Texas Alimony Law Changes September 1, 2011

Big Changes in Texas Alimony Statutes

By Marissa Balius

The word “alimony” often evokes strong emotions for people who are facing a divorce. For those paying alimony it may feel like a penalty for staying in a tortured marriage as long as they did. For those receiving alimony it may feel more like a punishment for all the years spent staying home to take care of the kids instead of pursuing a career.

Although alimony in Texas (which is referred to as “Spousal Maintenance”) has historically been considered remedial in nature and scope, big changes are coming, effective September 1 of this year.

While someone seeking alimony still has to meet the threshold requirement of showing that he or she does not have sufficient property and income to meet his/her minimum reasonable needs, there have been some changes in who qualifies for spousal maintenance, the duration of a alimony order and the amount that can be ordered. Now it’s up to the judges in Texas to objectively apply the law to the facts in each case.

Some of the highlights of the new statutes that will take effect for cases filed on or after September 1, 2011 are:

  • Removal of the 10-year marriage requirement for eligibility in limited circumstances.
  • Increasing the cap on the amount of alimony that can be ordered to the lesser of 20% of a spouse’s gross monthly income or $5000 per month.
  • Increasing the maximum duration of spousal maintenance payments from three years to a sliding scale of five to ten years depending on the length of marriage.

Marissa Balius is an experienced family law litigator with sixteen years of experience, and a Partner at Albin | Harrison | Roach. including ten years as an Assistant Attorney General in the Child Support Division. If you have questions about whether or how these changes to the law may affect your rights, please call or email us to schedule a free initial consultation.

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Dealing with the Child Support Division of the Texas Attorney General

by Marissa Balius

The Attorney General of Texas is the child support collection agency in the State of Texas. Dealing with the child support division of the Texas Attorney General (OAG) can be a frustrating process even for the most experienced attorney. Here are some tips that will help you with the process:

 

  1. Know your OAG number. You need to provide it on all communications with the OAG. It is your identification number with their office. The number should also be on all communication they send you.
  2. If the OAG is reporting you have a child support arrearage (back support payments) and you believe that the information they are reporting is wrong, ask for a child support arrearage calculation from their office. This document will show each payment due, each payment made and any interest that has accrued on the account. Take this payment record and every court order that required you to pay or receive child support to your own attorney to review.
  3. When you call or go into the Attorney General’s office, write the name and title of the person helping you and take good notes of your conversation for future reference. In my experience, they do not always keep good records, and inevitably you will get conflicting information.
  4. The OAG is not a neutral party. If they are involved in your case they have an interest! Discussions you have with anyone in their office are not protected by attorney-client privilege and can be used against you in court.
  5. If you are served with a legal document filed by the Attorney General or receive a Notice of Child Support Review Conference, hire an attorney immediately. DO NOT go to court or attend a Child Support Review Conference without your own attorney. You need your own representative to explain the legal process and advocate for you. If you are unable to retain counsel before your first court appearance or Child Support Review appointment, be careful about what you sign. They may have you sign an appearance of counsel or waiver of service or other document that may seem harmless at the time but may adversely affect your case.
  6. Each child support office has a customer liaison and each region has an ombudsman, a liaison between the public and the child support office that tries to resolve customer complaints. If you are not getting action or the results you and your attorney deem appropriate, ask for the ombudsman’s name and contact information. Lastly, if all else fails, contact your state senator and representative. In the Dallas/Fort Worth area state congressmen have a lot of leverage in dealing with the child support office and in my experience they can get the ball rolling when all else fails.
  7. The OAG sends out a variety of letters: DO NOT DISCARD THEM. Keep everything you receive as many of the letters have time frames to respond, hearing dates and in-office appointment dates and times. The OAG has the power to ruin your credit, garnish your wages and levy your bank accounts; any correspondence you receive is important!
  8. Don’t count on their employees for legal advice! By law, they should not be giving legal advice to either parent, and the information they provide is not always accurate.

If you need an expert to help you navigate through a case with the Attorney General’s office please contact me via email at mbalius@ahrlawfirm.com or by phone at 214-423-5100.

