Wednesday, February 25, 2015

Should I Rush to File my Divorce First?

If you are about to become divorced you may be concerned about getting to the courthouse first to file the petition.  Many people have the impression that if they don’t file first they will have a more difficult time getting temporary possession of the home, or obtaining favorable terms relating to property or children.  However that is generally not the case.

Here are the ways in which being the Petitioner matter:

Selection of the county for the proceedings (venue) In most cases, where to file is obvious.  But in some situations, there may be a choice.  A divorce may be filed in the county where either spouse is a resident (must meet the residence requirements), or where the last marital residence was.  An example: the couple lived together in county A, then one of them moved to county B and established residence, there would be a choice of where to file since the divorce can be filed in either county A or in county B.  So, one of the spouses may want to hurry and file first in order to make sure that the courthouse in which the divorce is filed will be geographically convenient to them.

Payment of initial filing fee Whoever files first also pays the initial filing fee.

Setting the tone of the initial proceedings Whoever files first sets the tone of the proceedings at least temporarily.  The first filer (petitioner), will decide whether to file a fault or no fault divorce.  However, this can change, because pleadings can be amended and changed by either party. 

Going first if there is a trial:  If there is a trial, the Petitioner will get to go first in the courtroom.  Although the majority of cases do not go to final trial, this fact can have an impact on trial strategy.

Overall, if you don’t make it to the courthouse first, you should not worry.  You will still have the opportunity to file an answer, file other court documents, negotiate, attend mediation, and have your day in court if settlement does not happen.  

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
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Tuesday, February 17, 2015

Annulment of a Marriage Between Two Adults in Texas

Our last blog post dealt with marriage of underage parties and requirements to annul those marriages.

This post will deal with marriages between two adults that may qualify for annulment.

Many people would like to have an annulment rather than the divorce because it can be quicker.  In order to have an annulment, you must prove that the marriage should never have been. "Should never have been" means from a legal perspective, not just an emotional one.

Some examples of the marriages that may qualify for annulment are the following:

Intoxication.  When of the parties was so intoxicated that they could not legally consent to being married.

Mental Incapacity.  In order to consent to marriage, each party must have the mental capacity to do so.

Impotence of either party.  If one of the parties is unable to participate in normal marital relations and the other party did not know this prior to the marriage this may qualify for an annulment.

Married Within the Waiting Period.  One party was divorced from a third party within the 30 days prior to the marriage and the other party did not know about it.

Duress.  One party forces another to get married or threatens them.

Fraud.  A party hides something very essential and the other party does not learn about it until after the marriage.

The following are two types of marriage that will be declared void in an annulment proceeding.

Relatives.  If two people got married who were too closely related this may qualify for an annulment.

Bigamy.  If one of the parties is still married to someone else at the time of the wedding. (however, if they continue to live together as spouses after the divorce and the "innocent spouse" has knowledge of the previous marriage they can be considered married and an annulment sought later will be denied.)

In all of the above cases, it is important to act quickly, in some situations within 30 days of the marriage.

Kalish Law Office - Family Law - The Woodlands, Texas 

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
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Thursday, February 12, 2015

Best of The Woodlands 2015 Voting is Going on Now!

If you live, work or socialize in The Woodlands, don't miss your chance to vote in 2015 Best of The Woodlands! 

(Hint: We are listed under "Professional Services" where you will have a chance to vote for your favorite "Attorney, Lawyer, and Legal Services".)

Voting goes on for the month of February.

Thank you!

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
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Monday, February 9, 2015

Annulment of an Underage Marriage in Texas

Annulment in Texas is very specific.  According to the Texas law, certain requirements must be met in order for the case to qualify as an annulment.

A marriage to a person younger than 16 years of age is void unless a court order allowed the marriage. A suit may be brought to declare this marriage void.

Regarding persons between 16 and 18 years of age, a parent or guardian is authorized to bring a lawsuit to annul a marriage.  The suit for annulment must be brought within 90 days of their marriage day and before the person turns 18.

In deciding whether or not to grant the annulment a judge will look at the best interests of the parties as well as considering whether or not a child is expected.

The judge will also look at all the facts of the case.  Lack of parental consent is a requirement.

If there were any threats or duress involved in getting the minor to agree to marriage that is also a relevant fact to be brought before the court. In some cases a parent or  guardian may need to proceed very quickly, if health and safety of the minor is an issue.

It is important to consider all of the consequences of requesting an annulment including how the family will be affected and what it will do to the relationships between the people who are involved for the future.

Annulment is generally quicker than divorce.  Once the annulment is granted  it is as if the marriage never happened.  The person is considered single, not divorced.  This may be an important distinction in certain religious communities.

If you believe that you or a loved one may qualify for an annulment, contact a family law attorney for a consultation.

Kalish Law Office - Family Law - The Woodlands, Texas 

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
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Sunday, February 1, 2015

How Long Do I Have To File Probate in Texas?

When a loved one dies it may be difficult to think about all the things that need to be done. 

People handle loss in different ways. For some, it may be comforting to take care of business right away. Other people cannot imagine doing so, and may not be ready to deal with legalities or clean closets for several weeks, months, or even years. 

Texas law states that a will or probate action should occur within four years of death.  

If the four years have passed, it may still be possible or advisable to file in probate court. However, waiting longer than four years may increase the complexity of the case, and may increase the cost as well.  In addition, the probate judge will want to know why the case was not submitted within the four years. Nonetheless, some cases do proceed successfully after the four year deadline. 

When there is property left to be transferred and the four year deadline was not met, there may be other legal options available that are different than the typical probate filing. Some include a court filing and some do not. 

It is best to follow the four year rule. If you have already missed that deadline and still have "loose ends"  or property that needs to be transferred, have a consult with a wills and probate lawyer so that you can understand all of the options available to you. 

"Passionate, Professional & Personal. We Make the Difference." For Over Thirty Years.
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