If a parent is accused of abusing only one child, can that parent’s rights to another child be terminated?  Today, the Texas Supreme Court decided the answer to that question was “yes.”

The Texas Supreme Court issued its opinion in the case In The Interest of E.C.R., arising from a lawsuit in Houston.  The mother’s parental rights had been terminated regarding a child after his mother was accused of abusing his older sister.  The mother appealed that there not sufficient grounds to support her removal as parent of that child, since she had not been accused of abusing him.  The Supreme Court held that the standards for removing a child for abuse or neglect encompass the risks or threats in the child’s environment, which includes harm suffered or danger faced by other children under the parent’s care.  The Court noted that the statutory standard found repeatedly throughout Family Code chapter 262 is “danger to the physical health or safety of the child.”   The court decided that phrase is also centered on risk, rather than just a history of actual abuse or neglect.

Hidden deep in the bowels of the Texas Family Code is an innocuous little statute that can bankrupt both spouses of a marriage.

The statute provides that each spouse has a duty to support the other one.  If someone provides a “necessary” to a spouse and hasn’t been paid, then it is the duty of the other spouse to pay for it.

How does this work?  Suppose the wife has to go into the hospital.   The hospital will look first to her for payment.   If she doesn’t pay the bill, then the hospital will look to her husband.    In legal parlance, they are both jointly and severally liable to the hospital for payment.

That seems logical, especially since we are in a community property state.  Most people assume, however, that only their community property is on the line,  and that their separate property (inheritance, gift, prize money) is safe from a spouse’s debt.   As a general rule, a spouse’s separate property is not subject to the debts of the other spouse.

Not so fast.  ALL of a person’s non-exempt property, even separate property,  is subject to the statute.  A post-nuptial agreement that divides property between the spouses won’t protect it from a creditor for “necessaries.”   Some legal commentators even  think that a pre-nuptial agreement won’t provide any protection.

That’s very concerning for an aging population, where the costs of caring for an elderly spouse can be overwhelming.

Which brings up the question  – what is a necessary?   Medical and dental,  certainly.   Groceries and airline tickets, possibly.   Clothing, maybe.  A 2011 Fort Worth case held that one spouse’s  legal bills incurred during a divorce were a necessary, and her  now-ex-husband had to pay them.

There is one absolute  loophole – if the ailing spouse has qualified for Medicaid nursing care, then the other spouse is no longer liable for that cost.

The law is referred to as the Doctrine of Necessaries.

By Virginia Hammerle, Attorney

Name changes for adults are generally sought because of a change in marital status. But what if you are an adult and need to change your name for other reasons? Then the name change is a separate, independent action.

The process is fairly simple in Texas, but it requires strict compliance with the rules. You must meet legal requirements as well as make sure that each and every step of the necessary procedure is followed.

The law requires a showing that you are not changing your name to hide criminal history or evade duties or obligations. You will be required to submit a legible and complete set of fingerprints on a card format acceptable to the Department of Public Safety and the Federal Bureau of Investigation. All cards are required to contain specific information about the person seeking the name change as well as the court being petitioned.

Texas requires that a verified Original Petition for Change of Name be filed along with an Order for Change of Name. You will have to appear and give sworn testimony before the Court that you have not had a final felony conviction, are not required to register as a sex offender, and that the change is for your benefit or interest and in the interest of the public.

After the Court signs the order, be sure to follow up with the correct agencies to make sure all of your identification is in your new name. A name change certificate can be obtained from the district court clerk for a small fee to help prove the name to government agencies and organizations.

Hammerle Finley can help lead you through the process from start to finish.

by Mark Scroggins, Attorney

So, you have finally decided that you are going to get a divorce.

Now what?

For some, immediately filing for divorce is the answer. For others, significant planning is necessary prior to filing.

Why is planning necessary in certain circumstances? Business owners, stay-at-home spouses, executives with significant equity positions and others with substantial property ownership interests need to know what they have and how to protect their interests.

