Texas and the Prenuptial Agreement
In Texas, Prenuptial Agreements are becoming a very important tool for prospective spouses in the event of future marital problems. With the rise in divorce rates and more boomer/senior remarriages, many people with assets are turning to a marital contract to sidestep a potentially difficult and very expense divorce.
A prenuptial agreement allows prospective spouses to, legally in advance, specifically define rights and obligations to each other and further allows spouses to decide their future marital property rights with relativity minimal judicial actions. A prenuptial agreement, in Texas, can cover any matter except:
-
Violate public policy or a statute imposing criminal penalties
-
Adversely affect a child’s right to support
-
Defraud a creditor
Texas Family Code 4.003(a)(8), (b),4.106(a).
Among the permissible provisions that parties can list in a prenuptial agreement are the following:
-
Rights and obligations of any interest, present or future, legal or equitable, vested or contingent, in real or personal property.
-
Right to manage, control and dispose, by agreement, property upon separation of the married parties, dissolution of the marriage, death of either party, or other agreed event.
-
Modify or eliminate spousal support.
-
Specific matters related to prospective spouses, including personal rights and obligations that are not in violation of state laws.
-
Choice of a state or country law that will govern the prenuptial agreement.
-
Creation of a Will or Trust.
-
Disposing of the Estate upon the death of one of the spouses. Also ownership rights and disposition of benefits from a life insurance policy upon the death.
-
Waive one party’s right to occupy the family homestead after the other party dies.
What To Do : Alienated Parent With a Parental Alienation Syndrome Family Experience
There is nothing worse than a family torn apart by parents who are battling over child custody. Many of these cases are in serious litigation and often, these disputes will continue for years.
What is Parental Alienation Syndrome (PAS)? In the 1980’s, forensic psychiatrist, Dr. Richard A. Gardner noticed a large increase in a disorder where one parent will program or brainwash a child to alienate the other parent. He also found the child was self-creating contributions supporting the alienating parent’s campaign of denigration against the targeted parent.
Dr. Gardner’s definition of PAS: Parental Alienation Syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilifications of the target parents. (Gardner, the Parental Alienation Syndrome)
There is no pure PAS diagnosis if the child still has a positive relationship with the parent even though the other parent is trying to alienate the child.
Courts are generally more conservative in their judgment acknowledging PAS in high conflict cases. Even though Parental Alienation evidence may be overwhelming, often courts will enter judgments allowing the “parents to make joint decisions about the child’s welfare.” This will not ever happen between two alienated parents! In many situations it will take a dramatic or tragic situation to force the court to change primary custody. When the alienating parent becomes unstable mentally, the court will recognize that there is something “out of line” and will become more supportive of the targeted parent.
What are the Best ways for the Alienated Parent to Deal with the PAS issue?
-
Keep your “cool”. Never retaliate. Never act in anger since anger=unstable.
-
Never give up! You cannot let your child grow up in this environment of hate. The child is the victim of a situation that he/she never asked to be in.
-
Be “Proactive”! It is a terrible situation for the entire family, but work on seeking constructive action to solve the problem. Do not allow yourself to become a victim!
-
Always keep a journal of dates and times of major key events. Explain when the situation occurred and what happened specifically. Any Witnesses?
-
Always call and show to pick up the child even when you know he/she will not be there. Try to contact the police to have a record of the no-show event or take a witness to video the denial of possession. You do have an interest in your child, no matter what the alienating parent says.
-
When you do see the child, focus on enjoying your parent-child time together. Never talk badly about the other parent and do not let children overhear inappropriate conversation on the telephone.
-
Hire a skilled family lawyer who has experience in parental alienation syndrome issues. Do your homework on PAS and interview the lawyer on his experience and what your issues are. If you are not satisfied look again. This is your life and you are trying to save your child.
-
Be prepared to financially see this case to the end. Most of these case last for years. You cannot start and stop.
-
A forensic evaluator in PAS cases is usually an asset in showing that there is truly alienation occurring and recommend changing legal and primary custody to the alienated parent. An appropriate parenting plan included showing how well the child will be taken care of with the alienated parent, is advised.
