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Dallas Divorce Law Blog

Divorce and pitfalls in dividing retirement accounts

Texas couples who are getting a divorce and who need to split a 401(k) or another type of pension plan will need a court order called a qualified domestic relations order. This document, which should be prepared by an attorney and must be approved by the plan administrator, is necessary for making a distribution from these types of accounts without having to pay taxes or penalties.

If the retirement account is an IRA, there are also regulations that need to be followed, but they are less complicated. Banks or other financial institutions may have their own paperwork requirements, but as long as the assets are rolled into another IRA, the person will not be taxed.

Divorcing couples need to do financial homework

The Boy Scouts' motto, 'be prepared," is a phrase that also could be applied to older Texas couples who are contemplating a divorce. The closer Baby Boomers get to retirement, the more likely many of them are to get divorced since the divorce rate for the over-50 crowd is on the increase.

By the time they reach their 50s, many people have substantial retirement accounts built up. However, these assets could dissipate during a divorce settlement. The financial damage could be mitigated if spouses did their homework prior to filing for divorce.

Choosing where to live after a divorce

Deciding where to live during and after a divorce can be difficult. Many spouses in Texas and around the county negotiate tenaciously to remain in the family home while others plan to move away and buy a new house, and for some renting an apartment for a year or two makes the most sense. While emotions play a significant role when these decisions are made, there are also practical, financial and legal issues that divorcing spouses should not overlook.

Spouses who wish to remain in the homes they have lived in for many years will likely be asked to take out a new mortgage. This is because banks are unswayed by divorce property settlements and will pursue any individuals who signed a mortgage when payments fall into arrears. Homes acquired during a marriage are considered marital property, and spouses will generally have to offer other assets or cash in exchange for their husband or wife's share if they wish to obtain sole possession of them. People who take this path should also consider the costs of repairing and maintaining a large home.

The different aspects of child custody

When Texas parents get divorced, there may be a question as to who gets custody of the children. In some cases, there may also be a question as to what type of custody a parent has. In a child custody matter, a parent may receive either physical or legal custody. Physical custody means that the child primarily lives with that parent.

Legal custody means that a parent has the ability to make decisions about that child's welfare. In some cases, parents may have joint legal or physical custody, which means that they both get to participate in the process of raising their child. It is important to point out that joint physical custody doesn't necessarily mean an equal split. That may need to be worked out between the parents when creating a custody agreement or parenting plan.

Dividing art collections in a divorce

When some couples in Texas get a divorce, they might have artwork to divide. There have been several high-profile divorces in which artwork created conflict during property division. For example, in a divorce between a real estate developer and his wife, a trustee of the Guggenheim and the Metropolitan Museum of Art, artwork by Picasso, Warhol and others were among those in dispute. One issue was the appraisal of the art's value, which differed by hundreds of millions of dollars. Another was figuring out who had paid for the art.

In a case involving the son of the billionaire George Soros, a precedent was set in New York regarding the unreliability of invoices to show who had paid. Furthermore, it is significant whether the funds came from a joint account or a person's own account. Ownership may also be more difficult to determine if one or both people are artists or dealers since the personal and business accounts could be mingled.

Selling the family home when marriage ends in Texas

Going through a divorce can be stressful and confusing. Dividing family assets, including having to sell the family home, often makes the process even more complicated. However, selling the family home will be a much more profitable ordeal if both spouses can agree on their sales goals and work together.

To get the best results when selling the family home, the spouses should sit with an agent to design a sales plan that they both agree to. Furthermore, they should keep this plan in mind if tensions grow. It's important to remember that the end goal is the highest profit possible, which can then serve as part of the divided property.

Social Security payments and divorce

When Texas couples get a divorce, one of the parties might be able to draw Social Security payments based on the work record of the other. However, the couple must have been married for at least 10 years for this to be the case.

There are several other factors that affect a person's eligibility to draw on a spouse's earning record. The person drawing the payment must remain single. In some cases, if the person remarried but that marriage ended as well, the person could still be eligible. Both people must be at least 62 years old, and the divorce must have happened at least two years earlier.

Same-sex divorce parental rights case could affect donors' rights

Parents in Texas who are in same-sex relationships may want to make sure they have legal documentation that states they are both the parents of their children. On Nov. 29 in Mississippi, the state Supreme Court heard arguments from a woman who hopes to get parental rights to the child her ex-spouse gave birth to. The child is now six. His biological mother said the woman had the opportunity to get parental rights during the divorce.

The woman does have visitation rights and pays child support. However, a judge gave sole custody to the woman who gave birth to him. If the biological mother dies, the child could be adopted by another couple without input from the other woman. The judge also said the sperm donor has parental rights. The woman's attorney argued that the child should have a legal relationship with both women and not the sperm donor. When the child was born, the woman was not permitted to add her name to the birth certificate. The woman's attorney argued that the state law that prevented it was unconstitutional.

Legal challenges of same-sex divorce

For many same-sex couples in Texas after the U.S. Supreme Court legalized marriages for same-sex couples, getting married became easy. For some same-sex couples who are now going through a divorce, splitting up may actually be more difficult as things are simply not as clear cut.

In 2015, same-sex marriage became legal in all states, including the 13 states that still banned same-sex marriage. In addition to making same-sex marriage legal, the ruling provided all legal protections that were given to heterosexual marriages. These protections include the rights related to medical decisions and tax benefits. When it comes to divorce, however, states handle the division of assets and alimony in different ways.

Domestic violence and co-parenting relationships post-divorce

In Texas, some marriages have been marked by domestic violence. When these types of marriages end, there may be problems with co-parenting when the former couples share children. Researchers have examined co-parenting in the year following the end of abusive marriages and found a difference that depended on the types of relationships.

Researchers from the University of Illinois examined the co-parenting relationships of women who had experienced domestic violence with their ex-spouses during the first year following their divorces. The researchers looked at the types of domestic violence relationships that the women and their ex-spouses had during their marriages in order to determine whether those prior relationships had an effect on the co-parenting relationships.