Texas Divorce and Prenuptial Agreement BLOG

Same-Sex Couples in Texas – No Marriage, No Divorce

philip — Mon, 06 Feb 2012 11:48:12 +0000

At least for now, marriage is a strictly state issue, so same-sex couples should make be careful when making decisions affecting marriage, divorce and families, as state law rapidly changes and varies widely amongst the 50 states. In today’s post, we provide a review of the status of same-sex couple law in Texas.

Same-Sex Marriage in Texas

Texans passed a state constitutional amendment in November of 2005 that defines a marriage as a union between a man and a woman. Same-sex couples may not, consequently, marry in Texas. A 2011 poll from the University of Texas and The Texas Tribune, however, found that a majority of Texans now support either marriage or civil unions for same-sex couples.

Same-Sex Divorce in Texas

Same-sex divorce is currently in a grey area in Texas. Same-sex couples have traditionally been unable to divorce in Texas even if they were properly married in another state that recognizes same-sex marriages. Two cases are currently pending before the Texas Supreme Court that, come this spring, will decide whether same-sex couples can divorce in Texas. The cases pit two couples to whom lower courts granted favorable rulings against Attorney General Greg Abbott.

Have you been involved in a same-sex marriage or divorce case? What wisdom can you share with other couples going through these legal difficulties?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

How Do I Modify a Child Custody Order?

philip — Fri, 03 Feb 2012 11:50:51 +0000

In the event that you or your child’s other parent need to modify a child custody order, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) dictates what you have to do. The state courts with the power to modify an original child custody are normally those that created the order in the first place. This is a concept in the UCCJEA known as exclusive continuing jurisdiction. The UCCJEA’s focus is on making interstate child custody disputes easier to handle throughout the country. The state with the most contact with the child usually has original jurisdiction, and under the UCCJEA, that state should continue to have jurisdiction unless there has been a major change.

There are two ways in which the state with original jurisdiction can lose its exclusive continuing jurisdiction:

The parents and child no longer live in the state with original jurisdiction, or
None of the parties has a significant connection with the state with original jurisdiction, meaning that there is no longer any substantial evidence related to the case in that state (for example, a non-custodial parent may still be in the original state, but the child’s new state may be in a better position to rule on child custody matters)

Thus, in order for a different state to be able to modify a child custody order, the state with original jurisdiction has to lose its exclusive continuing jurisdiction, and the new state has to have some connection with the case (see Tuesday’s post for how a state obtains original jurisdiction, as the same guidelines govern whether a state can obtain the power to modify a child custody order).

Has your child custody situation involved out-of-state moves? How did you go about obtaining a modification to your child custody order?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Federal PKPA Requires Other States to Enforce Custody Orders

philip — Thu, 02 Feb 2012 11:50:50 +0000

While the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) has been a great benefit to parents, it is unfortunate that the UCCJEA cannot prevent all instances of parental misconduct when it comes to children. Parental kidnapping remains a prevalent crime, with a quarter of a million cases of it occurring each year. In fact, more than 2,000 children are reported missing every day; in the vast majority of cases, law enforcement finds them quickly, but in the remaining cases, most are a result of parental kidnapping.

A federal law similar to the UCCJEA (which, though uniform, is adopted state-by-state) requires states to respect child custody determinations made elsewhere. That law is the Parental Kidnapping Prevention Act (“PKPA”). In many respects, the PKPA echoes what the UCCJEA says:

The PKPA requires other states to enforce child custody orders that were properly obtained (states must give “full faith and credit” to proper child custody determinations)
If states modify another state’s child custody order without complying with the PKPA, then the new determination is not entitled to enforcement in other states
Like the UCCJEA, the PKPA emphasizes the child’s “home state” as the state usually with original jurisdiction (see Tuesday’s post about how the UCCJEA determines which state has original jurisdiction), but the PKPA determination is not entirely the same
Under the Supremacy Clause of the US Constitution, any conflict between the PKPA and state law must be decided in favor of the PKPA

The PKPA is not, however, a federal criminal law. It does provide remedies like civil lawsuits or injunctions against parents who violate its provisions. An additional benefit of the PKPA is that unlike the UCCJEA (which Massachusetts has not yet adopted), the PKPA is federal, so parents can rely on it in any state where they find themselves engaged in a child custody dispute, and the PKPA will always trump state law.

