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Texas Family Law Fundamentals: What you need to know and why you need to know it

Not every attorney has experience practicing every kind of law. For instance, I do not know patent law. I've never tried a medical malpractice case. If you asked me a question about secured transactions I would have to draw on whatever knowledge I have from a law school course. I tell you all this because a lot of people in the public think that just about any attorney should be able to represent them in a child custody, divorce or adoption case. The fact is that not every attorney has family law experience, and fewer still have experience handling a case like yours. 

If you are having an issue with a visitation order from a prior divorce or you are trying to get a divorce right now, you have probably seen advertisements on billboards and signs on buildings with the names and faces of local attorneys who work in various areas of the law. Other attorneys work for themselves and will take just about any case that walks through their door. These are the attorneys who will tell you that they are more than capable of handling your case. The trouble starts when your phone calls start to be missed and you can't seem to get a hold of him or her. 

That's not even to say anything about their experience handling a divorce or custody issue. The attorney that you hire does not have to have experience in handling family law cases, but you would be best served if he or she did. The reason being is that your spouse likely has hired an attorney who is familiar with the family court judges, rules and case process. You do not want to get left behind due to your attorney not being able to anticipate what is going to happen in your case. With experience comes some degree of expertise in that area of focus. An attorney who has never practiced family law at the very least will not have an expertise in handling a case like yours, and at work may not have been qualified to accept representation of you in the first place. 

What if you have an "open and shut" family law issue?

The sort of family law cases that I had in mind when I started writing this blog post isn't the types that complex legal cases are built on. A simple divorce involving you, your spouse and a child or a child custody issue involving your child's father wanting more time with your son is the sort of scenarios that I had in mind. No complex fact patterns, no need for protective orders or paternity testing. If yours is a straightforward family law situation then I would like to provide you with some questions that you should be asking a potential attorney. 

What if you want a prenup or postnup? Where can you start?

I was recently speaking to a potential client of the Law Office of Bryan Fagan who had asked me a question about a pre-marital property agreement, commonly known as a "prenup." The questioner was a man in his late 20s who was going to be marrying his longtime girlfriend. This man has a medical condition that could cause him problems throughout life, possibly even resulting in his death. 

With these facts in mind, the gentleman wanted to see if there would be any way to shield his wife-to-be from any medical debt that may be incurred as a result of medical care that he may need about his chronic medical condition. His heart was in the right place- he didn't know the basics of what debts would his spouse be responsible for in the future were he to pass away. 

Whether it is a man in the situation where he wants to shield his wife from his medical debts or a woman who is worried about marrying a man due to concerns over his only marrying her for money, what do you need to know about premarital property agreements?

The Texas Family Code allows for agreements between two people who plan on marrying one another. The agreement would go into effect only when the two people get married. Before the marriage date, it has no legal effect. At a minimum, the agreement must be in writing and signed by both you and your fiancé. 

What subjects can you and your fiancé come to agreements on? You can agree to do what you want with any property that is in either of your separate estates or in a future community estate that will be created upon the date of your marriage. Separate property is any property that is owned by you or your spouse before your marriage, or any property acquired by either of you during your marriage either by gift or inheritance. This means that you can contract for what will happen to one of your separate property estates upon either of your death. 

You can also work with your fiancé on modifying or eliminating spousal support, the ownership to any life insurance policies or just about any other matter that is not adverse to the public policy interests of Texas. This means that you and your fiancé can essentially agree to anything you want, other than something that is illegal or anything that has to do with child support. You cannot, for instance, state ahead of time that you will not ask for child support and that your fiancé agrees not to pay you child support.

If you and your fiancé would like to do away with the premarital property agreement (or a marital property agreement, for that matter) you would both need to sign a document that states as much. Importantly, you and your fiancé should both seek advice from different attorneys before negotiating a premarital or marital property agreement. 

When would a premarital or marital property agreement not be enforceable by a court?

The key to any agreement, contract or court order that you establish with your fiancé or spouse would be whether or not the agreement or order is enforceable by a court in the future. If an order is not enforceable then it is not worth the paper that it is printed on. 

