Monday, July 21, 2014

What Does your Attorney Mean by "Do you Have Proof?"

Does this sound familiar to you?  You are telling someone a story about something that happened and you can see the skepticism on their face.  Or, they tell you outright, "That's not what I heard". Or, they say, "I'm sure he didn't mean it that way?"

Perception is everything.  What you perceive and recount to another comes from your personal POV (point of view).

Even if several people observe the same event or conversation, their perceptions can differ greatly. That is why attorneys and law enforcement realize that even eyewitness evidence can be unreliable.

If your attorney has asked you for proof of something in your case, she is looking for objective evidence that a thing happened as you report it.

Proof can be any of the following:

  1. Emails showing communication and notice given;
  2. Paper documents;
  3. Photos;
  4. Digital files or posts;
  5. Witnesses (I know, I said they can be unreliable, but having someone other than you who is willing to tell a supporting story, especially under oath can help);
  6. Items, in a property dispute such as landlord/tenant (a leaking roof that can be inspected);
  7. Government records (assumed name certificates, court paperwork, deeds);
  8. The opinion of a professional (a therapists' report or testimony, an estimate from a foundation repair expert, a profit/loss statement prepared by a CPA or bookkeeper).
  9. Proof of Sending (email receipt confirmation, "green cards" or signature confirmation from U.S. mail);
  10. Logs or Journals that you kept at the time of the events. (this is a limited type of proof, but is still useful to help prove your point). 
Keeping records and proof as an event unfolds and keeping it organized can be invaluable to you if you should need it later.  It goes without saying, but I am going to say it anyway... make sure you don't violate any laws and don't falsify any information. 

"Passionate, Professional & Personal. We Make the Difference."
We are celebrating our 30th anniversary in 2014!  A big THANK YOU you to our clients & the community for making this possible! 

Wednesday, July 16, 2014

Can you buy a House While you are Going through a Divorce in Texas?

Can you? Yes.

But should you?  Probably not.  At least not without some preparation.

Here are some things you should know if you are thinking about buying a house before your divorce is final.

  1. Texas is a community property state.  There is not a "legal separation" in Texas.  So, you can't just assume that you are "on your own" and the new home will be your separate property.
  2. When a divorce is filed, you need to know about certain "standing orders" that are in place. This means that the Court automatically puts orders in place that may prevent you from spending community funds on items other than necessities, legal fees,or  community debts. In other words, once the courts are involved, you can't just spend freely without risking the violation of a court order. 
  3. You can negatively impact your portion of the property split.  If you do buy the home, having that awarded to you on "your side of the balance sheet" in the final divorce may mean that you don't get other property that you were counting on.  Whether the funds that you want to use to purchase the home are "separate" or "community" funds can be a complicated issue.
  4. It will involve your spouse legally.  For one thing, a credit check will be performed. For another, the title companies have to follow Texas community property law.   And, don't even think about having one of your friends or relatives purchase it "for you", secretly.  (Hello, contempt of court and fraud!).
  5. It ain't over til its over.   What if you don't get all the property you thought you were going to get in your divorce? What if you get more debt that you expected?  Do you really know what your financial picture will be after the divorce and whether you can afford the new place you chose? 
  6. But... sometimes you can do it.... Seek the advice of your divorce lawyer. Do not decide on your own and inform your lawyer after it is finished.  There are ways to make sure that you are not violating an agreement, and to even get your spouse's cooperation (on this one issue, at least).   Making sure that this purchase is part of a Rule 11 agreement, mediated settlement agreement, temporary orders hearing, contract or letter agreement between the parties will assure that no one cries "foul" later on.  Also, your attorney can tell you if your purchase is likely to have any negative financial impact for you in the property split, or if it may have a negative psychological impact on your soon to be ex. Contact a trusted divorce and family law attorney who will be familiar with your situation and with the Texas family code and property law.  
Kalish Law Office - Family & Business Law - The Woodlands, Texas 
"Passionate, Professional & Personal. We Make the Difference."
We are celebrating our 30th anniversary in 2014!  A big THANK YOU you to our clients & the community for making this possible! 

Thursday, July 10, 2014

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Monday, July 7, 2014

Does it Matter Which Spouse Files First for Divorce?

We are often asked whether there is any advantage to being the first one to file in a Texas divorce case.

There are a lot of rumours about this.

Take this quiz to see what you know about this subject:

1. TRUE or FALSE  The person who files first is the one who gets to stay in the marital home.

2. TRUE or FALSE   The person who files first pays the filing fee

3. TRUE or FALSE    The person who files for divorce first is the one who chooses the jurisdiction (state and county) where the divorce will be heard.

4. TRUE or FALSE   The person who files first gets to go first in presenting the case at the hearing or trial.

5. TRUE or FALSE    If you don't file first in the divorce, you won't have any say-so in when the hearings and final trial are set.


1.  FALSE.  There are a lot of factors to determine who gets to stay in the marital home during the divorce and how it will be awarded in the final decree.  Who filed first is not one of the factors considered.

2.  TRUE.  The person who files first pays the filing fee for a new case. However, the other spouse  (Respondent) may choose to file a counterclaim, which will mean paying a fee as well.

3. TRUE in most cases.   The spouse who files first will choose the county in which the case is filed.   There are some cases in which the other spouse can ask for the case to be moved, but these have very specific legal criteria and must be approved by the Courts.

4. TRUE.  This can create a strategic advantage but both sides will still get to tell their stories.

5.  FALSE.  The hearings are set based on the Court's schedule, guidelines and rules of procedure, and agreement/availability of the parties and their attorneys.  Who filed first isn't considered.