We sometimes recommend involving a certified divorce financial analyst (CDFA)  in making certain decisions. A CDFA can assist in answering questions about what type of assets will be most important for you to retain at the end of a divorce depending upon your work status, living expenses, debt service and expectations.

Other times, it will be necessary to obtain evidence that is more easily acquired prior to the filing of a divorce.  This might include certain electronic data which might “accidentally” disappear after divorce papers are filed.

The examples above are just the tip of the iceberg. Prior to entering into a divorce, it is important to contact an experienced family attorney who can walk you through the necessary steps to make sure that you and your loved ones are protected.

DALLAS (March 6, 2013) – Hammerle Finley Law Firm, experienced, results-focused lawyers for every stage of life, has significantly grown its family law practice and is pleased to add attorney, Amanda Luna, to the team. Known for her attention to detail and tenacity, Luna’s deep understanding and experience in family law, gives her the edge in fighting and winning for her clients.

“We are very excited to have someone of Amanda’s caliber and expertise,” said Virginia Hammerle, founding member at Hammerle Finley Law Firm. “She has argued hundreds of cases in front of juries and judges, and is accustomed to successful outcomes on behalf of her clients. We knew she was the perfect match for our team given her impressive track record, work ethic and passion for the law.”

Luna brings with her a wealth of family law experience to the firm. She won an award from Victim-Witness Assistance Program for assisting family violence victims in a number of prosecutions. She also has extensive experience with cases involving children’s rights and is compassionate about cases that involve minors and custody matters.

Prior to joining Hammerle Finley Law Firm, Luna served as a Deputy District Attorney in Los Angeles County from 2007 through 2012. She completed jury submission for 28 felony trials while there. She has experience handing special cases including a third-strike life sentence carjacking and robbery of USPS postal employee, earning Luna a Certificate of Special Appreciation from the USPS. She also was successful – with one day notice before jury selection – in obtaining a jury conviction and life sentence in a gang-related attempted murder case. During her tenure, she completed more than 500 preliminary hearings and 10 misdemeanor trials to jury submission.

Luna also worked as an associate attorney at Vanderford & Ruiz, LLP, a Construction Insurance Defense Firm from 2006 and 2007. She also served as a staff attorney in the Louisiana Second Circuit Court of Appeals from 2004 to 2006.

Luna earned her bachelor of science degree from Mississippi University for Women and her J.D. degree from UCLA School of Law, Los Angeles, in 2003.

Licensed to practice law in Texas, California, Arizona and Louisiana, Luna will focus her efforts in the areas of family law, litigation and criminal law.

About Hammerle Finley Law Firm
Founded in 1984, Hammerle Finley Law Firm represents clients at every stage of life – from business law, family law, estate planning, business litigation, banking law, criminal defense and elder law. The law firm’s headquarters are located in Lewisville, Texas, with offices in Denton, Corinth, Dallas and Plano. Hammerle is a full-service law firm with eight senior level attorneys and a staff of nine. The firm has served clients throughout Dallas/Ft. Worth and the surrounding areas for more than 30 years. Hammerle Finley Law Firm is AV-Rated by Martindale Hubbell. More information about the firm is available at www.hammerle.com.

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Over the last ten years, some people getting divorced have opted to enter the collaborative family law process, rather than the traditional litigation approach.  The theory behind collaborative divorce is that there is less animosity as there is no litigation involved.  Additionally, in theory, it can be less expensive because the parties share experts (psychological, CPA, CFP, etc.).  Decisions are made through a series of meetings with the parties, their lawyers and the respective experts depending on the subject matter of the particular meeting.

However, collaborative law can also be punitive.  If either of the parties decides that the collaborative process is not adequately meeting their needs and “opts out” of the process, both parties are forced to retain new counsel and start the litigation process from the beginning.  Thus, there is a substantial financial hit that must be absorbed by both parties to extricate themselves from the collaborative process.

