Yes, it is the Holiday Season and no, you are not happy! Yes, there is A Grinch who is trying to steal Christmas, but it does not have to be you. From personal experience, sometimes when you personally are at a very low point in your life, think about others (children, other family members, and friends) who love you and need someone to make their lives happy!
From practicing family law for a long time now, I believe there are elements in divorce that will never change:
- You can not make someone love you and stay with you if they choose not to.
- The only person that you can be completely responsible for in behavior is YOURSELF!
- If you choose to have a bad attitude and try to hurt your EX by alienating your children, then not only are you not winning the divorce game, but you are causing serious damage to your Children. Even if you win, you are a loser. The Kids didn’t ask for this Divorce, they are often stuck because Mom and Dad couldn’t be happy together!
After considering these ideas and deciding no, you are not happy, try giving some effort to help make your family happier this Holiday Season., Like the Grinch, maybe your family’s joy will help you feel just a little bit better!
Here are my “New Divorce No No Rules” that will make the Holiday Season happier for the entire family including your EX:
- No talking bad about the other spouse! This is your battle, not the kids! The kids are still related to their other parent and love that parent.
- Work on new traditions that involve all family members with their likes and desires. Mommy and Daddy are not together anymore, a great time for some fun changes in the Holidays. Look to a wonderful new future and adventure for the family and don’t look back!
- Get with your ex-spouse and determine the holiday schedule. Share this schedule with the kids so they will know what is going on and what time will be shared with both parents. Meanness will not be tolerated, be nice!
- Talk with your ex-spouse about coordinating presents. Many divorcing couples try to one up the other parent and this really puts the child into a very uncomfortable situation. Also, a smart money saving idea.
- Talk with the children on their ideas for the Holidays. If they would like to have the entire family together for possibly Christmas Eve, or Christmas Morning, this may be a great idea! Remember: this is not totally about your feelings, it is about the love and needs of your family.
“The more you give in to the love of your family, the better you will feel in your heart.”
You, my friend will eventually get over this hurt and go on with your life, but it is always the decisions you make to help your children cope with this family split that will determine your true character as a parent and a person.
Hoping you and your family will have a wonderful Holiday Season and this blog has help to put a smile on your face! —-Mark A. Nacol
Texas spousal maintenance can be a useful and effective tool in a divorce. A spouse lacking sufficient property or the means to provide for his/her minimum reasonable needs, may have awarded additional funds from the other spouse during the divorce and after to help rebuild his/her life following their divorce.
In September of 2011, the Texas Legislature revised and modified the requirements for spousal maintenance including the limits on amounts and duration of time allowed.
The eligibility requirements of the Texas spousal maintenance law is still considered one of the more restrictive spousal maintenance laws in the U.S.
To be able to be awarded Spousal Maintenance (statutory term for spousal support or alimony) you must be married and the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”. Also one of the following is required:
The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability.
The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs.
The recipient is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.
The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit was filed.
The Maximum Amount of spousal maintenance the courts may award is $5,000 per month, although it is still limited to 20 percent of the Payer’s average Gross Monthly Income.
The Maximum Duration of Time for spousal maintenance is:
Five years if the marriage is 10 years or less and the eligibility for spousal maintenance is established by an act that constitutes family violence.
Five years if the length of marriage is at least 10 years but no more than 20 years.
Seven years if the marriage length was at least 20 years but no more than 30 years.
Ten years if the marriage length lasted 30 years or longer.
In cases where the spousal maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order the maintenance continue as long as the disability continues.
The spousal maintenance awarded by the court is discretionary and may not always eliminate the shortfall of the requesting spouse’s monthly expenses.
What about Termination of Spousal Maintenance? The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the spouse receiving the maintenance.
If the court finds that the receiving spouse cohabits with another person and is in a dating or romantic relationship in a permanent place of abode on a continuing basis, the court shall order the termination of the maintenance obligation.
Termination of the maintenance obligation does not terminate the obligation to pay any maintenance that accrued before the date of termination and this amount will have to be paid or a judgment will be enforced by the court.
If you are thinking about a divorce in Texas and have questions concerning your eligibility for spousal maintenance contact a legal professional to help you through this process.
Child support is one of the most heavily litigated issues in all of family law. To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. Per Tex. Fam. Code § 156.401 the requirements necessary to modify a prior child support order are:
- The circumstances of the child or an affected party have materially and substantially changed; or
- Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.
