Getting a Divorce? Should I Move Out of the Marital Home?

This is a complicated question to answer depending upon the facts of each case.  If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety.  Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out.  In this situation contact an experienced family law attorney now!

In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the marital residence.

Why is this?  One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.

Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.

The higher wage earning spouse who moves out of the marital home must expect to continue to pay most of the household expenses, including the insurance and mortgage!  What about the personal property and furnishings in the residence?

If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.

Secure a court order ASAP to equalize property and household expenses.

 

Paternity in Texas – Is a Biological Father a Legal Father ?

A baby born to unwed parents does not have a legal father under Texas Law.  In order to exercise your rights as a father, including visitation and possession, a man must be a child’s legal father.  A common misconception is that if your name is on the birth certificate you are a legal father.  If you are not married to the mother, simply putting your name on the birth certificate of your child is not enough to make you the “legal” father and you cannot enforce your rights to the child.

The process to become a legal father is a simple one. If the biological father and the mother agree, they can both sign an “Acknowledgement of Paternity” which is filed with the Bureau of Vital Statistics.  Once paternity has been established, your name will be placed on the birth certificate, and the Court may order you to pay child support and grant you visitation or possession rights with your child.

TEXAS FAMILY LAW §160.301.   ACKNOWLEDGEMENT OF PATERNITY

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgement of paternity with the intent to establish the man’s paternity.

TEXAS FAMILY LAW §160.302.   EXECUTION OF ACKNOWLEDGEMENT OF PATERNITY

An acknowledgement of paternity must:

  1. Be in a record;

  2. Be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;

  3. State that the child whose paternity is being acknowledged:

    1. Does not have a presumed father or has a presumed father whose full name is stated;

    2. Does not have another acknowledged or adjudicated father.

  4. State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing;

  5. State that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgement is permitted only under limited circumstances.

An acknowledgement of paternity is void if it:

  1. States that another man is a presumed father of the child, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the bureau of vital statistics;

  2. States that another man is an acknowledged or adjudicated father of the child; or

  3. Falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child.

  4. A presumed father may sign or otherwise authenticate an acknowledgement of paternity.

Taxes 2014 : Who Is Entitled To Use The Tax Exemption on Children After a Divorce?

As we now approach the deadline for filing our 2014 federal income tax return, many divorced parents are asking this question, “Which parent may legally claim their children on their tax return”? This question has become complicated with the rise in fathers’ rights, expansion in non-custodial parents visitation periods, and advance parenting schedules allowing children to spend quality if not equal time with both parents throughout the year.

In the past the Internal Revenue Code provided that the custodial parent was allowed to claim the minor children on his/her federal income tax return. Mom was usually the custodial parent and Dad usually had the children every other weekend.

The Internal Revenue Code states that the parent with whom the child lived with for the greater number of nights during the year is entitled to claim the dependency exemption.

If during or following a divorce in final judgment, the two divorcing parents agree that one parent shall claim the child as a dependent in odd numbered years and the other parent in even numbered years, or if the divorcing parents have more than one child, one parent shall claim some children, while the other parent shall claim the other children, this agreement in your final divorce decree will be honored by the IRS.

If your divorce was final before 2008, just attach the final divorce decree to your tax return. If your divorce was final after 2008, your ex-spouse must fill out IRS form 8332 which provides the name of your children that you can claim on your federal income tax return.
I you are divorced in 2014 and have questions please contact your tax adviser or go to the website http://www.irs.gov/Forms-&-Pubs for more information.