So, how do you employ the benefits of collaborative law while still maintaining the benefits of litigation?  The answer is simple:   Cooperative Law.  “Cooperative Law”  allows you to use a hybrid collaborative process without entering into a formal collaborative agreement.  Thus, if things blow up, or one party is abusing the collaborative proces, the other party can decide to pursue a litigation strategy without the necessity of hiring new counsel and bringing him/her up to speed.

What’s important to remember is that every case is different.  Your particular circumstances should dictate the manner in which you proceed.   So, don’t allow yourself to get pigeon holed based on the personal proclivities of your lawyer.  Ask about the pros and cons of each as applied to your case and which process is most likely to help you achieve your goals.

Q: What is the legal definition of marriage?

A: Most states define marriage as a civil contract between a man and a woman to become husband and wife. The standard way to marry is to get a marriage license from a state-authorized official and participate in a formal civil or religious wedding ceremony. While most states will not issue marriage licenses to same-sex couples, the laws regarding same-sex marriage continue to evolve. Contact an attorney at our firm to learn more about the marriage laws in our state.

Q: What are the legal effects of marriage?

A: There are several federal and state laws that benefit married couples. Some examples include the right to file joint income tax returns, create a family limited partnership (FLP) under federal tax laws, create a marital life estate trust, receive survivor benefits, receive a share of your deceased spouse’s estate under intestate succession laws, and claim the estate tax marital deduction.

More than 67% of newlyweds believe the most serious conflict in their first year of marriage is over money.

At the law offices of Hammerle Finley, we are a comprehensive Denton, Lewisville, McKinney and custody law firm that serves individuals and families with their needs in family law. Our Texas divorce lawyers can guide you through the process of a divorce and all the related issues of marital property division, spousal support and alimony, post-divorce modifications, and more. We also handle all issues of child custody and visitation, as well as domestic abuse.

We provide the following information to provide a general overview of family law processes and procedures. We encourage you to read more about family law, and contact us for specific guidance in your situation. Our family law attorneys represent clients throughout Texas, including the Frisco, Plano, Collin County, Denton County, Tarrant County.

Family Law – An Overview

Family law is the term applied to the laws and rules developed regarding family relationships. Family law rules define not only the relationships between members of a family but also between a family and society as a whole. More than any other area of the law, family law reflects the values society shares regarding how people who are related should treat each other. When you are faced with an important life decision regarding a key family relationship, the advice and assistance of a family law attorney often proves crucial to your understanding of the issues involved and your satisfaction with the ultimate outcome of your family law matter.

Typically, family law attorneys assist people in making and breaking family relationships. Specific areas of representation include marriage and relationship planning, divorce, paternity, child custody, and child support. Some family law attorneys also provide assistance in the area of adoption.

Child Support

There are millions of divorced parents who pay or receive child support. Federal legislation and uniform state laws exist to make enforcement and collection of child support easier for America’s single parents. Because every state uses its own guidelines for establishing child support and each has various methods to set support amounts and recover support when it is overdue, it is often important to consult with a family law attorney who is familiar with the child support guidelines and child support enforcement laws in your state. If you have questions about the child support laws in your state, the rules for child support collection and enforcement that apply to your particular situation, or the process to establish paternity, contact a family law attorney at our firm to schedule a consultation.

Divorce

Deciding to pursue divorce is one of the most difficult and emotional decisions you will ever make, particularly if you have children. Divorce also involves financial matters that must be resolved and legal issues that must be addressed. A family law attorney at our firm can help you to understand the basic issues involved in divorce and to use a rational approach to the divorce process.

Custody and Visitation

When parents divorce, it is important to learn about the child custody and visitation options that are available and the legal standards that apply. In many cases, divorcing couples can ultimately agree on custody and visitation issues without the need for a court order. When an agreement cannot be reached, knowledgeable advice and representation from a family law attorney can often make the difference.