Have you made use of the federal Parental Kidnapping Prevention Act? How effective was it?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

Emergency Child Custody Orders are Available Out of State

philip — Wed, 01 Feb 2012 11:50:49 +0000

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) has helped many parents throughout the country achieve consistent child custody rulings. It helped them avoid losing their children to ex-partners who crossed state lines to take advantage of variations in the law between states. Now that the laws governing interstate child custody issues are the same from state to state, parents have less to worry about, but the need may still arise for an emergency child custody order in the event that a child is in danger. The UCCJEA provides guidance on that as well.

The UCCJEA permits ex-parte (when only one side is present at a court hearing) emergency child custody orders under certain circumstances. If a child has been abandoned or a child is in danger, a court in a state that would ordinarily not be able to make a child custody ruling concerning the child would be able to issue a temporary, emergency order for the child’s benefit.

Additionally, if no court in any state has made a child custody ruling regarding the child, then the emergency order can remain in effect until the proper state can make a ruling (which may end up being the state that made the emergency ruling after all). If there is a state with original jurisdiction, then the temporary child custody order stays in effect until the state with original jurisdiction is able to address the matter.

Have you had to obtain an emergency child custody order? How would you describe the legal process for others who may face a similar situation?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Which State Governs in Interstate Child Custody Disputes?

philip — Tue, 31 Jan 2012 11:50:47 +0000

In the past, a parent could (and often did) take his or her child across state lines and get a new child custody order granting that parent full child custody. What would follow would often be a lengthy and expensive legal battle over which child custody order was in effect, all while the child in the middle of the dispute bounced between parents and courts. The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) changed all this, as the UCCJEA created a standard set of rules that determines which state has initial jurisdiction over a child in a child custody dispute.

Home State Has First Priority

The state whose courts have original jurisdiction to create a child custody order is often the “home state” of the child, the state where the child has been living. If the child recently left the state (within the past six months), that state will continue to have jurisdiction provided that one of his or her parents continues to live in the state. If the child has been absent from the state for more than six months, that prior home state will not likely have jurisdiction over child custody.

What Happens When There is No Home State?

In the event that no state meets the category above, the state with original jurisdiction to make a child custody order will be the one with which the child and at least one parent have connections. The child and parent have to have substantial connections with the state, though, beyond mere presence. For instance, the state should be where witnesses and the child’s medical and school records are located.

Other circumstances may come into play when making the original child custody order. Misconduct on the part of one of the parents, for example, may end up in a different state’s having jurisdiction than what the guidelines above would ordinarily require.

Have you been involved in an interstate child custody dispute? How did you determine which state had jurisdiction?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

Interstate Child Custody Dispute? Look to the UCCJEA

philip — Mon, 30 Jan 2012 11:50:45 +0000

In the United States, the first place to start for any question regarding interstate child custody is the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Drafted in 1997, the UCCJEA aimed to standardize child custody laws amongst the 50 states, and it has nearly accomplished this – every state except Massachusetts has passed the UCCJEA. With the UCCJEA, parents are no longer able to move their children between states to have a court in one state give a ruling that differed from another state court’s ruling.

Here are several of the important functions of the UCCJEA for parents concerned with interstate child custody issues:

The UCCJEA determines which state has original jurisdiction for child custody purposes (often the “home state” of the child”) (in tomorrow’s post we will go into more detail how a family can determine which state has original jurisdiction)
Once original jurisdiction is established, the UCCJEA does not permit other states to change that initial state’s order unless there has been a significant change in circumstances (for example, the child and parent no longer have any contact with that original state)
Other states’ courts do have the power to issue an emergency order under the UCCJEA if the child is in danger, but the court making such an order has to determine which state has proper jurisdiction over the child

Has the UCCJEA played a role in your child custody dispute?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Alimony Has Tax Consequences for Recipient and Payor

philip — Fri, 27 Jan 2012 11:10:11 +0000

When a court awards alimony (also called spousal support or spousal maintenance), this has tax consequences for both spouses. For the spouse receiving the alimony, he or she must report that as income for tax purposes. For the spouse paying the alimony, he or she is able to deduct those payments, but only if the payments meet the following Internal Revenue Service (“IRS”) requirements:

You cannot file a joint return with your ex-spouse
You must pay the alimony in the form of cash, check or money order
Your ex-spouse has to receive your payment
The divorce decree must not state that your payment should not be considered alimony payment
If you and your ex-spouse have already formally separated, you cannot be living in the same household
You cannot be making the payment after the death of your ex-spouse
Your alimony payment cannot be treated as child support or property settlement (both child support and property settlements are not deductible)

In addition to child support and property settlements, other examples of payments that would not qualify as alimony include:

