Houston divorce mediation and why it is better than trial.

Houston Divorce and Mediation

Mediation is a formal settlement conference in which parties do a lawsuit may settle some or all of their issues, negating the need for further litigation. Mediation is especially useful in Texas Divorce cases because of the wide range of issues often presented. Once parties reach an agreement in mediation, the signed agreement or “mediated settlement agreement” becomes binding on the parties. That means, either party may present the agreement to the court for judgement. I have outlined a few benefits to mediation, as opposed to litigation below:

1. Parties can avoid costly litigation:

Contested Divorces in Texas are expensive and the more time your divorce lawyer spends in court, the more you will be billed. With divorce attorney’s fees ranging from $350.00 per hour and up, and trial taking anywhere from a few hours to a few days, it is easy to understand why litigation costs so much money. Mediation on the other hand generally lasts a few hours. By attending mediation, the parties have a chance to sit down in a calm environment and discuss the issues with relatively no pressure. Often, a good mediator, along with the help of skilled attorneys on both sides, can craft an agreement that will benefit both sides.

2. Custom agreements can be made:

Courts follow the Texas Family Code when ruling on cases before them. The Code gives the court guidance based on state law from which the court has limited power to deviate from. For instance, the Code allows parents to agree that no person shall be the “primary” parent but rather the child’s residence remain within a geographical area. This can be achieved by agreement only and the court cannot implement the provision on its own. Many people are not aware that this option exists in a Texas divorce and once in trial, it is too late. By mediating the issues, parents can discuss these options and make decisions that otherwise may not be available.

3. You case can be resolved much faster:

A court can divorce parties on the 61st day after filing a divorce action. If a case is set for trial, the process can take anywhere from six months to a few years to be heard by the court. Mediation can be quickly schedule by the attorneys at anytime and often times prior to the mandatory 61 day period. Courts recognize the benefits of quickly resolving a case and often make mediation a requirement.

Readers have found the following articles helpful:

  1. Frequently Asked Questions about Divorce in Texas
  2. Divorce in Houston Texas: An Overview

Contact a Houston divorce lawyer today to discuss divorce and mediation and its benefits in a Houston divorce case.

Connect with me on Google+ at +Shawn Rudisel

The Process for Filing a Uncontested Divorce in Houston, Texas

Uncontested Divorce Attorney in Houston, Texas

Below is a basic outline of the process for completing an uncontested divorce in Houston, Texas:

1. File an Original Petition for Divorce in the proper county.

Generally speaking, the proper county is the county you or the other party (Respondent) have resided in for at least 90 days prior to filing for divorce, assuming you have been a resident of the State of Texas for at least 6 months.

The petition names the parties to the suit (yes, a divorce is a law suit), establishes the court’s divorce jurisdiction in Texas to hear the case, lays out the grounds for divorce and asks the court to grant the divorce.

2.  Present a copy of the filed petition for divorce, along with a Waiver of Service, to the Respondent.

The waiver, once executed and filed with the court, tells the court that the Respondent has formal notice of the suit as required by Texas law.  Normally, a party to a lawsuit must be served with legal papers before the filing party can proceed.  A waiver of service does exactly what it says; it is the Respondent’s method of waiving that service thus allowing the filing party to proceed with the case.

3.  File the executed waiver with the Court.

4.  Draft a Final Decree of Divorce

The Final Decree of Divorce sets out the agreement of the parties. The decree includes provisions for dissolving the marriage, child custody, child support and property division.  It is the document the judge will sign that officially divorces the parties.

5.  Go to court after 60 days has elapsed from the time of filing and “prove up” the divorce.

The prove up consists of reciting information about the divorce to the Court so that the Court is satisfied that all of the requirements for a divorce, as outlined by the Texas Family Code, have been met.  If the requirements have been met the judge will approve and sign the divorce.