Marissa Balius knows the ins and outs of the Texas Attorney General’s office. She is an experienced family law litigator with sixteen years of experience, including ten years as an Assistant Attorney General in the Child Support Division.

Facing Divorce in an Uncertain Economy with Collaborative Law

First Posting:  Huffington Post on 2/5/11

By Curtis Harrison

These are uncertain economic times for all of us. While the outlook is slowly improving, news updates still occasionally toss around scary catch phrases like “double-dip recession,” and “double-digit unemployment.” And for those facing a divorce or a post-divorce modification suit, the fragile economic forecast can make an already uncertain future feel more like a double-looped roller coaster.

Take heart, because you still have options. You don’t have to raise the debt ceiling just to survive this period of transition in your life. It is a matter of enlightened self-interest. You and your spouse may not be able to agree on anything else, but most couples can agree that they don’t want to bankrupt themselves in the process of getting a divorce.

While some may be able to achieve a “kitchen table” solution, for most folks, the issues are too complex to resolve without guidance. But that guidance doesn’t have to come from a trial attorney. You and your spouse can choose to keep your divorce out of the hands of judges through a process known as Collaborative Law. There are several compelling reasons why Collaborative Law may be the right tool for those concerned with their financial resources:

1. In traditional divorce litigation, both the husband and the wife can waste thousands of dollars preparing for a contested final trial that usually does not take place. Why? Because the vast majority of litigated divorce cases wind up settling prior to trial.
In collaborative cases, 100% of every dollar spent is dedicated toward achieving the goal of settlement. 0% is spent preparing for trial.

2. In traditional divorce litigation, both the husband and the wife can waste hundreds, if not thousands, of dollars with their lawyers fighting over what documents will or will not be produced to the other side. Why? Because the goal in litigation is to beat the other side; and one way to do that is to resist producing documents and information during discovery in the hope of bushwhacking the other party at trial.

In collaborative cases, the parties exchange documents freely, informally, and inexpensively. Transparency is paramount.

3. In traditional divorce litigation, both the husband and wife can waste thousands of dollars by hiring competing expert witnesses to value businesses, trace assets, or make recommendations regarding custody of the children or possession of the children. Why? Again, the goal is to beat the other side, and another way to do that is to hire experts to do battle either at the negotiating table or at trial.

In collaborative cases, experts are jointly engaged and serve as neutrals. They don’t take sides or play favorites. For most cases, no more than one neutral financial expert is needed. So there are generally no competing opinions do battle. If a second opinion is desired, they too can be jointly engaged.

4. In traditional divorce litigation, neither you nor your spouse exercises much control over the process. You have virtually no control over the outcome. Why? Because the judge or jury makes the decisions at trial; and frequently the cases that settle short of trial actually settle as a result of emotional or financial exhaustion.

In collaborative cases, the spouses control both the process and the outcome. Texas was the first state to pass a collaborative law statute that actually strips the courts of the authority to make decisions in a collaborative case. As a result, both spouses share an incentive to operate efficiently and effectively. If they can agree on nothing else, they can usually agree that they don’t want the lawyers to make off with their estate.

These are just some of the economic advantages the collaborative law model offers over traditional divorce lawsuits. The current economic climate may be tenuous and the future unknown. But if you are facing a divorce you need not climb aboard the litigation roller coaster. Consider keeping control over the process, the costs, and the outcome by learning more about the collaborative law method.

Curtis W. Harrison, Collaborative Attorney
Board Certified – Family Law by the Texas Board of Legal Specialization
Albin | Harrison | Roach; 5601 Granite Parkway,Suite 400; Plano, Texas 75024
Telephone: 214-423-5100; Fascimile: 214-423-5111
www.ahrlawfirm.com

It’s Superbowl Weekend – How to Handle a DWI Stop

by Mito Gonzalez

It’s Super Bowl XLV weekend and, for many people, it’s time to party. Do you know what to do if you’re stopped by the police?

Well, do you?

Did you know the rights given to you by the Federal Constitution can be expanded by your individual State Constitution? Do you know how to enforce your constitutional rights? Most Americans know they have rights; they just don’t know what those rights are. Never is this more evident than during encounters between the public and the police.

