Thursday, January 27, 2011

Basic Facts About Adult Adoption in Texas

Adoption of an adult can be a fairly straightforward process.   The adoptee’s biological parents do not need to be notified of the adoption and are not entitled to have a voice in the proceedings.

 

There are many reasons to proceed with a formal adoption, even after the “child” reaches adulthood.  The most common situation is one in which a step-parent has wanted to adopt the child but has not been able to get the approval of the biological parent.  At the time the step-child turns 18, the papers for step-parent adoption can be filed without notice to the biological parent.

 

Waiting until a child turns 18 for adoption works quite well in cases where the biological parent has a lifestyle that is unhealthy for the child.   When a biological parent is unstable or violent, it is often unadvisable to contact the biological parent because it may encourage him/her to try to reenter the child’s life, bringing the chaos and danger along for the ride.  Waiting a few extra years can turn a nail-biting situation into a positive and happy one, and decrease the risk of drama or danger.

 

Some adult adoptees may be well beyond their 18th birthday at the time of the adoption.  Some of these situations involve step-families, others involve “just like family” groups who want to make their relationship a formal and legal one.   These adoptions are done for emotional reasons, and the reward is well worth it.

 

Adoption creates the parent-child relationship under the law. As a practical matter, this affects the parties’ abilities to inherit to and from each other. It also affects next-of-kin issues in health care decision making.   Of course, there are other ways to accomplish inheritance goals and grant powers of attorney through proper estate-planning but adult adoption will accomplish some of these goals plus satisfy the emotional needs for people to be legally connected forever.

 

A name change may or may not be part of an adult adoption, but if it is desired, it can be peaccomplished at the same time.

 

An adult adoption will not be granted by a judge if it appears that it is being sought to defraud creditors or avoid responsibilities under the law.  It may not be granted if the judge believes that someone is being taken advantage of (the judge will look closely at cases in which one of the parties is or may be disabled, elderly, or under duress).   An adult adoption will not grant benefits under U.S. immigration law.

 

In order to complete the adoption, a petition will need to be filed in family court and there will be a hearing.

 

If you considering adopting an adult or you are an adult who is thinking of consenting to being adopted, you should understand how your individual situation will be affected by the adoption.  You should carefully consider how every aspect of your life will be affected, how the family will be affected, and be certain that you understand all of the legalities and steps involved in the process.

 

The Kalish Law Office has been helping families for over 26 years with adoptions, family law and estate planning.   www.kalishlawtexas.com  281-363-3700

Tuesday, January 25, 2011

What You Want to Know About Termination of Parental Rights in Texas

Certain legal conditions must be met before parental rights are terminated by court order.


There are two types of termination; voluntary and involuntary.

 

A voluntary termination of parental rights occurs when the parent whose rights are being terminated agrees with the termination, cooperates, and signs the proper paperwork and/or appears in court and testifies that s/he is voluntarily giving up rights.


An involuntary termination occurs when the parent whose rights are being terminated is not in agreement with the termination. This can occur when the parent actively opposes the termination, stands by passively and allows it to happen, is absent with whereabouts unknown, or refuses to respond to the suit.

 

Even if an absent parent cannot be found to be served with a lawsuit terminating rights, there are certain legal steps that can be taken to give “legal notice” without “actual notice”.  Translating from “Legalese” to “English”, this means that just because a person is missing or hiding, the termination may still go on.  If the termination is in the best interests of the child the judge can make that decision.

 

Specific legal steps must be taken to locate a missing party.  There will also be an attorney appointed to represent the interests of the missing parent. 

 

Termination is not a given.  A judge can refuse to terminate parental rights if the judge believes that it is not in the best interests of the child to do so.  This can happen even if both parents are in total agreement about the termination. 

