Getting Custody of Grandchildren in Texas

Texas, like most states, uses a “parental presumption” in child custody determinations. The “parental presumption” means that, without a strong showing to the contrary, the family court judge will make custody determinations based on the principle that it is a parent’s right to decide who a child lives with or spends time with, barring a situation where the parent is unfit or that the parent’s decision endangers the emotional or physical well-being of the child.

There are, however, circumstances in which a grandparent can beat this parental presumption.

  1. Parental consent. A child’s parents can execute a power of attorney form authorizing the grandparents to care for the child and make financial decisions on behalf of the child.
  2. 6 month/90 day rule. A grandparent can file a lawsuit requesting a custody determination in the grandparent’s favor if the child has lived with the grandparent for at least six months and either still lives with the grandparent or moved elsewhere fewer than 90 days before the grandparent filed the custody lawsuit.
  3. The child is being hurt. If the child’s living conditions are hurting him or her, or if the people the child live with are hurting the child, then a grandparent may file a custody lawsuit regardless of the 6-month/90-day rule. The grandparents must present strong evidence that the child is being hurt currently. Evidence of past abuse or neglect will not be strong enough evidence in most cases. For example, if the mother was previously a drug abuser, but can prove she has been clean, then the court will be unlikely to remove the child from the mother.
  4. Both parents are absent. If both parents are absent, due to incarceration, abandonment, or death, then a court may award guardianship to the grandparents. If the grandparents are named the guardians of the child, then the court will also award custody.

Visit the Grandparents’ Page at the website of The Office of the Attorney General of Texas for more information and resources related to grandparent custody and visitation.

Contact Attorney Kevin Buchanan for Answers to Questions About Grandparents’ Custody Rights

Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about your rights as a grandparent to custody or visitation, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

Reasons to Consider a Fault – Based Divorce in Texas

The availability of the “no-fault” divorce option in Texas makes the process of ending a marriage attractively easy for most divorcing spouses. However, there are instances when you may want to consider filing a fault-based divorce. Fault divorces, or “divorces for cause,” are complicated in both legal and practical terms, so it is strongly recommended you seek advice from an experienced divorce attorney before making a final decision.

In Texas, the grounds for a fault-based divorce include:

  • Adultery
  • Abandonment
  • Confinement for incurable insanity for three years
  • Felony conviction and imprisonment for over one year
  • Cruel and inhuman treatment

It is very important to understand that the spouse seeking the fault-based divorce will be required to prove the allegations on which the petition is based. This can be embarrassing if the facts alleged are very personal or intimate – for example, in the case of adultery.

There are benefits, however, that may make it worthwhile. In a successful fault-based divorce case, the at-fault spouse may be ordered to pay temporary spousal maintenance when he or she would not otherwise be required to. The spouse who was wronged may be allowed to take possession of a larger share of the marital assets and/or a smaller share of the marital debts. The petitioning spouse in a fault-based divorce case will also have an advantage in any dispute over child custody.

You can read more about the grounds for fault-based divorce in Texas and the defenses to allegations of fault on the Texas state government’s Constitutions and Statutes website.

Contact Kevin Buchanan for Answers to Questions About Fault-Based Divorce

Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about filing a fault-based divorce petition, or if you have been served with a fault-based divorce petition, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

How Is Child Support Calculated in Texas

Like most states, Texas determines how much child support should be paid by one parent to the other based on a fairly rigid set of guidelines. Texas uses a formula called “percentage of income.” This formula calculates the noncustodial parent’s income, then calculates child support as a percentage of income depending on the number of children for whom support will be paid.

Unlike some other states, Texas does not automatically take into consideration the nonpaying parent’s income. Texas also does not automatically consider percentages of parenting time when calculating child support amounts. However, the family court judge may deviate from the child support guidelines and order payment or more or less child support based on certain factors – including the nonpaying parent’s income, the percentages of parenting time, etc.

