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The Child’s Best Interest and Modification

Child's Best Interest and Modification
Child’s Best Interest and Modification

Divorce Decrees, Children, and Best Interests!

Certainly, the child’s best interests and modification of an existing order can restore balance to a broken parenting plan.  The best interests of the child demand that the Divorce Decree works well.  Modifications of an existing divorce decree remedies a poor plan.     The child’s best interests may not be served by an existing divorce decree.  Modifying an existing order is a complex and difficult process.   Typically, difficult issues arise when parties remarry or children undergo big changes.  The parenting plan consist of conservatorship, possession or access.  Conservatorship relates to the rights and duties that a parent may have.  Those rights include the right to say where the child primarily lives.   When a parent has a child in their company without the other parent, the child is in the parent’s possession.  On the other hand, access occurs when a parent is only in the child’s presence.

What are “best interests” anyway?

Routinely, Courts look at the Holley factors when making decisions about a child’s best interests.   The child’s best interests and modification of an existing order involve specific factors.  Firstly, those factors include which parent will best provide for the child’s physical, psychological and emotional needs and development.  For instance, Courts always examine the physical and emotional danger posed by a parent.  Similarly, the stability of the home, plans for the child, and parenting skills provide clues as to which parent makes the better primary caregiver.   Sometimes, Courts might consider the child’s preference, geographic proximity and sibling relationships.

Let’s make a change please!

Importantly, the four grounds for modification are as follows:

  • parties agree plus best interests of the child point to a modification;
  • Child’s preference and best interests;
  • Voluntary relinquishment plus best interests;
  • Material and substantial change and best interests.

In order to make an informed decision and determine an action plan that will prove successful, an experience attorney is invaluable.  With decades of experience in family, C. E. Schmidt and Associates can guide you through the process.  Call 281-550-6650 today for a free consultation.

 

Divorce – Whose Fault is it Anyway?

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No Fault Finding = Insupportability and Divorce

Many times when couples seek to end their marriage, they do not wish to “throw stones” at one another.   Often spouses decide that they are better off containing the nuclear weapons to avoid “mutual assured destruction”.   The Texas Family Code provides that “insupportability” allows a court to grant a divorce without fault.  Spouses perhaps consider the potential damage to their children, their spouse, and even themselves when they seek divorce based on insupportability.  This “no-fault” path works for many, on the other hand, there are times when one party created the break-up because of their bad behavior.  A profoundly hurt spouse perhaps feels that refraining from fault-finding may result further victimization of themselves.  Pain compels a spouse to speak up.

Mental Cruelty and Adultery – Are you married to a Cheating Spouse?

Two most common fault grounds upon which divorce is granted are mental cruelty and adultery.  One appellate court defined cruel treatment this way: “incapable of being borne, unendurable, insufferable, intolerable.  Mere arguments don’t prove cruelty.”  On the other hand, adultery means voluntary sexual intercourse, and direct or circumstantial evidence can prove it.  However, the facts must be clear and positive.   A cheating spouse can’t “cover-up” forever.

Fault Equals What?

If the court grants divorce based on fault, a spouse can receive a larger share of the marital property.  More than that, a spouse may need that “moral victory” to heal and move on.  Contact our office at 281-550-6650 for a free consultation to discuss your options today.

 

Why Have a Premarital Agreement?

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Why Have a Premarital Agreement?

Many couples may have valid concerns when considering whether to marry.   Often this occurs when couples consider a second marriage.  But a Premarital Agreement can help resolve the worry.  A Premarital Agreement is basically a contract between two parties. It may be a good idea even when one enters into a first marriage.  Under the Texas Family Code, after marriage almost all income is considered community property.   If a party has financial obligations to former spouses or children from the previous marriage, this may present complications.   This is why you want to consider a this contract.

A future spouse may want to make clear intentions about many topics.  A future spouse may want to preserve a family’s existing assets for children from an earlier marriage.  Spouses may want to eliminate or limit any future alimony obligations.  Spouses may want to keep a party’s income separate to pay off premarital debts or meet financial obligations to a former spouse.   Actually, some famous couples included “bad boy provisions” into agreements!

Drafting a Premarital Agreement requires careful consideration and skill.  Our attorneys have decades of experience and know how to draft agreements that are clear and enforceable.

Premarital Agreements = Peace of Mind

Our attorneys have the experience to help you accomplish your goal!  Contact our office at 281-550-6650 to set up a free consultation to discuss the benefits of a Premarital Agreement!

Alimony – Spousal Support – Post Divorce Maintenance

Texas was the LAST state to adopt a post-divorce spousal maintenance (sometimes referred to as alimony) statute. 

Many believe it is because Texas is a community property state.   Texas wants a win-win outcome.  But what if there is no money or property to divide?  What if one spouse stayed home and the other spouse was a high earner?   Then, spousal maintenance may be a vital tool.  Some refer to post-divorce financial support as alimony.  However, the Texas Family Code, uses the term “maintenance”.  The law provides for periodic payments from the future income of one spouse for the support of the other spouse.

What does Texas Law Provide?

The requirements for a spouse to receive “periodic payments” may be confusing.   The requesting spouse “ONLY” seeks  maintenance if that spouse will lack sufficient property to meet the spouse’s “minimum reasonable needs,  AND

Family Violence Occurred

(1) the spouse from whom these payments are requested has been convicted of family violence or received deferred adjudication within two years before the date of the initial filing of the divorce action or while the suit was pending.

A Disability Exists

OR (2) the spouse seeking the payments has a serious physical or mental disability that prevents that spouse from earning sufficient income; OR

10 Year Marriage and Incapable of Providing for Oneself

(3) the spouses have been married for 10 years or longer and one lacks the ability to earn income to meet that spouse’s minimum reasonable needs;

Disabled Child (Adult)

(4) the spouse is the custodian of a disabled child (or adult) who requires substantial care and supervision that prevents the spouse from earning sufficient income to provide for minimum reasonable needs.

Why C.E. Schmidt and Associates?

An experienced attorney sorts through the facts to help you decide if post-divorce spousal maintenance is in the cards.   Those seeking a divorce need to know what is possible and what is impossible.  While no attorney guarantees an outcome, an experienced attorney clears up the confusion.   An understanding of what is reasonable and what is unreasonable provides peace of mind.  We offer free consultations to assist you in making a better choice.  Call today to schedule a free appointment!

Avoiding a Financial Train Wreck

Divorce not only may result in emotional devastation, but financial disaster may occur also.  So often, parties divide retirement accounts to equalize the divisions of the marital property.  Importantly, Texas Community Property law mandates, “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right.”

The Texas Family Code provides that “In ordering the division of the estate of the parties to a suit for dissolution of a marriage, the court may consider: (1) whether a specific asset will be subject to taxation; and (2) if the asset will be subject to taxation, the the tax will be required to be paid.”   And it is important to remember that family law attorneys are not certified public accountants – tax advice is best obtained from those professionals who have a complete grasp on the Federal Internal Revenue Tax Code.  A mistake may cost the party substantial sums of money, so it is vital to obtain solid advice going into the process.

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