 

Here are three common situations involving termination of parental rights:

 

  1. Adoption.   In order for a child to be adopted, he or she must be available for adoption and (except in an orphan situation) that will involve terminating the parental rights of one or both biological parents.   Step parent adoptions will commonly require the termination of rights of one biological parent.
  2. Abuse, Neglect or Danger.   Parental rights can be terminated for abuse or neglect or to prevent harm to the child.  Child Protective Services may be involved in these cases.
  3. Non support, no contact, abandonment, lack of acknowledgment.  In some circumstances a parent can lose his/her rights by not supporting, visiting or acknowledging the child.

 

Parental rights are protected by law, and the terminations of those rights are not taken lightly.  Many legal steps must be performed in order for a termination to be granted. The primary consideration is the health, safety, support and well-being of the child involved.

 

Kalish Law Office in The Woodlands Texas has been representing clients in cases involving termination, adoption, paternity, and parental rights for over 26 years.  www.kalishlawtexas.com  281-363-3700  “Passionate Professional and Personal. We Make the Difference.”

Wednesday, January 19, 2011

Separating Your Marital Debts and Assets by an Agreement With Your Spouse

What if you should have gotten a Premarital Agreement but didn’t do it prior to marriage?

 

Don’t despair, there are specific legal documents which can be drafted and executed that will divide a married couple’s assets and debts into “his” and “hers”.

 

 These legal agreements may be called “Postmarital Agreements”, “Postnuptial Agreements”, “Partitioning Agreements”, or “Partition and Exchange Agreements” (I will refer to them as “Partitioning Agreements from this point on).

 

The partitioning agreement is used for the same basic reasons as the Premarital Agreement 1) To keep assets separate; 2) To protect one spouse from the other spouse’s separate debt 3) To account for a imbalance in assets between the spouses; and 4) For psychological or emotional reasons when it is better for each spouse to have his or her “own” property, rather than co-mingling it in one marital “pot”.

 

IMPORTANT** A Partitioning Agreement can not be used as a legal maneuver to defraud creditors. However, it is legal to use one in order to protect a spouse from separate debts owed by the other spouse. The separate debt may have already existed at the time the marriage was entered into. In other cases, the debt may not even exist yet. (For instance, only one spouse is embarking upon a financial venture and agrees to use or risk his/her own assets only).

 

In any event, the creditors will have full knowledge and disclosure.  It is possible to take certain steps in giving legal notice to potential creditors and may be advisable to file Partitioning Agreements in county records (although care must be taken with personal identifying and financial information since such filings are public record).

 

The legal requirements for these agreements are very specific and the consequences of signing such documents are many; this will affect current and future finances, income taxes, affect the couple’s estate plan, and be important in the event of a divorce so it is essential that an attorney who is knowledgeable in these areas be employed to draft and complete the documents.

 

The family law attorneys and estate planning attorneys in The Woodlands, Texas can assist you by explaining the legal requirements of Marital Agreements and drafting documents tailored for your family and business situation.

 

The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  www.kalishlawtexas.com   281-363-3700

Photos from Kalish Law Texas

Friday, January 14, 2011

Do YOU Need a Premarital Agreement?

Premarital agreements are also called Prenuptial Agreements, or “Prenups”.   Most couples who decide on a premarital agreement do so for one or more of the following reasons; a) there is a disparity in their assets; b) there is a disparity in the amount of debts owed; c) they want to preserve all or a portion of the premarital assets for their already existing children; and/or d) to meet financial goals, including asset protection.

 

The Texas Constitution defines marital (“community”) property and separate property. All income earned or property obtained after marriage (other than that gained by gift, inheritance, or certain parts of a personal injury settlement or award) is community property, unless there is a very specific legal agreement to the contrary.  In order to legally change that designation, a couple needs to sign a very specific contract.  

 

In some situations one of the spouses may have a large amount of debt going into the marriage. Texas law states that a prenuptial agreement may not be entered into with the intention of defrauding creditors.  However, there is no fraud if the couple merely protects the non-debtor spouse from a debt that is not legally his/hers.  The debtor spouse will continue to be liable for the debt under the law, but the non-debtor spouse’s present and future assets will not be co-mingled with the assets that are legally available to pay this pre-existing debt.