6.  Get a certified copy of the Final Decree of Divorce.

Once signed, a certified copy of the Final Decree of Divorce with the judge’s signature is usually available from the Court within a few days.  A certified copy is used to complete a name change, establish a child supporaccount or simply prove that you are divorced.

Keep in mind that the outline above for an uncontested divorce in Houston, Texas is just that, an outline.  Each one of the steps is more in depth and requires a sound understanding of the laws that govern divorce.  It is also important to note that many courts have their own set of requirements or rules that cannot be found in the Texas Family Code.

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Contact a Houston divorce lawyer at The Rudisel Law Firm, P.C.  today for a free divorce consultation.

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Houston Child Support Lawyer: Child Support in Texas

Child Support Calculations in Texas

Child support in Texas follows guidelines set out in the Texas Family Code, Chapter 154.  The guidelines assign percentages of net income based on the number of children the obligor (person responsible for paying child support) has a duty to support.  The child support guidelines are applied to only the first $8,550 of net income per month.  Read more below from Shawn M. Rudisel, your Houston child support lawyer.

Net Income is all income (including overtime) minus taxes, union dues and the cost of health insurance for the obligor’s child ordered by a court. A spouse’s income is not considered for the purposes of calculating child support.

The Texas Child Support guidelines are as follows:

  • 1 Child = 20% of Obligor’s net income
  • 2 Children = 25% of Obligor’s net income
  • 3 Children = 30% of Obligor’s net income
  • 4 Children = 35% of Obligor’s net income
  • 5 Children = 40% of Obligor’s net income

These percentages may be lower if the Obligor has other children he or she is under an obligation to support. Courts may also deviate from the guidelines and order additional amounts of Texas child support depending on the income of the parties and the proven needs of the child or children.

If you have questions regarding child support in Texas please contact a Houston child support lawyer at The Rudisel Law Firm, P.C.

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Houston Divorce property division: To Sell or Not to Sell?

Property Division in a Texas Divorce

One of the most complex and difficult aspects of a Houston divorce is property division.  It is hard enough to figure out who gets the lamp, the couch, the car and the dog but it is even more challenging to determine what should happen to the house, or in some cases, homes.  The difficulty doesn’t solely lie in the fact that the house is often times the largest asset in the marital estate or that one party or both parties are emotionally tied to the property.  The biggest hurdle to disposing of one’s castle is the inability to sell real property (at least without taking a loss) in today’s uncertain housing market.

Property Division in Texas: What you should Know

Buying a Spouse Out of the Marital Home

I commonly hear clients tell me that their spouse can have the house so long as he or she “buys them out”.  Here is the problem.  How much does a person need to give you to buy you out of a house that is worth less than what you owe on it?  The answer…zero, zilch, nothing, nada.   When a house is worth less than what you owe on it there is no equity.  Equity is what the house is worth (what you could sell it for) less what you own on it (the remainder of the note).  When there is no equity there is no money to split, therefore, no buying out.  So if the house isn’t worth anything in today’s market what can you do?  A few things come to mind.

Selling a Home in a Texas Divorce

You can put the house on the market and hopefully get the most you can out of it.  If sold at a loss, the parties are responsible for paying off the remainder of the note which is generally considered community debt.  Now both parties have undoubtedly incurred the expense of moving out of the house and as a bonus, get to pay off a house they no longer own or live in.

Also read Selling Your Home and Divorce.

Transferring Interest in Martial Property after Divorce in Texas

Another option is allowing one spouse to keep the house as part of a settlement.  Yes, the house may be worth something later but many people who find themselves in a divorce just want out and aren’t interested in housing market speculation.  Allowing one party to keep the house has its own obstacles.  You may ask: How do I get my name off of the house?  Will it affect my credit if the spouse doesn’t pay the note on time?  Can I buy another house with my name still on the first house?

