Are you to the point of no return in your marriage? Nothing left of feelings, just apathy or indifference. Do you feel you must leave this place now or die trying? What about your financial security after the divorce? Divorce is an emotional roller-coaster. How will you take care of your debt, bills, and your children’s needs?
Time to grab your laptop or pad of paper and start thinking smart about “the first day of the rest of your life. If your “I need a divorce” decision is now made, start work on learning your current family financial situation and what needs to be done to secure your financial security for Post-Divorce life!
Here is a list of some of your most important Financial Information that you need to address before the Start of the Divorce
- What are the Community and Separate Property Laws in Texas?
Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate. Inception of title occurs when a party first has a right of claim to the property.
Everything you and your spouse have earned in your marriage except for personal gifts or property from devise or descent will now, absent fault, be divided equally in the divorce. This could make a big difference in your post-divorce financial life! Gather all financial statements: income tax returns, insurance policies, bank statements, Investment Accounts summaries, Retirement Account balances, Bills, anything in your marriage that can show who owns separate assets or what constitutes the community property in this marriage.
2. DEBT: Deal With it NOW!
Are you and your spouse in a bad financial situation? Do you both have to work to pay the bills or just barely make ends meet? Now you want to get a divorce and HOW IS THAT GOING TO WORK? How can you be Post Divorce Happily EVER AFTER when you may not even be able to afford a down payment on an apartment?
ORDER A COPY OF YOUR CREDIT REPORT now to see where the damage may exist. You will be able to see what credit cards, loans, and other debt you all have created. If you and your spouse have be leading “separate lives” for a while, you may be surprised when there is more debt incurred for entertainment you never knew about.
Review this CREDIT REPORT carefully. Find out whether you are a joint owner or just an authorized user. Except for your home, usually the DEBT will be in existing credit card accounts, personal loans, and car loans. If possible, try to get as much debt as possible paid off before finalizing the divorce. Remember that joint debts remain both spouses’ legal obligation to the lenders, even when the divorce settlement states that only one spouse is responsible for the debt. If the responsible ex-spouse defaults on the payments, it will show up on both ex-spouse’s credit history.
Some good advice? Get your own credit card in your name only. If you keep other credit cards take your spouse’s name off the credit card Now! Get your name off any credit card that your spouse uses NOW! Divorce causes financial upheaval to a family’s budget so protect yourself, so you don’t have to pay or be legally responsible for your soon to be EX’s Bills!
3. Bank Accounts
Most married couples have at least one joint bank account. Many will have joint checking and savings accounts. You need to get a record of every family bank account in existence. Make sure you have copies of all monthly bank statement for 3 years.
Review these carefully and see if there has been a constant drainage of money from the accounts.
Now open a new account in your name. It is critical to establish your own financial identity when you divorce.
If your spouse does business with the bank in a business capacity or you have car/personal loans with the bank, you need to open a personal account with another bank of your choosing.
4. What About Our Home?
One of the hardest assets to deal with in a divorce. This is where the couple lived as a family, with or without children. If there are children involved, their little lives have centered around their schools, churches, sports teams and friends. It is heartbreaking to the entire family, but this decision is usually the final family break.
If the decision is for one spouse to take over the homestead and debt, the ideal situation is for such spouse to refinance the home in only their name. The single spouse will be responsible for the debt on the house and full title on the house. Otherwise if the spouse can’t afford to refinance the house, both spouses will have to work out a co-owner agreement and continue to have both names on the title and share the large financial burden. In such event, frequently, sale of the home is the best option.
This is one of the most serious real estate problems we encounter in a post-divorce situation. Times get tough and the ex- spouse, who took over the house debt, cannot afford to pay the mortgage and the property falls into foreclosure, affecting both ex- spouses’ credit. Sometimes it is better, if one spouse cannot refinance the house loan, to sell the house and divide the proceeds.
Other “To Do” Items to Address Before the Start of the Divorce
- Make sure your assets are protected. Check that your car, health, and homeowner’s insurance is up to date and enough for your and your children’s needs. Also start the process of changing beneficiaries on all life insurance policies/annuities and retirement accounts (IRA / 401k at work) you own from your ex-spouse to your heirs or other designees.
- Change all passwords on your online accounts and all banking and credit card accounts. Time for some personal privacy!
- Time to start thinking about your digital assets that you as a couple developed and shared? This is a community state and how will this affect this type of asset?
- Think about reviewing your will and other estate planning documents. We suggest that when the divorce is final, you need to have a new will in place that will be only your heirs minus your Ex.
- Very important! Establish your own credit in your single name
This list will give you a start on the financial items that you must be addressed immediately in an upcoming divorce. Be prepared before the divorce and know where you stand financially. This will hopefully give you time to talk with financial and legal experts so you can make wise decisions on addressing the financial aspects of the divorce for you and your other family members.
The Nacol Law Firm P.C.
In the State of Texas there is one birth statistic that continues to rise: The Birth of Out of Wedlock Children! With dropping marriage rates and increasing non-married couples living together, the percentage of children being born out of wedlock is growing yearly. The Texas Out of Wedlock Childbirth rate of 2019 stands at 41.4%. How are the fathers of these children treated? Does a father have any rights to their children? In most states, the mother of a child has 100% of the custody rights until the paternity of the father is legally established. How does a Texas father legally establish paternity when the mother of their child refuses to allow him to sign the birth certificate and tells him that he will never have any type of communication or relationship with his child?
What are a father’s rights in the State of Texas?
Any and every right a parent may have is available to a father who seeks them.
How does the father file for paternity of the child in Texas?
