Recent Blog Posts

Marc Anthony and JLo Finally Split

Austin Divorce Attorney — Wed, 18 Apr 2012 20:50:00 GMT

It's official. Marc Anthony has finally filed for a divorce from his wife of seven years, actress and singer Jennifer Lopez. In his petition, he cited "irreconcilable differences" as the reason for their divorce. According to reports, he is also seeking joint custody with Lopez of their 4-year-old twins. Anthony is also denying Lopez spousal support. The couple has many joint business ventures, which typically may make a divorce difficult. They seem to currently be working together in order to keep their businesses going. Their property will likely be divided as community property. Anthony was reported as saying that they are going to be in each other's lives for "many years to come" and that he is glad that they are keeping a strong friendship. He added, "What would make it difficult is if we didn't get along."

What Marc Anthony stated couldn't be more true. When couples are entering into a divorce, things are made incredibly more complicated in the event that the parties are not in agreement as to the terms of the divorce. Irreconcilable differences can be the grounds for an uncontested divorce, which is the type of divorce that does not go to court. In the event that Lopez and Anthony cannot come to an agreement on things like custody of their children, alimony and property division then their divorce will likely move from uncontested to contested and end up in court. These court battles are often prolonged and build animosity between the two parties. There is a perception of divorce that it has to be messy. This is actually untrue. With the help of a good attorney, things can actually move by fairly smoothly. If you are considering uncontested divorce then speak with an Austin divorce attorney from Zinda & Davis. We can help you get through your divorce effectively and back to your life, so contact an Austin uncontested divorce lawyer from our firm today.

Divorce and Retirement

Austin Divorce Attorney — Mon, 16 Apr 2012 20:35:00 GMT

If you are considering splitting from your spouse, you may need to consider retirement. Does this seem unrelated? Surprisingly, it isn't. Those who are employed and have a retirement account should familiarize themselves with the acronym "QDRO" which stands for a qualified domestic relations order. This order is what allows a spouse, ex, child or dependent to collect money directly from a person's retirement account. Retirement accounts can be used as payment for various things in a divorce such as alimony or child support. When a person wishes to obtain a divorce, they have to go through a process known as property division. In Texas, property is divided as community property but there are some exceptions for equitable distributions. This means that your retirement account may not be off limits when it comes to property division. Many understand the principle of property division, but how exactly does a QDRO play in?

This order is the deciding document when it comes to dividing up a retirement plan to "alternate payees" (spouse, ex, child or other dependent). This order must of course be drafted correctly and approved in order to take effect. In order to correctly draft a QDRO you will need the help of an attorney. These documents have to be filed correctly for approval, so you don't want to take any chances. If you are considering the possibility of divorce and would like to either draft a QDRO or defend against having money withdrawn from your retirement then speak with an Austin divorce attorney from Zinda & Davis. Over the years, we have become extremely competent in divorce law and can be the firm that helps you get what you deserve. For more information on how we can do that, contact an Austin divorce attorney from our firm today.

How does Divorce affect the ownership interest I have in My Company? (Part 1 - Corporations)

Austin Divorce Lawyer — Sat, 14 Apr 2012 22:01:00 GMT

How does Divorce affect the ownership interest I have in My Company? (Part 1 – Corporations)

Although this question does not arise in every Divorce, it must be thoroughly addressed when relevant. Like a house, vehicle or retirement account, an ownership interest in a business entity can be classified as either separate property or community property. To make this distinction, one must first answer two additional questions:

What kind of business entity is the company at issue in my Divorce?
When was the ownership interest acquired (before or during the marriage)?

This article will discuss the affect a Divorce can have when one of the parties (or both) hold an ownership interest in a Corporation. Generally, a business incorporated before the marriage is classified as separate property, and a business incorporated during the marriage is classified as community property. However, this inquiry does not always end here as a business incorporated during marriage, but funded entirely by separate property retains its separate property classification.

Even if it can be established that the ownership interest is community property, courts are limited in what they may award the non-owner-spouse. Shares of stock may be divided, but "corporate property" may not be characterized as community property, thus keeping it out of the non-owner-spouse's reach in a Divorce.

