A divorce proceeding is a difficult time for all parties involved. It is scary to be “served” with a petition for divorce. Fear, anxiety, and confusion are just some of the emotions that go through one’s mind when reading and absorbing an official Court document stating that a spouse wishes to end the relationship. Here are a few tips to keep in mind when you are served.
First, it is not the total end of the world. Do not give into immediate impulses and passions or fall prey to threatening or aggressive messages. Remember anything you say or do, especially in messages, texts or emails, may be used against you at Court. Do not give your spouse free arguments for the divorce.
Second, DO NOT use social media to vent frustration or talk about the divorce. Anything you write to third parties on social media may and will be used against you in Court. It may be hard but for your own benefit do not engage in frustrated tirades regarding your spouse on Facebook.
Third, find an experienced attorney, especially if children are involved. Be smart. It is not always prudent to hire a lawyer based on what appears to be the best financial deal possible when your children and possessions are at stake. The old axiom “you get what you pay for” is true when it comes to legal representation.
Fourth, be wary of Pro Se representation. Pro Se means that you have chosen to represent yourself in the divorce case. This may end very badly for you. Many people believe that if they research enough and familiarize themselves with the Texas Family Law Code they just might be able to receive a good outcome and drive up the attorney cost for the other spouse. Attorneys go to school for many years for a reason. The outcomes for Pro Se clients are not usually good and do not be tricked into taking on an inexperienced attorney to save money.
Fifth, save all hateful and scandalous remarks made by your spouse that have been emailed, texted, posted on social media or any other proof that can be saved against your spouse. Delete Nothing! Allow your spouse to dig his/her own hole. All of both spouse’s comments may be used in Court.
Finally, do not listen to your Spouse about any type of perceived legal outcomes. “I talked to a divorce lawyer and he said you better sign this or I will get everything…”. This is common in family law. Do not fall for the trap, seek experienced representation and let the divorce lawyer deal with your spouse or your spouse’s attorney. Do not be tricked into settling or giving up your children or possessions without competent assistance and advice from legal counsel.
Follow this advice and it will greatly help your probabilities with obtaining a favorable and fair outcome in your divorce case.
Nacol Law Firm P.C.
Dallas Divorce Attorneys
Preparing for a Texas Divorce: Assets
Going through a Divorce is painful no matter what the circumstances are. Before you get into the Texas Divorce Process, reduce expense, stress and conflict by making sure you are financially prepared. Planning ahead helps you in making sound decisions, start preparing for post-divorce life, and avoid many post-divorce pitfalls. Below is a list of items you need to gather before counseling with an attorney. Financial Documents are a must to show what your true assets and liabilities are in your marriage.
We have included many assets that you may or may not have. This is only a financial checklist of multiple assets for your review so you will not miss an important asset that needs to be reported.
1. Tax Returns (at least three years) or Tax Liens and all IRS related documents
2. Wills and Trusts with all attachments reflecting corpus and trust holdings
3. Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, etc.):
—Name of entity, address and telephone number
—Property securing payment (if any)
—Most current statements and account status of lenders
4. A Listing of all Real Property, address and location, including (includes time-shares and vacation properties):
–Deeds of Trust
—Notes including equity loans and second liens
—Mortgage Companies and Loan Servicers (Name, Address, Telephone Number, Account —Number, Balance of Note, Monthly Payments)
—Current fair market value
5. Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned):
—Name on title
—Fair Market Value
—Name of creditor (if any), address and telephone
—Persons listed on debt
—Balance of any loan and monthly payment
—Net Equity in vehicle
6. Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
—Name of institution, address and telephone number
—Amount in institution on date of marriage
—Amount in institution currently
—Names on Account
—Company loans and documents related to benefits
7. A listing of separate property (property owned prior to marriage, family heirlooms, property gifted, inherited property):
—Records that trace your separate property. These assets will remain yours if properly documented
8. Retirement & Pension Benefits:
—Exact name of plan
—Address of plan administrator
—Starting date of contributions
—Amount currently in account
—Balance of any loan against plan
9. Publicly traded stock, bonds and other securities (including securities not in a brokerage, mutual fund, or retirement account):
—Number of shares
—Type of securities
—In possession of
—Name of exchange which listed
—Pledged as collateral?
—Current market value
—If stock (date option granted, number of shares and value per share)
—Stock options plans and related documents
10. Insurance and Annuities Policies and Inventory:
—Name of insurance company
—Type of insurance (whole/term/universal)
—Amount of monthly premiums
—Date of Issue
—Cash surrender value
—Current surrender value
—Other policies and amendments
11. Closely held business interests:
—Name of business
—Type of business
—% of ownership
—Number of shares owned if applicable
–Value of shares
—Balance of accounts receivables
—Cash flow reports
—Balance of liabilities
—List of company assets
—Possible hobbies or side businesses that generate income
12. Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, working interests, and producing and non-producing oil and gas wells:
—Name of mineral interest
—Type of interest
—County of location
—Name of producer/operator
—Current market value
—needs leases or production documents related to the asset
13. Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
14. Household furniture, furnishings and Fixtures
—purchase receipts and documents
15. Electronics and computers including software and hard drive
16. Antiques, artwork and collectibles (including works of art, paintings, tapestry, rugs, crystal, coin or stamp collections) Other large collections need to be appraised! (Guns, quilts, action figures, books)
17. Miscellaneous sporting goods and firearms
18. Jewelry including appraisals
19. Animals and livestock
20. Farming equipment
21. Club Memberships
22. Safe deposit box items
23. Burial plots including documents of ownership
24. Items in any storage facility
25. Travel Awards Benefits (including frequent flyer miles)
When you think of domestic violence or Intimate Partner Violence between couples what usually comes to mind? A woman being hurt or abused? This is the majority of public thought in the United States, yet the latest studies on domestic violence are showing a new and very alarming trend: notable rising rates on Intimate Partner Violence against Men.