 

A Premarital Agreement can help clarify the couple’s financial picture, remove anxiety about potential disputes and misunderstandings and assist them in planning their financial future.    Although the idea of a Prenuptial Agreement may seem “unromantic”, having a well-planned and valid agreement may provide harmony and peace of mind.

 

If you are considering a marriage and think that a Premarital Agreement may be appropriate, take the time to have a consultation with an attorney who has knowledge and experience in the areas of family law and estate planning.  You will then be able to make an informed decision about what is best for your future.

 

The family law attorneys and estate planning attorneys in The Woodlands, Texas can assist you by explaining the legal requirements of Premaritial Agreements and drafting documents tailored for your family and business situation.

 

The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  www.kalishlawtexas.com   281-363-3700

Tuesday, January 11, 2011

The 60 Waiting Period for Divorce in Texas (yes, that includes uncontested divorce)

Under Texas law, a divorce has to be on file for at least sixty days before it can be signed by a judge.  Even though a decree can be signed on the 61st day, that doesn’t mean that it will be signed on the 61st day, although it is a possiblity if the divorce is an uncomplicated and agreed one.

 

The specific legal requirements that need to be satisfied in a divorce  take time.   Everyone involved (the two parties and any attorneys involved) must have the time necessary to carefully draft and review the documentation. When everything is ready, a time must be chosen for at least one party to appear in a Texas divorce court and present the case to the judge (this is commonly called the “prove up”).  Some family courts have specific times during which the judge will hear uncontested cases. Other courts require that a final hearing date be requested in advance, once the agreed decree of divorce is signed and ready.

Here are some things that you can do to help your uncontested divorce case move along more quickly:

 

1.      Be certain that you and your spouse really do agree on everything.  This means that you have an agreement about property division and debt division. If you have children, be certain that you are in agreement about visitation, child support, custody and payment of medical expenses.   When discussing the visitation agreement, be certain that you understand holiday visitation and summer visitation terms. 

2.      If you have children, and are willing to use Texas Standard Visitation provisions, the documents will not take as long to draft as “custom” provisions.  Likewise, if you are using standard child support guidelines, things will go more quickly in both the drafting and the approval by the judge.   This is because the “Standard” provisions are part of the Texas law, presumed to be fair to the parties and children and do not require a fresh analysis by the attorneys involved or the judge.

3.      It is usually helpful to write out the agreement between you and your spouse, perhaps in a “list format” and make sure each of you has a working copy. This can be done prior to anyone visiting an attorney and can be helpful to take to your consutlation with your divorce attorney.

4.      Be sure to return calls and emails from your lawyer’s office promptly, and review documents and provide information when requested.

5.      Talk to your divorce attorney about how having a Waiver of Citation in divorce case that is signed by your or your spouse can speed the process along and whether it is advisable in your situation.

6.      Be sure that you have met all the requirements that Texas divorce law and the Texas family court judge have set in your case.  For instance, do not delay in taking parenting classes and providing proof to your attorney.  The Montgomery County, Texas family law judges, Harris County Texas family law judges (and family court judges in other Texas counties) have some specific requirements regarding completion of classes and submission of paperwork.  Make sure that you understand what these are and cooperate promptly.

 

Even though your divorce may not be granted on the 61st day after the filing, if you follow the above suggestions, things will go a lot more smoothly and quickly in your uncontested divorce.

 

Your divorce attorney in The Woodlands, Texas can assist you by explaining the legal process of an uncontested divorce and guiding you through the Texas 30 day waiting period for divorce.

 

The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  Contact us at Inquiries@kalishlawtexas.com or 281-363-3700. www.kalishlawtexas.com

Thursday, January 6, 2011

Remarrying After Divorce: The 30 day Waiting Period in Texas



COMMENTS AND QUESTIONS FOR THIS POST ARE NOW CLOSED. 

