If you are seeking a divorce in Texas and either you or your spouse owns a business that was started during the time of the marriage, it is likely this is going to become a contested issue in your divorce. Determining the value of a business is much more complicated than determining the value of real property. While looking at comparable sales in the same area is an excellent place to start, no two businesses are exactly alike, so several approaches to determining a business’ value must be employed in order to arrive at a final determination of value.

Your attorney will discuss options with you at the outset of your case, but it is likely that you will want to employ a business valuator to examine the business and provide their opinion as to the value of the business. You and your spouse might agree to start the process by hiring a joint business valuator and then seeing what their report says before hiring your own expert. While this may be somewhat costly, the expertise that a business valuator brings to the table cannot be underestimated. Business valuation concepts are incredibly complex, so if your case goes to trial, you will need someone who is an expert in the field to provide testimony to the Judge that explains in clear and precise terms how and why they arrived at their valuation.

The business valuator is going to look at the factors outlined in Revenue Ruling 59-60 to start the valuation. These factors are listed below:

  • Nature and history of the business
  • Economic and industry conditions
  • Book value and financial condition
  • Earning capacity
  • Dividend paying capacity
  • Goodwill or other intangible value
  • Prior sales of the stock and percentage of the business being valued
  • Market price for corporations in the same, or similar, line of business
    In order to begin their work, the business valuator will need to examine certain business documents, such as those listed below:
  • Business Tax Returns
  • Income Statements
  • Balance Sheets
  • Sales or Operating Budgets
  • Payroll Data
  • Summary of Inventory
  • Summary of Assets
  • Employment Contracts
  • Intellectual Property
  • Incorporation Documents
  • Financial Forecasts
  • Business Organizational Chart
  • Bank Statements
  • Accounts Receivable Report
  • Depreciation Schedules
  • Summary of Dividends and Distributions
  • Any other pertinent contractual documents (i.e. licensing agreements, nondisclosure agreements, etc.)

Once the business valuator has gathered and reviewed all of the necessary financial documents, they will schedule interviews with the owner spouse and other key executives. After compiling all of the necessary data, and conducting the necessary interviews and onsite inspections, the business valuator will compile a report that will be reviewed by the attorneys for use in court. It will take some time to receive the written report, but the findings contained within will be crucial to arriving at a fair and equitable distribution of the community estate.

Valuing a business in a divorce is one of the most complex issues involved in your divorce. Make sure to discuss these matters with your attorney in your initial consultation to make the most use of your time.

For more information on Divorce for Business Owners or C-Suite Executives clicks on the links below:

If you’re ready to hire expert representation give us a call or email today!

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Divorce is a very stressful time, but it doesn’t have to be an obstacle course. The keys to a simple divorce in Texas are careful planning, sound legal representation, the resolve to stay calm, and the discipline to stick to your game plan.

Divorce isn’t quick either, with the shortest path still requiring a two-month legal process. Messier divorces can take much longer, and depending on your circumstances, there may be no getting around this. At Ramos Law Group, our family law attorneys are highly experienced in navigating the divorce process. We have represented clients at all income levels, both men and women, as well as with and without children. Need a simple divorce? Start here.

Uncontested Divorces

The easiest way to get a simple divorce in Texas is for you and your soon to be former spouse to come to a full agreement on every aspect of the divorce, including child custody and the division of assets. With no disputes, there is no need for a protracted legal process, which makes it possible to get what’s called an uncontested divorce.

If you and your spouse are close to being able to agree to an uncontested divorce, but aren’t quite there yet, it is usually worth the effort to reach that agreement—with the help of mediation if needed. An uncontested divorce is usually the fastest and cheapest method in Texas for a simple divorce. It can save both of you (and any immediate family members) a lot of time, money, and frustration.

Even if you are able to get an uncontested divorce, you will still need legal representation. Here at Ramos Law Group, we can advise you as to whether getting an uncontested divorce is a good course of action in your situation. If it is, we can represent you throughout the legal process, help you with the paperwork, and guide you through any steps you need to take.