To calculate the paying parent’s net income, the Texas child support add together all of the following:

  • Wages and salaries, including tips, overtime, commissions and bonuses
  • Self-employment income
  • Net income from rental properties
  • Interests, dividends and royalties
  • Severance pay, retirement benefits or pensions, workers’ compensation payments, trust income, etc.

The following are excluded from the calculation of the paying parent’s net income:

  • Welfare payments
  • Accounts receivable from self-employment
  • Income from a new spouse
  • Loan repayments

The next step in calculation of the paying parent’s net income is subtraction of the following expenses:

  • Health care insurance expenses being paid for the child in question
  • Federal, state and Social Security taxes
  • Union dues

Once the paying parent’s net monthly income has been determined, the calculation of child support to be paid is straightforward under Texas law. If the paying parent earns less than $7,500 per month, he or she will be ordered to pay:

  • For one child, 20% of net income
  • For two children, 25% of net income
  • For three children, 30% of net income
  • For four children, 35% of net income
  • For five children, 40% of net income
  • For six or more children, no less than 40% if net income

The Office of the Texas Attorney General offers an online child support calculator to help parents make preliminary calculations of approximate child support amounts.

Contact Kevin Buchanan for Answers to Questions About Child Support

Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about your rights with regard to collecting or paying child support, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

Common Methods of Hiding Assets During a Divorce

Texas is a community property state. This means that, under Texas law, most property acquired during a marriage belongs to both spouses. This is often true regardless of which spouse actually acquired the asset.

When a marriage is ending between spouses who have high net worth, asset hiding is not uncommon. Forensic accounting may be necessary to trace and track all assets acquired during the marriage to ensure that a complete list is assembled so that all marital property can be equitably divided.

Some techniques of hiding marital assets are more common than others. Examples include:

  • Hiding cash or buying resalable assets like jewelry or stocks
  • Prepaying credit card balances is essentially a fancy way to hide cash
  • Exchanging cash for foreign currency or traveler’s checks (U.S. banking law does not require reporting such exchanges unless the amount is $10,000 or more)
  • Gifting assets to a family member or close friend

These other asset-hiding techniques are also common, but less likely to be “DIY.” These strategies usually are put into play upon receiving financial advice from an adviser.

  • Transferring assets to a fake business name
  • Paying assets into an insurance policy
  • Prepaying one or more mortgage balances, which may allow the individual to shelter assets under Texas’ homestead exemption

For a more thorough definition of community property in Texas, you can read the Texas statutory definitions of community and separate property.

Contact Kevin Buchanan for Answers to Questions About Asset Hiding

Attorney Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about division of property, or concerns that your spouse is hiding assets, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

Tips for Texas Fathers Who Want Custody of a Child

Tips for Fathers who Want Child Custody

  1. Texas family law judges make decisions about child custody and visitation (often called possession and access in Texas) according to a standard known as the “child’s best interests.” On a basic level, this means that a divorce court judge is not going to agree to change a custody agreement solely because the existing custody or visitation agreement is inconvenient for one of the parents.
  2. Family courts presume that a child is best served by having a relationship with both parents. This means that the divorce court judge will be inclined to order joint custody or generous visitation time with the other parent in cases where sole custody is awarded. The parent who believes the other parent should not share custody or should have limited visitation or parenting time must present factual evidence to support the claim that the child, in this particular case, is not best served by equal access to both parents.
  3. The father’s past and current relationship with the child is very important. A Texas family law judge is highly unlikely to grant equal child custody to a father who does not currently have an active relationship with the child. Similarly, a father who has not regularly exercised his visitation rights in the past is unlikely to succeed with a request to increase visitation or shared custody.
  4. Family law judges are prohibited from showing a bias against the father in custody determinations. However, family law judges are reluctant to interfere with a child’s existing relationship with his or her mother if that relationship is stable and does not put the child in actual physical, emotional, or developmental danger.
  5. Custody battles are expensive and exhausting. Whenever possible, work out your custody and visitation agreements with your child’s mother without getting embroiled in a full-fledged custody dispute. If you can agree by having conversations directly with one another – great. If you can communicate in writing to come up with an agreement – great. If you can work with a neutral third party like a family law mediator – great. All of these options are better, in almost all cases, than asking a judge to decide who should have custody and what the visitation plan should look like.

