Tag Archives: family law

Top 3 Things People Don’t Know about Community Property

file0001248906240I got a question from a colleague who works as a financial planner: he wanted to know if a 403(b) retirement account was subject to division in divorce. The short answer to this question is probably yes. Many people don’t realize that in the absence of a premarital agreement, all assets obtained during divorce (with very few exceptions) are considered community property in a Texas divorce. Most people realize that a court may determine the division of their house, vehicles, and tangible assets, but there are some subtle nuances to the presumption of community property that could dramatically affect their odds for a positive outcome in divorce. It is always preferable for spouses to agree on the division of their property, but sometimes agreement is simply impossible, so I wanted to shed some light on the three most surprising aspects of community property division in divorce.

1. Inheritance is off the table.

If a relative passes away and leaves you a large sum of money, that inheritance is not subject to division as community property in your divorce. The money you receive in an inheritance is your separate property. However, if you mingle that money with your community funds (perhaps by using it to purchase other assets with your spouse), it could become a part of the community estate. This phenomenon is known as co-mingling. If you’re married and are on the verge of receiving an inheritance, it is a good idea to meet with a family law attorney to ensure your inheritance is definitively separate property.

2. Retirement accounts are subject to division.

As previously mentioned, retirement accounts (including IRAs, pensions, defined benefit plans, defined contribution plans, 401ks, and 403(b)s) are part of your community estate once you marry your spouse. If you’ve worked for decades at the same company,  you’ve likely acquired a substantial nest egg in your retirement plan. Most people believe if they work hard and obtain retirement benefits, they’re entitled to enjoy the fruits of their labor when they retire. However, once you marry, your contributions to your retirement plans become community property, and as the value of the plan increases over time, the balance of the plan from the date of your marriage becomes subject to division in divorce.

No one wants to lose their inheritance or their retirement. So what are couples to do if they want to avoid these outcomes? Thankfully, the presumption of community property can be overcome.

3. Couples can agree to define their assets as separate or community at any time.

Premarital agreements allow future spouses to decide what assets they want to keep as their separate property and which assets will be their jointly owned community property. Ideally, each party will have his or her own attorney to review the documents and advise as to the consequences of the agreement. This is a great opportunity for them to discuss their finances at their very onset of their marriage and establish clear boundaries about how their assets will be treated if they divorce. If you do not have a premarital agreement, do not despair. You and your spouse can create what’s known as a postnuptial agreement after you marry.

Unfortunately, finances are one of the primary motivating factors for divorce, so the sooner you and your partner get on the same page about the money in your relationship, the better off you will be as a couple. For more information about community property or to discuss your financial circumstances, feel free to give me a call at (713) 574-8626 to schedule a consultation.

Back to School: Beyond Meet the Teacher

SDRandCo (2)This week many Houston children are heading back to school, so many of my friends and relatives are posting adorable photos of their kids in their first day of school gear headed back into the classroom. Understandably this is an exciting time, and everyone has high hopes for the new school year. With this optimism in mind,  I was taken back by a headline that reported that the number of inappropriate student-teacher relationships is at an all-time high in the state of Texas. A summary of the findings of the Texas Education Agency can be found here.

I had no idea this was such a widespread problem and thought it would be a good idea to shed a little light on this phenomenon and give the parents in my life a little food for thought. I was previously under the false impression that once a teacher was found to have behaved inappropriately with a student, that was the end of his teaching career, but this is not necessarily the case.

In Texas, most schools have what’s known as a “second chance” system. The first time an educator is found to have committed some type of misconduct, he or she is typically asked to resign and then quietly leaves. No report is made to the TEA in these instances, and he or she is free to find employment elsewhere. The second time that educator is found to have crossed the line with a student, his or her license may be suspended or revoked, and he or she is typically unable to find new employment as a teacher. This process is very troubling and has resulted in 207 cases of teacher-student involvement reported within the past year, and the number of scenarios that are not reported would likely make that result even higher.

Understandably parents are concerned. What can you do to protect your child from this kind of violation? I have a few simple suggestions. First, monitor your child’s social media presence. Is he Facebook friends with his teachers? That by itself is not evidence of wrong doing, but be sure to talk to your child. Are any teachers messaging him about personal matters? Does he text his teacher after hours or spend time after class alone with the teacher on a consistent basis? You have a right to know the nature of your child’s relationships with school personnel.

Second, if you suspect anything untoward is happening between your child and an educator, don’t be afraid to speak up. Schedule a parent-teacher conference to clear the air about what, if anything, is going on between your child and this other influential adult. If you don’t believe a parent-teacher conference would be effective, take your concerns to the school administrators. They would be very interested to know of any allegations against a teacher suggesting misconduct with a student. Your role as a parent is to keep your child safe, and unfortunately, most schools do not take the affirmative steps to investigate this type of behavior until the parents get involved. If you believe your child is being taken advantage of, it is your responsibility to intervene and advocate for the safety of not only your child, but the other children who may be subject to unwanted attention from an authority figure.