Contested Divorce

If there are any disagreements that you cannot resolve, you will have to opt for a contested divorce. This is a more formal process, but with good legal counsel, it may still be possible to keep your divorce simple. In Texas, a contested divorce follows a particular process:

Divorce Petition and Temporary Orders

First, you will file for a divorce with the court, and then obtain any temporary orders that may be needed. A “temporary order” is a legal motion that will keep both spouses from taking any one-sided actions that affect your shared property, children, and so forth.

These orders make for a much easier and more simple divorce. In Texas, a “temporary order” is different from protective orders that would be granted in situations where one’s safety may be at risk. Protective orders are also an option, if needed.

Discovery Phase

This part of the process involves each side learning the position of the other when it comes to how they want things to be divided up. For example, during the discovery phase, you might learn that your spouse wants to keep the pets or a certain piece of furniture. Collecting this information will set up the next step in the process.

This process can be frustrating because if your spouse says they want something that you also want, it can feel threatening. Remember the keys to getting a simple divorce in Texas: plan carefully and keep a calm head. Discovery is purely an information-collecting phase.

Mediation

Next, there will usually be a mediation process. The State of Texas prefers that, whenever possible, couples resolve their disputes through mediation instead of at trial.

The mediation process is actually quite successful in many cases. With the help of your attorney, your spouse’s attorney, and the professional mediators all working together, it often works out that you will be able to settle many thorny questions that you and your partner could not solve on your own.

Mediation is a give-and-take process. You’re not going to get everything you want. Neither is your spouse. The keys to getting a simple divorce in Texas are to understand this, and be willing to make some concessions. It’s not about winning or losing. Think of it as a business transaction: You’re both going to get value, but at a fair price. We strongly encourage you to give the mediation process the best chance you can.

Final Trial

If there are any remaining disputes after mediation, the final step is to have a trial. Here, the court will hear arguments from both sides and issue a ruling.

After that, and some final paperwork, your contested divorce will be complete.

Ramos Law Group’s team of experienced attorney are here to help you through this process, so that you can get the fastest and most simple divorce in Texas that you possibly can.

Contact Ramos Law Group

If you want a simple divorce in Texas, you absolutely need to have a qualified and experienced lawyer who has gone through this process for many clients.

At Ramos Law Group, we proudly serve clients throughout Houston and the surrounding region. We have handled divorce cases for clients in just about every kind of situation you can imagine, and we can help keep you on track through this difficult journey.

Contact us today to discuss your situation and begin the process of settling your divorce and moving on to better things in your life.

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A prenuptial agreement is a legal contract between two people who plan to get married, should the marriage eventually fail (as roughly half of all marriages do). A prenup settles crucial questions such as:

  • Who owned what prior to the marriage?
  • How property acquired during the marriage will be divided upon divorce?
  • What spousal payments will occur after the marriage ends?

The benefits of signing a prenuptial agreement in Texas are extensive, and it often makes excellent financial sense to enter into one of these agreements.

Avoiding a Messy Divorce

If it comes to divorce in the first place, there are almost certainly hard feelings, confrontations, and deep frustration. Add money to that mixture and the dispute becomes explosive. Many divorcees have lamented after the fact that they didn’t sign a prenuptial agreement. In Texas, a prenup is a reliable tool to avoid much of the chaos of a messy divorce, especially a high net worth divorce.

Young Newlyweds Have More Prenuptial Wealth to Protect

When you sign a prenuptial agreement in Texas, you can protect your existing assets and investments, including inheritance rights, business ownership, and other sources of wealth that often become a major point of contention in divorce proceedings.

A growing trend of younger generations is to marry later in life than their parents and grandparents did. With this delay comes a corresponding increase in the wealth they bring to a relationship. The same is true for older individuals entering into a second or third marriage. The more wealth you have prior to getting married, the stronger the arguments for a prenuptial agreement become.

