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ASKED QUESTIONS |
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| What is divorce? |
| A divorce in common parlance refers
to a legal dissolution of marriage leaving both parties free
to remarry. Thus divorce is a negative result of marriage, where
the couples break the marriage bond and divert in two directions. |
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| How is a
divorce obtained? |
| A divorce is obtained by filing a
divorce petition in court and then, either by reaching a voluntary
agreement between the spouses or by trial, the marriage is dissolved
with the property being divided forever and the issues concerning
children decided. All of these agreements or decisions are memorialized
in a legal document entitled the “Final Decree of Divorce.” |
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| What
is the difference between a contested divorce and an uncontested
divorce? |
| An uncontested divorce is where the
parties themselves reach an agreement on all issues and seek
an attorney merely of advise on the law in the state of the
marriage and to draft the legal documents to ensure the documents
are binding on the parties. Only one person needs to go to court
in an uncontested matter to finalize the divorce in that instance. |
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| Is
there a legal separation in Texas? |
| No. Once you file a divorce, however,
the divorce may pend before the court for several months and
sometimes even up to a year, allowing enough time in the event
the couple want to attempt to reconcile. |
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| What are
the various grounds for divorce? |
| The parties cannot part without attributing
a reason. And hence they have to state reasons for filing a
petition to divorce There is a laundry list of unsavory actssuch
as adultery, physical cruelty, mental cruelty, attempted murder,
desertion, habitual drunkenness, use of addictive drugs, insanity,
impotency (usually unknown to the partner at the time of marriage),and
venereal disease, which forms valid grounds for a legal separation/divorce. |
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| What
is collaborative law? |
| Collaborative law is another method
for dissolving divorce, custody and/or child support cases in
which each party hires a responsible attorney trained in the
collaborative process to represent them in the matter. The parties
may file the suit jointly and notify the court they intend to
take the collaborative route to resolve their case. This extends
the amount of time the court will allow the parties to have
to resolve their dispute. Collaborative law is best described
as where the two trained attorneys and their clients meet in
open full disclosure sessions to resolve their issues. The attorneys
act as coaches and guides working together as a team with the
clients to develop the best individualized solution to the parties’
issues. Collaborative law varies in cost depending on the complexity
of the issues. The benefit of collaborative law is that the
parties’ come up with their own resolution without the
necessity of airing their differences in court and without the
Judge deciding how the issues will be resolved. The draw back
of the collaborative process is that if the parties are unable
to resolve their differences or the process breaks down, the
attorneys must withdraw and the parties must hire new attorneys
to start over in court. Thus, it is imperative to have an attorney
who has been properly trained in collaborative law to ensure
the process will work. Marilynn
Landon has received training in the process and has the
background of a masters in social work to assist her in working
collaboratively with other well trained professionals. Our office
offers a list of other collaborative trained attorneys whom
we are sure will cooperate in the process. Being trained does
not necessitate that an attorney is able to work collaboratively.
Contact the law office of Marilynn
W. Landon to learn more about this process. |
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| In the event
of divorce, how are assets divided among the parties? |
| Assets accumulated before the marriage,
as well as assets acquired during the marriage, are subject
to a division between spouses, depending on the laws of the
state granting the divorce. Prenuptial agreement often comes
as a pragmatic solution in protecting the assets earned before
the marriage. An equitable share may give one spouse more or
less than half of the assets depending on a number of factors
like length of marriage, conduct during marriage, contribution
toward the acquisition and preservation of the assets, income,
education, health, age, and so forth. |
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| What is spousal
support? |
| Payments made from one spouse to
the other during a separation or a divorce is generally known
as spousal support or alimony. This can be in the form of rehabilitative
support i.e. payments made over a period of time to enable the
supported spouse to obtain a career and become self-supporting. |
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| Is spousal
support taxable under Federal law? |
| Alimony, family support, separate
maintenance payments, and spousal support may be deductible
from the income of the spouse making the payment, and taxable
income to the supported spouse. Family support and separate
maintenance payments are a combination of spousal support and
child support. |
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| Can a court
order alimony payment while a divorce or separation case is
pending before the Court? |
| Under both situations a court is
authorized to order spousal support. As part of the judgment
of dissolution or legal separation, a court may order payment
of alimony. Similarly, a court may order one spouse to pay “temporary”
alimony to the other spouse while a divorce or legal separation
lawsuit is pending. |
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| Can a Court
order payment of support during the marriage? |
| The law relating to this aspect varies
from state to state and accordingly, one spouse may be ordered
to pay support to the other spouse. One spouse may bring a lawsuit
against the other spouse for his/her failure to provide support.
