Separate Property vs. Community Property

The Texas Family Code defines separate property as:

- property owned or claimed by the spouse before marriage;

- property acquired by the spouse during marriage by gift, devise, or descent; and

- the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

In essence, all other property acquired by one or both spouses during marriage is considered community property. This includes income earned on separate property during the marriage. The Texas Family Code states that “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” In a divorce, clear and convincing evidence as to why property should be considered separate is required to establish separate property designations.

If you need a Texas Family Lawyer, contact Peterson Law Group.

What is an attorney ad litem?

The term ad litem simply means “for the suit”. An attorney ad litem may be appointed or assigned in family law cases or probate cases where representation is deemed necessary by a judge. While the Texas Family Code does not specifically define the role, the Texas Probate Code provides a definition that is generally accepted in family law cases:

An attorney ad litem is an attorney who is appointed by a court to present on behalf of an incapacitated person.

In family law cases, judges will recommend the appointment of an attorney ad litem when doing so is deemed to be in the best interest of the child (or any party) with regard to the child’s interests in the case at hand.

In any probate proceeding, a judge may appoint an attorney ad litem to represent the interests of a person with a legal disability, a person who is a nonresident and cannot be present, an unborn person, or an unknown heir.

In either area of law, the role of an attorney ad litem is that of advocate for his client.

If you need a Texas Family Lawyer or a Texas Probate Lawyer, contact Peterson Law Group.

How do I obtain a marriage license in Texas?

In order for two adults to legally enter into a marriage in the state of Texas, a man and a woman must obtain a marriage license from the county clerk of any county in this state. The couple must both appear before the county clerk, provide proof of identity, fill out an application provided by the county clerk, and take the oath printed on the application form.

The couple must then participate in a ceremony that is to be conducted within 31 days of the issuing of their license. If a ceremony is not conducted, or an authorized person does not conduct the ceremony, the marriage license expires.

If you need a Texas Family Lawyer, contact Peterson Law Group.

How long do I have to pay child support?

In Texas, the court can order one or both parents to pay child support until:

· the child is 18 years of age or graduates from High School, whichever occurs later;

· the child is emancipated through marriage, or through removal of disabilities of minority;

· the death of the child; or

· indefinitely if the child is considered to be disabled.

All of these time intervals are fairly self-explanatory except for bullet point number two. According to the Texas Family Code, any minor may petition to remove the disabilities of minority if they are:

· a resident of the state of Texas;

· 17 years old, or at least 16 and not living with their parents or legal guardians; and/or

· self-supporting and managing their own financial affairs.

Except for age requirements specifically stated in the constitution and in Texas statutes, a minor whose disabilities are removed legally has the capacities of an adult. This, in the State’s eyes, eliminates the need for a parent to pay child support.

If you need a Texas Child Support Lawyer, contact Peterson Law Group.

How do Texas courts determine the amount of child support owed?

In Texas, as in most other states, several factors are considered when determining how much money is required as payment for child support. Among the factors taken into consideration are:

• the age and needs of the child;
• the ability of both parents to contribute to the support of their child;
• the amount of time each parent is in possession of or has access to the child;
• any childcare expenses incurred due to the employment of one or both parents;
• the amount of alimony or spousal maintenance being paid from one parent to the other; and
• the amount of the payer’s net resources.

This is by no means a comprehensive list of all of the factors considered when determining child support payments. The Texas Family Code sums up the court’s charge by stating that “any reason consistent with the best interest of the child, taking into consideration the circumstances of the parents” are to be observed.

While the court renders the final decision about child support, it does not necessarily have to make the “who pays” and “how much” determination. In an effort to promote the amicable settlement of disputes such as these, Texas law has provided a statute that allows the parties to develop a written agreement provisioning support for the child in question. If the court finds that the agreement is indeed in the child’s best interest, it will render judgment in accordance with the agreement.

If you need a Texas Child Support Lawyer or a Texas Collaborative Lawyer, contact Peterson Law Group.

How do I change my name?

