Challenging a prenuptial agreement in Texas

Many Texas residents who sign prenuptial agreements believe that their actions are irrevocable and that such agreements cannot be amended or challenged. While the legal reasons for such actions are limited, anyone who is thinking about enforcing a prenuptial agreement or resisting such an action should be aware of the potential infirmities that may lead to a judgment that the agreement is invalid.

The first reason that might lead to the rejection of a prenuptial agreement is the simple fact that it was not reduced to writing, or never signed. Under Texas law, and the law of every other state, the agreement must be in writing and both parties must sign the agreement before the marriage takes place.

The failure of either party to sign the agreement will forever prevent its enforcement. Similarly, the lack of the formalities of execution, such as the signature of a notary public or other witness, will invalidate the agreement.

People often feel pressured by the other party to the marriage to sign a prenuptial agreement. Such pressure can consist of denial of adequate time to either read or consider the agreement. If such pressure can be proved, the agreement will be held to be invalid.

A related reason is the failure or refusal of one or both parties to make a full and accurate disclosure of their financial situation. Hiding or misrepresenting assets prior to the execution of a premarital agreement is likely to cause a court to declare the agreement invalid and, therefore, unenforceable.

Prenuptial agreements are legal contracts and each party must be represented by separate counsel. A lawyer can advise individuals on their rights before signing an agreement, and help people who have already signed an agreement to understand their options.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

Undoing mistaken paternity in Texas

Paternity cases in Texas usually involve efforts by a child’s mother to prove that a particular man is the biological father of her child. Occasionally, however, paternity testing is used to disprove that a man is the father of a certain child.

Mistaken paternity can have a number of unhappy consequences for both the alleged father and the true father. The most obvious of such consequences is a wrongfully imposed obligation to pay child support to the mother. Other issues may involve denying the biological father his legal right to share custody or insist on visitation. Any man who believes that a paternity proceeding reached an incorrect conclusion regarding his fatherhood can ask the court for assistance.

The first step is obtaining a court order directing both the man and the child to submit to genetic testing. The man is required to file a motion with the court asking for a finding of mistaken paternity. The court will order a pretrial hearing to determine if the man satisfies the statutory requirements for a determination of false paternity. If the requirements are met, the court will issue an order requiring both the man and the child to submit to DNA tests. Such tests usually involve obtaining DNA samples from both the father and from the child. DNA tests are usually definitive in proving or disproving paternity. The tests can be obtained from a number of sources, including doctor’s offices, drugstores and laboratories that market the services. Most health care providers suggest obtaining such tests only from a laboratory accredited by the American Association of Blood Banks.

The court will issue an order based on the results of the test and on any other relevant evidence. If the court determines that paternity was mistakenly determined, it will issue an order to that effect. All child support obligations will be terminated as of the effective date of that order, although past due support must be brought current.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

Enforcing a child custody order in Texas

Many Texas residents who endure the emotional roller-coaster of a divorce proceeding believe that the entry of the final order settling issues of property division, spousal support, child support and child custody will put an end to their emotional pain. Unhappily, some parents refuse to obey the court’s order regarding child custody or child support. Texas law provides several methods of enforcing an order for child support, but divorced parents are often left to their own resources to enforce compliance with an order for child visitation or shared custody.

The most common method of enforcing an order for child custody or visitation is a motion to hold the disobedient party in contempt of court. Such a motion must be brought in the county court that granted the original divorce. The moving party must cite the provision of the original order that has allegedly been violated. The provision that has allegedly been disobeyed must be specific. It must state a specific time for a visitation period to begin and a specific time for it to end.

The judge to whom the motion is presented may clarify any ambiguities in the original order before ruling on the motion. The amended order replaces the original order. If the court finds in favor of the moving party, the most common form of sanction is a citation for civil contempt. The court may place the disobedient party on probation, subject to incarceration if the violations of the court’s order do not cease. The court may also impose a fine. Most judges do not order incarceration because placing the defaulting party in jail would halt a stream of income that is essential to the welfare of the children. But, repeated violations of visitation orders will usually result in a jail sentence.

Anyone who is dealing with an ex-spouse regarding an alleged violation of an order for custody or visitation may need to get more information about their legal options


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

Dividing assets in a divorce in Texas

One of the central questions in almost every divorce in Texas is the division of the couple’s property, both tangible and intangible. Texas is one of only nine states that use a “community property system to answer this question.

The basic rule is fairly simple: Absent a valid and enforceable prenuptial agreement, community property is any asset that was acquired during the marriage. Community property is deemed to be owned by the spouses jointly, and each of them is entitled to share equitably in the marital estate. Property that is not community property is referred to as “separate property” and remains the property of the spouse who acquired it.

Classifying assets as either community property or separate property can cause unexpected disagreements in dividing the marital estate. Community property is all property that is acquired by one or both spouses during the marriage. Separate property is property that one spouse:

  • Owned before the marriage;
  • Acquired during the marriage by gift, devise or descent; or
  • Recovered for personal injuries suffered during the marriage.