After practicing criminal law for fifteen years, it seems to me that now, more than ever, people are under informed or just plain misinformed about their rights and how to interact with the police. The average person has more incorrect beliefs regarding their constitutional rights than the Federal Government has holidays. That ignorance almost always negatively impacts the average citizen. This situation cannot be remedied easily, but a few simple rules can help place you on the path to knowing and exercising your rights.

  1. You have the right to remain silent, use it.
    Believe it or not, most people get arrested because of what they say, not because of what they have done. If you are stopped by an officer all you must do is identify yourself. Where you are coming from, what you have been doing, and where you are going is none of his or her business. Everything you say and do in the presence of an officer is recorded. Don’t try to talk yourself out of a ticket only to get arrested for a greater offense.
  2. You have the right to be free from unreasonable searches and seizures.
    Pretty much any search of your person, car, or house without a warrant is unreasonable. Never agree to allow the police to search your car. You have no idea what someone may have left in your car and you will be held responsible for anything the police find.
  3. Field sobriety tests are voluntary – don’t take them.
    If the officer asks you to “take a few tests to make sure you are ok to drive,” you need to exercise your rights and just say no. The officer already believes you are intoxicated and is just looking to get you on video. These tests are not designed to test-driving skill and are not accurate at determining intoxication. Even when administered under perfect conditions, in a lab, with healthy young subjects, these tests have been shown to produce false positive indications of intoxication. None of these tests are used by doctors or in clinical situations and the medical community does not recognize them as accurate indicators of intoxication. If doctors don’t believe in them, why should you?
  4. Always ask for an attorney.
    When you have a problem with your health, you call a doctor. When your problem involves the law, call an attorney. In most cases, asking for an attorney will stop further questioning from law enforcement and give you the time and access to the information you need to make good legal decisions.

Now that you know your rights, I hope you enjoy your Super Bowl weekend.

Have more questions? Contact us. We have the answers.

 

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Tips for Avoiding Unreasonable Search and Seizure

By Manuel Gonzalez

Search and seizure law is complex and ever changing and the police always know it better than you. Don’t give them an even bigger advantage by agreeing to a search of your home, your car, or your person.

The 4th Amendment to the Constitution says that you are supposed to be free from unreasonable searches and seizures unless the police have a warrant. In other words, the law specifically sets forth when an officer can look through your possessions and what he can take if he finds it during the search.
If I let the police search my car, new case law suggests that unless my consent is limited, they can search anywhere in the passenger compartment, including hidden places and containers. That means behind the door panels, speakers, or dash area.

Searches have been expanded to places the framers of the constitution could never have imagined, like inside your body. If the police stop your car and think you are intoxicated, they can ask a judge to give them a warrant to “search” inside your body for evidence of intoxication contained within your blood.

We have a huge body of case law that prevents the State from infringing on your right to be free from unreasonable searches and seizures and ensures the police must follow all the applicable rules when searching your car or person, and all of it is thrown right out the window when you tell the police it is okay to go ahead and look through your car, house, pockets, or body.

Say NO.

It really is that easy. Just like you should say “no” to drugs, you should also say “no” to searches. If you are carrying something you don’t want the police to find, do not let them search for it.

I have often asked clients why they consented to a search and often I hear the same rationale; “I thought if I said yes, the officer wouldn’t go through with the search.”

I cannot conceive of a worse rationale. Of course the officer is always going to search if you let him. The police are very intelligent and they know that the more opportunities they get to look for illegal stuff the more often they will find it.

To be quite frank, if they had a legitimate legal reason to search your car, they would do it without asking most of the time. Even if they have a legitimate legal reason to search your car, person, or home, if you give them consent to search you give up the opportunity to complain about the search later in court.

Tips for avoiding all types of searches:

Keep your appearance neat and clean. Look like a criminal, get treated like one. There is a reason why middle-aged women driving minivans rarely get pulled over.