There is of course an exception that allows a court to access "corporate property" in a Divorce, and classifies it as community property for the sake of dividing the marital estate. Typically for this to occur the owner-spouse must have used the corporation to damage the marriage to an extent that cannot be corrected by ordering the owner-spouse to pay the non-owner-spouse a sum of money.

It is easy to see how an ownership interest in a business entity can complicate any Divorce. Therefore, I encourage you to contact an attorney when faced with issues such as the ones briefly discussed above.

Splitting Up Stocks in Divorce

Austin Divorce Attorney — Fri, 13 Apr 2012 20:25:00 GMT

Asset division is a huge part of divorce. In Texas, when a couple divorces their property is split by the principle of community property. This means that when the two divorce, all the property that they acquired during their marriage, with some exceptions, is to be divided equally. Texas gives exception to what is known as equitable distribution. In some cases, property will be divided based on which spouse was the primary owner of the particular property and which spouse would benefit the most from obtaining it. There are also different kinds of property that can be divided: some tangible and others that are not physical. One of the non-physical types of property is stocks. Stocks can be divided just like any other kind of property, although it might be more complicated. It can be difficult to determine which portions of the stocks belong to the husband and which belong to the wife.

This is why these types of high end divorce typically go to court. Whether you and your spouse both obtained the stock together, whether you obtained it separately or even if one spouse obtained the stock before the marriage, these types of cases typically need an attorney to work through the issues. At Zinda & Davis, an Austin divorce attorney can help you if you are going through a divorce and need your stocks separated properly. You don't want to get cheated out of what is rightfully yours, and we don't either. Divorce is a difficult time, made even more difficult by the logistical side of things. For more information on how you can get help dealing with your high end divorce, contact an Austin divorce attorney from Zinda & Davis today.

Attorney's Fees: Who Pays?

Austin Divorce Lawyer — Thu, 01 Mar 2012 01:51:00 GMT

As a general rule in Family Law cases, each party will be responsible for paying their own attorney. I need to emphasize general rule because like most rules, there are exceptions. The exception to each spouse paying for their own attorney throughout the course of the divorce process is when one spouse has an ability to pay for legal representation and the other spouse lacks the minimum resources to do so. When this happens the Court may consider requiring either the husband or the wife to pay the attorney's fees of the other spouse. There are a few considerations before a court will order an amount of interim attorney's fees.

First, the court will consider whether one spouse lacks the ability to pay for an attorney throughout the process. Next the court will consider whether the other spouse has an attorney. Lastly, the court will consider whether the other spouse has some ability to pay attorney's fees. When the Court decides that one party has the ability to pay for attorneys for both parties it may, in its discretion, order attorney's fees be paid for by the spouse that does have the ability to pay.

So, before you decide that due to your financial circumstances you couldn't possibly have an attorney represent you, consider contacting an attorney about whether your spouse could be required to pay for your attorney's fees.

If you have specific questions related to your case, or questions about how attorney's fees work, feel free to contact an Austin divorce attorney.

I Can't Afford a Divorce

Austin Divorce Lawyer — Wed, 29 Feb 2012 15:08:00 GMT

Going through a divorce is usually an extremely stressful time in a person's life. One of the factors leading to the stress is the thought: "How am I going to pay for everything on my own?" Many couples have their finances combined and use either the husband or wife's income, or both, to pay for important bills and the day to day expenses.

In addition to all of the bills and expenses that existed before there are likely new and unexpected expenses. For example, if you or your spouse move out of the marital residence there will be the significant expense of moving into a different house or apartment. The other unexpected expense is payment of attorney's fees.

As a general rule the parties will pay for their own attorney's fees. However, what you may not realize is that your spouse's income is considered community property and is owned equally by both of you. Because it is owned equally by both of you, making a payment for attorney's fees may come directly out of your spouse's income. Keep in mind every situation is different and you should contact an attorney before making a decision on what can be done with certain assets that have been acquired throughout the course of your marriage.

It is important to know your rights and have representation that protects those rights. While many believe they couldn't possibly afford an attorney, that may not be the case, you may be able to use assets that are owned one-half by you.

If you have specific question about protecting your finances and budgeting for a divorce feel free to give us a call to speak with an Austin divorce attorney.

