Modern High Asset marriages commonly involve Pre-Nuptial agreements to preserve and protect each spouses‘ property. If one spouse takes advantage of the other and the Pre-Nuptial is unconscionable, it may be attacked as invalid as a matter of law. There are a few considerations you should make sure of before determining if a Pre-Nuptial is valid:
- Did you sign the Pre-Nuptial voluntarily?
- Were you given fair disclosure of the property or obligations of the other spouse?
- Did you waive the right of disclosure in writing?
- Did you have adequate knowledge of the property or financial obligations of the other spouse?
If you answered “NO” to either (1) or all of (2)-(4) then you may be in a position to contest the Pre-Nuptial agreement. It is difficult to show that a Pre-Nuptial agreement is unconscionable. The Courts have made it clear that “unfairness” which is short of unconscionability does not make a Pre-Nuptial unenforceable. Determining whether a Pre-Nuptial agreement is valid or not is in large measure a question for the judge and not for the jury. This means that a judge will make the determination if your spouse has forced you to sign a Pre-Nuptial in an unconscionable way.
For high asset divorces, Pre-Nuptial agreements are more common. If you are a spouse that was pushed into signing a Pre-Nuptial without fair disclosure or without adequate knowledge of the property or obligations enforced in the agreement you may have a claim. Depending on the circumstances, invalidating a Pre-Nuptial agreement may be time consuming and costly, so an experienced attorney must be consulted.
Assess your situation at the time you signed your Pre-Nuptial. Did your spouse muscle you into signing the Pre-Nuptial, thus possibly invalidating the Pre-Nuptial? Once you have answered these questions find an experienced attorney that is familiar with contesting or setting aside unconscionable or unenforceable Pre-Nuptial Agreements.
Julian Nacol, Attorney
Nacol Law Firm P.C.
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.
Out of State Child Relocation and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
In today’s hectic pace, moving to another state for business, family demands, or pleasure is a very common occurrence. But what about the family that is separated by divorce or separation and share custody of their children? What happens to this family situation when Mom or Dad decides to take another job or wants to move to another state and take the children to or from the other? A Child Custody Relocation Case?
Sadly this happens frequently. Most Texas attorneys employ a geographic restriction in divorce decrees for couples who have children. These restrictions dictate that the Child and Custodial Parent must live within a school district, County of Domicile, or consecutive contingent counties near the non-custodial parent. But what happens if this restriction clause is not contained in the divorce decree or if Dad/Mom were never married?
Forty Nine States, including Texas have adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA is a very helpful law since all states but one participate in the determination of the ”HOME STATE” and which jurisdiction will handle the family case. UCCJEA also helps to protect non-custodial Parents fighting for child custody out of state when their children have been moved to another state or over 100 miles away from them.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may consider custody issues if the Child:
*Has continually lived in the state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established over significant time relationships with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
- Allowing or not allowing the move.
- Order of psychological evaluations or social studies of family members
- Modification of custody and adjusting of child’s time spent with parents
- Adjusting child support
- Order of mediation to settle dispute
- Allocating transportation costs
- Order opposing parties to provide all information on child’s addresses and telephone number.
There is another important cause of action in Texas where the court will “take “EMERGENCY JURISDICTION’ over a case even though another state has the original jurisdiction. If the opposing party can prove that a legitimate emergency exists and Texas needs to assume the jurisdiction. These emergency situations could be abuse of the child, abandonment or cause neglect of the child, or any action that would put the child in immediate harm’s way.
The Nacol Law Firm P.C. @ www.nacollawfirm.com is committed to helping parents have the right to have frequent and continuing contact with their child at all times and encourage parents to co-share in the rights and duties of raising a stable, loving child. Many times, because of parental alienation or other personal factors, a child will be taken away from the non-custodial parent and this can cause some serious mental and behavior problems for the child which could follow her/him into a lifetime adult situation.
Sometimes you can settle, SOMETIMES YOU FIGHT FOR YOUR RIGHT! We can help!
We are now experiencing the worst Medical Pandemic in the USA since the Spanish Flu Pandemic of 1918. The COVID-19 Outbreak may be changing our American way of life for some time. Many families are in upheaval from fear of loved ones getting the virus, losing jobs, and not having food for their families. And in the middle of this situation you may be going through a family breakup, divorce, or just trying to Co-Parent your kids with your EX.
Now the “Never Want to Live Through It” Scenario may happen! Your kids are picked up by your Ex and they all disappear! Where are they? Are they in danger? When will I ever see my children again?
After you get over your shock, the main question you will ask is:
What can I do to get my children back?