The Texas Young Lawyers Association publishes a pamphlet called Kids in the Crossfire: Helping Parents Understand the Impact of Divorce.” It offers suggestions for how separated or divorced parents can work together for the benefit of the children they share.

Contact Kevin Buchanan for Answers to Questions About Fathers’ Custody Rights

Attorney Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about fathers’ child custody rights, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

Getting a Divorce When You Own a Business Together

If you are thinking about getting a divorce, concerns about your financial future will doubtlessly run very high. Worries about money and the children are the top two contributors to sleepless nights for divorcing spouses.

If you own a business with your spouse, and especially if you rely totally or partially on the business income to support you, the thought of divorce may be especially troubling.

There is no way to sugarcoat the truth: spouses who own a business together will almost certainly find the divorce process more complicated and more emotionally exhausting than spouses who do not. This does not mean, however, that you should stay in a marriage solely because you don’t know what to do about the business you own with your spouse. You have options besides walking away or continuing to work alongside a spouse you no longer want in your life.

Here are things you should know if you are thinking about divorce and worried about a joint business.

  • Who owns the business? Texas is a community property state. This means that assets acquired or improved during the marriage are to be shared equally between the spouses in a divorce. So, even if your spouse started the business before you married, you may still have a legal right to some percentage of ownership based on contributions you made to the business’s operation during the marriage.
  • A buyout doesn’t necessarily require cash. If you want to sell your ownership, or if you want your spouse to sell his or her ownership, you may be able to trade other assets rather than having to come up with cash.
  • Take care of the business during the divorce process. Just as a divorce court judge can issue a temporary order for the care and support of children while a divorce is pending, a judge may also be able to issue a temporary order regarding the operation of your jointly owned business. This may be important to prevent the other spouse from wasting assets or sabotaging the business. It may also be a good idea if you cannot agree on basic operation decisions – the judge may order you to hire a receiver, who can act as a temporary manager.
  • Maybe you can work together. It is uncommon, but not unheard of, for spouses to realize that they can maintain a working relationship but not a personal one. If your honest self-evaluation tells you that you can manage a continuing business relationship with your ex, by all means – consider it. A recent article in The New York Times describes one such couple’s adventures in business ownership both during and after their marriage.

Contact Kevin Buchanan for Answers to Questions About Division of Assets During Divorce

Attorney Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about your rights with regard to a jointly owned business, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

My Name is on my Spouse’s Credit Card but I Never Used It

When it becomes time to divide assets and debts in a Texas divorce, many divorcing spouses are in for a bit of a shock. Generally speaking, debts – like assets – are community property in Texas. This means that debts acquired during the marriage are the legal responsibility of both spouses, no matter who actually incurred the debt.

If your name is on a credit card (as a secondary cardholder, for example), a judge can order you to be responsible for repaying half the balance on the credit card, even if you never used it yourself. Part of the reason is that Texas family law assumes that debt incurred during the court of the marriage benefited the marriage. For example, you may never have used the card yourself, but your spouse may have used the card to purchase airline tickets for a family vacation, materials for a home improvement project, or groceries. Thus, even though you personally never used the credit card with your name on it, your husband used the credit card account to buy things that benefited you both. Thus, a family court judge will be likely to assign you the responsibility of paying off half the debt.

The converse may also be true. If your divorce attorney can prove that every purchase made with the credit card was for your spouse’s benefit alone, then your divorce lawyer may be able to persuade the judge that your spouse should be solely responsible for repaying the debt. Examples of purchases made for the sole benefit of your spouse might include a solo vacation, repairs to a house your spouse owned before the marriage, purchases to further an extramarital affair, and so forth.