Kalish Law Office - Family & Business Law - The Woodlands, Texas 
"Passionate, Professional & Personal. We Make the Difference."
We are celebrating our 30th anniversary in 2014!  A big THANK YOU you to our clients & the community for making this possible! 

Monday, June 30, 2014

Procrastination Can Cost You Money!

"Procrastination is like a credit card. It's a lot of fun until you get the bill."- Christopher Parker

We have all been told not to procrastinate, and to plan ahead.  This is especially true in the legal area.  

Sometimes, by the time a client sees an attorney, things have gotten complicated and a little messed up. The attorney may shake her head and say sadly, "If only you had come to me sooner!".

I could give many examples of cases in which someone waited a little too long to come in.   By that point, a deadline had passed, the opposing party had become inflexible, binding documents had been signed, evidence had been lost, or things had been said that could never be taken back.  

Whether you have a contract issue, a family law problem, or are thinking about making a will, don't procrastinate.  Waiting too long to deal with an issue can increase the complexity of your case and can also significantly increase the legal cost!

Having a 30 minute consultation with a lawyer can be a bargain, even if you don't choose to hire the lawyer at that time.  You can get guidance to help you deal with that situation now.

"Passionate, Professional & Personal. We Make the Difference."
We are celebrating our 30th anniversary in 2014!  A big THANK YOU you to our clients & the community for making this possible! 

Monday, June 23, 2014

Do the Casey Kasem Family Woes Contain a Lesson for the Rest of Us?

The family issues which arose at the end of Casey Kasem's life were played out in the public eye, but unfortunately, this type of situation could  happen in a lot of families.

Let's face it, there are some variables that no one can anticipate.  For instance, most of us expect (hope) that we and our family members will die "when we are older" and that we will have time to plan. We also hope that the people that we sit across from at holiday dinners will pull together in a crisis and not sue each other over our person or property.

But sometimes that is not to be.   In this particular family fight as in all disputes, there were two sides.   And Casey was unable to speak for himself.    He had done some advance planning, and had reportedly signed a  designation of health care guardian in 2007, which appointed one of his daughters and her husband to speak for him if  he were incapacitated.   His wife Jean Kasum, however, claimed that he had signed a 2011 document which invalidated the 2007 document.  (I would venture to guess that a major issue in this case was whether Casey understood what he was signing in 2011, and whether he was subjected to "undue influence" when he signed the document. This is a common inquiry in cases such as these, especially when there is a memory disorder involved). 

Casey's adult children claimed that their step mother was keeping their father from them.  She claimed she was doing what was best for him.  A legal battle ensued, and long story short, the Judge ruled that Jean Kasem was her husband's conservator. The parties were ordered to work out a visitation agreement. 

Casey Kasem's children have begun a nonprofit foundation called "Kasem Cares" which is working to instituted legal rights for adult children in California and elsewhere. 

So, what are the lessons for the rest of us?   Well, the obvious (and upsetting) reminders are these;  some of us will not be able to speak for ourselves at the end of our lives.  Also, that family does not always get along, even when times are tough.  And, even if family does try to get along, different people have different (sincerely held) beliefs about what is right and what is in their loved one's best interest.  Some would say that there is more likely to be trouble in step families that in intact families, but over 20 years of law practice has given me plenty of examples of serious disagreements in intact families as well. 

But here is the "up" side of this.   We all can (and should) do what we can, while we can to minimize the issues that can occur later on.  Even though we can't stop people from disagreeing, or even filing lawsuits, it is still important to give them "something to go on."  It is important to make our wishes known, in writing, in a proper legal form, while we are able to speak for ourselves. And it is important to help our parents help us by guiding us while they are able.

Advance planning does not automatically prevent any disputes from happening, but it is a step in the right direction.  Powers of attorney, Medical Powers of Attorney, Physician's Directives and Designation of Future Guardian are all important documents that can be used along with a Last Will and Testament to help make wishes known. 

"Passionate, Professional & Personal. We Make the Difference."
We are celebrating our 30th anniversary in 2014!  A big THANK YOU you to our clients & the community for making this possible! 

Monday, June 16, 2014

Why Ignoring Child Support Obligations Doesn't Work

If you owe child support and you are unable to pay it, you may believe that everything is fine as long as you don't hear otherwise. You may feel that if you don't "rock the boat", you'll catch up later "when things are better".

Times are difficult financially.  But when it comes to owing child support, it is a mistake to subscribe to the "no news is good news" theory.

People who are obligated to pay child support are called "Obligors" in legal terminology. 

Obligors who don't pay child support not only risk having a court case brought against them, but the parent who is supposed to be receiving the support (called an "Obligee") can file a suit to have the arrearage (unpaid back support) made into a formal judgment by court order. The Obligee can then collect on this for years, even long after the child has turned 18 and graduated from high school. 

Child support judgments can follow you in many ways such as showing up in your credit history, preventing you from renewing governmentally issued licenses, and taking your tax refund. 

In addition, if you are not paying child support AND not exercising your visitation (a truly "absent parent"), you run the risk of your ex seeking termination of your rights in court. 

Many adult children who have an absent parent who did not support them financially or emotionally bear the scars and carry the anger for years, or for the rest of their lives. They may feel hurt and abandoned, and feel that they owe complete loyalty to the parent who did support them. Therefore, it can be very difficult to begin a good relationship when the children are adults, even if you want to.

If you owe child support and don't know what to do to make the situation right, you should seek a legal consult with a family lawyer who can tell you your options so that you can decide how to handle it.

Kalish Law Office - Family & Business Law - The Woodlands, Texas 
"Passionate, Professional & Personal. We Make the Difference."
We are celebrating our 30th anniversary in 2014!  A big THANK YOU you to our clients & the community for making this possible!