Marriage

Marriage is a voluntary, private contract between two adults. While it is a personal and emotional commitment, it is also a legal relationship that changes the legal status of both parties. A family law attorney at our firm can help you to understand the legal technicalities of marriage.

Family Law Resource Links

American Bar Association – Family Law Section
The ABA’s Section of Family Law’s Web site is designed for general use by the public. The Web site contains tables and summaries addressing differences in state laws and requirements for divorce, child support, and other important family law issues.

The Legal Information Institute – Family Law
The Legal Information Institute (LII) is known internationally as a leading provider of public legal information. The LII’s Family Law section contains statutes, case law, and articles covering a variety of family law topics.

Office of Child Support Enforcement
The Office of Child Support Enforcement (OCSE) is the division of the Administration for Children and Families (ACF) responsible for administering the Child Support Enforcement Program (CSE). The CSE is a federal/state/local partnership to help families by promoting family self-sufficiency and child well-being. The CSE offers services related to locating non-custodial parents, establishing paternity, establishing support orders, and collecting support payments. The CSE also offers services for non-custodial parents.

Child Welfare Information Gateway
Formerly the National Clearinghouse on Child Abuse and Neglect Information and the National Adoption Information Clearinghouse (NAIC), the Child Welfare Information Gateway provides access to information and resources to help protect children and strengthen families.

Children’s Rights Council
A nonprofit devoted to helping kids experience the frequent, meaningful, and continuing contact with two parents and extended family that a child would normally have during a marriage.

For the past ten years Texas law has not been favorable for grandparents who are not able to see their grandchildren.
Family rifts can happen for a number of reasons. When an adult child’s marriage ends because of death or divorce, the opportunity to visit with the grandchildren may be reduced or taken away completely. It can happen when a parent’s rights are terminated and when child is adopted and acquires new grandparents. In order for a grandparent to obtain visitation with their grandchildren in Texas when a parent won’t allow it, the grandparent basically has to show that the parent is “unfit.”
All this started with a U.S. Supreme Court case in 2000 that held that a parent has a fundamental right to decide who has access to a child. Under this ruling, a parent who is “fit” is presumed to make decisions, including the decision to keep a grandparent from contacting a child, in a way that serves the best interest of the child. As with other presumptions, this one can be rebutted or overcome with competent evidence. The grandparent however has the burden to overcome this presumption with sufficient evidence.
After this case, the Texas legislature and courts struggled with this question of grandparent rights. This struggle is evident – the Texas Family Code has been amended twice; once in 2005 and again in 2009. For cases file after September 1, 2009, a grandparent has to show the court that denial of possession of or access to the child by the grandparent would significantly impair the child’s physical health or emotional well being. If the grandparent can’t show this by an affidavit supported by sufficient facts, the court is required to deny the relief and dismiss the suit.
Help may be on the way in the Texas courts. In November, 2010 the Texas Supreme Court held that a grandfather who had failed to show that depriving him of access to and possession of his grandchildren would significantly impair the physical health or emotional well being of the grandchildren was entitled to the appointment of a psychologist to assist the court in making that determination. This decision appears to open the door to allow grandparents to pursue discovery of other evidence in these cases to help them in meeting their burden of proof to obtain court-ordered access and possession.
Denton and Collin County courts have been open to review of grandparent rights. In the right set of circumstances – and with a little luck – Texas grandparents should be able to see their beloved grandchildren again.
Call Hammerle Finley Law Firm if you have a case involving grandparent access or grandparent rights.

Divorce is fraught with the opportunity for emotional and financial missteps.   I’m not talking about the divorcing couple – I’m talking about the couple’s parents.

What is the appropriate response of a parent to a child’s announcement that she is filing for divorce?  Is it a promise of unlimited financial aid to pay for a pitched legal battle?  An offer to let her move in with you?   How about taking on the care of the grandkids?

