Although the Morgan Law Firm focuses exclusively on divorce and family law, we also like to provide our readers with sound tips on how to handle common legal issues that arise. Today’s guest post is on what to do when the police ask to search your vehicle and it is by Virginia lawyer Andrew Flusche, who focuses on helping drivers fight their Virginia reckless driving tickets. He also wrote the highly-rated consumer book, Fight Your Virginia Reckless Driving Ticket. Find Andrew on Google+. Let’s hear from Andrew:
Even people who don’t normally have run ins with the police may have an occasion where the police ask to search their vehicle. Let’s say you’re pulled over for a routine traffic violation, and the officer decides to fish for something more. He’ll ask “You don’t have any drugs or weapons, do you?” Once you answer “No,” he’ll ask, “Then you don’t mind if I search?”
What do you say?
“No, you do not have my permission to search.”
It’s that simple. Under no circumstance should you consent to a police to search your vehicle.
Consent removes possible legal challenge
Probable cause is a legal standard that the police must usually have in order to search your vehicle. There are plenty of exceptions to this, and it can vary from state to state; however, the general rule is that in order to search your vehicle, the police need to have probable cause of some type of crime or contraband.
If the police don’t have a legal reason to search, the normal remedy is that they cannot use the evidence they found against you in court. If they find a little marijuana blunt that a friend left in your vehicle and they didn’t have a legal reason to search, then we should be able to beat the charge.
However, if you consent to the police search, they do not need any reason to search. They can search for no reason at all, simply because you allowed them into your vehicle. In many cases, they may have a great reason to search, and we may not have any challenge, but at least we have a chance to examine whether or not they had a valid reason to search and see if we can argue to suppress any evidence they found.
You’re exercising your rights
You have the Constitutional right to be free from unreasonable search and seizures. This is the right to be free of unwarranted intrusion by the police. You should assert that right just as you assert your right to vote and your right to have free speech. All these are rights are protected under the U.S. Constitution, and you should assert them.
This doesn’t mean you should be rude to the officer; however, you should say “no, you may not search.” It’s polite, it’s firm, and it’s clear that they do not have your permission.
You never know what may be in your vehicle
I handle a lot of Virginia reckless driving and Virginia DUI cases for clients, and I’m always astounded at the people who have no clue what’s in their car. And for a lot of my cases for possession of marijuana in Virginia my clients will say that they had no clue marijuana was in the vehicle. I believe many of them, because the police just found some seeds or buds in the floorboard.
Some people don’t keep their cars very clean. There is all sorts of trash and different things in the vehicle that make it difficult to see what’s in the vehicle. When the police are looking for contraband, they’re going to look under all that stuff. They’re going to turn over every piece of trash and try to see if there’s anything that they can prove is contraband, and you never know what may be under all that debris. You can’t be sure if there’s anything under there.
It’s the smart thing to do
Given the extreme risk of allowing a police search, it’s only smart to refuse their ability to search. Protect your right, protect the possible challenge down the road, and refuse the search. Simply say “no thank you, you may not search my vehicle.”
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The typical procedure for Texas divorce lawyers to analyze property division in a divorce case is to put all the assets and liabilities on a spreadsheet and fill in the values. At that point the division usually starts to make sense as you assign certain assets and liabilities to each of the parties. Often these assignments are relatively simple and agreed to. For example, everyone may agree that the wife should get the house and be responsible for the mortgage so you automatically fill in your spreadsheet that way on that particular asset and debt.
Sometimes the parties may have a dispute over how the overall split should be done. For example, one party may want a 50/50 division while the other side believes it should be a disproportionate division. I will save that topic for anther blog post. Today I will address the other common issue that arises in property divisions, that of valuation disputes. Below I will outline some of the more common asset types that result in valuation disputes and how they are each addressed.
Real Estate Valuation Issues
Probably the most common big asset valuation issue that arises involves the house. In most divorces (at least the ones I deal with) the parties own a house. Sometimes clients will come to me at the beginning of the case and say that the house won’t be an issue because they already have an agreement on it. Later I learn that they agree on who gets the house but they very definitely do not have an agreement on the value of the house.
Typically, the party getting the house has a very low value on the house and the party not getting it has a very high value. In situations like this the issue is normally addressed by one or both parties hiring an appraiser to do an appraisal of the property. Occasionally, both parties will hire an appraiser. The resulting dualing appraisals may have a valuation gap but normally this gap will be much smaller than the original gap the parties had.