1. Paternity Registry (Family Code 160.401-2)
The Texas Paternity Registry was created in 1997 to aid men (potential fathers) who desired to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered. They may register with the Registry of Paternity. The purpose of the Registry of Paternity is to “protect the parental rights of fathers who affirmatively assume responsibility for their children by registering or acknowledging their children (FC Chapter160, Subchapter E). To sign up with the Registry, the father or suspected father must file a Notice of Intent to Claim Paternity before a child is born or within 31 days of the child’s birth. (see form) https://www.dshs.texas.gov/vs/field/docs/vs130(2).pdf
Many men use this Registry when a Father and Mother do not have a continuing relationship and the man is not listed as the presumed father on the birth certificate or Acknowledgement of Paternity.
- Man and woman have a consensual sexual relationship for a brief time and no further contact. Man wants to make sure that if woman becomes pregnant and has a child, he wishes to assert his paternity
- Man and woman do no agree he is the father of the child. Man wishes to assert paternity.
- More than one man claims to be the father of the child. Each man would complete a separate Notice of Intent to Claim Paternity.
- Mother refuses to complete and sign the Acknowledgment of Paternity form.
The notice of Intent Claim Paternity form will not legally establish paternity nor be used to add a man’s name to the child’s birth certificate.
2. Alternate Means to Establish Paternity (Family Code 160.301-2 and 160.402, 160.601)
The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity.
An acknowledgment of the paternity must:
- Be in a record
- Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
- 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
- State whether there has been genetic testing and that the acknowledging man’s claim of paternity is consistent with the results of the testing
- State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 4 year.
A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:
- A father-child relationship between the man and the child has been established under this chapter or another law.
- The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.
The parentage of a child may be adjudicated in a civil proceeding by voluntary legitimation.
A Father should be proactive and enforce his rights promptly to enhance his probability of fair and equal treatment that is binding under the law!
Nacol Law Firm P.C.
Walnut Glen Building
4188 Walnut Hill Lane #1190
Dallas, Texas 75231
tel: (972) 690-3333
Despite the difficulties faced in a divorce, the children should not be placed in the center of the crossfire. During the divorce process, and sometimes following the divorce process, it is not uncommon for a parent to become so wrapped up in anger, vengeance or simply being “right” that they forget the effect the whole process is having on the children. Below are some behaviors to avoid and some suggestions to assist you with improving your communications during the divorce process:
- Do not use children as messengers between “mom” and “dad.”
- Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”
- Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.
- Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.
- Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.
- At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.
- If you are the non-primary parent, pay your child support.
- If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.
- Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.
- If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.
- If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.
- If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.
- Reassure your children that they are loved and that they have no fault in the divorce.
Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.
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
Times have changed! Mothers’ having primary custody of the children is not always the accepted social presumption as in the past. Courts, legislatures and juries are becoming more aware of the vital necessity of father’s being involved in the lives of their children. Children with positive father involvement have fewer behavior problems, higher levels of sociability, and perform better in school.
Recent research suggests that father involvement is essential to a child’s social, moral, and physical growth during the adolescent period. A father’s involvement during pregnancy affects multiple areas of child development and family well- being, from prenatal care, to the likelihood that the father will provide ongoing financial and emotional support. This body of research is gaining momentum. Local and regional governmental agencies are focusing more and more on parental father involvement in the lives of children.
As a result of the continuing evolution of fathers’ rights, Courts are now recognizing a father’s ability to care for his children as an equal to that of the mother. Starting out on an equal plane, the Court may look to which parent is more stable, has a superior income, has a parenting plan in place for the child and is capable of providing proper child care and spending more quality time with the child.
As a father, how can you increase your chances of getting child custody in Texas? You must be a good father and spend time with your children by involving yourself in their daily lives. You need to be responsible and reliable to the needs of your kids. Know and participate in all aspects of their lives. This includes school activities, doctor’s appointments, extracurricular events and getting to know and bonding with their friends.
Reflect on your own personal experiences as a child growing up and think about what was really important to you and your parent’s interaction during that period.
If a father voluntarily gives up rights to his children based on prejudices of the past in the Court system, he will feed a mother’s confidence and sponsor unnecessary ongoing litigation. The number one mistake made by fathers in the court system today is a failure to take the time to learn how the system works. Failing to learn how the family law system works may doom your case. Once you have learned the ins and outs of the family law system you will need to form a viable plan, set goals and never relent in enforcing your rights as a father.
Five of the biggest mistakes men make in a legal action are: 1) failing to respond to the legal action itself; 2) obtaining incorrect legal advice (from friends and family rather than a legal expert); 3) signing a settlement agreement that is not in agreement with and later deeply regretting it; 4) failing to perform under the actual settlement agreement signed; and 5) getting frustrated and/or acquiescing to unreasonable demands and orders.
Some of the things you may want to consider as you prepare for the custody battle are as follows:
- Who has the financial ability to best care for the child(ren)? Be sure to have income tax verification, W-2 Forms and other financial information available.
- Form a parenting plan (child care, after school care, transportation, pediatrician, etc.).
- Who is more stable and/or can provide the best home for the child (ren)?
- Where has the child (ren) been attending school? Is it possible to keep the child in the same school district?
- Prepare a chronology of events leading up to the divorce including treatment of the child(ren), time spent with the child(ren), activities with the child(ren), the child(ren)’s schedule.
- Consider if a home study should be prepared regarding each home of the child.
- Consider whether a psychological evaluation should be done on the mother?
- Is drug testing necessary? (Be sure to request hair follicle drug testing.)
- Is there an alcohol or other addiction problem in the home?
- Who can provide the best moral upbringing for the children?
- Is there evidence such as pictures, video tapes, etc. that may help your case?
- Avoid unnecessary compromising photos or data on Facebook or other social networking sites.
List any other relevant issues you feel may be important to your child custody case before you meet with an attorney about your rights as a father.