In this case, the Wife made several arguments to support her claim that her Husband had established the residency required to get divorced in Texas. Her arguments were:

• The Wife claimed Husband became a domiciliary of Texas when he lived in San Antonio for military training in 1992 and again from 1995-1996.
• Wife asserted Husband took steps to change his legal residence to Texas when he designated Texas as his residence on his military leave and earnings statement.
• Wife claimed Husband told her he intended to return to Texas once he retired, and that once he be came a domiciliary of Texas in 1992, his subsequent absence due to military service did not change his domicile.

The Court was not persuaded by these arguments. The Court relied on the following  facts to conclude that the Husband did not establish residency in Texas:

• Husband only lived in Texas while he was temporarily stationed there.
• Since the couple married in 1995, Husband had been stationed in Korea, Virginia, and Germany.
• Although Wife asserts that Husband claimed he was going to return to Texas, Husband denied ever saying this. Even if Husband had in fact said he was going to return to Texas, his intent would not be enough without an accompanying act showing his intent.

The Ruling

The Court stressed a person must have intent to establish a permanent domicile in Texas accompanied by some act done in execution of their intent in order to meet the residence requirement. A soldier does not acquire a domicile in Texas merely by being stationed in Texas. A soldier’s domicile remains the same as when he or she entered the service, unless proof of clear and unequivocal intention to change domicile is shown.

If you need a Woodlands Divorce Attorney then call me at (832) 592-7913 to schedule an appointment or fill out the form to the right of the screen. If you would like additional information about getting divorced in The Woodlands, download my free guide to Divorce in The Woodlands.

In re Green, 2012 WL 3985091 (Tex. App.—San Antonio 2012).

1. The ownership interest in a sole proprietorship created before marriage is separate property.

This is simple enough and rather straightforward. If you began the business before marriage then your ownership interest qualifies for the protections available to separate property in a Woodlands Divorce.

2. The tangible assets acquired by a separate property sole proprietorship during marriage are (presumptively) community property.

Many business owners mistakenly believe that if the ownership interest in the business is separate property then everything owned by the business is also separate property. This is not the case. The community property presumption applies to property acquired by the sole proprietorship during the marriage even if your business was started before the marriage. The tracing rules also apply to rebut the presumption so if you can trace the assets acquired to a separate property source then you may be able to claim separate property protection.

3. Certain intangible assets of a separate property sole proprietorship–such as personal goodwill–are not divisible.

The courts have ruled that professional goodwill is not community property. In addition, personal goodwill of a sole proprietorship is not divisible as community property even if the sole proprietorship itself is community property. However, commercial goodwill is community property and subject to division if the sole proprietorship is also community property.

4. An equitable reimbursement claim may be made for payment of improvements to separate property used by a sole proprietorship.

If community property is used to improve the separate property that a sole proprietorship uses then the courts do recognize a claim for equitable reimbursement to the community estate.

5. An equitable reimbursement claim for inadequate compensation may be made for enhancement to a separate property sole proprietorship.

Claims for inadequate compensation, including a spouse’s time, talent and labor in working for and improving the sole proprietorship can be made during the divorce case even if the business is separate property.

This is just the tip of the iceberg in dealing with the property issues that accompany a sole proprietorship or other business in a Woodlands Divorce. Because of the complications that can arise when dealing with an ongoing business during a divorce many business owners choose to take advantage of the benefits of a Woodlands Collaborative Divorce when possible. If you would like to learn more, call us at (832) 592-7913 or fill out the form to the right of the screen.

A Financial professional serves as a neutral objective party on a collaborative divorce team and therefore does not take the side of either party. Our role is to guide you through the financial process as a financial facilitator. Because we are neutral this provides a safe environment for both parties which is critical since usually one party is more familiar with the finances and both need to feel comfortable to communicate.

The neutral financial professional during the collaborative process assists in basically 3 areas:

• Assist with gathering and organizing the financial information. This can be overwhelming, frustrating and very emotional during this time. Information includes an inventory of the marital assets and liabilities. In addition an income and expense statement projected for after the divorce for each party is an important tool for the divorce process.

• Assist in reviewing your options objectively. You both will have thoughts on how the assets should be divided which may look great on paper but how does that affect each of you today and in the future. This can prevent a party who thinks they may want the house to learn that after the divorce he or she cannot afford it. Also there are selling costs, penalties, taxes etc. to consider when dividing assets.