Spousal Maintenance: Factors

Austin Divorce Lawyer — Thu, 23 Feb 2012 16:53:00 GMT

You can find general information about Spousal Maintenance or what some other states call "Alimony" here: Spousal Maintenance in Texas.

The law in Texas has recently changed and a spouse's rights under Spousal Maintenance have expanded greatly. Spousal Maintenance is an issue that arises in many divorces, unfortunately, many homemakers have no idea that they may be entitled to Spousal Maintenance and lose the benefit of years of hard work maintaining a household. It's important to be aware of the Spousal Maintenance laws in Texas and know what economic relief you may be entitled to.

There are a number of different factors that a court will weigh before awarding an amount of spousal maintenance, some of those factors are:

The minimum reasonable needs of each spouse
The education and employment skills of the spouses
The duration of the marriage
The age, employment history, earning ability, and condition of the spouse seeking maintenance
Acts by either spouse resulting in waste or destruction of the community assets
The property brought into the marriage by either spouse
Contributions made as a homemaker
Marital misconduct, including adultery or cruel treatment
Family violence

If spousal maintenance may be an issue during the course of your divorce you should consider contacting an attorney to present your case. Feel free to give us a call to speak with an Austin divorce attorney. We would be happy to assist you during this difficult time.

Cruelty and Divorce

Austin Divorce Lawyer — Thu, 23 Feb 2012 15:16:00 GMT

Texas law allows for a No-Fault Divorce, or, a marriage that is ending because it has become "insupportable". Many divorces are granted on this no-fault ground when one spouse should have been held to be at fault.

Some of the common fault-based grounds for divorce include the following:

Adultery

Cruelty

Conviction of a Felony

Abandonment

While adultery is commonly understood, the lesser known ground of "Cruelty" is a fault-based ground that many are completely unaware of. The spouse requesting a finding of cruel treatment will need to show that the cruel treatment led to the marriage becoming insupportable. Texas courts have found that mere disagreements are not enough, otherwise nearly every divorce could be based on cruel treatment. Instead, cruelty is defined as "willful and persistent infliction of unnecessary suffering…". Brown v. Brown, 704 S.W.2d 528, 529 (Tex. App.—Amarillo 1986, no writ).

Oftentimes a finding of physical abuse will also lead to a finding of cruel treatment, however, physical abuse is not required. If the Court agrees that your spouse's behavior amounts to cruelty you may be entitled to a higher percentage of the community assets.

If you believe your spouse's behavior amounts to cruelty you should consider contacting an attorney. If you have specific questions, or if would like to learn more about the divorce process in general, contact our office today to speak with an Austin divorce lawyer who can help.

Can We Both Be Represented?

Austin Divorce Lawyer — Sun, 22 Jan 2012 14:59:00 GMT

Going through a divorce can put a significant strain on your finances. Perhaps your mortgage was being paid down by both your income and your spouse's income and now you are planning on paying it down with only your income. It is also not uncommon that one spouse was paying for the mortgage of the marital home and is now living in a second home or apartment. These circumstances are not only stressful but also financially draining. This often leads to a husband and wife trying to avoid the need to each have representation and the accompanying cost. One common question is: "Can you represent both me and my wife, we have agreed on almost everything." The short answer is: "No." Representing both a husband and wife going through a divorce presents an inherent conflict of interest. An attorney is prohibited from representing two parties with distinct interests, such as a husband and wife in a divorce.

That said, there is no strict requirement that either you or your spouse must have an attorney. So, if you truly are close to an agreement, or believe one can be reached with relative ease you may consider hiring an attorney for yourself and having an agreement drafted that is consistent with what you and your spouse have discussed. This is a good result on a number of fronts: you have the advice of counsel, you have an agreement drafted by an attorney that practices in Texas, you have potentially avoided the need/cost of both you and your spouse being represented. Well, this where things get tricky and your spouse is likely to ask: "Why do you get an attorney, I should have the attorney!" Before too long you are both represented and may be further apart than you were originally. This may be unavoidable. Depending on the circumstances it may be best to present the option of only one of you being represented by an attorney so that your spouse isn't surprised to learn that you have retained an attorney.

If you have questions on the best way to handle this common situation, or would like to learn more about the divorce process contact our office today to speak with an Austin divorce lawyer who can help.