The balance of the marital estate is community property and will be divided by the court in a manner that is fair to both parties and to any children they share. Appreciation during the marriage in the value of an asset, such as corporate stock or a work of art, may cause special problems in classifying the income. Also, the benefits under a retirement plan or 401(k) plan may be considered community property, depending upon the length of the marriage.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

An overview of prenuptial agreements in Texas

Most residents of Texas who are considering marriage may also be wondering about signing a prenuptial agreement. The mere act of signing such a contract seems contrary to the emotions of love and affection that are generally thought to characterize the marital celebration. Nevertheless, a prenuptial agreement can be a valuable aid in preserving those feelings as the marriage progresses.

Prenuptial agreements provide the greatest benefit to couples who have widely disparate amounts of assets or whose incomes are widely disparate. A prenuptial agreement settles many income and property division disputes before they even arise. Unresolved tension about these issues can threaten a marriage, and a prenuptial agreement eliminates the conflict before it begins.

Texas law states that a prenuptial agreement is a written contract in which the couple includes their agreement about issues that may arise in a divorce. Issues that are commonly included are alimony and division of assets. Other issues that might be included are division of retirement accounts and non-residential real estate. In order for a prenuptial agreement to be valid and enforceable, the document must satisfy certain criteria. Most importantly, it must be read and signed by both parties before the wedding takes place. Both parties must make a complete and accurate financial disclosure prior to the signing. Both parties must also attest that they have had the opportunity to consult an attorney before signing the agreement. A prenuptial agreement can be modified by the parties after the marriage. Prenuptial agreements can be complicated legal contracts, and they have the power to affect both parties’ legal rights and obligations.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

Valuing assets is difficult, but necessary during divorce

When going through a divorce, Texas residents certainly do not want to feel as if they got the short end of the stick. While most people are not ever fully satisfied with the entirety of their divorce settlements, you can take steps to ensure that you work toward an outcome that you feel is at least acceptable.

If your case involves business assets and other unusual pieces of property, you could have a more difficult time knowing what property division outcomes you should fight for. Because Texas is a community property state, laws regulate that marital property is any property obtained during the course of the marriage from either party, with some exceptions. As a result, it is important to know the value of that property.

How should you value assets?

When you have complex assets, the value of those assets will play an important role in determining who should get what in efforts to make the property division outcome as close to 50-50 as possible. When it comes to valuing real estate, it may be important to consider appreciation and depreciation of certain items, and the insight from a professional may be necessary. A comparative market analysis could help determine the value of such property.

When valuing a business, the situation becomes more complicated. For instance, you will need to examine various financial details of the endeavor. You may need to know about the assets and debts of the company, whether an increase in value has occurred during the course of your marriage, and what the profits of the business look like. Additionally, the date that the valuation occurs could even affect the results, which is why setting a date ahead of time usually occurs.

Expect the unexpected

Depending on the types of assets involved, the exact method of valuation may change. You may also want to remember that valuations can differ depending on the method used and even the valuator. As a result, you may anticipate an item to garner a particular value only for it to have a different outcome.

Certainly, knowing the value of assets is vital to coming up with property division terms. However, it can be hard to go through the valuation process, especially for unique items. You may want to ensure that you and your legal counsel understand the values of your marital assets before moving forward with any agreements.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

The rights of an unmarried father in Texas

For unmarried parents in Texas, gaining access to their child can be far more difficult than for a married parent. Mothers, of course, have a natural advantage because they give birth and demonstrate without any doubt that they are the child’s biological mother. Fathers have a more difficult task in establishing their parental rights.

In order to exercise the full spectrum of paternal rights, a purported father must first prove that he is, in fact, the child’s father. If the mother does not dispute the father’s assertion of parenthood, that issue may disappear. However, if the mother disputes the male’s paternity, the man may need to commence a paternity proceeding to prove that he is the child’s father. A full-scale paternity proceeding may involve DNA testing and the testimony of persons who saw the mother and the alleged father together before the child was born. A mother may also be required prove paternity if she wants the biological father to provide child support.

If the man’s paternity has been established, he is entitled to the full panoply of paternal rights, subject only to proving that the man’s involvement in the life of the child will serve the best interests of the child. The father’s rights include: the ability to make decisions concerning the child’s medical care, education, religion and general welfare, and to have reasonable access to the child. As with any dispute between unmarried or divorced parents concerning any of these issues, the court may be required to intervene to resolve issues that the parents are unable to resolve.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

What is collaborative divorce and how does it work?

Most residents of the Dallas area who are contemplating a marriage are also contemplating an extended period in which their lives will be disrupted by anger, stress and uncertainty. Judges and attorneys have been trying for years to modify the marriage dissolution process to eliminate as much of this unpleasantness as possible. First came so-called “no fault divorce,” in which the court accept the allegations of one or both parties that the marriage relationship had foundered on irreconcilable differences. Then, courts began directing couples to use trained mediators to resolve their divorces. Texas attorneys are now using a process called “collaborative divorce” in a further effort to make the divorce process less stressful.