Valuation of a Vehicle
Vehicle values are another potential area of dispute but obviously the values are a lot less than a house value, so there is less incentive to actually pay for and hire an appraiser. Instead the parties typically will do an online valuation of the vehicle using a website like Edmunds.com or Kelly blue book. While there are still some subjective components to the valuation such as whether the vehicle is in “excellent” or “average” condition, after doing an online valuation there should be a much smaller gap between what the parties believe the vehicle is worth.
Here is where it gets really interesting. When the parties are business owners things can get very complex in a hurry. It is very common in these cases for the spouse who runs the business and is very involved in it to expect to be awarded the business and for the other spouse to agree to this. But when the parties assign values for the business they may have a huge differential in their numbers. Often the business owner spouse will have a very low value and the non-involved spouse will believe the business is worth an astronomically high amount.
In these cases it is almost mandatory that a business valuation expert be hired by at least one of the parties to prepare a valuation report. The business valuation industry has standards and ratios that are used based on the financial condition and history of the business. They will evaluate the business and its financial records and then determine what the business would be likely to sell for to a third-party buyer.
This analysis is normally done using the assumption that the buyer would not receive a contractual agreement not to compete from the seller for some fixed period of time. In real world sales most buyers will insist on a non-compete provision but this cannot be factored into the valuation in a divorce case analysis. This is due to case law that very clearly makes the “personal goodwill” portion of the business not divisible community property. In cases involving professional practices and consulting-type business this can have a dramatic impact on the valuation (i.e., the value is a lot lower).
Hopefully this clarified some of the key valuation issues that arise in Texas property division cases. If you are considering divorce and have questions about any of these issues feel free to contact our office and schedule an initial consultation.
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Since April 15th is approaching I thought it might be a good idea to address a common family law/tax question. The question is as follows: post-divorce which party is entitled to take the dependency exemption for the children, the person paying child support or the person receiving child support. People are frequently confused about this, in no small part because most divorce decrees are silent on the issue.
The Child Dependency Exemption is Governed by Federal Law
Let’s start with an analysis of the law. Internal Revenue Code Sec. 152(e) states that the custodial parent is entitled to the child dependency exemption. Obviously, this means that normally the noncustodial parent is not entitled to take exemption. The statute goes on to create an exception to this rule, permitting a noncustodial parent to take the exemption if the custodial parent signs a written declaration stating that he/she will not take the exemption. The noncustodial parent is supposed to attach a copy of this written declaration (see IRS form 8332) to their tax return.
Tax Court Finds that Strict Compliance with Statute is Required
An interesting article in BNA Bloomberg discusses the situation in detail and analyzes a 2012 Tax Court case on the issue. That case, Armstrong v. Comr., 139 T.C. No. 18 (2012), held that the requirements must be strictly followed in order to be entitled to the exemption. In that case the husband and wife had agreed in their divorce decree that husband would pay child support and he (even though he was the noncustodial parent) would also be entitled to take the child dependency exemption. The decree further ordered wife to annually execute the IRS form transferring this right to husband.
Husband later filed his tax return taking the exemption and attaching a copy of the Final Decree of Divorce to the return. For whatever reason, the IRS audited his return and decided that the Decree alone without the IRS form was insufficient to allow him to take the exemption.
My past impression has always been that as long as only one parent claims the exemption that there would not be an issue. Obviously, if both parties claim an exemption for the same child this is certainly going to raise a red flag with the IRS and I would expect both parties to receive an audit notice. I have to wonder if husband inadvertently caused additional scrutiny from the IRS by attaching the divorce decree to his return. I would imagine that the entry-level clerks who review tax filings would not know what to make of it, resulting in them passing it on to their supervisor and thus creating a certain amount of unwanted “special treatment” from the IRS.
Lesson: Make Sure You Get an Executed Form 8332
In any event, the court’s opinion makes it clear that in order to be entitled to the dependency exemption you must have the custodial parent execute the IRS form. If you find yourself in this situation and your ex refuses to execute the form this case makes it clear that your recourse is not through the IRS or the Tax Court, but rather through the Family Court that issued the order. In other words, you would need to file an enforcement action asking that the court order your ex to either execute the documents or face contempt.
Child support modification is addressed in Texas Family Code Section 156.401 through Section 156.409. Whether you are the payor who is seeking a reduction or the payee seeking an increase, the standard is the same. There are two possible avenues to seek a modification:
- Section 156.401(1) – allows the court to modify the child support if the circumstances have “materially and substantially changed” since the last order. This section gives very broad discretion to the trial judge in determining exactly what constitutes a “material and substantial” change in circumstances.
