Tuesday, September 13, 2016

WHAT HAPPENS WITH CREDIT CARD DEBT IN A DIVORCE?

How do you divide credit card debt when getting divorced?  What if the debt is in both of your names?  What if you have much more debt in your name than your spouse?

The important thing to know about credit card debt is that no court can interfere with the contract that was signed between the person and the credit card company.  So, if you have a credit card in your name and your spouse did not co-sign that agreement with you, you will ultimately be responsible for paying the debt.  This is true even if the debt was incurred during the marriage.

Texas is a community property state.  Which means that anything acquired during the marriage is community property.  (With the exception of gifts, inheritances and personal injury awards.)  That means that any debt incurred during the marriage is a community debt.

The judge could order that your spouse pay all or a portion of a credit card debt that is in your name, or you could make an agreement with your spouse to that effect.  But if that happens, you are setting yourself up for problems.  The reason is this:  If your spouse fails to pay the credit card company as agreed or ordered, the credit card company will come after you for payment.  If you don't pay, your credit will probably suffer.

You could file a motion to enforce with the court to try to force your spouse to pay his portion of your credit card debt, but all you can get from the court is an order.  The Judge cannot punish your spouse by putting him/her in jail as punishment.   There is no debtor's prison in Texas (or in the U.S.) Meanwhile, your credit is damaged and you have probably spent money hiring an attorney to help you with the enforcement. 

A better way to deal with credit card debt when negotiating a property settlement in a divorce is to agree that the party who's name is on the credit card agrees to pay that debt.  If one party has more debt in his/her name, then one way to make the property division more "fair" is to let the party with more debt get more of the assets.  This will offset the amount of debt a person takes.

Call Hoppes & Cutrer, LLC for questions regarding division of property in a divorce.

Monday, September 12, 2016

THE DECISION HAS BEEN MADE......WE ARE GETTING A DIVORCE. WHAD DO I TO NOW?

You and your spouse have decided to divorce in Texas. You both knew that it’s been a long time coming .  You are not even sure it is the right decision. But the decision has been made and you want to make sure that you are protected and that you get the best outcome possible for you and your children. So what now?
1.  You could call your cousin Frank who is a divorce attorney in El Paso to see if he has any advice for you.
2.  You could spend hours and hours on the internet searching for answers about Texas divorce law.  You may even look into the “do it yourself” alternatives.
3.  You talk with your friends who never went to law school but are telling you their opinion about what will happen in your divorce and what you should do.  their opinions might be based on their own experience or on what they have heard from their friends.
4.  You and your spouse argue endlessly about who is right regarding the reasons for the divorce as well as the likely outcomes.
5.  How do you calculate support obligations? What will your cash flow look like after the divorce? Can you keep the house? Can you divide a retirement account in a divorce?
6.  What should be done regarding the children?  How should possession and access to them be decided?
7.   How long must you carry your spouse on health insurance? When should you begin dividing bank accounts? When should you separate your residences? How do you make sure that you do not overlook something?
9.  And perhaps most important: how do you maintain control of your life during this crazy time?

You need the help of experienced and compassionate divorce lawyers that will help guide you through the divorce process.


At Hoppes & Cutrer, we can help you navigate the difficulties of the divorce process.

Wednesday, September 7, 2016

Cohabitation Agreements

More and more couples are deciding to live together rather than getting married and some are living together before they decide to get married.  Having a cohabitation agreement can protect both parties in the event a relationship goes south.  A cohabitation agreement is a contract between the parties, much like a prenuptial agreement.  However, this agreement would not be controlled by the Texas Family Code.

A cohabitation agreement can accomplish many different things including:

1. Disprove that the parties are common law married.  The agreement can state that both parties agree that there is no common law marriage and if they get married some time in the future, it will be by a ceremonial marriage.
2. The couple's financial relationships, like who pays for what expense.  Will there be a joint bank account and will there be an agreement as to what percentage of the account each party owns.
3.  Who owns the property where the couple lives?  If a property is owned together, what percentage of the property does each party own.
4.  If one party moves out what protocols should be followed. 