This is why your divorce lawyer asks so many questions about your household finances, assets, and debts. These details can become extremely important, especially if you accumulated a lot of debt during the marriage.

The Office of the Attorney General of Texas publishes lots of information about credit card debt, debt counseling, and identity protection on its website, at: https://www.oag.state.tx.us/consumer/credit_cards.shtml.

Contact Attorney Kevin Buchanan for Answers to Questions About Credit Card Debt in a Divorce

Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. Mr. Buchanan places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about credit card debt in a divorce, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

Recent Recalls and Warnings About Dangerous Medical Devices

GE Healthcare, Giraffe OmniBed and Giraffe Incubator. On January 8, 2013, GE Healthcare notified customers of a serious defect in these two products for newborn babies. It was discovered that each device could randomly overwrite stored data about the newborn and the alarm function could fail. These defects could result in serious injury to newborns, including hypothermia, hyperthermia, hypoxia (inadequate oxygen) and/or hyperoxia (high blood oxygen). Get more information from the FDA about Giraffe bed and incubator recalls.

LifeScan, Inc., OneTouch Verio IQ Blood Glucose Meter. On March 25, 2013, LifeScan began sending defect notifications to consumers, pharmacies, health care professionals, and distributors. It was learned that the blood glucose meter turns off and returns to set up mode if the glucose value registers above 1023 mg/dL instead of displaying the message “extreme high glucose.” Extreme hyperglycemia can result in serious adverse health consequences, including death. Get more information from the FDA about the OneTouch blood glucose meter recalls.

Vascular Solutions Inc., Guardian II and Guardian II NC Hemostasis Valves, Model Numbers 8210, 8211, 8215, and 8216. On February 28, 2013, Vascular Solutions sent defect notifications regarding these models of hemostatis valves, which are intended to reduce blood loss during surgical procedures involving catheterization. It was discovered that there was a significant risk that the device takes on air during the procedure, which could result in an air embolism in the patient. Air embolisms are a serious adverse medical event, possibly resulting in death. Get more information from the FDA about the Guardian hemostatis valves recall.

These are only a few of the FDA’s announcements about recalls of dangerous medical devices in 2013. Review all medical device recalls on the FDA’s website, or sign up for FDA email alerts to receive notifications when the FDA issues a new recall or updates information about an existing dangerous medical device recall.

Contact Attorney Kevin Buchanan for Answers to Questions About Dangerous Medical Devices

Kevin Buchanan is a Dallas attorney offering personal injury clients skillful and experienced representation, and he places a strong emphasis on fairness, and on treating all his clients with dignity and respect. If you have questions about injuries caused by a dangerous medical device, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

Recent Recalls and Warnings About Dangerous Pharmaceutical Drugs

As of the end of April 2013, the FDA had already announced 17 recalls of dangerous pharmaceutical drugs in 2013. This article summarizes a few of the 2013 dangerous drug recalls. You can review all dangerous drug recalls on the FDA’s website.

Hospira, 0.9% Sodium Chloride Injection

On March 29, 2013, Hospira issued a voluntary recall of one lot of sodium chloride injection after a consumer reported the presence of brass particulate in the container. The sodium chloride injection is packaged in a 1000 mL flexible container, lot number 25-037-JT (the lot number may be followed by a -01 or -90), with an expiration date of January 1, 2015. The recalled lot was distributed nationwide between January 2013 and March 2013. Read more about the Hospira sodium chloride injection recall on the FDA’s website.

Clinical Specialties, Avastin Unit Dose Syringes

On March 18, 2013, Clinical Specialties issued a nationwide recall of these unit dose syringes after receiving five reports of intra-ocular eye infections in patients on whom these syringes were used. The product was administered by a licensed physician in a surgery or physician’s office setting. The syringes were distributed to doctors’ offices in Georgia, Louisiana, South Carolina, and Indiana from December 18, 2012 to present. Read more about the Clinical Specialties Avastin recall on the FDA’s website.