• Guide you to negotiate a solution. You may not get everything that you want but the solution should be one that you are both comfortable with which is a WIN WIN for both of you. You are not alone in this process since all parties are involved in any final decisions.

This process can save you money and more important it can save time since you have assistance to move forward at your own pace.

For more information contact Edna J. Thompsen, Certified Financial Planner, Certified Divorce Financial Analyst and member of the Collaborative Law Institute of Texas. She can be reached at 281-873-5850 or e.thompen@att.net

One popular resolution to this issue is to have your Woodlands Divorce Lawyer create an enforceable agreement whereby you and your ex agree to rotate the tax dependency exemption after a divorce where one parent claims the child(ren) in odd numbered years and the other parent claims the child(ren) in even numbered years.

Please contact a Woodlands Divorce Lawyer today to create an enforceable agreement to best maximize your dependency tax exemption after divorce.

Mediated Settlement Agreements have a long history of being accepted by judges virtually without question in countless divorce cases throughout all of Texas. The reason is simple, a Mediated Settlement Agreement reflects the agreement of the parties to the divorce and it would take a compelling reason for a judge to interfere with that agreement. That compelling reason may have appeared in the radar of the judiciary in the form of the children who are impacted severely by divorce settlements. The children are not involved in the Mediation process and in many cases have almost no input into what parent they will spend their time with and how they will spend their time with that parent.

In Texas, every judge is legally obligated to only enter an order that it believes is in the best interests of the children. What is a judge supposed to do when confronted with a Mediated Settlement Agreement that it believes it not in the best interests of the children? We will find out soon enough, but to avoid this situation in your Woodlands Divorce always remember to reach a settlement agreement that is in the best interest of your children.

A Texas Appellate court recently had to decide how to characterize the money a couple received from a personal injury settlement. In the case, the husband and wife sued a nursing home for negligence in caring for the husband. They asked for damages for past and future mental anguish, past and future pain and suffering, past and future disfigurement and impairment, past and future medical expenses, and exemplary damages. The wife also sought damages for loss of consortium. The husband and wife later settled the personal injury case.

Initial Presumptions

When the husband died and his trust had to be distributed a dispute among the beneficiaries required the Court to determine if the personal injury settlement was separate property or community property. The proceeds from the personal injury case were received during the marriage and are therefore presumed to be community property. In addition, the personal injury settlement did not itemize the damages being paid for each of the several claims which would have gone a long way to determining what portion was community property and what portion was separate property. The one important feature of the settlement agreement was that it did separate the damages paid to each spouse.

The Family Code

The Family Code explicitly characterizes personal injury recoveries as separate property except for damages paid to compensate for loss of earning capacity during the marriage. The courts have interpreted additional items that are treated as community property based on the logic of representing recovery for expenses associated with injury to the community estate such as medical expenses. Punitive damages had been labeled as community property in a previous case involving a contract dispute, but there is no statute that explicitly characterizes damages in contract cases as separate property like there is for personal injury cases. The Court relied on this distinction to determine that punitive damages in a personal injury case are not community property and do qualify for the special protections available to separate property.

Protect Your Rights

If you or your spouse received a personal injury settlement do you know how much of it is separate property and how much of it is community property? Work with an experienced Woodlands Divorce Lawyer and protect your rights.

One ex-wife recently found herself in court again ten years after her divorce was finalized. The reason: her divorce decree was flawed and a piece of property worth $69,594.06 that she thought was hers was paid out to her ex-husband’s second wife. Let’s take a look at the details.

Husband and ex-wife divorced after forty years of marriage. The divorce decree awarded husband and ex-wife each one-half of the yearly payments from husband’s pension savings plan. Following the divorce, husband met and married second wife. After husband‘s death ten years later, the balance remaining in the pension savings plan was paid to second wife as the designated beneficiary of the account.

Ex-wife filed suit against second wife claiming that, pursuant to the divorce decree, one-half of the plan’s balance was hers. The Court noted that although the decree distributed the pension plan’s yearly payments, it did not provide for the plan‘s balance. Thus, the effect of the defective decree’s language left the balance as undivided community property. As a result, ex-wife became a cotenant of her one-half share of the undivided balance, and sued second wife to obtain her half of the property.