Establish How Assets Will Be Divided

Prenuptial agreements are especially helpful when it comes to dividing co-owned property acquired during the marriage.

Settling the Question of Spousal & Child Support Payments

Known as spousal maintenance, many divorces result in an agreement that one spouse will provide various forms of financial support to the other. These costs can potentially be very significant, which strengthens the case for signing a prenuptial agreement in Texas prior to your marriage.

And while a prenup cannot be used in determining child custody, it can be used to settle the question of what sort of compensation will be provided in the event one of the parents leaves the workforce to care for the kids.

Protection Against Spousal Debt

A prenuptial agreement isn’t just about protecting wealth. It can also provide protection against debt liability if you plan to marry someone who carries a lot of debt. The average American household carries roughly $140,000 in debt. Many of today’s college graduates can vouch for the enormous debt load that comes with their diploma, to say nothing of the debts from home, auto, or business loans.

By signing a prenuptial agreement in Texas, each spouse can limit their liability to existing debts carried by the other partner, thereby providing considerable protection.

Let Ramos Family Law Help You Shape This Crucial Document

While once written off as cynical and cold-hearted, prenuptial agreements have proven to be valuable instruments of personal protection, and today they are growing in popularity.

Prenups must comply with the Texas Family Code and other applicable laws, and must be written carefully so as to minimize the risk of being invalidated or misinterpreted if challenged.

Ramos Law Group has years of experience in drafting and negotiating these contracts. Contact us today to discuss your situation.

There are seven different grounds for divorce in Texas state law. In order for a divorce to be granted by the court, at least one of these seven conditions must have been met.

There are two types of divorce grounds in the Texas Family Code: a “fault” divorce and a “no-fault” divorce.

Special Note

A “fault” versus “no-fault” divorce is not the same thing as a contested divorce versus an uncontested divorce, where the spouses either do or do not have any disputes about dividing property, child custody, and making support payments.

No-Fault Grounds for Divorce

A “no-fault” divorce grounds occurs when neither spouse is found not to have actively done anything wrong to undermine the marriage, but the marriage has still failed anyway. No-fault divorces tend to be quicker and less expensive, with a more equal division of shared assets. There are three no-fault grounds for divorce in Texas law:

  • Insupportability
    Also known as “irreconcilable differences,” this is a big catch-all category. In practice, an “unsupportable” marriage can mean almost anything: a lack of shared interests, conflicting personalities, endless arguments, and so on. Generally (though not always), this is the divorce grounds that couples choose when both spouses agree to the divorce on positive, cooperative terms.
  • Living Apart
    If a couple has lived apart from one another for at least three consecutive years, the state will consider this a grounds for divorce. It will also likely figure into the division of property—for example, if one spouse has had the car for all that time, and the other has had the house.
  • Confinement to a Mental Institution
    If one spouse is confined to a mental institution for at least three years, and has a very poor chance of recovery (or a very high chance of relapse in the event of a recovery), this is grounds for a divorce. Bear in mind that the court will likely appoint a guardian to represent the incapacitated spouse’s interests.

At-Fault Grounds for Divorce

In the case of at-fault grounds for divorce, one (or both) spouses is said to be at fault for undermining the marriage. In most cases such a finding will greatly influence the judge’s final ruling against the at-fault spouse when it comes to the division of property, custody, and support payments.

There are four fault grounds for divorce in Texas law:

  • Cruelty
    “Cruelty” covers a broad range of conduct. It can be an action or a pattern of behavior. It can be physical, emotional, or psychological. It can be a single event, such as a physical attack, or it can be years of small insults and disrespect that gradually added up. Some amount of proof must be provided.
  • Abandonment
    Abandonment occurs when one spouse voluntarily leaves with no intention of returning. Abandonment must have lasted for at least one full year before it can be counted as grounds for divorce in Texas.
  • Adultery
    This one is self-explanatory. As with other forms of at-fault divorce, proof must be provided. It is also worth noting that any acts of adultery committed during the divorce proceedings, if they are discovered, can be factored into the judge’s final ruling.
  • Felony Conviction
    If one spouse (or both) has had a felony conviction, the Texas Family Code accepts this as an at-fault grounds for divorce, as the tragedy of a felony conviction can fundamentally undermine a marriage’s trust, as well as its financial stability and its day-to-day viability (as an imprisoned spouse will be absent).

