Below is a summary of the modifications which should be immediately taken into consideration by spouses considering divorce – as filing before September 1st, 2011 or after could have a significant impact on a claim for alimony.

(1) Alimony Available for up to 5 Years

(a) Family Violence: Alimony will now be available for up to five years if the marriage was of a duration of 10 years or less and a spouse from whom maintenance is sought was convicted or placed on deferred adjudication for a criminal offense that constitutes an act of family violence (see Tex. Fam. Code § 71.004);

(b) Marriage of 10 Years – 20 Years: Alimony will now be available for up to 5 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 10 years, but not more than 20 years.

(2) Alimony for up to 7 Years

Alimony will now be available for up to 7 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 20 years, but not more than 30 years.

(3) Alimony for up to 10 Years

Alimony will now be available for up to 10 years, where a spouse otherwise meets the eligibility requirement, for marriages lasting 30 years or more.

(4) Maximum Amount of Payments Increases from $2,500 to $5,000

The legislature modified the amount of alimony as well, increasing the maximum from $2,500 to $5,000. Of course, the amount of the payment remains the lesser of the $5,000 or 20% of the spouse’s average monthly gross income. Further, the legislature added specifics on what forms of revenue are included in “gross income” – which includes just about any source of income “actually being received” and is very similar to determining income for child support.

Gross Income includes the following:

(a) All wages and salary;
(b) Interest, dividends, and royalties;
(c) Net rental income; and
(d) “All other income actually being received” from severance, retirement benefits, pensions, trust income, etc …

However, gross income will NOT include the following:

(a) Return of principal or capital;
(b) Accounts receivable;
(c) Federal public assistance benefits;;
(d) TANF benefits;
(e) Payments for foster care of a child;
(f) VA disability benefits, and
(g) Foster care but does not include VA
(h) Supplemental security income (SSI);
(i) Social security benefits and disability benefits; or
(I) Worker’s compensation benefits

(5) Suits for Overpayment of Alimony Added

The legislature has now added a provision to allow for suit to recover overpayment of an obligor’s spousal maintenance obligation. Provided an obligor is not in arrears at the time of the suit for overpayment, an oblige can be required to return any overpayments made that exceed the amount of the alimony or spousal maintenance ordered by the Court. This is true regardless whether the payments were made before, on, or after the date the alimony obligation terminated.

In the event a spouse fails to comply with an order to return any overpayments ordered by the Court, except where “good cause is shown”, the Court is required to make the oblige spouse pay all attorneys fees and costs of court.

It is worth noting that although this provision takes effect on September 1st, 2011 it applies to any spousal maintenance Order rendered on, after, or before September 1, 2011.

Sometimes in family law there are child custody emergencies. The Evans Family Law Group has successfully handled cases where a parent has taken a child without giving notice or obtaining consent from the other parent. In some of these cases the parent has crossed county or state lines. In these emergencies the Evans Family Law Group has recovered children from all over Texas and from out of state.

In this kind of highly charged emergency you need a Family Law Attorney with expertise in resolving jurisdictional conflicts and experience in coordinating with different jurisdictions across county or state lines to recover the child. The Evans Family Law Group has experience in clearing the jurisdictional hurdles and obtaining the court orders that are necessary to immediately recover children in custody emergencies

James Evans of the Evans Family Law Group is a board certified family attorney who has been successful in recovering children in difficult and complicated custody emergencies.

In the family law code one of the most contentious matters can be child support: “how much is he going to have to pay me?” or “how much am I going to have to pay?”

Calculating child support is very easy in cases where the primary income earner’s compensation is in the form of a salary, for example an individual working forty hours a week with no commission, overtime, or fringe benefits, and with no special needs children involved or other unusual circumstances. In straight-forward cases like that the standard formula is 20% of net resources for one child and 25% for two children.

Competent representation is more important in other types of cases where the primary breadwinner’s income is not as conventional: for example he owns his own business where he pays himself, he pays other people, and he has his assets split between several bank accounts, a stock portfolio, and a 401k. In situations like that you have to litigate, which necessitates obtaining and interpreting the financial information yourself because often litigation results in parties becoming less transparent and less forthright with financial information.

If you are hiring an attorney to pursue assets in this type of case you need an attorney whose firm has a background, like the Evans Family Law Group, in banking and accounting and who can dissect and analyze financial statements. James Evans is a board certified family lawyer and the Evans Family Law Group puts this specialized skill set at your disposal to assist you with your child support cases.

Not surprisingly Dads are more likely to be the parent seeking advice about how to obtain primary custody of children and they are concerned that courts have a bias against fathers becoming the primary caregiver.

While as recently as ten years ago this may have been the case. Currently the courts in Travis, Williamson, Burnet, and Hayes are most concerned with what is best for the child. This means evaluating individuals: not on the basis of their gender but on the basis of which parent is going to be best the best care giver.

Some of the most decisive questions that could result in the father winning primary custody are: does the child’s mother move around a lot? Does the mother have documented mental health issues (other than depression)? Does the mother have documented previous child protective service issues, a history of abuse, domestic violence, or neglect?

But many situations are less clear cut and that’s when the nuance of the situation becomes more important: does the child have special needs? Is the child in school or out of school? How far apart do the parents live? Another important factor is what is the ability of the parents to cooperate? Is there one parent who can be exposed as non-cooperative through little things like refusing to disclose school schedules or doctor’s appointments?