In 2010, the Centers for Disease Control and Prevention (CDC) released a National Intimate Partner and Sexual Violence Survey. This was a serious eye opener on violence and men. In the United State for the previous 12 months, app. 5,365,000 men had been victims of intimate Partner physical violence compared with 4,741,000 women. This physical violence includes slapping, pushing, & shoving. Also tracked were more serious threats of being beaten, burned, choked, kicked, slammed with a heavy object or hit with a fist. Roughly 40% of the victims of severe physical violence were men. Again in 2011 the CDC repeated the survey and the results were almost identical!
Domestic violence (intimate partner violence) against men include emotional, sexual, verbal, physical abuse or threats of abuse. It happens in heterosexual and same-sex relationships. Have you ever felt scared of your partner and changed your behavior since you were afraid of what your partner might do? If so, you may be in an abusive relationship.
Are you being abused? What are the warning signs? What kind of abuse are you experiencing?
Emotional & Verbal Abuse:
- Calls you names, belittles you, or puts you down regularly
- Is jealous and possessive and accuses you without just cause of being unfaithful
- Tries to isolate you from family and friends
- Tries to totally control your life: how you spend your money, what you wear and where you may be going
- Constantly makes unreasonable demands for your attention.
- Blames you for her violent behavior and says you deserve it
- Gets very angry or violent when drinking alcohol or using drugs
- Biting, burning, or choking you
- Hitting, punching, or slapping
- Pushing, shoving, or throwing things at you
- Knifing or burning you
- Forcibly holding you down
- Hurting you, your children or your pets
- Forcing you to have sex or engage in sexual acts against your will
- Hurting you during sex
- Forcing you to have unsafe sex
Threats and Intimidation:
- Threatens to hurt / kill you
- Threatens to kill themselves or the children
- Stalks you
- Reads all your emails, texts, or mail
- Destroys things that belong to you
Being a man in an abusive relationship, it may seem hard finding the help that you need. It has been estimated that about 20% of men who call the police to report an abusive spouse /partner are themselves arrested for domestic violence.
You do not have to stay in an abusive relationship. You need to start by discussing your situation with either someone you trust or a health professional who can give you guidance. Gather evidence on what is happening, photographs of any injury or bruises experienced during a confrontation, threatening emails or texts that can be used in a court of law, make a list of people who have experienced confrontations between you and your intimate partner.
Stay away from any type of violence with your partner since she may try to put you into a damaging situation with the police to make you look like the abuser or try to entrap you.
You can overcome these challenges and escape from the abusive intimate partner. If you have a family or are concerned for your well-being, contact a legal professional who can help you break from this situation and also work to get your children out of harm’s way. Just remember, if you are not available for her domestic violence, a predator will look for someone else to take your place and children are easy targets!
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
The holidays can be very frustrating times for both spouses when undergoing divorce proceedings that involve custody issues with children and one spouse acts in bad faith or arbitrarily. If a spouse violates a temporary custody order, he or she may not face consequences at the time but must explain their actions to a district judge in the future.
If a temporary custody order describes in detail the periods of possession during the Christmas holiday, the order is binding on both spouses. The temporary custody order is binding civilly and NOT criminally per se. This is an important distinction to understand before you decide to call the police. Family law matters, with notable exceptions such as domestic violence and protective orders, are generally governed in civil and not criminal courts. Because temporary custody orders involving children are governed by civil courts, a police officer has no immediate basis to enforce the civil order.
If your spouse refuses to release your child to you at the prescribed time mandated in the temporary custody order, there are certain things that you should do to insure this wrongful conduct properly is documented for future civil contempt proceedings.
- Call the police!!! Many police departments will not respond because temporary custody orders are not criminally enforceable, but if the police department decides to respond then you may request a police report to be filed noting that your spouse deliberately violated the temporary custody order. This may be used in Court to persuade the judge to hold your spouse in civil contempt or validate your properly made demand for access in accordance with your temporary order.
- Save and preserve any text messages, emails, letters, or recorded phone calls that demonstrate and reaffirm your spouse’s refusal to deliver your children into your custody during the holiday or other allotted time in your visitation order.
- Call your attorney and notify him of your spouse’s refusal to deliver the children to you.
- Do not be tricked or cohered into a physical confrontation with your soon to be ex-spouse!!!
By completing these four tasks you will be gathering and preserving evidence to hold your spouse in civil contempt of Court. After the Christmas Holiday season or other access periods are over, your lawyer with your consent will file a motion to hold your spouse in contempt of Court for violation of the temporary custody order. If your spouse is found in civil contempt of Court, he or she may be fined, ordered to jail for up to 180 days until the fine and attorney fees are paid, and the violation may be a solid basis to favourably modify the previous temporary custody orders. Such rulings are at the judge’s discretion.
Though you may feel helpless at the time, justice may be achieved through the District Courts in the form of civil or contempt sanctions. Judges usually look down on a spouse that blatantly violates temporary custody orders especially during Christmas or other special holidays. Just relax and be patience if your spouse refuses to deliver the children to you and document the conduct. Justice may take time but in the end, it is usually affirmed.
The Nacol Law Firm P.C.
8144 Walnut Hill Lane
Dallas, Texas 75231