fathers rights attorney

Feb
20

Beware of Trusts in High Asset Marriages!

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.

By Nacol Law Firm P.C. | Property and Asset Division
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Jan
02

Delinquent Child Support in Texas = Denial of Motor Vehicle Registration Renewals

December 2016 the Texas Department of Motor Vehicles will start denying motor vehicle registration renewals for parents who have gone at least six months without making a child support payment. The law applies to Office of the Attorney General (OAG) child support cases.

The OAG also has the authority to bar the renewal of professional, recreational and handgun licensed of parents behind on child support payments.

Delinquent Parents will receive a notice from the Department of Motor Vehicles and a letter from the attorney general’s office about two months before their registration is set to expire.

Once parents receive a notice, they must agree to a payment plan with the Attorney General’s child support division before they will be able to renew their registration.  This law only applies to motor vehicle renewals.  New vehicle purchases are not affected.

DETAIL
Aug
08

Spousal Maintenance Law for a Texas Divorce

The origin and basis of family law statutes and precedent in Texas were heavily influenced by the predecessor Spanish/Mexican Law prior to the formation of the Texas Republic. Spanish Law required in large measure that a husband and wife share ownership and if a divorce was granted then a 50/50 split of all property would ensue. Though there are exceptions to this, a general tenant of Texas property law states that both spouses will receive half of all the property they accrue during the marriage called “community property”, not inherited or received by gift. The influence of Spanish Law is a primary reason that for many years Texas has not favored any type of permanent alimony (also called spousal maintenance) after divorce.

In 1995 the Texas Legislature passed the first Spousal Maintenance Law that allowed a limited type of alimony. The law has been amended many times but in its current form it allows, upon proper proof, a spouse, under specific conditions to receive post-divorce money from their spouse for future support.  The eligibility for Spousal Maintenance in Texas is limited and narrowly constructed.

Texas Family Code 8.051 states the requirements for a spouse to be eligible for Spousal Maintenance (alimony) as follows:

The spouse in which requests the spousal maintenance has been a victim of family violence by their husband or wife and the offense occurred:

  1. within two years before the date on which a suit for dissolution of the marriage is filed or;
  2. while the suit is pending

OR

The spouse seeking spousal maintenance:

  1. is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability;
  2. has been married to the other spouse for 10 years or longer or lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs; or
  3. 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 qualifications are narrow. Spousal Maintenance focuses on a spouse who has been a victim of family violence, has a mental or physical disability, or has been married for at least 10 years. The amount of money the Court will allow to be paid to a spouse monthly cannot exceed the lessor of 5,000 or 20% of a spouse’s average monthly gross income per Texas Family Code 8.005.

If you are in the process of divorce, and have been a victim of family violence or have been married for at least 10 years, then speak with an experienced attorney about the possibility of obtaining Spousal Maintenance. Spousal Maintenance is not a permanent fix but a temporary solution until you can get back on your feet. Texas Courts are hesitant in granting spousal maintenance because the spouse of a marriage generally receives half of all property accrued during the marriage. If the required extraordinary circumstances are present it is possible to receive some type of alimony for a limited amount of time.

Contact an experienced attorney that deals with matters to inform you if spousal maintenance is possibility. If you have been a victim of family violence or have been a stay at home mom for at least 10 years then you may have the ability to receive a limited form of alimony to help aid you with the daunting task of finding a new job and starting a new life.

By Nacol Law Firm P.C. | Spousal Support
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Aug
05

Child Abuse and Family Violence in Texas

The Texas Family Code defines Family Violence as an act by a member of the family or household against another member that is intended to result in physical harm, bodily injury, assault, or a threat on a family member in danger of imminent physical harm.  This abuse is defined as physical injury that results in substantial harm or genuine threat of sexual, intercourse or conduct; or encouraging the child to engage in sexual conduct.

What does “family” include?  Individuals related by blood or affinity, marriage or former marriage, biological parents of the same child, foster children, and members or former members of the same household (including roommates).

What about child abuse?

Some very interesting statistics:

  • A report of child abuse is made every ten seconds

  • More than four children die every day as a result of child abuse

  • 70% of children that die from abuse are under age of 4

  • Child abuse occurs at every socioeconomic level within all ethnic and cultural lines and all religions and all levels of education!

  • Approximately 30% of abused and neglected children will later abuse their own children

Statistics re: childhelp.org

In Texas (2008 Crime in Texas.com), victims are primarily female (75%) and the offenders are primarily male (77%). The primarily weapon involved in family violence is physical force with the use of hands, feet or fists (78%).

How can you know if child abuse exists in a household?

Look for these most common child abuse indicators in children:

  • Injuries that are unexplained

  • Major and sudden changes in a child’s behavior

  • Return to earlier behavior: such as bed wetting, thumb sucking, and fear of dark or strangers or more serious language or memory problems

  • Serious fear of going home

  • Changes in eating or sleeping habits

  • Changes in school performance or attendance

  • Lack of personal care or hygiene

  • New risk taking behaviors

  • Inappropriate sexual behavior

If you are a family member, friend, teacher, or child-care giver of a child who has started displaying very different behaviors or showing injuries, it is imperative that you contact someone who can either help this child or prevent any more family violence from occurring in this child’s family. This child and family need help now!

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By Nacol Law Firm P.C. | Domestic Violence . Impact on Children
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Feb
25

Grandparents Rights in Texas – Regarding Grandchildren

The statutory rights of grandparents in response to a child in the State of Texas, absent existing executions, are minimal. The Texas Courts observe the rights of the parents to prohibit visitation and communication of these children from their grandparents if the parents wish. There are however limited circumstances when grandparents of a child may petition the Court to receive an order that forces the child’s parents to let the grandparents see the children on a regular basis. Texas Courts honor the rights of the parents and must presume that a fit parent makes such decisions, as to who the child may or may not see, those decisions are in the best interest of the child.

In order for a grandparent to interfere with a parent’s right to prohibit the grandparents from seeing the child, the grandparent must prove three elements under 153.433 of the Texas Family Code:

a) The Court may order reasonable possession of or access to a grandchild by a grandparent if:

  1. At the time the relief is requested, at least one biological or adoptive parent of the child has not had the parent’s parental rights terminated;

  2. The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
  3. The grandparents requesting possession of or access to the child are a parents of a parent of the child and that parent of the child:

A) Has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;

B) Has been found by a court to be incompetent

C) Is dead; or

D) Does not have actual or court-ordered possession of or access to the child.

This Statute is limited in application because the Texas legislature gives deference to the parents’ fundamental authority to determine who their child may and may not see.

An example will help clarify this Statute. If a grandparent’s son died in car accident and the grandparent had been helping their son and daughter in-law raise the children, then the grandparents could request visitation rights. The daughter in-law would have to be alive and not have her parental rights terminated. The grandparents would have to prove to the Court by a preponderance of the evidence (more probable than not) that the denial of visitation would significantly impair the children’s’ physical health or emotional well-being. If the grandparents were helping raise the children the grandparents would request some type of visitation for the well-being of the children. These fact situations must be significant because Texas Courts and statutes make it difficult for grandparents to receive any type of visitation or possession if it is not in line with the parents’ wishes.

If you are a grandparent or a mother/father of a child in which the grandparents are attempting to sue you for some type of visitation, it is important to contact a qualified attorney to be informed of your options.

By Nacol Law Firm P.C. | Grandparents Rights in Texas
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Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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