Four Women Who Need a Pre-Nup in Texas

By | Community Property, Divorce, Just and Right, Marital Property Division, Pre-Marital Agreements, Separate Property

1. The Business Owner. A properly created business has exhaustive company agreements, succession planning and creditor protection. Unless you have every confidence in your documents, you may want to consider a pre-nup to set up agreements between you and your spouse. I see many family-owned businesses severely disrupted by divorce, especially by the temporary orders phase. Image a couple in crises and both spouses are signatories on the company checking account. Perhaps each believes he/she runs the business and should be able to continue to run it exclusive to the other spouse. Where does a court begin to do what’s in the marital estate’s best interest? It is much easier on the Court if there is an agreement in place.

2. The Second Wife and Step-Mother. The reason wife No. 2 needs a pre-nup has everything to do with the probate code. When a spouse dies without a will and has children from a different marriage, Texas law requires that the majority of the estate goes to the deceased’s children. This is a huge problem for second wives.

Imagine a second wife who has young children being left with almost nothing. She will have her community interest in property earned or acquired during the marriage except for property her husband inherited, but that’s it.

A pre-nup can avoid this problem in two ways. One, a pre-nup can provide for trusts, bequests and contingent awards in a highly tailored manner. Typically, these provisions satisfy the needs of children from prior marriages as well as the spouse and children from the second marriage. Because a pre-nup is created before marriage, it provides answers to these issues before the challenges of marriage influence decisions. Secondly, a carefully drafted pre-nup can trump a will that leaves out a spouse. Yes, that’s right. Spouses do not have to leave their estate to their surviving spouse unless they have a pre-nup.

3. The Stay-At-Home Mom. As you may have read in previous articles, a stay-at-home mom is the most common penniless woman in the family courthouse. If the plan is for you to stay at home — the flexible one, the one who doesn’t climb the corporate ladder and so on — you won’t have much of a launching pad for a career should you divorce or your spouse pass away.

There isn’t a way to provide for a launching pad in divorce, but you could at least ask for yearly retirement savings in the likely amount you would have earned had your career not been the priority. For example, if you leave your advertising job of $80,000 per year to raise children by your never-home regional manager husband, consider asking for him to agree that the family will deposit 10 percent of your forgone salary into a retirement vehicle that would be considered your separate property upon divorce or death. Your resume may not be prepared, but at least you wouldn’t have to start all over on retirement planning.

4. The young (and dumb). Please do not take offense. I say young and dumb because undisclosed credit card debt is a very big and growing problem. Refinancing, consolidating, co-signing … can be very confusing and often misleading to the young and in love. A key element to pre-nups is that they require full disclosure of assets and liabilities. Younger people simply do not have the skills to confirm the credit worthiness of their fiancé. I suppose a good liar would also lie about their liabilities before marriage, but at least with the majority of people, a meaningful conversation can be started about debt, who is paying for it and how to get out of it.

“Mom, I want to live with Dad”- A Mother’s Problem

By | Co-Parenting, Custody and Conservatorship, Divorce

“Does my child get to pick who she wants to live with when she is 12?” I get that a lot. The answer is “yes and no.” I know, I’m a big help.

The Texas Family Code allows a child to be interviewed by the judge in chambers so that he or she can express her wishes, but that does not mean he or she is the decider.

This is a mother’s problem. Fathers don’t worry about this near as much as mothers do. Mothers feel that when their children “live” with dad, that the world must think they are a terrible mother. Think about it. People wonder, “How did she lose her children?” or “what did she do?” If a mother “loses custody,” then she must have been arrested or getting treatment. When a child decides that they would prefer to live primarily with dad, mom does not lose custody. She actually practically gets the same amount of non-school time, weekends, and a long period in the summer.

At the risk of losing my reader’s attention, here is the specific statute allowing a child to be interviewed.

Texas Family Code § 153.009.

(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview child in chambers on the court’s own motion for a purpose specified by this subsection.

(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.

(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.

(d) (f) (omitted by author to save attention spans)

If you haven’t stopped paying attention or gone to another article, hopefully I can get you back.

Since everyone knows children need meaningful relationships with both parents, let’s not make this a statement on motherhood. Be informed that when a child wants to “live” with dad, it means he or she wants to be with him more. Since when is it a bad thing for children to want to be with a parent? Sometimes children need one parent more than the other during certain times of their lives. If you and your spouse get along, then most likely your child will never have to be interviewed by the judge. If you can agree that the child should spend more time with the other parent, then crisis is averted.

Yes, if a Court determines that the child should live with the other parent, it could have child support implications. But, if your reason to fight your child’s wishes to live with the other parent is because of child support, you need to re-consider the fight.

Obviously, there are other fact patters worthy of the fight. Let’s say the child gets away with smoking pot or cutting school when he or she is with dad. I’m sure the child will tell the Court all about why dad is better, but fighting that makes sense.

In conclusion, a court must interview a child who is 12 years old or other to hear who they would select as the parent with the right to determine the primary residence and may interview a child to hear their take on possession and access or other issues, but it does not mean that the judge will turn around and order who or what the child selected. It does not mean that the child is in charge. Conservatorship, visitation, parental rights and obligations depend on the best interest of the child. The best interest of the child depend upon countless factors, one of which is the child’s wishes.

It’s important, as a mother, to know the difference between your child genuinely needing their father and a situation where your child wants to go clubbing with dad. Be kind to the mothers who are emotionally evolved and can support their child in wanting to be with dad more. Even if he lives with a homewrecker and her evil children.

Common Law Marriage is Like a Tattoo

By | Community Property, Divorce, Just and Right, Marital Property Division

Common law marriage is like a tattoo: easy to get, impossible to get off. Okay, maybe not impossible but you get the point. There are only three requirements to having a common law marriage in Texas. You must live together, you must have an agreement to be married and you must “hold out” as husband and wife. The “holding out” requirement is a legal term encompassing many factors that generally show the court you behave like a married couple. To get a tattoo, I think you have to be of age and probably under the influence.

As easy as it is to meet these general requirements, especially relative to the cost and time involved in a formal wedding, proving them can cause all kinds of problems in a divorce. And for those that are lucky enough to pass away married, there can also be problems proving the marriage existed in probate court.

The problems are in proving the three subjective and fact intensive requirements. There is no exonerating DNA-like test in this regard. Living together is relatively easy to prove under normal circumstances, but what about the requirement to have an agreement to be married? To prove this, a party must show that they intended to have a present, immediate, and permanent marital relationship. People are living together more and more and behaving like married people but that doesn’t necessarily mean they have agreed to be husband and wife permanently. As Dr. Laura would say, you need a ring and a date. On the other hand, a ring and a date evidencing an engagement could defeat the agreement requirement as the definition of engagement admits the parties are not yet married.

Convincing the court that the parties “held out” as husband and wife could also be difficult. For example, if the parties don’t refer to each other as husband and wife in public, don’t file joint tax returns, or don’t list each other as spouses in medical or legal documents, this requirement could be defeated. But if they owned real property and debt jointly as husband and wife, then they might have a chance of proving the “holding out” requirement.

The hard to get off part is the fact that once common law marriage is proved, it is just as difficult to divorce as it is when you have a formal wedding, if not more difficult. If the court finds your relationship met the three requirements, your assets and debts will be divided in a just and right manner. Most people consider this scenario to generally mean your assets and debts could be split 50/50 but this is not necessarily the case. See my blog “5 Factors Affecting the Just and Right Distribution”. For these reasons, common law marriage should not be entered into lightly.