Contact Ramos Law Group to Handle Your Divorce

The judge in your divorce case is the person who will make a final determination of fault or no-fault. They will listen to the arguments from both sides, consider all the evidence, and may end up agreeing with one side over the other—or with neither side.

Ramos Law Group handles all seven grounds for divorce in Texas. We have the legal experience to build a strong case on your behalf. Contact us today for a consultation.

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If your marriage is coming to an end and you plan on filing a divorce petition in Houston, Texas, it helps to understand the process before you begin. Here at Ramos Law Group, we deal with these situations every day, so we’ve written this guide as an informative look at the initial steps of filing for your divorce.

Visit our Divorce Page if you’re ready to speak to an attorney now. Otherwise, read on.

Hire an Experienced Family Law Attorney

Filing for divorce is a legal process, and most of the steps have to be done in a very specific way. The paperwork, in particular, has to be just right. If you make any mistakes along the way, it could make your divorce process longer and more expensive. That is why it’s always best to consult with an attorney at the start of your divorce process.

If you want to file your divorce petition in Houston, Texas, Ramos Law Group is proud to serve all of Houston, Harris County, and the surrounding region. We have the legal know-how to handle almost everything for you. With us, you’ll be able to trust that all of these legal steps will be done quickly and correctly.

Visit our Choosing a Divorce Lawyer page to start the process of finding just the right attorney on our staff to meet the needs of your specific situation.

The Harris County Divorce Clerk and Law Library

There isn’t a lot of public help available to guide you through your divorce—another reason you need to hire an attorney—but one excellent resource if you’re filing a divorce petition in Houston, Texas is the Harris County Law Library, which is conveniently located in downtown Houston just a block away from the divorce clerk’s building.

There are excellent legal resources at the Law Library, including a highly knowledgeable staff. They also sometimes have divorce volunteers onsite to discuss your situation. These hours are limited, so you should call ahead and ask. The Law Library staff and volunteers can’t replace your attorney in guiding you through the divorce process, but they are a helpful extra resource.

The Advantages of Being the Spouse Who Files for Divorce

The spouse who files for divorce first is formally known as the “petitioner.” There are a couple of important advantages that come with being the one to file.

Keep Your Divorce Local Greater Control Over Court Dates
If you would prefer not to travel a long distance for your appearance in divorce court, then file your divorce petition in Houston. Texas law allows the petitioner to choose which county to file in whenever there are two or more locations that might claim jurisdiction Filing for divorce first also gives you more control over court dates. If you have a busy calendar or a restrictive work schedule, filing first can make your life a lot easier by giving you this flexibility.

Legal Requirements Before Filing

To file a divorce petition in Houston, Texas, you or your spouse must have been a resident of Harris County for at least 90 days. You must also have had your residence in the State of Texas for at least six months. If either of these conditions is not met, you will either need to file in the proper county, or else wait to file until the time requirement has passed.

The Actual Filing Process

The actual filing process is one of the easier steps in the divorce process. At this point, you’ll have a firm plan in place with your attorney, and they will guide you through the paperwork of filing your divorce petition in Houston, Texas.

Once the petition is filed and accepted, court dates will be set for the next step in the process, which, depending on your circumstances, could be a hearing for a protective order.

Making Modifications to Your Divorce Papers

Divorce is a strange time, with many things changing that used to be constant. Oftentimes, the situation changes so much during the divorce process that one or both spouses may wish to make a modification to the original divorce petition in Houston, Texas. This can range from child custody modification, to modifications on support payments, or other changes.

For the sake of saving time and money, it’s obviously best to save yourself from needing to make modifications down the road, but it’s important to know that this option is available if you need it. You don’t have to go into your divorce with everything completely finalized regarding custody, property, and so forth.

