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What Happens With Credit Card Debt In A Divorce?

How do you divide credit card debt when getting divorced? What if the debt is in both of your names? What if you have much more debt in your name than your spouse? The important thing to know about credit card debt is that no court can interfere with the contract that was signed between the person and the credit card company. So, if you have a credit card in your name and your spouse did not co-sign that agreement with you, you will ultimately be responsible for paying the debt. This is true even if the debt was incurred during the marriage. Texas is a community property state. Which means that anything acquired during the marriage is community property. (With the exception of gifts, inheritances and personal injury awards.) That means that any debt incurred during the marriage is a community debt. The judge could order that your spouse pay all or a portion of a credit card debt that is in your name, or you could make an agreement with your spouse to that effect. But if that happens, you are setting yourself up for problems. The reason is this: If your spouse fails to pay the credit card company as agreed or ordered, the credit card company will come after you for payment. If you don't pay, your credit will probably suffer. You could file a motion to enforce with the court to try to force your spouse to pay his portion of your credit card debt, but all you can get from the court is an order. The Judge cannot punish your spouse by putting him/her in jail as punishment. There is no debtor's prison in Texas (or in the U.S.) Meanwhile, your credit is damaged and you have probably spent money hiring an attorney to help you with the enforcement. A better way to deal with credit card debt when negotiating a property settlement in a divorce is to agree that the party who's name is on the credit card agrees to pay that debt. If one party has more debt in his/her name, then one way to make the property division more "fair" is to let the party with more debt get more of the assets. This will offset the amount of debt a person takes. Call Hoppes & Cutrer, LLC for questions regarding division of property in a divorce. 

The Decision Has Been Made......we Are Getting A Divorce. What Do I To Now?

You and your spouse have decided to divorce in Texas. You both knew that it's been a long time coming . You are not even sure it is the right decision. But the decision has been made and you want to make sure that you are protected and that you get the best outcome possible for you and your children. So what now?
1. You could call your cousin Frank who is a divorce attorney in El Paso to see if he has any advice for you.
2. You could spend hours and hours on the internet searching for answers about Texas divorce law. You may even look into the "do it yourself" alternatives.
3. You talk with your friends who never went to law school but are telling you their opinion about what will happen in your divorce and what you should do. their opinions might be based on their own experience or on what they have heard from their friends.
4. You and your spouse argue endlessly about who is right regarding the reasons for the divorce as well as the likely outcomes.
5. How do you calculate support obligations? What will your cash flow look like after the divorce? Can you keep the house? Can you divide a retirement account in a divorce?
6. What should be done regarding the children? How should possession and access to them be decided?
7. How long must you carry your spouse on health insurance? When should you begin dividing bank accounts? When should you separate your residences? How do you make sure that you do not overlook something?
9. And perhaps most important: how do you maintain control of your life during this crazy time? You need the help of experienced and compassionate divorce lawyers that will help guide you through the divorce process.
At Hoppes & Cutrer, we can help you navigate the difficulties of the divorce process. 