Each party has to sign the agreement voluntarily and each party should be represented by an experienced family law attorney. 

For people who want a relationship where they live together, but they do not want to get married and they want to plan ahead to mitigate the financial and emotional turmoil of a breakup, a cohabitation agreement could make good logical sense.
 

Monday, August 29, 2016

TEN MYTHS ABOUT DIVORCE

If you’ve never been through a divorce before, you may not be familiar with the process. If you are considering divorce and trying to learn about how a Texas divorce works, you may get advice from friends and  family members.  But be ware often the information they might give you is wrong.
If you are armed with the wrong information you run the risk of making decisions that might hurt your case. That is why it is so important to speak with an experienced Texas divorce lawyer as soon as possible if you are thinking about divorce.  Your divorce lawyer can tell you the truth about how divorce works and bust the many myths about divorce.

Here are ten of those myths about divorce:
 
1. Visitation can be denied if my ex doesn’t pay child support.
There is a process for enforcing child support obligations, but threatening or denying a parent visitation with their child is not one of them. In short, access to the children and parenting time are not related to the payment of child support.

2. Commit adultery, lose everything.
Will cheating on your spouse lead to divorce? Yes, that is often the case. However, being unfaithful doesn't mean that you’ll lose your kids, your home, your assets, and your rights.  It could be used as an argument for gaining more of the community property.  But often it is not a large factor. If in the course of committing adultery, you waste community assets that will be taken into consideration during a property division.

3. Divorce can be denied.
In Texas, you do not have to prove fault in order to have the Judge grant the divorce.  Therefore, even if you don't want the divorce and your spouse doesn't, the judge will still grant the divorce. Once all the financial, custody and visitation issues have been resolved at settlement or trial, a divorce will be granted.
 
4. Mothers always are awarded custody of the children.
While there certainly was bias in favor of mothers in years past, the law has evolved along with changes in society to reflect that both fathers and mothers can have the primary right of possession. Decisions about custody and visitation will be made based on what is in the best interests of the child, and that depends on circumstances and characteristics that have nothing to do with gender.

5. You must have a lawyer.
You have a right to represent your self.  But it is not always the best option.  You could make errors that could harm you in the future.  Once the judge signs the Final Decree of Divorce, there is nothing about the property division, that can be changed.  You may also make mistakes regarding your children and child support that could be difficult to change later.

6.  You can avoid paying child support.
Child support payments in Texas are established by law. If you have a minor child and you are not the custodial parent, you will have to pay child support. If you fail to comply with a child support order, both your spouse and the state of Texas will take steps to enforce those orders.

7. Children get to pick who they live with.
If a child has reached the age of 12 and has expressed a preference as to which parent he/she would like to live with, a judge can take that fact into consideration in the determination as to custody. However, they are not required to follow a child’s choice and will make their custody decisions based on what is in the best interests of the child.

8. Divorce always leads to battles.
Divorce can often full of hostility, blame, and finger-pointing. But it doesn’t have to be. Other methods like collaborative divorce, mediation, and negotiation are all options if you are trying to keep the divorce from becoming highly contested.  If you tell your attorney that you would rather focus on resolving conflicts as opposed to starting or escalating them, the attorney can help make your divorce a process of negotiation and agreement rather than argument.

9. Equitable distribution results in equal division.
Property in Texas is divided based on what is just and right in light of the circumstances. Property can be and often is divided in an unequal manner based on the many factors that go into a judge’s decisions about property division. Whether that property is divided 50/50 is not one of them.

10. Women always get maintenance and men never do.
Decisions about spousal support, just like custody decisions, are no longer are based on outdated prejudices and reflect the fact that women often earn more than their husbands. Decisions about spousal support are based on the economic realities of the respective spouses regardless of their gender.
 
If you are considering a divorce or have a family law issue, consult with or retain a competent attorney to protect your rights.

Friday, July 22, 2016

TEN TIPS AND TRAPS FOR DO-IT-YOURSELF DIVORCE FORMS IN TEXAS


1.      TIP: Make sure you are using the correct forms for your situation.  Many websites offer free forms and each websites forms vary.  There are no standardized forms for divorce in Texas although the Texas Supreme Court has issued one set of forms.  However, they will only apply if you have no children and no real property such as a house.

