Recent Blog Posts in September 2009 |
| September 19, 2009 |
| Temporary Orders Related to Divorce Cases |
| Posted By Elias Lorenzana |
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Temporary orders as it relates to a pending divorce can normally dictate the terms on the following issues:
1. Child support;
2. Visitation;
3. Use of the homestead;
4. Use of community property, such as cash in bank accounts;
5. Spousal support (as applicable);
6. Freeze on the community debt;
7. all other issues related to a divorce case
Generally, as a matter of rule, temporary orders expire with the entry of a final judgment
and cannot function as a final disposition on an issue. Coke v. Coke, 802 S.W.2d 270, 273 (Tex. App.CDallas 1990, writ denied). However, a trial court may extend a temporary order in its final decree. See In re Lozano, No. 01-06-00655-CV, 2006 WL 2640634, at *3 (Tex. App.CHouston [1st Dist.] Sept. 14, 2006, orig. proceeding); Coke, 802 S.W.2d at 273; see also Mathis v. Mathis, No. 04-95-00386-CV, 1996 WL 668849, at *3 (Tex. App.CSan Antonio Nov. 20, 1996, no writ) (not designated for publication) (holding that trial court had discretion to continue temporary orders, which stated that they would continue in full force until the signing of the final decree or until further order of the court, after entry of decree).
On some occassion, there may be multiple temporary order hearings superseding prior temporary orders as parties attempt to gain better ground for each side of the divorce. This usually occurs with respect to contested child custody issues.
Although a temporary order may not supersede a judgment once the temporary order has expired, a trial court may enter temporary orders independently of the final decree. Coke, 802 S.W.2d at 273; see also Tex Fam. Code Ann. 6.502 (Vernon 2006). Additionally, the rendition of a divorce decree does not itself nullify any temporary order. See Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App.CDallas 1980, orig. proceeding); Villarreal v. Villarreal, No. 14-04-00071-CV, 2005 WL 3116218, at 4 (Tex. App.CHouston [14th Dist.] Nov. 23, 2005, no pet.). For example, a temporary order setting child support is superseded as to future child support obligations by a final divorce decree, but the obligation, as fixed by the temporary order, continues unless specifically modified by the provisions of the divorce decree. Shaver, 597 S.W.2d at 500; Villarreal, 2005 WL 3116218, at 4.
However, for most cases, if the final decree addresses all issues in a divorce case, then temporary orders usually are superseded by the final decree. Consult a Texas Family Law Attorney for your individual divorce and custody case evaluation. The Austin Texas divorce and family law attorneys of the Lorenzana Law Firm, P.C. can assist you in navigating your divorce or family law case. |
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| September 18, 2009 |
| Prenuptial Agreements: The Bone of Contention |
| Posted By Roxanne Heuschkel |
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Americans are divided on their opinion concerning the morality behind a prenuptial agreement. Around one fourth of Americans think premarital agreements are for the “rich and famous”, while well over a fourth agree they are a must for making smart financial decisions in a marriage. Although pre-nups are often used to protect the assets of a wealthy spouse, many couples of more modest means, such as a middle class income, are turning to prenuptial agreements for their own purposes. Some of these reasons might be to split up property for children from previous marriages, define each spouse’s financial rights, and avoid conflict in case of divorce by splitting up assets in advance.
“San Francisco family law attorney Stephen Ruben sees more Baby Boomers entering such contracts after marriage-known as post-marital agreements- as their parents die. “They want to preserve their inheritances so it doesn't’t go to their spouse. They want it to remain within the bloodline,” he says. Kathleen Pender, San Francisco Chronicle 05/04/08.
What is a prenuptial and what purpose does it serve?
A prenuptial agreement is a contract written between two prospective spouses on the terms of marriage and property. It is a legally binding agreement between a couple before entering marriage and secures or segregates separate and community property such as rights to certain real property, account, and other assets as well as debts. The contract states all of the property each person owns and how the assets will be divided in the event of a death or divorce.
Is it right or wrong for you?
A prenuptial agreement may be beneficial to you and your spouse for many reasons. If you or your spouse have a substantial amount of wealth, expect to acquire a hefty inheritance, have been married in the past, own a business, have children from a prior marriage, have a high risk job, wish to keep all assets and debts separate, own income producing property, or wish to protect your hard earned existing assets then entering into a prenuptial agreement might be for you.
On the other hand, many people feel a prenuptial agreement takes away from the sanctity of marriage. Some view the prenuptial agreement as a big trust factor between prospective spouses, and say a prenup is never needed when the two people involved really love each other. Some feel the contract can doom a marriage from the start, and the topic can be an uncomfortable one to bring into a relationship.
These contracts only benefit a couple if they are planning ahead of the marriage and are comfortable with segregating property, income, and debts that will be utilized into the marriage or earned and acquired during the marriage. It will also help to segregate acquired or debt and liabilities incurred during the marriage between spouses. For most individuals, a prenuptial may not be necessary. However, if you are a high net worth individual or a person who has a high earning capacity, it is advisable to enter into a prenuptial with your prospective spouse as well as consult with a Texas prenuptial lawyer or family law attorney before entering into the marriage vow. |
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