Your Divorce Documents Will Become Permanent Public Records

It’s important to realize that many of your divorce documents, once filed and accepted, will become a permanent part of the public record. Anybody who is so inclined will be able to look them up. It can even be helpful to you later on down the road, if you need to get copies of your divorce papers.

Public records are an important part of a society’s history, and it is very useful for scholars and historians to be able to look them up, but of course, at the individual level most of us value our privacy and would like to be discrete with how much we disclose.

This is another reason why it’s so important to file your divorce petition in Houston, Texas with the help of a knowledgeable family law attorney. At Ramos Law Group, we’ll make sure that all of your documentation is correct, and help you minimize the unintentional disclosure of any revealing information that you’d rather keep private.

Let the Experienced Attorneys at Ramos Law Group Help

At Ramos Law Group we can help you file your divorce petition in Houston, Texas. We will help you get all the paperwork right, and we’ll navigate you through the legal process.

With our years of experience and highly skilled team of family law attorneys, your divorce will be as painless and quick as possible, so that you can put this difficult chapter behind you and carry on with your life.

Contact us to begin the process of filing your divorce petition in Houston, Texas.

Each state has its own set of laws that govern the division of property during a divorce or dissolution of marriage. Community property is a term for the assets that a married couple owns together.

There are nine states that recognize the philosophy of community property, including Texas. Which assets are considered separate or community property is what guides the Texas court systems through the divorce process.

What Qualifies as Community Property in Texas Divorce?

Any asset that was acquired during the marriage is considered community property in Texas. This means that any asset earned or acquired during marriage– be it earnings, retirement accounts, real property, personal belongings, etc – are subject to a just and right division in a Texas divorce.

Even if an asset is in one spouse’s sole name, for example, a 401k retirement account or motor vehicle, if it was acquired after the date of marriage then it is considered community property in a Texas divorce.

The nature of community property in Texas divorce does not change no matter who earns the asset or contributes toward the community estate. Even if only one spouse earned community income or all the community assets are under only one spouse’s name, community property law requires that all assets be subject to a just and right division. This means a spouse that never worked or earned substantially less than the other spouse is entitled to a just and right division of the community property.

Assets from Before the Marriage

Any asset that was in existence prior to marriage is not considered community property. An asset that existed prior to the marriage is characterized as separate property.

Separate & Community Property in Texas Divorce

Some property can be characterized as both separate property and community property in a Texas divorce. For example, if a party had money in a retirement account on the date of marriage and continued to contribute after the date of marriage. Then there would be a community property interest and a separate property interest in the same account. Some property, even if acquired during the marriage, cannot be characterized as community property in a Texas divorce. This includes property that was acquired via gift, devise or inheritance. Any assets acquired by those means will remain as that spouse’s separate property.

Proving Separate vs. Community Property

There is a presumption that all property acquired during a marriage is characterized as community property. The burden of rebutting that presumption is on the party claiming the property is separate property.

A court cannot divide or award separate property; it can only address the division of community property in a Texas divorce. To prove that an asset is a separate property, a party must be able to prove the date of inception occurred prior to the date of marriage or that it was obtained through gift, inheritance or devise.

Speak With an Expert Attorney

Given the intricacies of the community property system and the importance of preserving all of your community property rights, it is highly advisable that you consult with a licensed Texas family law attorney who has experience in dealing with the division of community property in a Texas divorce. A licensed Texas divorce attorney with experience in dealing with the division of community property will be able to review the details of your estate and provide advice as to a proposed division.

Call Ramos Law Group

If you are considering a divorce in Texas and have assets to divide, please contact the Ramos Law Group to speak with one of our licensed attorneys about your case.

If you are the first to file for divorce, you will be known as the Petitioner. Ultimately, the differences between who files first are minimal but there are some procedural considerations as you will see below.