On March 13, 2020, the Texas Supreme Court issued an emergency order that divorced / single parents should go by the originally published school and visitation schedule in their current decree. Since the last life-threatening pandemic in the United States was the Spanish Flu Pandemic of 1918, most divorce / single parent agreements do not include a pandemic clause! This emergency order was issued with the potential need of closing all courts, non-essential businesses and stay-at-home orders, Texas had to have an order in place to protect the children so that both parents could continue to care and protect them during the Pandemic.
If a custody agreement is in place with the court it is legally binding. If the runaway parent violates the agreement terms, he / she is in violation of the law and will likely face some serious legal consequences.
Many times, the runaway parent may take the children out of your area and may even cross state lines. This violation in your custody / visitation agreement could be considered parental kidnapping if the runaway parent moves over a state line without telling you the new residence of the child or without getting legal permission through the court to move or modify the custody order.
When the runaway parent and children are found, this is what could happen:
- Custody Arrangements may legally be changed by court orders. You will, in the most aggravated cases, most likely be awarded protective orders or custody with the runaway parent receiving supervised visitation or no contact with the child.
- The runaway parent may also face criminal charges and jail time.
At any time, this could happen to you! If your legal position concerning custody and visitation with your children is in limbo, go secure a family law attorney and the help you need to protect your kids.
*If you were never married or divorced from the runaway parent, or if you have no legal court orders concerning or establishing custody and visitation rights in place, this could be a serious impediment in securing help to find your children.
After you get over your shock, the main question you will ask Is:
What can I do to get my children back?
- Think Clearly! You must respond quickly. Time is of the essence.
- Contact the police immediately. You need to tell them that the runaway parent may have taken the children without permission. Make sure that you have your certified legal court orders that pertain to your parental arrangement agreement concerning your children. It is important to be able to show the police the specific orders and how important it is to find the runaway parent and kids!
- Contact a family law attorney immediately. Texas Courts are dealing with many of these runaway situations and an experienced family law attorney can help you legally deal with finding your child in a timely fashion. After the runaway has occurred, there will be court intervention to prevent any further occurrences. Custody and supervised visitation issues will also need to be addressed. Texas Judges and Courts will not take a runaway situation lightly by an errant parent!
Click to open the Texas Supreme Court Emergency Order (pdf)
Nacol Law Firm P.C.
8144 Walnut Hill Lane, Suite 1190
Dallas TX, 75231
Fathers Rights in Texas – WE NEVER GIVE UP!
It has now been more than 20 years since child psychiatrist, Richard A. Gardner, introduced the term of Parental Alienation Syndrome (PAS). Dr. Gardner defined PAS as a disorder that arises in divorce or child custody disputes, when one parent deliberately damages, or destroys the previously healthy and loving relationship between the child and the child’s other parent. The main manifestation is the child’s own sudden or atypical campaign of denigration against the targeted parent without any justification.
Parental Alienation Syndrome is an evil, yet common and effective device for gaining custody of a child. Through systematic alienation, the alienating parent may slowly brainwash a child against the targeted parent. The alienating parent involved in these abusive behaviors usually gains misplaced and deleterious loyalty of the child.
The main problem with PAS is that the child actually participates in the denigrating of the alienated parent.
The main areas of denigration from the child are:
- The child supports and tries to protect the alienating parent.
- The child express the ideas of denigration of the target parent as his/her own idea.
- The child gives weak and absurd reasons for his/her anger towards the alienated parent.
- The child uses situations and scenarios that he/she could not have experienced
- The child uses foul and often atypical language and server behavior to denigrate the targeted parent.
- The child has no guilt over his/her cruelty towards the alienated parent and expresses hate for the parent.
Children who live in alienated family situations are usually unable to form healthy relationships with either parent.
Main areas of concern for these children impacted by Parental alienation are:
- Aggression and conduct disorder
- Disregard for social norms and authority, adjustment difficulties
- Emotional Distress, Anxiety, Depression, and Self Hate
- Lack of remorse or guilt
- Poor reality testing and unreasonable cognitive operations
- Low self- esteem or inflated self-esteem, Pseudo- maturity
Children displaying some or all of these symptoms need professional and legal help. Parental Alienation Syndrome is sometimes recognized by the courts but is very difficult to define and most cases requires bringing in County Social Services, Child Protective Services, and /or other family therapy professionals.
Your child desperately needs your help, no matter how bad the situation is. IT IS NOT THE TIME TO GIVE UP YOUR PARENTAL RIGHTS! Contact an attorney and discuss your options on how to help your child and moving forward to solve this legal situation.