Can you rule out the possibility that she and her husband will reconcile?  Think how difficult that next family gathering will be if you jump into the current disagreement with both guns blazing.

No question about it, you are in an unenviable position.

Here’s 5 things you may want to consider for your long-term sanity -

• Your child is in emotional turmoil.  Maybe the spouse is really abusive and crazy – but maybe your child is, too.   She may not be telling you the truth about a lot of things.  Don’t join the emotional circus…..independently verify the facts.  Don’t pile on with complaints about the spouse.
• A divorce is a business transaction.  If your child isn’t personally responsible for paying the lawyer and the experts , then she has no incentive to be reasonable.   Possibly you have to guarantee some costs, but don’t give her carte blanche on spending.
• Yes, the grandkids are of ultimate importance.  If their physical welfare or emotional development is in peril, then you may be justified in actually intervening in the divorce or petitioning for access.  If, however, they are being used as a weapon in the fight between your child and her spouse, then you need to tread very lightly.  You may want to seek some counseling to determine what’s best for everyone.
• Your child is an adult.  She needs to act like one.  Cut the strings.  Maybe she can move into your house for an emergency shelter, but give her a 2 month limit and then kick her out.  She needs a job.  She needs to live within her means.
•  Perhaps your child is too passive or emotionally/physically traumatized to deal with the divorce.  You do need to encourage her to do the basics.  She needs her own lawyer.  She may need some counseling or help devising a life plan.  You can be supportive without being domineering.

Remember, you made your own life decisions.  It’s now her turn – she made her marriage, and she needs to make her divorce.

Groom:  “I,____, take thee,_____, to be my lawful wedded Wife, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part….”

Have you ever thought how intertwined  those vows are in today’s world?  Especially the part linking “poorer” with “sicker.”   As the highly-paid policy wonks are fond of reminding us,  married couples are one serious illness away from filing bankruptcy.

So how does a couple in a community property state like Texas keep from having one spouse’s medical bills drain away their life savings?   There are three primary laws that are working against you.

Community property laws state that everything that is earned or purchased during marriage is presumed to be community property, and is equally available to the creditors of both the husband and wife.  The first line of defense is to change the characterization of the property – argue an asset (a bank account, a vacation home) is not community property, but is actually the “separate property” of the healthy spouse and therefore cannot be reached by the sick spouse’s creditors.

If the couple has actually preserved the “separate” characterization of the property (side note, this is difficult to do without some serious planning), you would think that would be the end of the argument , except ……

For the second law.    This one holds that each spouse has the duty to support the other spouse and is liable to anyone who provides “necessaries” to the other spouse.    Most people would consider medical expenses to be a necessary.   Under this second law, all of the spouse’s assets can be reached by the other spouse’s creditors.

The thoughts are coming fast and furious, aren’t they?  If you have $200,000 in assets, you think, then you will just gift them away, or sell them to your kids for $10, or pop them into a trust.  Any of those alternatives would be better than having the creditor take everything.

Ah, but then you have violated the third law.  This one says that you can’t transfer assets to defraud your creditors.  There are all sorts of ugly penalties associated with this law.

So what is a married couple to do?

One option, available only before the couple is married,  is to enter into a prenuptial agreement that provides the spouses will not be liable for each other’s medical expenses.

Another option is to transfer the money out, either to an exempt asset or to a third party like a child or a trustee, before the medical debt is incurred.   The intention of the transfer is not to defraud a creditor, because no debt exists at the time of the transfer.   If done properly, the sick spouse may be able to qualify for Medicaid to help with long-term medical expenses.

The third option is to buy enough medical and long-term care insurance so that medical expenses are covered.  The couple has to do this while still healthy enough to qualify and, of course, must be able to pay the premiums.

Note that none of those strategies  will work for the healthy spouse whose sick spouse  has already incurred significant medical expenses.   At that point, the only viable option to preserve assets, unfortunately,  is divorce.

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