2.      TIP: Do not be misled by the language or headings that are used in forms that may imply certain property or assets belong to one spouse. Unfortunately, many people don’t discover their rights until after the judge has signed their form decree and they have given away property to which they were entitled.  And then it is too late.

3.      TRAP:  form language: “Husband is awarded “All of Husband’s cash and money in any bank or other financial institution listed in Husband’s name alone.” Just because it’s in one spouses name doesn’t mean the other spouse isn’t entitled to a portion of it.  If the funds were deposited during the marriage, the funds are considered community property and subject to division.

4.      TRAP: form language: “Husband’s cars, trucks, motorcycles or other vehicles listed below:” If both spouse’s names are on the title and debt is owed on the vehicle, additional documents may be required for title to be issued solely in husband’s name.  Additionally, if wife’s name is on the financing, awarding the vehicles to husband in the decree will not relieve wife remove wife from the debt.

5.      TRAP:  form language: “Husband will keep the following personal property still held jointly: (For example, a bank account, but not real property such as a house or land.)” The language in a decree is not binding on third parties other than the spouses.  This may award the funds in a jointly held account to the husband, but the bank will not deny wife access to the funds based solely on a divorce a decree.

6.      TRAP: form language: “Husband’s Retirement Funds (For example, pension, profit-sharing, and stock option plans, 401ks, and IRAs). The language in the forms is misleading.  Again, just because the funds are held in husband’s name and just because they are a result of husband’s employment, it does NOT mean they are solely husband’s property. They are presumed to be community property and therefore wife is entitled to a portion of them.

7.      TIP/TRAP: If you do divide the retirement funds, 401(k), and IRA’s, the divorce decree is not sufficient to transfer the funds to wife.  Other documents will be necessary. It could be a simple as a form from the financial institution or as complicated as a federally mandated specialized order depending on the type of plan and the nature of the asset.

8.      TIP/TRAP:  Some forms have sections that awards real property (such as a house) to a spouse.  The transfer of title to real property is complex and requires more than a divorce decree. Additionally, neither the divorce decree, nor the title transfer documents, will remove a spouse from the mortgage. The mortgage company must be involved in that process and consent to the removal.  A common occurrence is one spouse successfully transferring his legal interest in the marital residence to the other spouse, only to discover that the mortgage company will not release him from the mortgage. Now he is responsible for the mortgage on house he does not own.

9.      TRAP:  form language: “The other debts listed below which are not in Husband’s name alone (such as credit cards, student loans, medical bills, income taxes).”  There is this same language for the wife as well. The assumption is that since they are not in either spouse’s name alone, they are in both spouse’s name together.  Debt, especially joint debt, is often the most difficult issue to deal with in a divorce.  Third party creditors are not bound by the terms of your divorce decree so great care should be taken when allocating debts.

10.   TIP/TRAP:  In Texas, a property division may NOT be modified! Once the judge signs the Final Decree of Divorce that contains your property division, there is no going back. Talk to a lawyer to determine your rights before the judge signs a form decree of divorce.

Wednesday, July 6, 2016

WHAT YOU NEED TO KNOW ABOUT YOUR RIGHTS IF YOUR EX-SPOUSE DIES.

It is tragic when  parent dies, even if that parent is your ex-spouse.  Loosing a parent can be very difficult for the children and they will need a lot of support and understanding.  But there are some legal issues that you need to be aware of if you live in Texas:


1.  In Texas if one parent dies, the other parent will be entitled to custody of the child. 
2.  The deceased ex-spouse's parents have the right to file a lawsuit asking that they be allowed visitation with the child.
3.  If the deceased parent died while the child is still entitled to child support, the surviving ex-spouse is entitled to a judgment for all the future child support payments that would be due.  Once  judgment for the unpaid child support has been entered, the surviving ex-spouse can make a claim against the deceased spouse's estate for the entire amount of the judgment.


Hoppes and Cutrer, LLC is ready to take immediate action to help families maintain the well-being of a child and the surviving parent in the face of such a tragic loss.