Frequently Asked Divorce Question

Austin Divorce Lawyer — Sun, 22 Jan 2012 14:26:00 GMT

If you are going through a divorce or are contemplating filing for divorce you should have some basic information to help you make the best decision possible. One common question leading up to, or during a divorce is whether you should start closing bank accounts now, or removing funds from bank accounts now. The answer to this question depends on a number of factors. A short list of some of the factors:

1. Is the account solely in your name?

2. Does the account contain funds that were yours prior to the date you were married?

3. Are the funds your salary, or your spouse's salary?

4. What do you intend to do with the funds once you remove them-- is the withdrawal necessary?

5. Will you let your spouse know that you intend to close the account, or significantly deplete the account?

6. What funds will your spouse have available if the account is closed?

7. Is there a Court Order in place prohibiting you from closing any financial accounts?

The above questions should be considered and answered prior to making a decision to remove significant funds or close a bank account. Consider number four above: if your intention is to remove all of the funds from a joint bank account and make an extravagant purchase, that depletion of the account is likely to be counted against you at the conclusion of the case. In other words, extravagant purchases at or around the time of divorce will generally be treated differently than if the removal of funds was necessary for food, shelter, and other necessities. When making an important decision like this one it is best to seek the advice of an attorney.

If you have specific questions about Divorce or if you are considering some of the questions above, contact our office today to speak with an Austin divorce lawyer who can help.

My Spouse Filed for Divorce-- Now What?

Austin Divorce Lawyer — Sun, 15 Jan 2012 16:51:00 GMT

If you have recently been served with divorce papers, or your spouse has presented you with an Original Petition for Divorce you may be wondering what you need to do next. First, take a deep breath. The fact that your spouse has filed an Original Petition for Divorce first likely does not put you at some great disadvantage. In a large majority of Divorce cases the fact that one spouse filed first is not incredibly important. It does mean that if you and your spouse had been considering a divorce, that your spouse has made their decision.

There is an appropriate response to an Original Petition for Divorce that effectively puts you on equal footing with your spouse who has just filed against you. The response is a document named a "Counterpetition for Divorce". This document can be filed in addition to an Original Answer.

As you may now know the Original Petition for Divorce contains certain information such as the Grounds for Divorce. In many cases the grounds for divorce is a no-fault ground or "insupportability". In other cases your spouse may be alleging any number of fault based grounds, such as adultery or cruelty. If the Original Petition for Divorce alleges that you have committed adultery you should strongly consider contacting an attorney as your spouse may be seeking a disproportionate division of your community estate. In other words, she/he may want a majority of the property you two own together. In order to protect your assets it is important that you respond appropriately, and in a timely manner.

If you have specific questions about Divorce or if you have been served with an Original Petition for Divorce, contact our office today to speak with an Austin divorce lawyer who can help.

How do I file for Divorce?

Austin Divorce Lawyer — Fri, 06 Jan 2012 23:11:00 GMT

If you are contemplating filing for divorce you probably have a number of questions and are under a great deal of stress. The most pressing question you may have is: "Where do I even begin if I want to file for Divorce?"

The very first step in the process of divorce is to draft an Original Petition for Divorce. Generally it is a good idea to have an attorney draft your Original Petition for Divorce to ensure that your document is consistent with Texas Law. If hiring an attorney is not possible you will be able to file the Petition on your own, or "pro se". After you have finalized your Original Petition for Divorce you will need to travel to your local county courthouse in order to file the Petition. Once you arrive at the county courthouse you will need to find the District Clerk. The District Clerk will ask you to complete a "Civil Information Sheet" and request that you provide all the necessary information the form requires. Once this is complete you will hand both the Civil Information Sheet and your Original Petition for Divorce to the Clerk. There will be a filing fee, so bring your checkbook.

The Clerk will ask you whether you will need a Citation and the answer to that will depend on how you plan on proceeding. Sometimes it is best to get your spouse served right away, at other times it is more appropriate to present a Waiver of Service.

The last step of the filing process is to make sure you receive a file-stamped copy of your Original Petition for Divorce to keep with your records.

If you have specific questions about Divorce or if you have been served with an Original Petition for Divorce, contact our office today to speak with an Austin divorce lawyer who can help.