-
Always pay your child support on time and never violate court orders. Never give the alienating parent reason to question your behavior.
-
Last but not least, to show that your parenting skills are superior, take a comprehensive parenting course to be able to show the court that you strive to be the best parent you can to the child, no matter what the alienating parent says.
Small Business Owners Grade Their States for Business Friendliness
Thumbtack.com in partnership with the Ewing Marion Kauffman Foundation, has just released the third annual Small Business Friendliness Survey. More than 12,000 US entrepreneurs participated in the 2014 survey. The Thumbtack.com survey is conducted in the US and obtains data from an extensive, nationwide sample of small business owners. The survey determines friendly business location in referencing multiple cities and states around the country.
The responses of thousands of small business owners indicated that the main ingredients for a pro-growth environment consist of the ease of compliance with tax and regulatory systems and helpful training programs.
Other important findings of the national survey are:
-
Most small businesses in Texas, Utah, and Idaho have rated their states in the top five, while California and Rhode Island have been rated in the bottom five every year of the survey.
-
The most important regulatory issue in determining a state’s overall friendliness to small business was professional licensing requirement and the ease of filing taxes.
-
Small business owners aware of training programs offered by their local/state governments said that their states are very friendly to small business.
-
19% of small business respondents said they were prepared for implementation of the Affordable Care Act.
-
Female entrepreneurs expressed the opinion that their state governments were friendly to small businesses, whereas many male entrepreneurs have positive views on the outlook of their state economy.
How is Small Business Friendliness in Texas rated in the 2014 survey?
-
Texas is rated #1 by small businesses in the country for friendliness of its zoning laws and health and safety regulations.
-
Texas is rated second state nationally for the outlook of the state economy relative to the national economy.
-
Texas has five of the top ten cities rated by small businesses in this survey: Houston #3, Austin #4, Dallas #6, Fort Worth #7, and San Antonio #8.
-
Texas ratings improved from the 2013 survey in all categories except ease of hiring. This dropped from #4 to #5.
- The top rated states were Utah, Idaho, Texas, Virginia and Louisiana. Lowest rated states were Rhode Island, Illinois, California, Connecticut and New Jersey.
Preventive Legal Care: Relatively Simple Things Make Large Differences in Legal Costs
A commentary by Dallas Attorney Mark Nacol,
of the Nacol Law Firm PC.
During the last 37 years of general practice in a number of civil areas, I have had the opportunity to observe repetitive mistakes and decisions made by clients in regard to whether or not preventive legal care is cost-worthy.
Most prudent people do not think twice about having their teeth cleaned, becoming vaccinated for the flu or other childhood illnesses, going to their doctor if they are dizzy, having speech problems or other symptoms of stroke diagnosed or changing the oil in their automobile.
The average person clearly acknowledges the flu shot is definitely preferable to two weeks in bed. Basic dental hygiene trumps a root canal every time. A blood thinner medication is far preferable to paralysis or brain damage, and early detection of cancer or other invasive diseases, may significantly improve prognosis for recovery.
On the other hand, when it comes to the ordinary individual’s legal needs, I have noted throughout the years and continue to note a juvenile and somewhat cavalier attitude. The result is denial and refusal to consider relatively small fees required to bring preventive legal care into play.
Depending on the size and nature of a man, woman or a couple’s estate, probate planning in the form of wills, durable powers of attorney, medical directives, medical authorizations, medical powers of attorney, testamentary and/or intervivos (living) trusts can avoid future attorney’s fees from 50 to 100 times the amount required for preventive care. Probate and/or litigation without a will in a large estate, disability, dementia, Alzheimer disease or other medical issues requiring guardianship and/or extraordinary legal procedures vastly exceed the basic costs of preventive care. The cost of fixing the legal problem after the event is extraordinary versus the simple matter of preventive legal care in the first place. Fees ranging from $500 to $5,000, depending on the complexity of the estate or matter, at first blush might appear large but may frequently be increased by 2 to 3 zeros in complicated, complex litigation that can last for years.