3 Tips for Parents Going Through Divorce

032cc38c6b791fc5612c6823ab93fb44In my practice, I see many people at their absolute worst. Their marriage is over, and they’re coming to me for advice and counsel during the divorce process. Some of those people have children which further complicates matters. How does one navigate the divorce process without taking their children on an emotional roller coaster? Frankly, this is a difficult question without a simple solution or answer because every family is different, but these three guidelines are critical if you want to exit your marriage with as little damage to your kids as possible.

1. Never Bad Mouth the Other Parent

This one may seem obvious, but if you’ve been served with a divorce citation, you probably have some choice words to say about your soon to be ex. You should share those choice words with your divorce lawyer, your therapist, your best friend, or your pastor. Who you should not vent to under any circumstances is your child. It doesn’t matter if he or she is an absolute scoundrel. Your child loves her other parent just as much as she loves you. It’s not fair to place a child in the middle of an adult situation by deriding your spouse. It will drive a wedge between you and your child and place you in a terrible light when she gets old enough to process what you said about her other parent. Find healthy ways to express your frustration but keep it away from the little ones.

2.  Avoid Using Your Child as a Bargaining Chip

Similarly, parents going through divorce have to navigate several issues such as who will stay in the family home, who will pay child support, and what the possession and access arrangement will be for the children. Although it may be tempting to punish your ex for his or her wrongdoing by withholding access to the children, please do not do this. Your children will not understand, and it’s simply not in their best interest. The family unit as they know it is changing dramatically; do not make that change even more severe by making the children feel guilty for wanting to see both parents on a consistent basis. Doing so is emotionally abusive and could severely impact your child’s well-being.

3. Maintain Their Routine

Your children may not tell you this, but the day to day happenings in their life are what makes them feel safe. Eating breakfast, getting ready for school, catching the bus to school, sitting through classes, going to extracurricular activities, and doing homework are all a part of their daily routine. If you and your spouse are going through a divorce, it is likely that their routine has been interrupted by one of their parents moving out of the home, or by them moving away from one of their parents. Some interruptions are unavoidable, but if you can minimize the disruptions from your child’s daily life, your child can continue to develop and grow as an individual. The more you provide stability for your children, the less likely they are to resent either of their parents for divorcing. You and your ex have a responsibility to let your children know that you both love them unconditionally even though your marriage is ending. You can show that love by maintaining their routine as much as possible.

We all love our families. Sometimes it’s hard to know if we’re doing the right things for them. If you’re contemplating divorce and need practical advice and guidance, feel free to give me a call at 713-574-8626.

New Year New Beginnings

nyearsbaby2As we enter into a new year, it’s always tempting to think about how things will be different this year. Almost everyone I know has some version of a New Years resolution (including me), but on the eve of one of my very good friends getting married, I wanted to share a few thoughts on new beginnings.

1. Welcoming A New Addition to the Family

If you’re the proud parent of a newborn, it’s a good idea to start planning for your child’s future. If you do not have a last will & testament, now is the time to write one. It is important that you designate who you want to act as the guardian of your child in the event you and your spouse pass away before your child reaches the age of eighteen. It’s also not too early to  begin saving for your child’s education. Talk to a financial planner about what steps to take to secure your child’s future as soon as possible,

2. Entering a New Phase in Life: Marriage/Divorce

Tying the knot is an exiting time for any couple. Combining your finances and creating a life with another person requires careful planning and open communication. Although it sounds unromantic, a premarital agreement will clearly outline the expectations that each of you have about how you will handle your income and what arrangements will be made in the event you do not make it as a couple. Even if you decide against a premarital agreement, open discussions about these issues will give you insight into your partner’s point of view. The more you know about each other, the better prepared you will be for married life.

Similarly,  if your divorce has been recently finalized, you are entering a new phase in your life. If you have life insurance policies naming your ex as a beneficiary, you want to be sure to submit the proper documentation to change your beneficiary designations.  If you were awarded the family home in your divorce decree, you also want to be sure that your former spouse has executed a special warranty deed to transfer his or her share of interest in the home to you.

3. Starting a business

New businesses often start at the beginning of a new year, and entrepreneurs tend to dive into their new ventures head first. Lack of proper documentation is a trap for the unwary. If you are a sole proprietor, you must decide if you want to incorporate your business or simply file a DBA at the outset of your company. Partners in a partnership are doing themselves no favors if they do not have partnership agreements in place. Taking the time to speak to an attorney before your operation runs into any issues is the best step you can take to protect yourself from potential liability and start your business off right.