For more specific information about the four basic steps in every Divorce you can watch one of our videos: "Four Steps of Every Divorce."

What Evidence Does a Court Consider in a Custody Case?

Austin Divorce Lawyer — Tue, 27 Dec 2011 15:59:00 GMT

If you are involved in a child custody case it is important to start thinking carefully about what evidence might be useful during a hearing. The most common form of evidence in any custody hearing is testimony. In other words, the statements you make in response to questions. The testimony you provide in open court will be vital to having a successful hearing. It would be to your benefit if the judge determines that you are telling the truth and are credible. On the other hand, if you embellish, twist the truth, or lie, the judge will take this into consideration and potentially discount everything you say since you have shown a willingness to make statements that are not entirely true.

Now that you know your credibility is very important, be sure to tell the truth. If there is information you are hesitant to talk about in open court, contact an attorney to discuss a game-plan, and potential settlement.

Another form of evidence used in child custody cases is a journal. The journal I am referring to is not a personal diary, but instead, a recording of specific events relevant to the custody agreement or custody order you are operating under. For example, if the custody order allows for the opposing party to pick your child up every first third and fifth weekend of the month and they have only been picking your child up once a month, you can record notes on a calendar to keep a record of this information. This will be very useful at a hearing because memory fades, and you are unlikely to recall exact dates and times that the opposing party failed to exercise his right of possession.

If you have specific questions about a child custody case, feel free to contact one of our Family Law Attorneys at: (512) 246-2224.

Additional information is also available at: www.AustinCustodyLawyers.com and www.DivorceLawyersAustinTX.com

What is a Waiver of Service?

Austin Divorce Lawyer — Mon, 12 Dec 2011 13:26:00 GMT

A Waiver of Service is a document that may be presented to you at the beginning of a Divorce case. If agreed to and signed, the most common Waiver of Service removes the need for a private process server to present you or your spouse with the Original Petition for Divorce.

If you decline to sign the Waiver of Service your spouse will be required to have you "served" with the document-- in other words, presented with the document by some other method. The most common form of service is through a private process server or constable who will hand deliver the document to you at your residence or work.

It is important that you receive not only the Waiver of Service, but also a corresponding document that you would otherwise be served with. You will want to read the language contained in the Waiver of Service very carefully. Although the most common Waiver of Service will only waive your right to receive documents via hand delivery, the Waiver of Service may be drafted in such a way that you waive your right to receive other important information in the future. When in doubt, consult an attorney to find out whether you have the type of Waiver of Service you would like to sign.

One last consideration is that you are under no obligation whatsoever to sign a Waiver of Service. One reason you may consider signing a Waiver of Service is that it can speed up the divorce process by a number of days and also save the community estate the cost and expense associated with paying a private process server.

If you have specific questions about a Waiver of Service you have received contact one of our attorneys at:

www.divorcelawyersaustintx.com

I've Just Been Served With Court Papers: What Now?

Austin Divorce Lawyer — Wed, 07 Dec 2011 23:04:00 GMT

YOU HAVE BEEN SUED. These four words are alarming-- and they are intended to be. If you have recently received paperwork, either in the mail, or from a process server, it is important you take some action. The first thing you need to do is read the paperwork carefully. Once you have done that, you have some decisions to make.

One of the most important decisions is whether you will hire an attorney to be your advocate and respond to the lawsuit filed against you. While it is almost always preferable to have an attorney, this may not be an option for you. If so, you will need to go to your local county courthouse and complete a document called an "Original Answer". It is vital you file this document before your filing deadline. If you fail to respond to divorce or custody papers that you have received there may be severe, negative consequences. When in doubt, file an Original Answer, this will generally require the other party to set a hearing on the case, assuming you do not sign any agreement presented to you. If a hearing is set, you are entitled to notice of the hearing.

Receiving divorce or custody papers can be an overwhelming experience. Although it may be a stressful and trying time, it is important that you take some action to protect your interests throughout the rest of the case.

If you have specific questions about paperwork you have received, or need assistance calculating your deadline to file an Original Answer, contact one of our Family Law Attorneys at: (512) 246-2224.

Additional information is also available at: www.AustinCustodyLawyers.com and www.DivorceLawyersAustinTX.com