Advance Pharmaceutical, 325 mg Ferrous Sulfate Tablets

On January 17, 2013, Advance Pharmaceutical recalled one lot of 325 mg ferrous sulfate tablets that were found to actually contain Meclizine HCl 25 mg tablets. The ferrous sulfate tablets were packaged in 100-count bottles under the label “Rugby NATURAL IRON SUPPLEMENT Ferrous Sulfate.” Taking Meclizine HCI 25 mg in the dosages recommended on the bottles labeled as ferrous sulfate 325 mg can cause serious health effects in people who drink alcohol or take sedatives, have a pre-existing central nervous system condition, have impaired kidneys or livers, in the elderly, and in nursing and newborn infants whose mothers ingested the drug. The serious side effects include Meclizine toxicity, which may lead to the following potentially life-threatening, serious, adverse events:

  • impaired alertness,
  • confusion,
  • drowsiness,
  • coma,
  • low blood pressure,
  • and respiratory depression.

Read more about Advance Pharmaceutical’s ferrous sulfate recall on the FDA’s website.

Contact Attorney Kevin Buchanan for Answers to Questions About Dangerous or Defective Pharmaceutical Drugs

Kevin Buchanan is a Dallas lawyer offering personal injury clients skillful and experienced representation with a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about serious adverse health effects caused by a dangerous pharmaceutical drug, Mr. Buchanan would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

What Does ‘Rehabilitative Spousal Maintenance’ Mean?

What Does ‘Rehabilitative Spousal Maintenance’ Mean?

Attorneys have a terrible habit of speaking in “legalese” and forgetting that it’s a language our clients frequently do not speak. Often, though, it’s not our fault. The statutes are written using terminology that we, and the family court judges, have to use so that we all know we are talking about the same thing.

“Rehabilitative spousal maintenance” is an excellent example of legalese. Wouldn’t it be easier to say “temporary alimony”? Of course! However, the word “alimony” has traditionally referred only to the payment of support by a husband to a wife. These days a husband can petition for support payments so we use the gender neutral term “spousal maintenance.”

Why do we say “rehabilitative” instead of “temporary”? The Texas state legislators who wrote the law probably wanted to emphasize the purpose of this type of spousal maintenance – that is intended to be used by the recipient to “rehabilitate” herself or himself in terms of education or work experience to be able to support herself or himself financially.

In 2011, Texas rewrote the spousal maintenance laws, making significant changes and making it very clear that Texas prefers rehabilitative spousal maintenance over awards of permanent spousal maintenance. Texas’ rehabilitative spousal maintenance laws include specific requirements. The spouse requesting spousal maintenance must demonstrate that he or she lacks the financial resources (in terms of income or assets) to provide for his or her own “reasonable minimum needs.” The spouse must also demonstrate that one of the following is true:

  1. The requesting spouse is unable to work due to a physical or mental disability;
  2. The marriage lasted more than ten years;
  3. The requesting spouse has primary custody of a joint child who has a physical or mental disability; and/or
  4. The other spouse was convicted of a crime of family violence (or received a deferred adjudication) no more than two years before the divorce was filed.

The Texas spousal maintenance laws also place time limits and amount limits on rehabilitative maintenance. You can read the complete Texas alimony laws on the Texas state government’s Constitutions and Statutes website.

Contact Attorney Kevin Buchanan for Answers to Questions About Spousal Maintenance

Kevin Buchanan is a Dallas lawyer offering family law clients skillful and experienced representation with a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about alimony or spousal maintenance, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.

 

About the Firm

Kevin Buchanan & Associates, P.L.L.C., are a Dallas based civil litigation firm that handles a variety of cases, including personal injury, product liability, and business disputes in many jurisdictions throughout the United States.


Our firm recently negotiated a $1.25 million dollar settlement for the family of a man who died as a result of a head-on collision with a wrong-way driver.

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