Ten Myths About Divorce

If you've never been through a divorce before, you may not be familiar with the process. If you are considering divorce and trying to learn about how a Texas divorce works, you may get advice from friends and family members. But be ware often the information they might give you is wrong.
If you are armed with the wrong information you run the risk of making decisions that might hurt your case. That is why it is so important to speak with an experienced Texas divorce lawyer as soon as possible if you are thinking about divorce. Your divorce lawyer can tell you the truth about how divorce works and bust the many myths about divorce. Here are ten of those myths about divorce: 1. Visitation can be denied if my ex doesn't pay child support.
There is a process for enforcing child support obligations, but threatening or denying a parent visitation with their child is not one of them. In short, access to the children and parenting time are not related to the payment of child support.
2. Commit adultery, lose everything.Will cheating on your spouse lead to divorce? Yes, that is often the case. However, being unfaithful doesn't mean that you'll lose your kids, your home, your assets, and your rights. It could be used as an argument for gaining more of the community property. But often it is not a large factor. If in the course of committing adultery, you waste community assets that will be taken into consideration during a property division.
3. Divorce can be denied.In Texas, you do not have to prove fault in order to have the Judge grant the divorce. Therefore, even if you don't want the divorce and your spouse doesn't, the judge will still grant the divorce. Once all the financial, custody and visitation issues have been resolved at settlement or trial, a divorce will be granted.
4. Mothers always are awarded custody of the children.While there certainly was bias in favor of mothers in years past, the law has evolved along with changes in society to reflect that both fathers and mothers can have the primary right of possession. Decisions about custody and visitation will be made based on what is in the best interests of the child, and that depends on circumstances and characteristics that have nothing to do with gender.
5. You must have a lawyer.
You have a right to represent your self. But it is not always the best option. You could make errors that could harm you in the future. Once the judge signs the Final Decree of Divorce, there is nothing about the property division, that can be changed. You may also make mistakes regarding your children and child support that could be difficult to change later.
6. You can avoid paying child support.Child support payments in Texas are established by law. If you have a minor child and you are not the custodial parent, you will have to pay child support. If you fail to comply with a child support order, both your spouse and the state of Texas will take steps to enforce those orders.7. Children get to pick who they live with.If a child has reached the age of 12 and has expressed a preference as to which parent he/she would like to live with, a judge can take that fact into consideration in the determination as to custody. However, they are not required to follow a child's choice and will make their custody decisions based on what is in the best interests of the child.
8. Divorce always leads to battles.Divorce can often full of hostility, blame, and finger-pointing. But it doesn't have to be. Other methods like collaborative divorce, mediation, and negotiation are all options if you are trying to keep the divorce from becoming highly contested. If you tell your attorney that you would rather focus on resolving conflicts as opposed to starting or escalating them, the attorney can help make your divorce a process of negotiation and agreement rather than argument.
9. Equitable distribution results in equal division.Property in Texas is divided based on what is just and right in light of the circumstances. Property can be and often is divided in an unequal manner based on the many factors that go into a judge's decisions about property division. Whether that property is divided 50/50 is not one of them.
10. Women always get maintenance and men never do.Decisions about spousal support, just like custody decisions, are no longer are based on outdated prejudices and reflect the fact that women often earn more than their husbands. Decisions about spousal support are based on the economic realities of the respective spouses regardless of their gender. If you are considering a divorce or have a family law issue, consult with or retain a competent attorney to protect your rights. 