The Petitioner May Choose the County

If there are multiple counties in which the courts could have proper jurisdiction, the spouse to file first ultimately chooses the county that the matter will be heard in. If your spouse lives in another Texas county, it may be advantageous for you to file in the county closest to you. In Texas, It is sometimes better to file for divorce first so that the courthouse can be as close to your home as possible.

Control of the First Hearing Date

The party to file first is usually in control of the first hearing date for temporary orders, if temporary orders are requested in their case. Temporary orders may be requested for various reasons, but primarily parties want to establish provisions for conservatorship, child support, interim attorney’s fees, interim spousal support, temporary use of personal property, and temporary financial matters. Additionally, depending on how long your spouse waits to speak to an attorney before the hearing date, your attorney may end up having more time to prepare for the hearing.

Temporary Restraining Orders

If you are concerned that your spouse is wasting community funds or hiding other assets, it is better to file for your Texas divorce first. Then you may get a Temporary Restraining Order (TRO) in place. A TRO is intended to maintain the status quo while your divorce is pending. For example, a TRO will prevent your spouse from selling or transferring any assets, canceling your insurance, or destroying any evidence related to the divorce.

A TRO will stay in place for 14 days, and it is recommended to follow it up with a temporary mutual injunction with the same or similar provisions for coverage of the entire remaining time of the divorce proceedings. See this list of standard injunctions for examples.

Responsibility for Drafting a Final Agreement

The responsibility for drafting a final agreement, if one is reached at mediation, will usually fall to the Petitioner’s attorney. This does mean that you absorb some of the additional cost to cover the drafting time, but it also means that your attorney can make sure that the Final Decree of Divorce gets drafted in a timely manner.

Additionally, we often experience issues with receiving final decrees from other attorneys who have just let their paralegal draft an order straight from a form generator. Having to revise an order that has not been given the proper amount of attorney attention can often end up costing the client more to revise than it would have for your attorney to just draft the final order themselves.

The Bottom Line

It is better to file first for your divorce in Texas if:

  • You want a divorce court close to home
  • You need to protect joint assets or evidence
  • You want to resolve the divorce process quickly

Call Ramos Law Group

Start the process of your Texas divorce with a call to the family law experts at Ramos Law Group. Reach us at 713-597-7274 or contact us online.

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When going through a divorce in Texas, a main point of contention is often the division of property, especially if the parties own a home.

A Texas divorce court has a few options in dividing a real property asset but each case is different and it would be best to consult a Texas divorce attorney to discuss your specific property concerns.

Contested and Uncontested Divorces

If it is a contested divorce, the parties will first need to agree or the court will order who is temporarily responsible for the monthly mortgage and who has temporary use of the home while the divorce is pending. If at all possible, avoid vacating the residence as the court will consider that when temporarily or permanently awarding the home in a divorce.

In an uncontested Texas divorce, who gets the house and how property is divided will have to be completely agreed upon.

Once a divorce is ready for finalization, all assets, including the community estate’s real property, will need to be divided or awarded. This can be done by agreement or by court order after a trial. The division of real property can be handled in a number of different ways.

An Order for the Sale of the Residence

A Texas divorce court may decide that the best way to effectuate a just and right division would be to order the sale of the residence and then determine how the sale proceeds are divided. If it is an especially contentious divorce, the court can set the terms of the sale, including choosing a broker, setting the listing price, and deciding who is responsible for the upkeep and mortgage on the house during the pendency of the sale.

An Award of Partial Home Equity

The court must take into consideration the entire value of the community estate when handling the award of the marital residence. To resolve the decision of who gets the house during a divorce, a Texas court may award the house to one party, and equity from the home to the other.

A Texas divorce court is often reluctant to order the sale of the residence if one party is able to pay the mortgage. However, it may be necessary in certain cases. The party not being awarded the marital residence, assuming the home is a community property asset and there is equitable value in the home, is entitled to their community property interest in the home.

There are several ways a party can obtain their share of the equity from the marital residence, assuming the house is not ordered to be sold.