There are a couple of different ways to change your name. First, if you are getting a divorce, a section may be added to the final divorce decree requesting the name change. The court may then change the person’s name to one that was previously used by the applicant. In some instances, the court may not grant the name change, but it cannot do so simply to keep the last names of family members the same.

If a person wishes to change their name but is not currently going through a divorce, they may file a petition for their change of name in the county in which they reside. They must include in the petition:

a. Their current name and address
b. The full name they wish to be known as
c. The reason(s) they are requesting a change in name
d. Whether they have been the subject of a final felony conviction
e. Whether they are a registered sex offender
f. A legible and complete set of their fingerprints

They must also include, or provide reasonable explanations for not including, their sex, date of birth, race, driver’s license number, social security number, and their assigned FBI number (if known). It also helps to include any offenses above Class C Misdemeanor that may appear on the applicant’s record and notice of any warrants that may be out for the applicant’s arrest.

It is important to note that a change of name does not release a person from liability incurred under a previous name or effect a right a person held under a previous name.

If you need assistance changing your name, contact Peterson Law Group.

Adoption: What is required to adopt a child in Texas?

Adoption is defined as a procedure that establishes a parent-child relationship between a child and adopting parents. In Texas, any adult, single or married, can petition to adopt a child who may be adopted.

So, who may be adopted? Here, any child who is living in Texas when a petition is filed, and who meets one of the following stipulations is considered eligible for adoption.

1. The child’s parents are no longer living and/or the parent-child relationship between the child and each living parent has been terminated;

2. a stepparent is petitioning to adopt their spouse’s child/children and the parent-child relationship between the child’s other parent has been terminated;

3. the former stepparent of a child who is at least two years old has been caring for the child for six months, the parent/child relationship has been terminated with respect to one parent, and the other parent consents to the adoption; or

4. the person seeking the adoption of a child who is at least two years old is the child’s former stepparent, the parent/child relationship has been terminated with respect to one parent, and the former stepparent has been caring for the child for at least one year preceding the adoption.

In general, a child who is to be adopted must have been living with the person who is petitioning for at least six months before the adoption is legally granted. While this six month “trial” period is technically required, Texas courts have been known to waive or shorten the period if doing so is deemed to be in the best interest of the child.

In all honesty, adopting a child can be a difficult process. Unfortunately, many potential adoptive parents are frightened or intimidated by the amount of time and attention to detail that is necessary to adopt a child.

If you need a Texas adoption lawyer, contact Peterson Law Group.

What is Separate Property?

In Texas, "Separate Property" consists of:

• the property owned or claimed by a spouse before marriage
• the property acquired by the spouse during marriage by gift, devise, or descent
• the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage.

The separate property remains the property of the individual spouse. Spouses may also agree to set aside portions of their community property as separate property; this is accomplished using a partition or exchange agreement.

Even if separate property is commingled with the community property of the marriage, as long as it can be traced and properly identified, it will remain separate property. This is usually done by seeing how the money was originally spent (usually on a single large purchase, like a house) and tracing the flow of the money through bank accounts and finally the hard assets. However, the better practice remains to keep separate property in a separate account, and to title any assets bought with those separate property funds in the name of the spouse owning the separate property.

If you need a Texas divorce lawyer, contact Peterson Law Group.

Is there alimony in Texas?

The short answer is sort of. In Texas, it is possible to get "spousal maintenance", which is essentially like alimony. Typically, spousal maintenance is available if you have been married for more than 10 years; you lack sufficient property to provide for your minimum needs; and one of the following 3 scenarios applies to your situation:

• you are unable to support yourself through appropriate employment because of physical or mental disability; or
• you are the custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse seeking maintenance not be employed outside the home; or
• you lack earning ability in the labor market adequate to provide support for your minimum reasonable needs.

Spousal maintenance is generally available only for a period of 3 years after the date of divorce. Spousal maintenance could be indefinitely available to persons who are unable to support themselves because of incapacitating physical or mental disability.

If you need a Texas divorce lawyer, contact Peterson Law Group.

What is community property in Texas?