- Section 156.401(2) – essentially requires the court to recalculate the child support amount as long as it has been at least three years from the last order and the new child support amount would be at least 20% or $100 different than the current amount. This section gives very little discretion to the trial judge other than making a determination of the facts that are used in the calculation.
Essentially, someone seeking to modify child support would only use Section 156.401(1) if it had been less than three years since the previous order. Otherwise, the argument would be based on Section 156.401(2) and the case would be much more clear cut.
Typical reasons for child support modifications by payors include issues like a reduction in their income or having additional children. While there are other possible grounds, by far the most common reason a payee seeks a modification is that the payor now has a higher income than he/she did at the time of the last order.
Obviously, the analysis above is focused on the more common child support modification situations and does not attempt to address more complex situations. If you have any questions or comments about child support modification feel free to drop your comment below.
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Austin is located in Travis County, Texas. Where to file for divorce in Texas is determined by county, specifically it must be a county where one of the parties has resided for at least the past 90 days at the time of filing. This is in addition to the requirement that one of the parties must be a domiciliary of the State of Texas for the past six months at the time of filing.
Location and Phone Number for Travis County District Clerk
For residents of Travis County, Texas, divorce petitions (this is the document that begins a divorce case) are filed with the Travis County District Clerk’s office. Their office is located at 1000 Guadalupe Street, Austin, Texas 78701. Their phone number is (512) 854-9457.
Filing Fees for Travis County Divorce Cases without Children
The filing fee for a divorce case in Travis County varies depending on certain factors, including whether or not there are children of the marriage. As of the date of this post (January 21, 2013) the filing fee for a waiver divorce (one in which the Respondent executes a Waiver of Service) if there are no children is $259.00. In divorces without children where your spouse won’t execute a Waiver (in other words, they will be served by a process server), the filing fee is $258.00. Don’t get too excited about the $1.00 savings because a non-waiver case will require additional expenses in the form of a fee for the preparation of the citation document and then a fee for the process server to serve the Respondent with the pleading.
Filing Fees for Travis County Divorce Cases with Children
In Travis County divorce cases with children, the filing fee is $274.00 for a Waiver divorce and $273.00 for a non-waiver divorce. In cases with children there are additional fees that may apply. With all of the fees, if you are filing your own divorce case I would recommend that you physically go to the Travis County District Clerk’s office and file your divorce case in person. They will then calculate your filing fee and you can pay it there. This way you will be certain to pay the correct amount and not have a problem later on.
If You Need an Attorney
If you need to hire an attorney to assist you in your divorce feel free to call us (512-551-0807) or fill out the contact form on the right side of the page. We will schedule a consultation and learn all the details of your situations and discuss the available options. Unless there are no children of the marriage and there are no assets or liabilities to divide (almost everyone has some assets and/or debt to divide) then I strongly recommend you have an attorney handle your case. Here is a video on how to select the right divorce lawyer for your case. Divorce can be scary and complicated so you want to get good advice and representation. Mistakes in your divorce case can cause you a lot of unforeseeable problems in the future.
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Everyone plans on it being forever when they say “I do” but the reality is that it doesn’t always work out that way. When it becomes apparent to you that this is your situation, then you want to make sure your divorce is handled appropriately. The disintegration of something that you thought was permanent is always disappointing but that does not mean that you have to allow yourself to be treated unfairly as you go your separate ways.
Make Sure Your Rights Are Protected
The best way to ensure that you get a fair result and that your rights are protected is to hire an experienced quality family law attorney. The best way to determine who is good and who is not so good is to hear from those who have been in your situation before and who have been represented by that attorney before. If you don’t have personal recommendations to go on, the next best thing are reliable online reviews of attorneys.
Look at the Morgan Law Firm Divorce Lawyer Reviews
At the Morgan Law Firm we have always prided ourselves on having clients who were satisfied with our work and were happy to tell others about their personal experience. For years we have kept a client testimonials page where they could post about their experience with our firm.
In recent years the internet has caught on to the usefulness of online reviews and our firm has had many reviews posted on a variety of websites. Here are links to some of the websites that have Austin divorce lawyer reviews:
If you are at the point where you need some guidance about your situation feel free to contact our office to schedule a consultation by calling (512) 551-0807. We can review your situation in detail and let you know your options. The sooner you start to get answers the sooner you will begin moving towards the future.