Keep your car clean. When I say clean I mean get your car detailed at least a couple of times a year. People who leave the inside of their car messy often forget about things they have tossed on the floor or cannot see items other people have left behind.

Keep your car in good working order. Don’t give the police a reason to stop you. Make sure your car is registered, inspected, and that all the lights work. A busted taillight can cost you thousands and a trip to jail.

Put questionable items in the trunk of your car. There is no excuse to leave illegal items in the passenger compartment of your car. Better yet, don’t put anything illegal in your car.

Don’t attract unwanted attention. If your stereo has to be that loud for you to hear it, get your hearing checked. All you are doing is inviting the police to pull you over and give you a hard time.

Don’t carry drugs on your person. This is common sense regarding illegal drugs, but prescription drugs carried outside the containers they are dispensed in can get you arrested as well.

Don’t carry cigarette packages or hide your drugs inside them. This is the first place police look for dope.

Don’t leave smoking paraphernalia where police can see it. Nobody believes you use that bong or water pipe to smoke tobacco! If an officer sees something like that it will only confirm that he or she really needs to find some legal way to search you, your car, or your home.

Be careful what a police officer can see when standing at your front door. A police officer standing at your front door can look inside when you open it. What the police see from your front door is considered in “plain view” and thus not an actual search. Once the police have lawfully seen something illegal in your home they can then seize it and get a warrant to look for more.

If you can see out, the police can see in. Looking through a window does not constitute a search in most instances. No one should be able to look into your home and watch what you are doing without you knowing about it. Put up window shears or install windows with either faceted glass or glass that distorts the viewable image.

The most important thing to remember when asked for consent to search is to say “no”.

Making Every Dollar Count – Divorce in a Soft Economy

These are uncertain economic times for all of us. Daily news updates toss around scary catch phrases like “double-dip recession,” and “double-digit unemployment.” But for those facing a divorce or a post-divorce modification suit, the sour economic forecast can make an already painful and uncertain future feel more like a double-looped roller coaster.

Take heart, because you still have options. The current soft economy has served to highlight several important reasons why Collaborative Law is the right tool for these times:

No Trial means No Trial Expenses

In traditional divorce litigation both the husband and the wife can waste thousands of dollars preparing for a contested final trial that usually does not take place. Why? Because the vast majority of litigated divorce case wind up settling prior to trial.

In collaborative cases, 100% of every dollar spent is dedicated toward achieving the goal of settlement. 0% is spent preparing for trial.

Producing Documents is Minimized

In traditional divorce litigation both the husband and the wife can waste hundreds, if not thousands, of dollars with their lawyers fighting over what documents will or will not be produced to the other side. Why? Because the goal in litigation is to beat the other side; and one way to do that is to resist producing documents and information during discovery in the hope of bushwhacking the other party at trial.

In collaborative cases, the parties exchange documents freely, informally, and inexpensively. Transparency is paramount.

No “Expert” Witnesses to Pay

In traditional divorce litigation both the husband and wife can waste thousands of dollars by hiring competing expert witnesses to value businesses, trace assets, or make recommendations regarding custody of the children or possession of the children. Why? Again, the goal is to beat the other side and another way to do that is to hire experts to do battle either at the negotiating table or at trial.

In collaborative cases, experts are jointly engaged and serve as neutrals. They don’t take sides or play favorites. For most cases no more than one neutral financial expert is needed. So there are generally no competing opinions do battle. If a second opinion is desired, they too can be jointly engaged.

Control over the Process

In traditional divorce litigation neither you nor your spouse exercise much control over the process. You have virtually no control over the outcome. Why? Because the judge or jury makes the decisions at trial; and frequently the cases that settle short of trial actually settle as a result of emotional or financial exhaustion.

In collaborative cases, the spouses control both the process and the outcome. Texas was the first State to pass a Collaborative Law statute that actually strips the courts of the authority to make decisions in a collaborative case. As a result both spouses share an incentive to operate efficiently and effectively. If they can agree on nothing else, they can usually agree that they don’t want the lawyers to make off with their estate.