In Texas, "Community Property" basically consists of all property acquired by either spouse during marriage that is not otherwise Separate Property. All marital is presumed to be community property unless it is proved to be separate property. Spouses may also agree in writing that his or her separate property is converted to community property.

Another question that often comes up is "What about property we acquired in another state?" The general rule in Texas is that marital property acquired by either spouse while residing elsewhere is community property if it would have been considered as community property if the spouse was living in Texas at the time of acquisition.

Sometimes, these questions of community property versus separate property are very complex, and you may need legal help to determine the status of a marital asset.


If you need a Texas divorce lawyer, contact Peterson Law Group.

How soon can I get remarried after my Texas divorce is final?

This is a question we often get asked by divorce clients. In Texas, neither party to a divorce may remarry the 31st day after the date the judge has signed the divorce decree. That means you should not plan a wedding for at least a month after the date of your divorce hearing. You would be surprised how many clients have had to move their wedding date after consulting with us.

One exception to this general rule does exist. Former spouses may remarry each other at any time without waiting for the 30 days to pass. However, we have never had this situation occur in our practice.

If you need a Texas divorce lawyer, contact Peterson Law Group.

What is the waiting period for getting a divorce?

In Texas, a court may not grant a divorce before the 60th day after the date the divorce lawsuit is filed. This "waiting period" is intended to give the divorcing spouses some time to decide whether they really want a divorce or were just acting in the heat of the moment. Although we have not often had spouses reconcile during this waiting period, it has occurred on a few occasions with our divorce clients. If you are looking for a quick, agreed divorce, it is helpful to remember that the divorce waiting period is not going to let you enter a decree immediately.

If you need a Texas divorce lawyer, contact Peterson Law Group.

What are grounds for divorce in Texas?

In Texas, the court may grant a divorce on any of three no-fault grounds:

• insupportability
• living apart for 3 years
• one spouse's confinement in a mental hospital for 3 years

A divorce may also be granted on any of these fault grounds:

• cruelty
• adultery
• one spouse's conviction of a felony
• abandonment of a spouse for one year

What is the purpose of collaborative law?

The purpose of collaborative law is to resolve a dispute in a manner that is beneficial to all concerned. The parties and their lawyers voluntarily agree to cooperate honestly and in good faith to develop options and possible solutions.

If you are interest in this process, contact us today. We are members of the Collaborative Law Institute of Texas.


For more information concerning collaborative law, visit our website at BrazosLawyers.com.

How does Collaborative Law help?

Collaborative Law is a voluntary dispute resolution process originally developed by a family law attorney who had become disenchanted with the traditional style of litigation. Often court battles became so bitter and destructive that wounds between the parties never healed. In an effort to alleviate the emotional scars and financial hardships of divorcing couples, the collaborative process was born. Collaborative law aims to preserve the dignity and relationships of individuals involved in divorce or other family-related litigation. After all, they may still have to communicate on parenting and other issues in the future.

For more information concerning collaborative law, visit our website at BrazosLawyers.com.

How does collaborative law work?

The way collaborative law works is:

• The process is voluntary and everyone has to agree to use Collaborative Law. Each person hires a lawyer trained in the collaborative dispute resolution process.

• All participants and their lawyers sign a Participation Agreement and then prepare a schedule for “face to face” meetings. Each meeting follows an agenda and is attended by the parties and their attorneys. Unless all parties agree otherwise, only topics on the agenda are discussed. The agenda helps keep the discussions on track and helps to minimize surprise and emotional issues. Each person has the opportunity to express that party’s complaints, explain any concerns, and listen to the complaints and concerns of the other people involved.

• The Participation Agreement provides that all sides will exchange all necessary information which is in their possession or control. They also agree that they will not make unnecessary and expensive discovery requests from the other parties.

• The participants agree to seek an expert opinion regarding a fact or issue, or they may elect to mediate or arbitrate an issue of the dispute.

• If at any time during the process a person decides not to continue participating, the collaborative lawyers must withdraw, and the parties continue their case in court with new attorneys.

For more information concerning collaborative law, visit our website at BrazosLawyers.com.

What is Collaborative Law?