While attempting to hide assets in a divorce case is not commonplace, it happens more often than you might imagine. As an attorney I would never advise a client to attempt to hide assets nor would I help them in their efforts to do so. Aside from the legal and ethical issues, it is simple wrong and not something I am willing to do.
Hidden Assets Tend to be Found
I have had cases on both sides of the issue. I have discovered assets that my client’s spouse was attempting to hide and I have discovered assets that my own client was attempting to hide. When I explain to my client how easy it was for me to uncover the asset and how the other attorney is likely to find it just as easily, the client usually becomes much more reasonable about disclosing all assets.
Here is an interesting article on the consequences of hiding assets in a divorce in Forbes.
Would Someone Really Hide Their Separate Property
I once had a client who was attempting to hide a significant asset that I came across while reviewing the financial records. When I asked him about it and explained that we would need to disclose the asset or he would ultimately run the risk of being held in contempt by the court and potentially prosecuted for perjury, he remained steadfast that he didn’t want to disclose it. Only when I threatened to withdraw as his attorney did he relent. When we discussed the asset further, it turns out he owned it pre-marriage making it his separate property. In other words, he was putting himself at grave risk to hide an asset that was 100% his anyway. Very foolish…
What are the Lessons?
So there are two big lessons about hiding assets. One, don’t do it. Even if you feel you have a rock solid ethical argument for way it is simply not fair that your spouse should be entitled to any of the asset, resist the temptation. It is simply not worth it. Second, if you have a legitimate concern that your spouse may be hiding asset(s), let your attorney know so that they may take the necessary steps to locate any hidden assets. While there is more work (and thus more cost) involved with this, it is worth it to know whether you are getting your fair share of the community.
When a couple has divorced and one or both of the parties has moved out of the area, it can make it can become extremely difficult and sometimes impossible for the non-custodial parent to have frequent access and communication with the children. With the increasing mobility of our society and the much more typical career changes that seem to be a staple of our current economic times, this situation has become a very common occurrence.
Standard Possession Order Visitation Schedule – Long Distance Access
This situation is so common in fact that the Texas Standard Possession visitation schedule (the one that is included in some form in most court orders involving child possession and access) has provisions that address both when the parents live within 100 miles of each other and also when they live further than 100 miles apart. The over and under 100 mile schedules are fairly similar to each other in most respects, with a few key differences.
Under the statute the non-custodial parent who lives more than 100 miles away is actually still entitled to exercise every other weekend visitation, if that party so chooses. While this might work for a dad living in Austin whose kids live in Sugarland, this is not so practical if that same dad got a job transfer to Seattle. In that case, visitation usually ends up degenerating into a limited number of longer visits, such as the summer and Christmas breaks.
Keeping in Touch with Your Child When You Live Far Away
So how can a person in this situation stay in touch with his or her children when frequent in-person visitation is just not possible? In the past the best you could do was make frequent and regular phone calls. But now technology has improved significantly on this. With the advent of Skype and Apple Facetime software, all it takes is a webcam and the visiting parent can have a much more interactive experience with their child.
I have had many clients who have requested and gotten orders that include routine skype access in addition to their regularly scheduled visitation periods. The schedule and lengths of time the sessions last vary based on the particulars of the case and also the age of the child. Clients who have utilized this technology have given it high marks as compared to just a phone call. If your situation involves long distance access this is something that you might want to consider in your divorce case.
A common issue in most divorce cases is what to do with the marital residence. If the parties rent their residence this is not a big issue, but in most divorce cases there will be owned real estate that must be dealt with.
Two Most Common Ways to Handle
While every case is different and there are many unique and unusual sets of circumstances, for most cases there are only two realistic divorce outcomes when it comes to the house. Either the house gets sold and the proceeds from the sale split (usually on some percentage basis) or either the husband or the wife is awarded the house along with the debt attached to the house.
What About the Equity?
When one spouse is awarded a house that has significant equity the other spouse will want an offset from some other asset. As a simple example, let’s say a couple has a house with $100,000 in equity and their only other asset is a 401k account in husband’s name worth $100,000. If wife was awarded the house and husband was awarded the entire 401k account, it would be a 50/50 division. If instead neither party wanted the house and they put it on the market they could then split the net proceeds from the sale of the house 50/50 and also split the 401k 50/50. That would also be a 50/50 division.
What Real Estate Documents are Used to Transfer the House?