These are just a few of the economic advantages the Collaborative Law model offers over traditional divorce lawsuits. Even within the collaborative case there are ways to use the model more efficiently and cost-effectively in this soft economy. If you are considering a collaborative divorce or modification, you might consider discussing with your attorney ways to fine tune and streamline the process to make it even more efficient and cost effective. Here are a few options to consider:

Agree – In Advance – to use the Collaborative Model

Have everyone review and sign the Participation Agreement (and other documents needed to enter into the collaborative model) in advance of the first joint meeting. Why? It saves time (i.e. It saves money). And this leaves more time to discuss substantive matters during the joint meeting.

Stay Focused on the Process: Use a Neutral Communications Coach

Insist on the use of a neutral communications coach (a mental health professional with special collaborative training). There are several advantages to this approach: (1) This person proctors the joint sessions instead of the lawyers. As a neutral who is specially trained in the art of effective communication, this person can foster greater confidence in the process, more constructive dialogues between the spouses, and higher productivity both during the meetings and outside of them. Increased productivity leads to a shorter process, thereby saving both spouses money. (2) This person can work with you and your spouse in offline meetings without the attorneys to explore and develop and parenting plan. Once again, this is a potential time-saver and – that’s right – a money saver.

Use a Financial Expert who understands the Collaborative Process

If property identification or valuation will be an issue, agree to use a single, collaboratively-trained neutral financial expert. This person can serve as the focal point for all document exchanges and can both assimilate and analyze financial data more effectively than the lawyers. And, unlike the communication coach, the financial neutral may not need to participate in every joint session. For example, if the topic of the joint session focuses on the parenting plan, the financial neutral can be given a holiday.

Capture Unused Joint Meeting Time

Plan ahead to capture any unused joint meeting time. Usually, there is a set agenda for each joint meeting and each meeting is scheduled to last for a fixed period, such as two hours. If you get through the agenda early, with a little planning and coordination you can reclaim the remainder of the budgeted time by moving directly into an offline discussion with the financial neutral, the communication coach, or even your own attorney to discuss substantive matters needing attention. This is yet one more way to maximize the efficiency of any already efficient process.

Gather and Organize your own Documents

Do some of the legwork in your case. Gathering and organizing documents take time. Lawyers charge for time. Save them time and save yourself money by helping them with your case. As an added benefit you will learn more about your own case than you would otherwise.

The current economic climate may be tenuous and the future unknown. But if you are facing a divorce you need not climb aboard the litigation roller coaster. Consider keeping control over the process, the costs, and the outcome by choosing the Collaborative Law method. If you would like more information about Collaborative Law please feel free to visit my website, or you can contact me by email.

Curtis W. Harrison, Collaborative Attorney

Board Certified – Family Law – Texas Board of Legal Specialization

Albin | Harrison | Roach; 5601 Granite Parkway, Suite 400; Plano, Texas 75024

Telephone: 214.423.5100     Facsimile: 214.423.5111

www.ahrlawfirm.com

Curtis Harrison is a collaboratively trained family law attorney working for the law firm of Albin | Harrison | Roach in Plano, Texas. He is board certified in Family Law by the Texas Board of Legal Specialization and serves on the Board of Trustees for the Collaborative Law Institute of Texas.

Fathers Parental Rights By Sharon Corsentino

For fathers who are not married to their child’s mother when their child is born, they often do not realize that until a court establishes their parental rights the mother has a superior right to their child. Many fathers think that simply having their name on the child’s birth certificate gives them rights to make important decisions regarding their child’s health, education, and general welfare However, that’s not really true. Having your name on the child’s birth certificate also does not provide you with specific rights to see your child. While it is important to have the father’s name on the child’s birth certificate, it is even more important to take legal steps to formally establish the parent-child relationship through the court system.
Establishing the parent-child relationship generally includes having a court declare that you are legally the father of the child the subject of the suit, determining the rights and duties of each parent in regards to the child, setting out a specific custody schedule for each parent to have possession of and access to the child, and medical and financial support for the child.
Albin | Harrison | Roach has skilled attorneys who can help you evaluate your case and pursue your legal rights. Please contact us at www.AHRlawfirm.com for more information.

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