Family Law / Divorce

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We understand that divorce is a stressful and emotional experience for most clients. It is our goal to work with you in reaching a fair and equitable agreement when dividing assets and debts. Our position is to proceed amicably unless one party begins to take advantage of this approach or attempts to manipulate our client. It obviously benefits both parties if they can communicate and work together in dissolving the marriage and working through options of possession and conservatorship of the children. Open communication and mutual respect for one another is essential if your desire is to move through the divorce process quickly and efficiently. When the behavior of one or both of the parties becomes problematic, our office is prepared to take an aggressive position to protect your interests and the interests of your family.

An educated client is a confident client. Our office is devoted to minimizing your stress by: (1) explaining the process of divorce, (2) making good faith efforts to keep your divorce as uncontested as possible, and (3) maintaining your case in an manner that places you in a strong position for mediation or trial in the event a settlement is not reached.


You benefit by reaching an Agreement
Although it is rare, there are instances where both parties can agree on every issue in the case, specifically the division of EVERY asset and EVERY debt. In the event such an agreement is reached, it is suggested that the agreement be reduced to writing, including all account numbers, vehicle identification numbers (VIN), and all other particulars to the agreement. Such a writing does not replace a court order but it will assist the attorney in preparing the Final Decree of Divorce. If the parties have truly resolved their case, then the costs to the client are usually reduced as such an agreement saves time and expense. Uncontested cases rarely involve children or complex estate issues involving various property and/or debts.

In the event there is a partial agreement, this too saves valuable time and expense. It is always beneficial for each party to address what issues can be resolved and separate those that remain contested. The parties control their case so long as they are working toward an agreement. Once the parties reach an impasse, the decision-making authority passes to the judge who knows little, if anything, about the parties and/or children unless information is introduced during the hearing or at trial. The judge has the sole authority to make life-changing rulings for or against you. Through an agreement, you and your spouse have the exclusive ability and opportunity to make decisions that take into account the specific needs of you, your spouse, and the children. It assures the most predictable outcome because you had a hand in it.

When children are involved, it is tremendously important to minimize disruption which is vital in promoting a working relationship between ex-spouses. There is no question that the direction and conclusion of a divorce action will ultimately lay the foundation for how you interact with the other parent of your children after the case has concluded. Because of the children, you will have contact with the other parent for many years to come and that contact can either be workable or miserable.

Of course you are only 50% of this equation. Divorce is often the result of both parties reaching an impasse thus making it difficult, if not impossible, to agree on anything. However, divorce proceedings can be an expensive and lengthy ordeal. An objective state of mind is mandatory if you want to move to resolve the matter quickly and efficiently, even if only for the benefit of the children.


Enlisted Military
Enlisted members of the military are afforded federal protections not generally available to civilians. These protections allow a case to be abated or postponed while you are deployed. In the event a case involving your marriage and/or children is filed while you are deployed, you have the right to assert such a defense or elect to proceed. If electing to proceed, it is possible to have a proxy serve in your stead via a Power of Attorney through which you may designate certain legal rights. Most often enlisted members of the military request their parent or their spouse act on their behalf.

Child support is calculated differently for members of the military as there are various types of "income" such as BAH, PCS, BOC, COLA, as well as combat pay. As military status changes, so does income. It is important to learn how to protect your interests in a divorce or related family law proceeding by contacting a knowledgeable family lawyer/attorney so that issues of custody, visitation, property division, calculation of support, allotments, retirement benefits and Survivor Benefit Plans can be resolved in a manner that is fair to both you and your family.


Spousal support
Courts may order temporary spousal support in a pending divorce based upon a need, but long term spousal maintenance is awarded only in situations where the marriage has lasted for an extended period of time and the requesting spouse is unable to reasonably support himself/herself. The court may consider a variety of factors before determining the need for temporary and/or long term spousal support:

  • The reasonableness of the financial needs of the spouse requesting support
  • The ability of the other spouse to pay support
  • The health and age of both parties
  • The ability of both parties to work
  • Each party's responsibility for children
  • The size of the community and separate property estate of the parties
  • Whether spousal abuse has occurred

There are also income requirements, medical disability standards, and time limitations to which all support awards are subject under the law.

If you believe that you may be entitled to post-divorce spousal support or if spousal support is being sought from you, Kelly M. Heitkamp is an experienced divorce attorney who can advise you of your legal rights.


Property Division
The division of property is, from a purely legal standpoint, one of the more simple aspects of divorce. There are two types of property under Texas law, community property and separate property. Separate property is the 1) property you owned prior to marriage, 2) property you acquired as a gift, and 3) property you acquired through inheritance. Separate property generally remains your property after divorce, however, there are often issues of reimbursement associated with this type of property. The party claiming to have separate property has the sole burden of proving it to be such. The issue of separate property can be very simple or quite complex as each case is as different as snowflakes.

Community property is all other property not considered to be separate property as explained above. Community property is simply all property you and/or your spouse acquired during the marriage. As for the division of community property, Texas law simply requires a court to make a "just and right" division of the estate. A "just and right" division depends on many factors which most often the equal division of both assets and debts. There are exceptions, such as when one spouse has a higher earning capacity than the other spouse—either from education or from work history. Other exceptions may include when one spouse has committed adultery, hidden money from the estate, or greatly misused community assets without the knowledge of the innocent spouse. The division of the community estate can become quite complicated under these circumstances.

Our firm will make every effort to ensure you keep your separate property and receive a fair share of the community property.


Complex Property Division
Depending on the complexity of the case, a forensic accountant may be necessary to establish the origins and value of various assets, especially when the issues involve the distinction between separate and community property. The skills of a forensic accountant are also essential when identifying assets set up through a family trust or corporation. Our firm regularly handles cases involving complex marital property division for clients where property, assets and debts include:

  • Oil wells/royalties
  • Securities/investments
  • Real Estate
  • Ranching/livestock
  • Partnerships/Corporations/LLCs
  • Pensions/Executive compensation packages
  • Family trusts
  • Estates

A forensic accountant is absolutely necessary when searching for hidden assets. A vital part of a sophisticated family law practice is the ability to trace assets that may have been hidden by a spouse prior to a divorce. Contrary to popular opinion, hiding assets isn't just for the wealthy. Anyone can have a rainy day account that is not mentioned in the divorce proceedings. Almost any asset can be found, no matter how creatively it has been hidden. Bank statements, canceled checks and tax returns can all contain clues to the location of hidden assets. Finding hidden assets may mean the difference between financial stability and a lifetime of struggle for you and your children. If you suspect that your spouse has hidden assets that he or she has not disclosed, our office can help to uncover them and bring them into the pool of assets to be divided.

The skills of a forensic accountant may also be necessary when proving an asset is separate property, especially after many years of marriage or when the separate property accounts/assets have been commingled with community accounts/assets. The party who is claiming separate property has the burden to prove by "clear and convincing evidence" that the property is separate rather than community property. Our office works only with the best accounting firms when tracing accounts/assets.

 

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