Ten Tips And Traps For Do-it-yourself Divorce Forms In Texas

1. TIP: Make sure you are using the correct forms for your situation. Many websites offer free forms and each websites forms vary. There are no standardized forms for divorce in Texas although the Texas Supreme Court has issued one set of forms. However, they will only apply if you have no children and no real property such as a house.
2. TIP: Do not be misled by the language or headings that are used in forms that may imply certain property or assets belong to one spouse. Unfortunately, many people don't discover their rights until after the judge has signed their form decree and they have given away property to which they were entitled. And then it is too late.
3. TRAP: form language: "Husband is awarded "All of Husband's cash and money in any bank or other financial institution listed in Husband's name alone." Just because it's in one spouses name doesn't mean the other spouse isn't entitled to a portion of it. If the funds were deposited during the marriage, the funds are considered community property and subject to division.
4. TRAP: form language: "Husband's cars, trucks, motorcycles or other vehicles listed below:" If both spouse's names are on the title and debt is owed on the vehicle, additional documents may be required for title to be issued solely in husband's name. Additionally, if wife's name is on the financing, awarding the vehicles to husband in the decree will not relieve wife remove wife from the debt.
5. TRAP: form language: "Husband will keep the following personal property still held jointly: (For example, a bank account, but not real property such as a house or land.)" The language in a decree is not binding on third parties other than the spouses. This may award the funds in a jointly held account to the husband, but the bank will not deny wife access to the funds based solely on a divorce a decree.
6. TRAP: form language: "Husband's Retirement Funds (For example, pension, profit-sharing, and stock option plans, 401ks, and IRAs). The language in the forms is misleading. Again, just because the funds are held in husband's name and just because they are a result of husband's employment, it does NOT mean they are solely husband's property. They are presumed to be community property and therefore wife is entitled to a portion of them.
7. TIP/TRAP: If you do divide the retirement funds, 401(k), and IRA's, the divorce decree is not sufficient to transfer the funds to wife. Other documents will be necessary. It could be a simple as a form from the financial institution or as complicated as a federally mandated specialized order depending on the type of plan and the nature of the asset.
8. TIP/TRAP: Some forms have sections that awards real property (such as a house) to a spouse. The transfer of title to real property is complex and requires more than a divorce decree. Additionally, neither the divorce decree, nor the title transfer documents, will remove a spouse from the mortgage. The mortgage company must be involved in that process and consent to the removal. A common occurrence is one spouse successfully transferring his legal interest in the marital residence to the other spouse, only to discover that the mortgage company will not release him from the mortgage. Now he is responsible for the mortgage on house he does not own.
9. TRAP: form language: "The other debts listed below which are not in Husband's name alone (such as credit cards, student loans, medical bills, income taxes)." There is this same language for the wife as well. The assumption is that since they are not in either spouse's name alone, they are in both spouse's name together. Debt, especially joint debt, is often the most difficult issue to deal with in a divorce. Third party creditors are not bound by the terms of your divorce decree so great care should be taken when allocating debts.
10. TIP/TRAP: In Texas, a property division may NOT be modified! Once the judge signs the Final Decree of Divorce that contains your property division, there is no going back. Talk to a lawyer to determine your rights before the judge signs a form decree of divorce. 

Showing Contempt for your Spouse is the Number one Predictor that You will end up in a Divorce

The number one predictor of divorce, according to researcher John Gottman, is not money problems or infidelity. It's contempt for your spouse, or, to be more clear, it is contemptuous behavior toward your spouse. Even if you truly love your spouse and hold no contempt for him or her, you are probably guilty of some of the big behaviors that indicate contempt.
Signs of Contempt That You Might Not Recognize (But Your Spouse Will)

Communication is the key to any relationship, but not all communication is verbal. Sure, it is easy to say something out loud that displays contempt for your spouse ("I HATE YOU," for a rather on-the-nose example), but there are certain nonverbal cues that can display the type of animosity and contempt that can poison the well of your marriage and lead to a slow spiral into divorce.

Financial Infidelity Can Lead to Divorce

It goes without saying that marital infidelity can lead to the breakdown of a marriage. But adultery is not the only type of infidelity you have to worry about - there is also the notion of financial infidelity.
Financial infidelity basically means to lie to your partner about finances. And it's a growing trend, according to a Harris Poll for the National Endowment for Financial Education. Two out of five Americans admitted to lying to their spouse about financial matters.
Financial infidelity can be anything from a little white lie to full-blown hiding of a significant amount of assets or debt. Sometimes it can be for a good reason, like saving up for a surprise family vacation. But often, the reasons for lying about money are more malicious, and this type of deception, when discovered (when - not if), can lead to enormous trust issues that may culminate in divorce.
What Are Common Types of Financial Infidelity?

Who Should get the House in a Divorce?

Deciding who should get the house at the end of a divorce is not only a financial but also a very emotional decision. On one hand, there are emotional benefits to keeping the house,especially if children are involved. On the other hand , the house is often the couple's most valuable asset. If there is equity in the house that equity is community property (assuming the house is community property) and this equity should be divided between the parties. If you get the house with all the equity, it could mean that you get nothing else. It could mean giving up retirement, cash and other investment accounts. This is a decision that should not be made lightly.
Another thing to consider is: can you afford the house? In other words can you afford the mortgage payments and the cost of the upkeep? It is important to look at what your monthly income and expenses are going to be after the divorce is final.
Maybe the best option is to agree to sell the house and split the proceeds. Or maybe one of the parties might be able to re-finance the mortgage in a way that he/she is able to get some cash to give the other spouse his/her share of the equity in the house.
There are also times when it is more cost effective to keep the house: for example if the mortgage payments are lower than the cost of paying rent. Sometimes people find themselves in a situation where the house is not worth as much as the total mortgage debt. In that situation the parties would have to pay the difference to the bank in the event they sell it.
All of these factor should be considered before deciding whether to try to keep the house. 