Payments that come from community property (this is all assets that a couple acquires during the course of their marriage; these assets belong to both spouses, so it is not proper to use your ex-spouse’s own money as a source of alimony payments)
Voluntary payments (those that your divorce decree does not require)

Have you had any problems regarding taxes and alimony payments?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

Divorce Can Complicate Dependent Tax Exemptions

philip — Thu, 26 Jan 2012 11:10:11 +0000

Claiming a child as a dependent on your tax return offers a number of tax advantages like deductions and credits, but who gets to claim dependents is not always straightforward for divorced couples with children. Only one parent can claim each child as a dependent on the parent’s tax return. This is easy to sort out when one parent has complete custody over a child and the other has periodic visitation rights. The situation becomes more complicated when the couple splits time with their children.

Here are some of the variations that can change how the Internal Revenue Service (“IRS”) grants dependent exemptions:

A divorce decree from before 2008 can specify who gets the dependent exemption. The decree can do this even to give the exemption to the parent who does not have custody.
For couples divorcing after 2008, there is an IRS form that permits the custodial parent to give up the exemption. The parent without custody then uses that completed form when filing his or her tax return to use the dependent exemption.
If a child spends the same number of nights with both parents over the course of the year, custody (and ordinarily the dependent exemption) goes to the parent with the higher gross income.
Otherwise, in most cases where a child spends more time with one parent, that parent will be the one who is able to use the dependent exemption.
For divorced couples with more than one child, the couples may be able to reach an agreement whereby they split the dependent exemptions based on the number of children they have. Some couples also alternate exemptions from year to year, or determine exemptions based on who can take the most advantage of the exemptions.

How do you and your ex-spouse deal with the dependent exemptions when it comes to tax time?

John K. Grubb & Associates, P.C. – Houston divorce lawyers

Use a Prenup to Avoid Tax Problems

philip — Wed, 25 Jan 2012 11:10:10 +0000

In addition to their other benefits, prenuptial agreements can help couples decide how to deal with their taxes. Here are two areas that couples often put into prenups regarding their taxes.

Income and Deductions

Spouses can specify to whom income and wages go. This is particularly useful when one spouse brings a business to the marriage and the other spouse will not be taking part in running the business.

In a community property state like Texas, a family law court will generally assume that income acquired during the marriage belongs to the couple’s marital or community property. A prenup can specify that this is not the case and that certain income belongs only to one spouse. Likewise, there may be particular deductions that are available to the couple. The prenup can specify who will make use of the deduction if the couple files separately.

Property Transfers and Tax Consequences

Couples often want to include a property transfer in their prenup. The transfer can take place either before they marry or after they divorce. The timing of the transfer will have tax consequences for the couple.

Suppose a wife transfers property to her husband before marriage, and, in exchange, the husband agrees not to pursue additional property from her estate in the event that the two later divorce or she dies. The Internal Revenue Service considers this transfer a gift, and the wife will have to report any increase in value of the gift as taxable income. Additional details on how couples can avoid negative tax consequence through prenuptial agreements are available from a Texas prenuptial agreement attorney.

If a similar transfer takes place after the marriage, just after a divorce, for example, the IRS does not recognize this as a gift, but as incident to the divorce. For these transfers, the IRS does not calculate gains or losses, enabling spouses to bypass tax consequences.

Did tax considerations play a role in your prenup or divorce?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

Divorcing Couples Need to Choose Head of Household Status

philip — Tue, 24 Jan 2012 11:10:09 +0000

For the purposes of their taxes, spouses are single for the entire year during which their divorce becomes final (this means that if your divorce became final on December 31, 2011, for tax purposes, you and your spouse were not married for all of 2011). Divorced spouses have two options when it comes to taxes for their divorce year – file as “single” or as “head of household.” While the most tax benefits are generally available for married couples filing jointly, the next best option for a spouse would be to file as “head of household.”

In order to qualify as the “head of household,” a spouse (and the couple in general) does have to meet certain conditions:

The two spouses must have lived separately for the past six months
The spouse requesting “head of household” status must use his or her home as the main residence for dependents like children or elderly parents (note, though, that the rules for this requirement are complex and filed with exceptions, as, for example, dependent blood relatives do not have to live with you for the entire year for you to qualify as “head of household”)
The requesting spouse must have paid more than half of the costs of the household

Have you recently divorced? How did you and your ex-spouse decide who would get the head of household filing status?

John K. Grubb & Associates, P.C. – Houston divorce lawyers