly don’t have all the answers but I wanted to offer something.  Do stay safe everyone.  Take care.

The post How To Survive Co-parenting In Quarantine – The Impact Of Coronavirus appeared first on The Nurturing Coach.

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Mediation and its impact on your Texas Child Custody Case

Mediation and its impact on your Texas Child Custody Case

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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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