A Costly Mistake

In this case the ex-wife successfully recovered the one-half of the retirement account that she believed was hers. She had to incur additional legal fees and the uncertainty of going to court to do it, however. In addition, the second wife made a critical mistake and accidentally waived a legal argument that may very well have resulted in the court deciding the case in her favor. Keep this in mind if you find yourself having to choose between the $299 legalzoom divorce and an experienced Woodlands Divorce attorney. Contact us today at (832) 592-7913 if you need experienced legal help with your Montgomery County divorce case.

If you would like additional information, check out our free Woodlands Divorce Guide.

The Numbers

Let’s start with numbers. Out of everyone there at the 418th hoping to get their case finalized yesterday, the judge determined that half of them were not ready to be finalized for either procedural or substantive issues. And this was within the first ten minutes. Of the remaining cases, about half of those were ready to proceed and were finalized and the balance were left to make an appointment with the staff attorney to attempt to correct the errors. If you are keeping score at home, that is about 25% of the cases on the pro se divorce and family docket yesterday were completed. The rest were left to fix their mistakes and come back in up to six months later when the next opening on the docket is. And during that extra time you remain married each of you are still accumulating community property and community debt.

Are You A Gambler?

If you were at a casino and somebody offered you a game of chance where you only had a 25% chance of winning and a 75% chance of losing, how would you feel? Probably not a good bet to make in my opinion. That is basically what unfolded yesterday; a lot of people made a bad bet. Are you going to make the same bet?

The Alternative

If you don’t like to gamble or wait for many months until an opening on the pro se docket exists you can get your Montgomery County uncontested divorce done quickly with an experienced Woodlands Divorce Lawyer. Call me at (832) 592-7913 to get started.

The previous maximum amount of alimony was $2,500 per month. Now, the maximum is $5,000 per month. The minimum amount remains at 20% of the average monthly income. This change impacts spouses that earn more than $12,500 per month because their amount of alimony payments just went up. For example, under the old system if the spouse earned $15,000 per month the maximum alimony payment was still $2,500. Now, the maximum alimony payment is $3,000 which is 20% of monthly income.

The duration of alimony and spousal maintenance payments was also increased. The previous limit was three years, no matter what. Now a sliding scale is in place.

1. If the marriage lasted at least 10 years but not more than 20 years, the court can order alimony and maintenance payments to continue for five years;
2. If the marriage lasted at least 20 years but not more than 30 years, the court can order alimony and maintenance payments to continue for seven years;
3. If the marriage lasted more than 30 years, the court can order alimony and maintenance payments to continue for ten years.

Remember folks, there is no legal separation in Texas and you are still married for the purposes of calculating alimony and maintenance payments until the court enters your final divorce order. Dragging your feet just got potentially a lot more expensive. Contact us today at (832) 592-7913 if you are contemplating dissolving your marriage and have questions concerning your financial future and whether you could be eligible or liable for spousal support under the expanded provisions of the new law.

If you would like additional information, check out our free Woodlands Divorce Guide.

In a recent case the Attorney General filed a suit to modify the child support obligation of a Harris County father for the benefit of his two disabled children who were each no longer under the age of 18. The father’s child support attorney reviewed the law and challenged the authority of the Attorney General to file the child support modification lawsuit.

The Texas Family Code specifically outlines which individuals have the authority to file a lawsuit for child support for adult disabled children. These individuals are:

1. a parent of the child or another person having physical custody or guardianship of the child under a court order;  or
2. the child if the child: (a) is 18 years of age or older; (b) does not have a mental disability;  and (c) is determined by the court to be capable of managing the child’s financial affairs.

The statute does not mention the Attorney General and after careful consideration the court found that the Attorney General does not have inherent authority to file a lawsuit concerning child support for an adult disabled child. The outcome may have been different if an individual who did have proper authority assigned their rights to the Attorney General.

This case is an important reminder that the Attorney General makes mistakes and even they are not above the law. If you want something done right then consider an experienced child support lawyer. Contact us today at (832) 592-7913 if you need legal help with your Montgomery County child support case.

If you would like additional information, check out our free Woodlands Divorce Guide.