  • The party that is awarded the home can be ordered to pay the other party their portion of the equity, often by refinancing or getting a home equity loan.
  • The party that was not awarded the home could be awarded their portion of the equity elsewhere in the property division of the divorce. For example, getting more of a 401k account or being awarded all of another asset that has equal value to the equity value.

How the equity is divided often depends on what other assets are in the community estate.

If the house in contention has no equity or the mortgage is higher than the value of the residence, then the court may just award it and the associated debt to whichever party desires the residence.

Other Property Concerns

When the court decides who gets the house in a Texas divorce, the title will need to be transferred to the receiving party. This is normally done with a special warranty deed, where a party transfers their legal interest in the property to the other party so that the house is titled in only one party’s name.

If both parties are on the mortgage, that needs to be considered and addressed when deciding how to award or divide property during the divorce. A court cannot force a party to refinance as the court has no power over a lending or financing company, but a court can order the party who was awarded the residence to make a good faith attempt to refinance by a date certain. The divorce decree will typically also include language that obligates the party receiving the residence to pay the mortgage.

If the party who is awarded the home is unable to refinance the mortgage in their sole name, a Deed of Trust to Secure Assumption is typically executed. This will offer some protection to the party who remains on the mortgage if the party who was awarded the residence defaults on the mortgage.

Connect with an Expert

Who gets the house in each Texas divorce can depend on every factor of the case. Each divorce matter is unique and brings with it a variety of property concerns and financial implications.

It is best to hire a licensed Texas family law attorney with experience in handling property issues who can guide you through the process. If you are considering a divorce and want to discuss your specific property concerns, please contact the Ramos Law Group, PLLC to schedule a consultation.

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Many parties going through a divorce in Texas are concerned about how a divorce will affect their assets, especially a 401k or other retirement accounts. While it’s always best to consult with a divorce attorney, here are several things to keep in mind when thinking about how to protect your assets.

Separate vs Community Property

Texas is a community property state. If any part of a retirement account was earned during the marriage, it is considered a community property asset and is subject to a just division by the court. If any part of the retirement account was earned prior to the date of marriage, that would be considered a person’s separate property and could not be divided by the court.

When going through a divorce in Texas, it is important to have all of the documentation to show accurate balances for any accounts, both before and after the date of marriage so that a party’s separate property interest can be protected. There is a presumption that all assets are community assets, so the party alleging that an asset is a separate property asset has the burden to prove it.

It can be a lengthy process to obtain records, especially if an account was started many years ago, so to best protect your 401k when a divorce is on the horizon, it would be best to begin gathering relevant documents as soon as possible.

Restraining Orders and Injunctions

Typically, during a divorce in Texas, a court will issue a temporary restraining order or standard injunctions. These are put in place to preserve assets during the pendency of a divorce. This means that parties are prohibited from cashing out assets such as 401ks or IRAs.

It is inadvisable to cash out 401ks or take out loans against existing 401ks during the divorce process without express authorization from the court. If there is a financial hardship or urgency the court may consider that and allow an early withdrawal or loan, but typically a court prefers to keep the marital assets intact for a final division.

Changing 401K Account Details During Divorce

A person going through a divorce in Texas should consider the ramifications of altering their 401k contributions. Changing the level of your contributions can have a trickle-down effect, such as increasing income for child support calculations. It is important to discuss how changing the contributions can affect a divorce with a licensed Texas family law attorney.

Dividing 401k Funds

The actual division of the 401k funds during divorce depends on the totality of the community estate. If each party has a retirement fund of similar value, the court may not divide either and each party would be awarded their own retirement. If there is only one retirement fund, the court may divide it. If one party is awarded the marital residence with all of the equity, the other party may be awarded the entirety of a retirement fund to effectuate a just and right division.

Since the division of property is dependent on a couple’s specific facts and circumstances, it is important to discuss your individual case with a licensed Texas family law attorney.