Mothers do have a distinct advantage in custody decisions when a child is younger than 24 months old. In cases involving a child that young and a father who elects voluntarily to be involved, the courts typically give the father frequent opportunities to bond with the child. What’s important for fathers in situations like these is respect for the process: understanding that maybe things like overnight visits are not warranted, but taking advantage of the opportunities you do have to bond with the child and using that to further expand visitation rights.

The bottom line is that the court is looking for is some indication of who is the more stable parent and who is the more permanent caregiver. Clients should evaluate for themselves: why should a judge trust you in a primary care role with these children?

James Evans is a board certified family attorney who is understands the process to obtaining primary custody and is well qualified to assist with your child custody case.

Agreed or uncontested cases

Agreed or uncontested cases are appropriate when the parties are able to work things out mutually to an amicable resolution. Uncontested simply means the other party is not contesting the case so in a way it is an agreed or amicable resolution.

Mediated resolution

Mediated resolution is when both parties attend mediation with a neutral attorney who guides the parties through a negotiated process to arrive at an amicable resolution. Mediations can last a half day or sometimes a full day. Under the right circumstances and the right frame of mind mediation is a very successful tool to resolve cases amicably.

Collaborative law model

The collaborative law model is in many ways is similar to the mediated model. In this scenario each party has their own attorney and additionally they use mental health professionals and specially trained professionals with expertise in finance and conflict resolution, called financial neutrals, to help guide them through a series of meetings. Each meeting covers a separate agenda where both parties keep minutes and take notes. The idea behind the collaborative model is to have a transparent negotiated process that both parties agree—by signing the agreement—cannot be used in court. This agreement is recognized by the family law code. Over the course of these meetings the parties resolve their issues to arrive at an amicable agreement.

Litigation

When parties cannot engage in mediated or collaborative divorce, or under the circumstances neither of those processes makes sense, you have to litigate. Litigation involves courts, evidence, hearings, and a trial.

James Evans is board certified in family law and Evans family law group handles all of these different types of cases. Mr. Evans has handled more than fifty mediated settlements and more than one hundred agreed resolutions. He has handled more than one hundred jury trials and is certified in the collaborative process and has handled many of those cases as well.

In the family law code the standard visitation schedule suggests that visits should occur during the first, third, and fifth weekend (which occurs three times a year) of the month—so basically every other weekend. The visits start Friday at 6pm because the code presumes you work and accommodates for travel time from work to pick the child up. These visits last until Sunday at 6pm, the idea being to work around the child’s school schedule and allow time for school work and to get ready for bed. Usually this arrangement also schedules a weekly visit on Thursday from 6-8pm.

However the standard visitation schedule is just a starting point: when parents are actively involved Judges may exercise their own discretion to alter the schedule. Signs of active involvement are things like making time for parent/teacher conferences, doctor’s visits, and attending extracurricular activities, or in other words trying to keep up with the welfare and wellbeing of the child. In the Family Law Code the standard arrangement is only a starting point for Judges. If you can convince a Judge that the standard arrangement is not in the best interest of the child or not working out, Judges have the power to arrange something else.

James Evans is a board certified family attorney and can help you obtain the optimal visitation schedule for both you and your child.

Couples whose cases have no potential for amicable resolution in the immediate future are in family law known as “at fault” divorce. In these cases there are grounds of fault in the case such as: acts of infidelity, domestic violence, or drug and alcohol abuse. In tense emotional cases like this above all you need a litigator.

You need someone who brings a certain set of skills, who not only understands the interpersonal dynamics of the couple but also the dynamics of the courtroom, the law, and how to interact all of that in front of a judge or jury. With cases like these all of these elements are crucial and they all come crashing down when your case enters the courtroom.

Traditional family lawyers rarely have to try a case in court and are often unsure of how to approach to these types of cases (in the US 95% of cases are settled outside of court). James Evans is board certified in family law and unlike traditional family lawyers Mr. Evans has extensive experience presenting cases in front of a judge or jury and he has tried hundreds of cases in court.

Divorce and custody disagreements are the kind of circumstances that can cause emotional crisis—it’s redefining your life. When you are facing a case likely to be settled by trial you need a steady hand, someone who you can trust, someone who has been there before.

Income or property arising from a gift between spouses remains the separate property of that receiving spouse.

Income from Gift from 3rd Party = Community

However, income or property arising from gift by a 3rd party will be deemed community property (absent agreement of spouses).

Purchased During Marriage, One Spouse Named as Grantee.

A deed from one spouse naming the other as grantee creates a rebuttable presumption that the grantor-spouse intended to gift the property to the grantee-spouse as her separate property.

Raymond v. Raymond, 190 S.W. 3d 77 (Tex. App. – Houston [1st Dist.] 2005, no pet).

If the deed recites no consideration or only nominal consideration, it is construed as evidence of the grantor-spouse’s intention to donate the property to the grantee spouse as a gift.

Magness v. Magness, 241 S.W.3d 910 (Tex. App. – Dallas 2007, pet denied)

(Although W testified she executed deed transferring ½ interest only for purposes of refinancing, Wife did not rebut presumption of gift.).