Collaborative Law is a process for resolving legal disputes. All parties and their separate lawyers agree to keep the case out of court and to exchange information that pertains to the dispute. A court or judge only gets involved to sign the divorce decree and other documents that the parties have agreed upon.

For more information, visit our website at BrazosLawyers.com.

Ending the Violence: How to Obtain a Texas Protective Order

This article comes from the State Bar of Texas:

"The Texas Department of Public Safety reports that in 2006, there were 186,868 incidents of documented family violence statewide. However, the Texas Health and Human Services
Commission estimates that as many as 982,916 Texas women were actually battered that year. In Texas, more than 800 women were killed by their domestic partners from 1998 to 2005. These statistics indicate that although family violence is an inexcusable crime, it is prevalent in today’s society. If you or someone you know is a victim of family violence, you are not alone. Although the legal system is unfamiliar territory for most people, it can offer some protection from family violence through the use of a legal document known as a protective order.

What is a protective order?
A protective order is a civil court order that is designed to stop an abuser from continuing acts of violence, threatening, harassing, or stalking. A judge can create various conditions of a
protective order. For example, a judge may order a respondent — the person restricted by the order — to vacate a residence, pay child support, attend counseling, and/or not possess a
firearm. Abusers who violate a protective order can be fined, arrested, or both.


Who is eligible for a protective order?
Victims of family violence are eligible for a protective order. In Texas, “family violence” means an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury,
assault, or sexual assault, but does not include defensive measures to protect oneself.
An application for a protective order may be filed by an adult member of the dating relationship or any adult may apply for a protective order to protect a child from family violence. In addition,
a prosecuting attorney or the Department of Protective and Regulatory Services may file an application for the protection of any person alleged to be a victim of family violence. Please contact your local law enforcement or domestic violence prevention agency immediately if you or
someone you care about is a victim of family violence. Even if you are not eligible for a protective order, other options may be available.

How do you obtain a protective order?
The first step is to complete an application. The application may be obtained through the office of the county or district attorney, a private attorney, or a legal aid program. In some communities,
domestic violence advocacy groups also provide assistance in obtaining protective orders. The application for a protective order must be filed in either the county where the victim lives
or the county where the offender lives and the applicant’s address can be kept confidential. There are no minimum time limits to establish residency, so even if you have not lived in the same county for very long, you may still file an application for a protective order in
that county. Protective orders are available in every county in Texas.

How much does a protective order cost?
Applying for a protective order is free. An applicant for a protective order may not be charged a fee by the county or district attorney’s office or by a sheriff or constable in connection with the
filing, serving, modifying, or withdrawing of a protective order. There is also no cost for certifying copies, court reporter fees, or any other service related to a protective order. However, if the applicant chooses to use a private attorney for assistance, the applicant may
still have to pay for the attorney’s time in assisting with the protective order. In this case, the court can order a respondent who has committed family violence to pay the private attorney’s fees.

How long does a protective order last?
If the court reviewing the application determines that there is a real threat of immediate family violence, the court may issue a temporary ex parte order that is valid for up to 20 days. The court will then set a hearing date for a final protective order, usually no more than 14 days after the application is submitted. At this hearing, the court will decide whether to grant a final protective order. If granted, the final protective order may be effective for up to two
years. If a person subject to the protective order is imprisoned on the date the protective order would expire, the period for which the order is effective can be extended and the order will expire one year after the person is released from confinement. A new protective order can also be requested after an earlier protective order has expired or while one is still in effect, so long as the earlier protective order is set to expire within 30 days of the date the new application for a protective order is filed.

What does a protective order actually do?
No piece of paper can protect you from all incidents of violence; however, a protective order provides a good deterrent in most situations. A protective order can require the abuser to stay
away from the victim’s home, workplace, and children’s schools (if the children are protected persons in the order). It can order the abuser to stop communicating in a harassing manner
with or threatening the victim. Protective orders can require the abuser to attend counseling, to pay child support, and to pay spousal support. All of the provisions in the order can be
enforced in court. Some violations, but not all, can result in the police taking the abuser to jail if he or she violates the order."

For the full article, click here.