In addition, if a county furnishes support to a spouse, the
county may seek a court order to obtain reimbursement for support
furnished, continuing support and attorney fees incurred in
the action. |
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| What are
the factors that the Courts should take in to consideration
while determining a question of alimony? |
| Depending upon the corresponding
state law, courts consider factors like duration of the marriage,
the ability to maintain the standard of living established during
the marriage, considering the respective earning capacities
of the spouses, the impairment of present or future earning
capacity due to periods of unemployment during the marriage
devoted to domestic duties, the age and health of the respective
spouses, earned and unearned income, assets, and standard of
living of the spouses , etc. |
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| How long
are courts required to order a spouse to pay (or allow a spouse
to receive) spousal support? |
| The answer to this varies depending
on a number of factors. What else is new in law? Generally,
the cap on spousal support in Texas is three years. However,
there are numerous exceptions to that cap and a spouse must
first meet certain eligibility requirements prior to receiving
spousal support such as the length of the marriage must be ten
years. Again this is a complicated are of the law and requires
an experienced attorney to ensure that both the husband and
the wife’s future needs are taken care of. |
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| When does
the question of child custody arise? |
| The question of child custody comes
up in the event of divorce. Parents who are planning to divorce
would come to an agreement as to the question of custody of
child/children i.e. whether the child will primarily live with
them or if not what alternate arrangements could be made like
visitation rights or shared parenting. Often the separating
parents frame for themselves an arrangement specifying child
custody rights with the help of their attorneys. If they are
unable to reach a decision, the court may intervene and specify
in the divorce decree with whom the divorcing couple’s
children will live, keeping in mind the child’s best interests. |
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| What are
the different types of custody? |
| The custody of children can be physical,
legal, joint or split. Generally, physical custody is awarded
to one parent with whom the child will live most of the time.
Legal custody, which includes the right to make decisions about
the child’s religion, education, health, etc., is shared
by both the custodial and non-custodial parents. In joint custody,
the child spends equal amounts of time with both the parents
and finally in split custody, the siblings are separated and
each parent gets custody of one or more of the children. However,
courts do not generally prefer to separate siblings. |
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| What are
the legal rules governing the custody of children born out of
unmarried parents? |
| The rules in Texas recently changed
and have become federalized. They are complicated and require
an experienced attorney to assist a client in determining parentage.
Similar to the rules for custody in a divorce, it is presumed
that joint custody is in the best interest of the child. However,
if there is any doubt of whether the father is the biological
parent of the child, the party questioning parentage must raise
that issue immediately in the beginning of the suit. Failure
to raise it may result in losing the right to question that
issue forever more. Our office has vast experience with parentage
cases and will answer all your concerns and questions regarding
this issue. |
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| What is
meant by visitation rights? |
| In Texas, the word ‘visitation’
is no longer the correct word. The term possession refers to
the amount of time that each parent has the child in his or
her custody. The standard possession order is presumed to be
in the best interest of the child. However, parties deviate
all the time from the standard possession based on a number
of factors. Possession periods are mutually agreed upon by the
parents. In the event no agreement can be reached, the standard
possession schedule is the fall back plan. There is the expanded
possession periods which include first , third and fifth weekends
and every Thursday overnight and then there is the non expanded
possession schedule. Many times parents work out their own schedules
based on the children’s needs and the schedules of the
parents. Our office encourages parents to work these schedules
out. Sometimes we use the help of professionals such as a parenting
coordinator or a counselor. Particularly in collaborative cases,
a counselor or psychologist can be a very effective method of
designing individualized parenting possession schedules. |
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| What are
premarital agreements? |
| Pre-Marital agreements are binding
legal contracts entered between two adults who intend to legally
marry each other. Such agreements are also known as pre-nuptial
agreements. |
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| What are
the benefits of entering into a premarital agreement? |
| Through a premarital agreement parties
can avoid the usual legal consequences of joining the estates
of two parties by marriage and each party to the agreement,
can ensure that the assets remain theirs in the event of divorce,
go to their children in the event of death, and to work out
arrangements for matters that may become problems after the
marriage. |
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| What are
the prerequisites of a premarital agreement? |
| The parties intending to enter into
a premarital agreement should make a full and complete written
disclosure of each others’ assets and liabilities, much
before the wedding. The terms intended to be incorporated into
the agreement should be reasonable and fair. Both the parties
should be given ample time to review the terms of the agreement
before actually entering into a forma premarital agreement. |
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| What are
the main elements for a valid premarital agreement? |
| For the premarital agreement to be
binding, it should be made in writing, must be signed by both
the parties, the terms of the agreement should mention and disclose
all the assets, liabilities and income of both the parties.
Above all the agreement should be entered by the parties freely
and voluntarily, it must be free from force and fraud. |
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| Are premarital
agreements enforceable? |
| Those agreements, which are made
in conformity with the requirements of a valid premarital agreement,
shall be enforceable. Those agreements made without full disclosure
or entered into without proper legal advice or under duress
or fraud will not be enforceable. |
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| Can a marital
agreement be done after the wedding? |
| A marital agreement can be made after
the wedding whenever differences arise between the parties regarding
the future financial issues. The agreement must be based upon
some consideration other than the marriage itself. Sometimes
such an agreement is made as part of a reconciliation of the
parties or following some other dispute. Such an agreement has
been held to be just as enforceable as a Premarital Agreement. |
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