How 401K Funds can be Transferred Between Accounts

Finally, if a 401k is divided in the final Texas divorce settlement, the court uses a legal document called a Qualified Domestic Relations Order. This order will effectuate the transfer or disbursement of the awarded funds from one party’s 401k account to the receiving party’s 401k account, IRA or similar account. There are typically minimal tax penalties or financial concerns if the funds awarded from a 401k are simply rolled over into another investment account. If a party declines to roll the funds into an investment account and prefers to cash out the value, then there will likely be financial and tax implications to consider so it will be important to discuss that option with a licensed Texas family law attorney.

Connect With a Specialist Who Can Help

There are an infinite number of issues that could arise relating to property division, and this article is intended only to give an overall idea and not to contemplate every possibility. To learn more, contact Ramos Law Group to consult with an attorney about your case.

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Going through a divorce can be a tense and anxiety-inducing experience. Even when a marriage ends amicably, the dissolution still tends to take a toll on separating spouses. It’s no surprise that a divorce due to abuse is a process typically fraught with a number of stressful and worrisome challenges.

If you are contemplating or preparing for divorce with an abusive spouse, it’s vital to contact an attorney with experience in these types of cases. They will file for a temporary restraining order (TRO) with the original petition for divorce. These orders are renewable every 14 days, until a longer-term measure is approved by the court.

If you have been abused or feel that you’re in danger, your attorney will follow up with a protective order enforceable by civil and criminal contempt. A final protective order stays in effect for two years. Your attorney will work with you to put a stop to the abuse and help get you your life back.

Don’t Wait to Leave and Abuser

Many spouses hesitate to divorce an abusive husband or wife because they fear retribution or other consequences of leaving their tumultuous marriage. Concerns of financial ruin, reputational damage, physical violence and other distressing factors often lead victimized spouses to remain in untenable situations for longer than they should.

Yet, most survivors of abuse will attest that leaving an abusive relationship is the first necessary step towards dramatically improving their lives. It may be necessary to divorce an abusive husband or wife if your spouse:

  • Touches you in a harmful manner
  • Attempts to limit your communication with others
  • Restricts your use to vehicles, monitors your schedule
  • Destroys property
  • Engages in other abusive behavior.

No one should have to remain in a relationship where they are being harmed or are unable to act freely.

Texas Laws to Protect Abuse Victims

If you have a partner who is physically abusive, there are Texas laws in place to help you safely escape the relationship. Similarly, if you are in an emotionally abusive relationship with a person who is controlling or who attempts to manipulate and coerce you, there are legal options to assist you with leaving. When seeking a divorce due to abuse, understanding your legal protections is key to walking away stronger and more secure once and for all.

Texas laws offer protective orders for abused spouses, which restrict contact and communication from their abusers. For mothers and fathers who are concerned that an abusive spouse may attempt to hurt or abscond with their children, supervised visitation is also available. In some instances, complete termination of parental rights might even be in order. An experienced family attorney can provide you with a detailed plan to protect yourself and your loved ones when initiating a divorce with an abusive husband or wife.

The Process of Temporary Restraining Orders (TRO)

TRO’s are filed when needed with the original petition for divorce and are renewable every 14 days. If needed, an attorney will visit the court every two weeks to extend the TRO until such time as a temporary order is in place. It can take 1-2 months to schedule a temporary order hearing before the court. After the hearing, an attorney will get at least one week to draft and review the orders. Reviewing and entering temporary orders typically take about two weeks from the hearing, and local rules in Texas require that the reviewer get 5 days to review.

You Are Not Alone

Taking steps to leave an abusive relationship can be intimidating. It is easy to feel alone in your struggle, but you are definitely not alone. Within the United States, twenty people per minute are abused by their partners. Domestic abuse is a pervasive problem that affects countless families across the spectrum.

When you have decided it is time to initiate a divorce due to abuse, the supportive team at Ramos Law is here to help. Our experienced attorneys and staff are ready to usher you through every phase of the divorce process and will make sure that you receive every protection offered by the law along the way. Contact Ramos Law today for further information on how to divorce an abusive husband or divorce an abusive wife.

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