Although many states do not require a divorced person to wait before remarrying, the State of Texas does.  There is a thirty day waiting period. During this time, either party to the divorce can appeal the divorce decree and the divorce will be “reopened”.

In addition, if one of the parties decides not to wait the entire thirty day period and remarries too early, the new marriage is “voidable” and may be challenged by one of the parties to it for a period of time.

In most cases, people can and do wait until at least day 31 to tie the knot again.   

For those who have had a bitter divorce waiting is especially good advice to prevent potential problems from the “ex” spouse.   Texas is a community property state, so any material change in assets during the 30 day period may cause the “ex” spouse to question whether the property was owned prior to the divorce, or rethink other issues (whether there was fidelity during the marriage), rather than moving on to the future.

In some cases, you can ask to have the 30 day waiting period waived by a judge. A Texas divorce attorney can help you with that.

In short, under Texas law in most situations it is best to hold off until at least day 31 to remarry, even if you and your spouse have lived apart for quite awhile. 

To calculate 30 days from a particular date:  Here is a date calculator. 


The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  Contact us at Inquiries@kalishlawtexas.com or 281-363-3700. www.kalishlawtexas.com

Monday, January 3, 2011

What Everyone Should Know About Paying "Old Debts"

If a creditor wants to sue, they must do so within the time periods allowed by law. This time period varies from state to state.  However, even if this time period has run, a consumer may “reactivate” the debt by taking certain actions. (Such as promising to pay, corresponding about it, making a small payment, or sometimes even discussing it with a creditor.)

Beware of speaking to creditors about old debts that have expired.  The creditor has a certain amount of time to legally sue you, which is called the “Statute of Limitations”.  When the time limit passes and the original creditor is no longer allowed to file suit, that creditor will often sell the debt to a third party.   The purchaser of the debt may then contact debtors and attempt to collect.  

If you know that the statute of limitations on a debt has expired, you shouldn’t speak to or correspond with the creditor.  (Unless you have the desire and ability to pay the debt and are ready to do so.)  If you choose to do so, you should be aware that you may be “reactivating” the debt and may open yourself up for a lawsuit.

Debt collectors that are attempting to collect debts beyond the statute of limitations have been known to get aggressive, and to misrepresent the facts.  If you receive a call from a creditor involving an “old debt” you should be aware of the following:

 

  1. The creditor may tell you that you will be sued, but may have no legal right to do so.
  2. Paying a very old debt may not help your credit report score. The debt may be so old that it no longer appears on your credit report.
  3. The “new” owner of this account may not have documentation about the original debt and may not be able to tell you the original amount of the debt, the creditor, or the date incurred.   The amount may not be accurate. In fact, the debt may not even be yours. 
  4. Even if you get a letter from a “law firm” be sure to do your research online to see if there are complaints or allegations against the company or firm for fraudulent activity. Unscrupulous individuals have made a lot of money by misrepresenting themselves and presenting false information in order to receive payment.  
  5. A common scam:  an individual or company contacts numerous people alleging a small, expired debt and collects many small payments from thousands of unsuspecting people.  In addition, bank account information and credit card information is exposed, and may be used for identity theft purposes.  Don’t be a victim!
  6. This bears repeating:  Don’t make a payment, or a promise to pay, or discuss an old debt, unless you don’t mind reactivating it.
  7. Whenever you dispute an amount owed, keep documentation of that dispute in files that you can access later.  Unlike tax returns, this information should be kept indefinitely.  Third party purchasers of debt have been known to contact alleged debtors 20 and 25 years later.
  8. If you do owe debts that are unpaid, you should keep this information in a file as well.   You can use this information in your own plan to reduce and control debt, and also you will not be vulnerable to untrue allegations of amounts owed.
  9. If you are being harassed by creditors, or need legal assistance in debt management, asset protection or to discuss bankruptcy options, contact an attorney for a consultation appointment so that you can understand all of your legal options.