In 2001, the Texas legislature passed a bill authorizing the use of collaborative law techniques if both parties agreed to abide by those techniques. The collaborative process begins with the parties and their attorneys negotiating and signing a binding contract that obligates both spouses and the lawyers to make a good faith attempt to resolve the dissolution of the marriage without resorting to judicial intervention except for the final approval of the judgment as agreed to by the parties. The collaborative law agreement must include provisions for (1) full and complete disclosure of financial information, (2) suspending resort to court while the parties are using collaborative law procedures, (3) hiring experts to serve both sides, (4) the agreement of all lawyers to withdraw from the case if the collaborative procedure does not result in a mutually satisfactory agreement and (5) any other provisions that may be added by the parties if the provisions are consistent with the principles of collaborate law.

The collaborative model includes the following basic steps:

  • Orientation, in which the parties are instructed by their lawyers how the process works;
  • Client conferences, in which the parties who wish to use the process meet with their attorneys and provide required information;
  • Settlement conferences, in which the parties and their attorneys meet to discuss the various issues, identify information that will be required, and potential solutions to the parties’ unresolved issues;
  • Drafting and editing of joint settlement agreement.

If the parties are able to reach an agreement the signed document is presented to the court, and the court enters judgment according to the agreement.

Collaborative divorce is not suited for all cases, such as those involving domestic violence. Anyone wishing additional information may wish to consult an experienced divorce attorney.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

The mechanics of mediation in a Texas divorce

Many Texas residents who have experienced the emotions and stress that often occur during a contested divorce wish they had been able to find a better method for ending their marriage. Texas lawyers who practice in the areas of divorce and family law have been aware of this difficulty for many years, and they have taken several steps to fix the problem. Perhaps the most widespread and effective method for ending a marriage is the process called “mediation.”

Divorce mediation is a process in which a trained third party, usually an attorney, meets with the divorcing couple and helps them identify their disputes and find a resolution to them. All mediators in Texas have received special training in the mediation process. They are taught to treat both parties with respect and to avoid forming judgments about whether either party is “at fault” for the divorce.

The mediation process begins with a meeting including both parties, their attorneys and the mediator. Each party identifies the issues that are causing the most disagreement and presents a proposal for resolving the issues. The mediator usually encourages both parties to be forthcoming without being angry or punitive toward the other person. Sometimes, the mere act of verbalizing a dispute can help one or both parties think of solutions that do not inflict significant emotional or financial harm on the other party. Some divorcing couples are able to resolve their differences in one or two mediation sessions. Other couples may require three or more face-to-face meetings to find compromises that are agreement to both of them. A mediator may meet separately with each party to explore possible compromises in private before presenting the proposal to the other side. When the parties have reached an agreement on all essential issues such as child custody, visitation, child support and division of assets, the mediator will draft a written contract that embodies each issue on which the parties have settled their differences. The agreement is signed by both parties and presented to the judge for approval.

A mediator has no legal power to rule on any issue in a divorce. If the parties have not agreed on one or more issues, the mediator cannot force either of them to sign an agreement that is contrary to their wishes. A mediation agreement becomes final only after both parties and the mediator have signed it.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

How business owners may want to approach their divorce

Divorce is difficult for many reasons, but it can be especially complicated for small business owners in Texas. If you own your own company, you know how hard you worked to build your business and find success over the years. The possibility of having to divide your hard-earned business assets or losing some of the control you have over your company can be overwhelming.

Business owners would be wise to take care to understand how divorce and the property division process will work for them. While it is certain that your divorce will impact your life in various ways, that does not have to mean that you will lose your business or have to give up operational control. Many factors will determine exactly what happens and what the future of your company will look like.

The business of dividing a business in a divorce

A business is an asset, and all marital assets are subject to division in a divorce. The key to what will happen to your business is whether your company is truly a marital asset or if it is a separate asset. If you have one, a prenuptial agreement may also impact what will happen to marital assets. Consider some of the following facts about property division and business assets:

  • Your business is likely marital property if you or your spouse started the company after your marriage. This means that it is subject to division.
  • Your business may be separate property if you started your company before you married or if there is evidence you started the business with completely separate funds.
  • Even if you started your business before you married, it is possible your spouse has a claim to at least a portion of your business assets. 

As you can see, it can be a little complicated to determine exactly what is marital property and what is not when it comes to your family business. Because of the complex nature of this process, many business owners find it beneficial to work with an attorney who can help them pursue the most beneficial outcome to their situation. 

If you are facing divorce, you will find it beneficial to take quick action to seek a complete understanding of your legal options. It is possible to fight for a final resolution that allows your business to have a strong future and for you to retain financial security for years to come.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law