Generally speaking, a premarital or marital property agreement is not enforceable if you or your spouse can show that the agreement was not signed voluntarily or that the agreement was unconscionable when it was signed. Unconscionability means that the agreement would be so against any ideas of fairness or equity that to enforce the agreement would be indecent. These conditions arise when one of you can show that you were not provided with a fair and reasonable disclosure of the property or financial status of the other party. If you purposefully fail to disclose some financial fact about yourself, the disclosure of which would have caused your spouse do not agree, a judge can find that the whole premarital or marital property agreement is unenforceable. 

With all of that being said, you must have an attorney (preferably a family law attorney) and your spouse does as well before starting the negotiation process. It is not enough that your spouse or fiancé tells you that he has an attorney who is willing to advise both of you, or that your circumstances are not complex enough to demand that an attorney be hired. You need to seek independent legal advice about your specific circumstances. Even if you just pay for a short consultation with a family law attorney to discuss what you need to negotiate for and be aware of in any discussions regarding premarital or marital property agreements. 

Is there such a thing as legal separation in Texas?

This is a question that I receive quite frequently. I don't know if it's because other states honor legal separation or because paperwork from the doctor's office's list "separated" as an option for your marital status. Many people seem to think that you can be legally separated in Texas. As in, you can go and talk to a judge and have a legal document that states that you and your spouse are legally separated. 

An exception to the rule that separation agreements are not valid in Texas are if you and your spouse had separated previously and you came up with a separation agreement when you already living apart and had no desire to reconcile and begin living as husband and wife again. In this way, a separation agreement under these circumstances can act like a marital property agreement. 

What sort of advice would you be seeking from an attorney regarding separation in Texas? The best thing that I could tell you or any other person who asked me about a legal separation agreement is that it is best to never sign one. The reason for this is that by entering into a separation agreement your efforts to separate your lives and your property can be determined to be unenforceable and void. What I would tell a person to do in that situation is to negotiate a marital property agreement, instead. 

Are we there yet?? How long does divorce take?

This is question that many times attorneys who do not practice in Texas family law cannot give you an accurate answer. If you are in a situation where you want and believe you need a "quick" divorce, the sooner your divorce can conclude, the better off you will be as far as you are concerned. Even if you are not in any particular rush, nobody wants their divorce to take any longer than it has to. So the question has some merit. 

Most typically, a divorce in Texas takes at least sixty days to be completed from the date that your divorce is file. The reason for this is that there is a sixty-day waiting period that has been set up to allow for reconciliation to occur. If there were no waiting period in place, I'm willing to bet lots more people would file for divorce and lots more people would regret having done so. 

There are limited exceptions where this sixty-day waiting period can be waived. For instance, if your spouse has been convicted of a family violence-related crime or there is an active protective order in place then you can request that the sixty-day waiting period be waived in your case. 

The next logical question for you to ask is when your divorce is considered to be final. Once you have waited the requisite 60 days or have taken as much time as you needed to negotiate a settlement to your case or have had a trial, a final decree of divorce will need to be drafted that reflects all of the orders that you either agreed to or were rendered by the judge. You should request a copy of your final decree of divorce once it has been signed by you, your spouse and the judge. 

How quickly can you remarry after your divorce has been finalized? 

You and your ex-spouse cannot marry another person before 30 days has passed since the time that your final decree of divorce was signed by the judge. You can think of this thirty-day waiting period in the same way that we think of the sixty-day waiting period for your divorce to conclude. Having to wait thirty days after your divorce to marry another person will hopefully reduce the chances of you marrying a person on a whim or impulsively. So, even if you have spouse number two lined up ahead of time, you will have to wait a month after your divorce from spouse number one until you can tie the knot again. 

More simple family law questions and their answers will be provided in tomorrow's blog post

We hope you will join us again tomorrow to discuss additional issues that you may have in relation to family law, and the answers to those questions. In the meantime, if you have any questions about the material that we covered today then please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns directly. 

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