The second requirement is self-explanatory. The three-year limitation to file for another modification is for the benefits of the Courts. If there was no three-year waiting period to refill, then every conservator would constantly attempt to modify child support, thus creating endless litigation for clogging the Courts’ dockets.
The first requirement needs more explanation. A Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. Many Courts are meticulous in making the determination of what a Material and Substantial change is regarding the child and the affected party to insure this requirement is not abused for excessive litigation.
To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:
- The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
- The financial needs/expenses at the time of the request for the modification.
If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved. Further, if the request for modification of child support is predicated solely on one conservator’s increase in earning capacity, absent other compelling evidence, the change in circumstances is not Substantial and Material. Interest of L.R., 416 S.W.3d 675, (Tex. App.—Houston [14 Dist.] 2013, pet. denied.)
If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavourable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.
If you are a conservator that meet these requirements above and wish to increase or decrease the child support obligation, be sure to hire an experienced attorney. Nacol Law Firm will always fight for you and your children’s best interest.
Julian Nacol, Attorney
Nacol Law Firm, PC
Call (972) 690-3333
Consider the legal consequences of Trusts regarding the characterization of marital property, especially Trusts created by separate property prior or after marriage. A Trust can be a creative and useful tool depending on the perspective and actual need of the parties. To a spouse owning substantial separate property, an irrevocable Trust may be a safe haven that will guard the separate property and potentially the income from the separate property against property divisions in a Divorce Court. On the other hand, in some cases, a spouse that has no separate property may be defrauded by the other spouse.
The Texas Courts have indicated that separate Trusts created prior to marriage, that are irrevocable spendthrift Trusts are a valid means to shelter separate property of the marriage and the income from the trusts are not subject to division during the divorce proceedings. The beneficiary of the separate Trust (the spouse with the separate trust or beneficiary of a separate trust) do not have a present possessory right to any asset within the corpus of the Trusts. If the spouse is granted a present possessory right to any portion of the trust in the trusts, then the income from the Trusts may be divided in a Divorce Court as community property.
This is an area of concern to the other spouse. If you are married to an unsavory spouse, where separate property assets owned prior to the marriage are put into an irrevocable spendthrift trust, take measure to insure no money or other property acquired during the marriage is siphoned into those separate Trusts. One spouse may siphon community property throughout the marriage into separate Trusts in order to deplete the community estate. This constitutes fraud on the community estate and the innocent spouse may seek adequate compensation.
It is important to hire an experienced attorney that understand the intricacies of Trusts and the part Trusts can play in sheltering community funds from a spouse during the marriage. Many wealthy men or women may abuse the Trust formation to defraud their spouses from fair community property allocation. Wealthy spouses may use irrevocable or discretionary Trusts created prior to the marriage for asset protection instead of using prenuptial agreements or post marriage property agreements. The case law is still not completely settled in Texas regarding irrevocable Trust as they pertain to divorce and it is important to hire an attorney that can help guide you through these complexities and insure you are not being defrauded or taken advantage of in a divorce proceeding.
One the most complicate and transparent ways an individual may defraud a spouse during a marriage is with the use of a trust. A trust is an entity that separates equitable and legal title of all property or money placed within it. Prior to, during, or after marriage, a spouse may create a trust and name the children of the marriage or others, as the beneficiaries. The spouse then may start siphoning community property and separate property into the trust removing the property from the community. This is a tactic commonly practiced when a spouse has failed to sign a pre-nuptial agreement.
Circumstances like this happen in High Asset Divorces because a trust may be used to protect properties from the other spouse. Attack the trust as a party of the case and request an accounting. It takes an experienced lawyer to understand which trusts can be attacked and which trusts are impenetrable.
Trust busting consists of complex and arduous litigation depending on the circumstances. The circumstances of a trust are important in divorce cases. Here are a few questions you should ponder when assessing any trusts during a divorce:
- Determine when the trust was created;
- Determine if the trust is revocable trust or irrevocable trust ;
- Determine who the beneficiary of the trust is;
- Determine who the trustee of the trust is;
- Determine who the settlor of the trust is;
- Determine the type of property or money that is placed within the trust; and
- Determine when the property or money was placed in the trust.
These are just a few inquiries you should make prior to meeting with your lawyer. It will save you time and money. Depending on the answers to the seven inquires stated above, an experienced lawyer may be able to bust the trust opening the property and monies for the final hearing in a divorce case. There are many defenses and unsettled law in connection with trust busting and an experienced attorney must be sought.
Julian Nacol, Attorney
Nacol Law Firm P.C.