Taking your name off of the house is done through refinancing or assumption.  The spouse keeping possession of the marital residence can refinance the house into his or her own name or they can ask the lender to allow them to assume financial responsibility for the note.  Both options are possible with the first being more likely, assuming the spouse has good credit and a job.  Assuming a note is basically removing someone’s name from a note without a formal refinance.  I find that most banks are unwilling to let a liable party go without a new contract and guarantees from the spouse keeping the house.

If a party cannot refinance or assume liability for the house they may consider executing a deed of trust to secure assumption and a deed without warranties.  The first deed is executed by the person who keeps the house and is essentially allows the ousted party to reclaim the property in the event the bank initiates foreclosure proceeding on the other party.  Your name will still be tied to the financial obligation on the house but you have recourse if your credit becomes threatened due to non-payment of the note by your ex-spouse.  The ousted party will execute a deed without warranties to the party keeping the house thus giving up their interest in the real property.  In short, the ousted party will not be on the deed to the property even though they remain on the note.

If the deeds are executed and recorded properly, the only issue left is whether or not the ousted party can buy another house while still technically owing on the first.  That will be up to a finance company.  Your debt to income ratio may be in trouble because with a new house note added to what you already owe the bank may see it as a risky loan and thus deny your loan application.  Some companies may look at the divorce decree, the deeds, and certainly your income (some people can easily afford multiple home) to determine whether a loan is available to you.

In short, there is no easy way to divide a home in today’s market when it has no equity but you still have options.

Contact Shawn Rudisel today for a free consultation to discuss your Houston divorce property division issue.

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Do It Yourself Divorce? You will need a Houston uncontested divorce lawyer.

Uncontested Divorces in Houston, TX: Divorce Lawyers Tips

I do, and have done, many uncontested divorces in Texas. As cases go, they are generally on the easier side of the curve compared to most.  In fact, they are not much work at all…if they are truly uncontested…and without children, a prior court order or children from another partner since the spouses have been separated.

Without fail, I’m sitting in the courtroom waiting for my turn to free a client from the bonds of a failed marriage when I see a Pro Se party (someone who acts as their own lawyer) approach the bench.  They have all of their paper work, nice and tidy, their “what to say to the judge list” ready to go, and finally the judge says, “Please raise your right hand…do you swear to tell the truth….”. All is going well and it seems as though a divorce is in reach until the judge asks a question like:

1. Are you currently pregnant?

2. Are your children under a current child support order?

3. Have you had a child with anyone else during the marriage?

The party answers yes to one of these and is quickly informed that their pleadings are incorrect or that they have not followed proper procedure.  Clueless to the failings in their pleadings (because the judge won’t tell you what to fix) the party then leaves the courtroom only to call an attorney, try again until they get it right or do nothing until their case is inevitably dismissed.

I ran into such a person today in the Family Law Center.  She approached me in the hallway and asked an all too familiar question when wearing a suit in a downtown courthouse, “are you a lawyer”?  We talked briefly and I found out that she had just been through what I described above and answered the third question “Yes”.  I began telling her what was wrong and how to fix it when I realized that what I was telling her was quite complex.

First I had to explain to her that even though her hubby knows that he is not the father of her newest child, the law says that a child born during a marriage is a child “of the marriage” and presumably, the husband is the father.  This presumption is rebuttable, of course (for all you lawyers reading this) but she didn’t seem to understand what I was saying.

As I went into the paternity portion of my instructional, it was clear that I was losing her.  Asking a court to adjudicate Mr. New Guy to be the biological father of the child the subject of the suit and to establish the parent-child relationship for all purposes just doesn’t ring clear to most lay persons.

She really thought I was crazy when I informed her that her new boyfriend/father of the child must be a party to the suit and sign a waiver of service just like hubby did.  “Why?”, she asked. “He knows it’s his kid and besides, we are getting married when this is all over!”. I told her this…”naming a man as the legal father of your child is a big deal and carries with it big responsibilities.  Courts want to make sure the dad-to-be is aware of his new title before they sign an order obligating him to pay child support and everything else that comes with fatherhood in these cases.”  I wasn’t being sarcastic for the sake of being sarcastic but I was trying to simplify the legislative intent behind such a law.