Marital prenuptial agreements are emotionally delicate, but may be a useful and significant tool to provide creditor protection throughout a marriage and reduce the cost of dissolving a marriage, an unfortunate circumstance, by thousands and thousands of dollars.
A properly prepared and executed contract for the purchase and sale of land or for the purchase and sale of a business when accomplished before the transaction is essential in fixing the rights of the parties, establishing enforceability of their promises and the cost necessary to force compliance with those promises. Time after time, I find a client who comes into my office and looks at me with dog eyes and says, “Can you help me in this business transaction? I’ve already signed the contract.” My response, of course, is “Yes, it is my pleasure. But, it is going to be far more expensive now than if you had simply prophylactically entered into an enforceable agreement prior to the conduct you allege is fraudulent or the subject of a breach at this time.”
The examples above may be extended into almost every area of the law. Why in the world would anyone want to market an invention, a well known mark of their business or trade, a manuscript or other written document without first having protected those items through trademarks, patents, copyrights or, at the very least, non-disclosure agreements? A common complaint echoed throughout the years has been the significant cost of the judicial system and the financial burden of enforcing ones right in the courts of law of the state or federal government. With a bit of foresight and ingenuity and the help of an ethical, competent attorney, and the willingness to spend a smaller sum of money, many of the problems, disappointments and disenfranchisement’s with the judicial system may be bypassed altogether.
In closing, I am reminded of the classical advertisement by Mr. Goodwrench. “Pay me now or pay me later.” Preventative maintenance of the most important legal aspects of your life are as important as preventive maintenance of your car. Have you priced a new engine versus a can of oil lately?
Boomer Prenups – Sign Now or Forever Hold Your Peace!
Baby Boomers are increasingly deciding to enter into prenuptial agreements prior to marriage to protect and manage their assets should they part ways through divorce.
What is a Prenuptial Agreement? It is a legal document that establishes in advance how property, assets acquired or received by gift during a marriage and family heirlooms passed from family members to one of the parties will be owned or divided in the event the couple should part ways.
Prenuptial Agreements have become very popular with Baby Boomers (born between 1946-1964) since they have on the average accumulated more money and assets and can afford to pay for adequate protection. Since 2006, 80% of Family Law Attorneys have seen a marked increase in couples who sign prenups, according to a survey sponsored by the Matrimonial Lawyers Group.
In the current financial crisis, with a 31% drop in home values and a 53% drop in stock portfolios, Boomers have been hit the hardest, which has accelerated the trend. Boomers have therefore become more cautious in holding on to their remaining current assets. Boomers are also blending homes and corresponding obligations. Prenups are becoming the Estate Planning Tool of the future!
Given Boomer age ranges, they are more likely to have been married and divorced multiple times. 4 out of 10 Boomers have experienced a divorce and by their 50th birthday, 27% have moved on to a second or third marriage.
So When Should Boomer Couples Consider Having A Prenup?
1. When significant assets are involved such as a home & property, retirement funds, stocks and bonds, or liquid assets.
2. When there are children of a previous marriage. The children’s interest, past and future, need protection since most states by law give the surviving spouse up to half of the estate.
3. When one spouse owns all or part of a business.
4. When one spouse is much wealthier than the other spouse.
5. When one spouse is much older than the other spouse.
6. When one spouse is supporting the other while he or she attain an educational degree.
7. When there is an inheritance involved.
When both spouses feel that the possibility of a divorce and expenses related to it are a bad idea and wish for a premarital binding understanding, what should they do?
1. Hire a qualified lawyer to prepare a fair and binding agreement according to their wishes and needs.
2. Make full disclosure of all property, financial accounts, debts, and assets involved.
3. Comply with requisite state laws.
If one acknowledges that nearly half of all marriages end in divorce, a prenuptial agreement can avoid a number of unnecessary expenses, reduce attorney fees, and avoid state mandated arbitrary divisions.
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm
OUR BLOGS
SEARCH
JOIN OUR NETWORK
Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