Amicable Divorce at What Cost?

Going through a contested divorce is definitely costly both emotionally and financially. The least painful way to go through a divorce is if both spouses can be reasonable in negotiating a final settlement. So, what should you do if your spouse is making unreasonable demands and is trying to bully you into settling the divorce in a way that is very detrimental you your interests?
This is the time to stand up for yourself instead of just giving in to unreasonable demands. When it comes to the property division in a Texas divorce, once the case is final the property division cannot be changed. The only thing a Texas Judge can do is enforce the division of property and clarify any ambiguities in the language of the Divorce Decree.
Texas is a community property state, which means that all property that is acquired during the marriage is community property. So, just because one spouse has a retirement account in his/her name does not mean that the entire account should go to that spouse. If it was accrued during the marriage is an asset that can be divided between the parties. This division can be by agreement or it can be by a court order. If the division is by a court order, then that means that there was a trial and that the Judge decided the property division after hearing evidence.
So, if your spouse tells you that the 401k account in his/her name belongs to him/her and you don't have a right to any of it, that is incorrect. Depending on the value of the 401k account, it may be worth taking the case to trial in order for you to get a portion of that money. 

Tips For Settling Your Divorce Case Through Mediation

While settlement of a dispute is certainly no guarantee that the future relationship of the parties will be amicable, a contested trial is guaranteed to be detrimental. Things are said that cannot be unsaid. The ultimate result is likely to be unsatisfactory to both parties. The end of the trial is akin to the final round of a 15-round boxing contest, with both parties exhausted and hanging on for dear life.The difference between a settlement and a contest boils down to one simple precept: Neither party will get everything he or she wants. Both parties have a "wish list" but they must prioritize their list. In a settlement, each party can negotiate for what is higher on their list, giving up the lower-priority items. Conversely, in a contested trial, the court decides which items on the list the party does or does not get. The court may, either intentionally or unintentionally, award the client the lower-priority items instead of the higher-priority items. In a perfect settlement, both parties get the high-priority items on their lists. Frequently, in a contested trial, neither does.The following are rules that, while not absolute, apply to the vast majority of family law settlement negotiations.Rule One: Be CordialYou may be used to dealing with your spouse by yelling and screaming at each other. But "posturing" is not helpful in a negotiation. This goes for the lawyer too. Many clients ask "Are you really on my side?" when the lawyer is friendly as opposed to posturing or acting aggressively for show. Cordiality, especially by the lawyer, is not disloyalty to the client, but rather an effective means of settlement. It is not a sign of weakness, but strength.Your lawyer is most likely friends with the opposing lawyer, but this does not keep that lawyer from being a good advocate for you. In most cases, professionalism and civility lend themselves to getting a better deal for you in the long run. As the saying goes: "If you want to get into a wrestling match with a pig, you have to lie down in the mud -- and the pig will at least enjoy it."Rule Two: Do Not Give an Ultimatum or DeadlinesCertainly some issues are more important than others. There may even be issues that are non-negotiable. But stating an issue in the form of an ultimatum stops the negotiating process in its tracks. Which of the following tactics is more likely to elicit a measured response leading to discussions settlement and compromise:* Approach A: Here is a settlement proposal. You have 48 hours to accept it, or it is withdrawn.
* Approach B: Here is a settlement proposal. It contains what we believe to be reasonable positions on all issues. If you disagree, please provide us with the reasons you disagree and what you think would be reasonable under the circumstances.Rule Three: Make Full Disclosure Voluntarily and FreelyAsk yourself: Are you more likely to settle a case where the other side has given you everything you need voluntarily, freely, and openly, or where they stonewall discovery? The answer is obvious. When the other side treats financial information like it was a highly classified government secret, settlement is less likely. This tactic raises the question, "What are they trying to hide?" Mistrust is not conducive to settlement.If you are the party with access to most or all of the information, it is best that you allow your attorney to give the information to