If instead of selling one spouse is awarded the house then in a typical case this requires just two real estate transfer documents. These should normally be done at the time of divorce along with the Divorce Decree and other transfer documents. The first document is a “Special Warranty Deed.” This document is signed by the spouse who is not getting the house and in effect it says that the other spouse is now the 100% owner of the house (subject to the debt secured by the house).
The second document is a “Deed of Trust to Secure Assumption.” This document is signed by the spouse who is getting the house and in effect it is that party’s promise to pay the existing mortgage in a timely fashion. If the party who receives the house falls behind on the mortgage payments or in any way defaults on the mortgage, the Deed of Trust to Secure Assumption gives the other party certain recourse against them. The details of that potential recourse are spelled out in the language of the Deed of Trust to Secure Assumption.
Divorce Transfer Does Not Remove Name from Mortgage
One important issue that is often misunderstood concerns the existing mortgage. In the scenario described above, the mortgage that is held in both parties names stays in both parties’ names, even after divorce. Parties sometimes assume that because they have agreed for one party to solely assume responsibility for the mortgage that this agreement is binding on the lender and all they need to do is call the mortgage company to get the name changed on the account. Not so. The lender will always refuse to do so.
The only way the other party will be relieved of that liability is if the mortage is paid off, either by refinancing it or by selling the property. In other words, the debt will remain on the credit report of the non-owning spouse until the debt is paid off. If the owning spouse goes into foreclosure then that will impact the credit of not only the owning spouse but also the non-owning spouse.
The bottom line is that if your spouse is being awarded the house in your divorce case, it is very much preferable if at all possible to have them refinance the property in their own name. Usually the refinancing can happen prior to divorce (or at least pre-approval obtained prior to divorce) or within a set deadline that is included as a term of the Decree.
I hope this helps clarify the issues surrounding how to deal with a house in a divorce case. If you have questions or comments please feel free to share them below.
In this article I will explain the key points in Texas posts-divorce alimony. Please note that alimony is a particularly complicated area and you should consult with a qualified family law attorney about the specifics of your case if you believe you may be entitled to receive or possibly obligated to pay alimony. Also, this post addresses only post-divorce alimony, not temporary alimony.
Contractual Alimony or Spousal Maintenance under Texas Family Code Chapter 8
Texas divorce decrees frequently include provisions for periodic post-divorce payments from one spouse to the other, aside from the more common child-support payments. In general, these payments are based upon the needs of one spouse and the ability to pay of the other. Alimony agreements or orders generally come in one of two forms, either agreed contractual alimony or court ordered spousal maintenance under Texas Family Code Chapter 8.
When the parties reach an agreement for post-divorce alimony payments it is typically structured as contractual alimony. Since this form of alimony is based on an agreement and not a statute there are no restrictions on the amount of the support or the duration, other than those agreed to by the parties. However, the statutory maximums on amount and duration are normally factors considered in the negotiations.
Court Ordered Spousal Maintenance
Chapter 8 of the Texas Family Code provides the court with the authority to order post-divorce spousal maintenance when the marriage has lasted at least 10 years and other requirements are met. Additionally, there is the possibility of spousal maintenance in a marriage shorter than 10 years in certain cases involving family violence. Unless there is a disability of either the party or a child of the parties, the spouse seeking maintenance must prove that he/she is unable to “provide for the spouses minimum reasonable needs.”
Maximum Amount of Maintenance under Statute
Section 8.055 provides that the amount of maintenance the court may order is the lesser of a) $5000/month or b) 20% of the monthly payor’ gross monthly income. Again, it is possible for the parties to agree to an amount higher than the statutory cap but this rarely happens because the caps are factored into the negotiations. In other words, parties rarely agree to what would be worse than there worst-case scenario. It should be noted that the current maximum amount since the 2011 statutory amendment is double the previous maximum of $2500 per month under the old statute.
Duration of Spousal Maintenance under Statute
Section 8.054 provides details on the duration of the spousal maintenance order. For marriages that lasted more than 10 years but less than 20 the maximum duration is five years. If the marriage lasted more than 20 years but less than 30, the maximum is seven years. For marriages lasting more than 30 years, the maximum is 10 years. For cases involving a disability, there is no maximum duration under the statute.
In high net worth or high income divorce cases, alimony is a potential consideration. If this may be an issue in your case, you should definitely consult with a qualified family law attorney about the issue. If you have questions or comments about contractual alimony or post-divorce alimony in Texas please leave your comments below.