I went on to tell her that the child and her boyfriend are likely to be required to take a paternity test under court order before a divorce is granted.  This ensures that dad really is dad and avoids a new law suit at a later time if her boyfriend discovers he’s always shot blanks or that mom has a very busy and loose social life…if you know what I mean.

After explaining all of the necessary substance and form of what she needed to do I was confident that she had no idea what to do.  I gave her a card and told her to call if I could help.  Don’t get me wrong.  She seemed like a very intelligent woman and she certainly had a great attitude about the task ahead.  Unfortunately for her, she bit off more than she could chew and it will take more than a quick trip to the law library to move on from her life with hubby.  I wish her luck.

Call today for a free divorce consultation at The Rudisel Law Firm, P.C.

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Uncontested Divorce : What you need to know.

Divorce Lawyer in Houston: Uncontested Divorces

As a Houston divorce lawyer, I litigate hundreds of divorces and family cases each year.  Out of all the divorces I do, only a fraction are considered “uncontested”.

An uncontested divorce in Texas is the easiest and most cost effective way to sever a marriage.  It negates the need for numerous court appearances, costly hourly legal fees and/or mediation (which can be very expensive). For a divorce to be truly “uncontested” the following issues must be worked out between the parties and agreed upon prior to filing paperwork with the court:

  1. Separation (agree to be divorced)
  2. Property division (real and financial; assets and debts)

Many times I have potential clients begin their free consultation by saying things like:

  • This will be an easy divorce.
  • We agree on everything.
  • We have nothing to fight over.
  • I don’t want any child support.

On it’s face, these statements seem to indicate an uncontested divorce is in order…right?…not always. Let’s take a closer look at these commonly used phrases.

This will be an easy divorce:

Easy is in the eye of the beholder, or I should say, the lawyer.  Most people are not familiar with the process and the nuts and bolts of the law.  For instance, if a wife has had a child with another man during a separation from her husband, no matter how long the separation, the law requires that father of that child be included in the divorce for paternity reasons.  We have completed numerous divorces described above and they can be very complicated.

Another common scenario occurs when a spouse is missing and is unable to be located but the client is certain that if we were able to find the missing spouse, he or she would agree to get a divorce.  The law and the courts generally require that an Ad Litem attorney be appointed to represent and attempt to locate the missing spouse.  The Ad Litem will almost always charge an additional fee for their services and quite often we are required to attempt service on the missing person’s last known address which is an additional cost to the client.

We agree on everything:

Sometimes clients assume that other side will agree with their version of a divorce simply because it makes sense.  A problem may be that their spouse has a completely different version of what a divorce should look like and that version may make complete sense to him or her.  Two versions of divorce that are not the same will make for anything but “uncontested”.

We have nothing to fight over:

This is the most common statement we hear in our office and once we begin explaining that each party is entitled to a percentage of the marital estate, the problems begin.  Texas is a community property state which generally means that all property acquired during the marriage is to be split evenly upon divorce. This can be problematic for the spouse who has more retirement or 401K than the other and does not feel they should have to share it. Although we use creative techniques to help craft an agreement that may keep a client’s assets intact, it usually takes a lot of patience, serious negotiation, and yes,  in most cases more legal fees.

I don’t want any child support:

This is an easy one.  The law requires it so don’t try to get around it.  Now, in reality, there are times when child support is waived but it is very rare.  We’ll save that discussion for a later post.

In the end, a determination of whether or not a divorce qualifies as “uncontested” is one that must be made by an attorney after an in-depth consultation with the client.  The good news is that even if your divorce is not completely uncontested, there are numerous ways to keep your costs down to a minimum.  Just because you can’t agree on all aspects of a divorce doesn’t mean you have to spend a lot of money.

Call today for a free consultation with an experienced Texas family law attorney.

Connect with me on Google+ at +Shawn Rudisel