the other side before they ask for it. After all, you know what they will need to settle the case. Your attorney will tell the other side that you are voluntarily providing the information to promote an atmosphere for settlement and to save costs for both parties. He or she will also explain that if there is further information that is only accessible through you, you will be pleased to provide any additional relevant information that you might have inadvertently omitted.Rule Four: Don't Be afraid of taking the First StepMany clients feel that taking the first step toward settlement is a sign of weakness. As a result, some cases sit and wait, even though a settlement conference could begin the process of resolution. Timing is essential. To miss the timing because of fear of appearing weak does you no good.To put it another way, someone has to take the first step, or no case will ever be settled. Viewing this first step as a sign of weakness is an indication of insecurity on your part. Taking the first step is actually a sign of strength: After all, you are so confident in your case that you assume the other side will want to settle, to avoid the embarrassment and cost of eventual defeat in court.Rule Five: Never Negotiate BackwardsBackwards-negotiating is what occurs when subsequent offers are further away from settlement than previous offers. There are times when facts change that may alter settlement positions. However, assuming no major changes or new discoveries, once a proposal is made, subsequent proposals should be closer to the other side's position, not further away.Backwards negotiating is not good-faith negotiating because it seeks to punish the other side for rejecting a previous offer. The response of a party who receives a backwards offer should be to stop negotiating. If a proposal is made in good faith, then the rug should not be pulled out from under it.Rule Six: Never Refuse to NegotiateTrue, some cases are harder to settle than others, and some cannot be settled. But you will never know unless you try. Settlement should be attempted in every case, no matter how remote the prospect might seem.Sometimes, the gap between the positions seems far too wide to "waste" time negotiating. Yet, it is amazing how often the gap narrows dramatically during a negotiations session. Sometimes it is because the gap was there at the beginning only for positioning. Sometimes a party recognizes the weakness of his or her position. The point is, the gap cannot narrow unless there is some communication.Your attorney understands that you may be reluctant to schedule a negotiations session. It might be helpful to remind them that several years ago, Yitzhak Rabin and Yassir Arafat shook hands on the White House lawn after spending years swearing eternal hostility. When severely criticized in his own country for making peace with his sworn enemy, Rabin replied, "You only need to make peace with your enemies -- you are already at peace with your friends."Rule Seven: Never Get Angry at a ProposalIf a settlement proposal comes in writing, your attorney will forward that to you immediately. It is not unusual for a client to call the attorney just after reading it, livid at how outrageous the proposal is and how far it is from what the client perceives as fair.It is true that some proposals are so low or so high as to be insulting. Some ask for the stars, hoping to get the moon. Others misinterpret the parameters of reasonable settlement. Whichever is true, at least there has been an attempt at settlement. Rather than get angry if the proposal is in the stars, then start from the ground up. If the proposal is unreasonable because the other side misunderstands the reality of the situation, then educate the other side. In most cases, any proposal, even a bad one, is better than no proposal at all. At least you will have a starting point.Rule Eight: Be PreparedYou should work with your attorney to go over an opening proposal, which should leave room for negotiation. You should then educate your attorney as to what movement form the opening proposal is acceptable. Finally, you need to specify the "go to hell" point where litigation is better than accepting the last proposal from the other side. This point is often a moving target, and although it can be discussed ahead of time, it will be truly known only at the instant the judge bangs the gavel and says, "Call the first witness." It is critical that you let you attorney know the parameters for the first two levels.There are numerous ways to negotiate. In some cases it is with "four-way" meetings, some are through letters, some are through fully drafted proposed Decrees or Orders, and more. Although there are always exceptions, following these rules will create the type of atmosphere that makes a settlement more likely. As with many other things in life, improving the odds is often the best we can do when we do not have full control over the circumstances. You owe it to yourself to do the best you 

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