• Adopting through CPS (Child Protective Services): This involves adopting children who are in the foster care system. CPS typically handles most of the legal steps, but you can also hire your own attorney to assist in the process. Sometimes, financial assistance is available to cover legal costs.
• Private Adoption: This occurs when a child is placed with adoptive parents outside of the CPS system. Private adoptions include:
  • Step-parent adoption: One biological parent remains in the picture, and the other parent’s rights are terminated.
  • Independent adoption: Both biological parents’ rights are terminated, and the adoptive parents are not related to the child.

2. What Legal Steps Are Involved in Adoption?
The legal process for adoption includes:

• Health, Social, Education, and Genetic History Report: This report provides adoptive parents with essential background information on the birth parents and any health concerns that may affect the child.
• ICPC (Interstate Compact on the Placement of Children): If you’re adopting a child from another state, this compact ensures that the legal transfer of the child between states is handled correctly.
• Adoption Study/Home Evaluation: This pre-and post-placement evaluation ensures that your home environment is safe and suitable for the child. The child must live with you for at least six months before the adoption is finalized.
• Criminal Background Check: A criminal history check is required for both adoptive parents, and it must be less than a year old.

3. How Much Does Adoption Cost?
The cost of adoption in Texas varies depending on whether you’re adopting through CPS or privately. Some expenses to consider include:

• Attorney Fees: You will need to pay for both your attorney and the court-appointed attorney for the child.
• Home Study Fees: The adoption study or home evaluation is another cost to account for.
• Medical and Counseling Fees: If adopting privately, you may be responsible for the birth mother’s medical and counseling expenses. However, paying for other types of expenses, such as living costs, may be illegal and can affect the adoption.

4. How Long Does the Adoption Process Take?
The timeline for adoption depends on several factors, including:

• Completion of background checks
• Home study evaluations
• Final court approval

On average, the process can take anywhere from several months to over a year. Each case is unique, so it’s important to remain patient and consult with an attorney who can guide you through the process.
5. Can I Adopt a Child from Another State?
Yes, you can adopt a child from another state. However, you must comply with the ICPC (Interstate Compact on the Placement of Children) to legally transport the child across state lines. Failure to follow the proper legal process can result in severe consequences, including federal charges.
6. What Happens in Court During the Adoption Finalization?
Once all legal steps have been completed, the adoption goes before a judge for final approval. If everything is in order, the judge will finalize the adoption, and you will receive a new birth certificate listing the adoptive parents as the child’s legal parents.
7. Do Children Need to Consent to Their Adoption?
In Texas, children aged 12 or older must give their consent to the adoption. During the court hearing, the child may be asked to speak with the judge about their feelings regarding the adoption.
8. Can I Pay for a Birth Mother’s Expenses?
When adopting privately, you may be responsible for certain costs, but it’s important to know what’s legally allowed. You can typically cover:

• Medical expenses
• Counseling fees
• Legal fees

However, paying for other expenses, such as rent or utilities, could lead to legal complications. Always consult with your attorney to ensure you’re following the law.
9. How Do I Start the Adoption Process?
Starting the adoption process requires you to:

• Contact an experienced adoption attorney
• Complete the necessary paperwork
• Undergo a home study
• Ensure all legal requirements are met

10. What Is National Adoption Day?
National Adoption Day is celebrated every November to honor families that finalize their adoptions, especially those adopting through CPS. It’s a joyful event where many adoptions are finalized on the same day, bringing families together in a festive atmosphere.
Adoption is a life-changing event that gives a child a permanent, loving home. While the process may be complex, understanding the steps and legal requirements will help you feel more prepared. Whether you’re adopting through CPS or privately, having a knowledgeable attorney by your side can make all the difference.
At Boswell Law Firm, we’re passionate about helping families navigate the adoption process. We offer consultations to answer your questions and guide you through the steps of adoption. Contact us at 832-919-6595 or visit our website at boswelltexaslaw.com to learn more.

The post Adoption appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

What Is Probate?
Probate is the legal process of validating a deceased person’s will. It’s an essential step to ensure that the distribution of assets is carried out according to the decedent’s wishes, or in the absence of a will, based on Texas law. The probate process also involves resolving debts, taxes, and any legal matters related to the estate.
In short, probate is how a court oversees the handling of a deceased person’s estate.

What Happens During the Probate Process?
The probate process has several key stages. Here’s what you can generally expect:

1. Validating the Will: If the person left behind a will, the first step is for the court to confirm that it meets the legal requirements for validity. This means the will was properly signed, witnessed, and executed.
2. Appointing the Executor: The executor is responsible for carrying out the terms of the will. The court will officially recognize the named executor and issue "letters testamentary," which give them legal authority to manage the estate.
3. Notifying Creditors and Beneficiaries: The executor must inform all creditors about the death and notify the beneficiaries listed in the will.
4. Collecting Assets: The executor is responsible for identifying and securing all assets that are part of the probate estate. This includes real estate, personal property, bank accounts, and any other assets that are not automatically transferred to a beneficiary.
5. Paying Debts and Taxes: Before the estate can be distributed to the beneficiaries, the executor must settle any outstanding debts and taxes, including final income taxes or estate taxes if applicable.
6. Distributing the Estate: After debts are settled, the remaining assets can be distributed to the beneficiaries according to the terms of the will, or if no will exists, based on Texas intestacy laws.

What If There’s No Will?
If the deceased person did not leave a will, the probate process becomes more complicated. The court must determine the legal heirs of the estate, which could involve extensive legal procedures. Texas has specific rules for distributing assets in the absence of a will, but this process often requires additional steps to identify who is entitled to inherit.

What Assets Are Included in Probate?
Not all assets go through probate. Some pass directly to beneficiaries, bypassing the court process. These are called non-probate assets and typically include:

• Life Insurance Policies: If a beneficiary is named.
• Retirement Accounts: Such as 401(k) plans or IRAs with a designated beneficiary.
• Joint Accounts: Bank accounts with a "right of survivorship."
• Transfer-on-Death (TOD) or Pay-on-Death (POD) Designations: Common for certain financial accounts.

Only assets that don’t have a named beneficiary or joint owner will go through probate, such as personal property, real estate, or bank accounts solely in the deceased’s name.

Do You Need an Attorney for Probate?
Yes, in most cases, you’ll need an attorney to navigate the probate process. In Texas, if there are multiple beneficiaries or heirs, representing their interests without legal assistance is considered practicing law without a license. Even if you are the sole heir, some courts may require you to have legal representation.
An experienced probate attorney can help guide you through the complex steps, ensuring you meet deadlines, file necessary paperwork, and properly handle the estate’s distribution.

Can I Contest a Will?
Yes, you can contest a will, but Texas law sets specific time limits. You have two years from the date that the letters testamentary are issued to challenge a will. Contesting a will typically involves hiring an attorney who specializes in probate litigation, especially if you believe the will is fraudulent or incorrectly reflects the decedent’s wishes.

What Happens If the Executor Doesn’t Act?
If the executor fails to present the will within 30 days of the death, a beneficiary or interested party can take legal action. They can file a show cause order, requiring the executor to explain why the will hasn’t been submitted. In rare cases, this could result in the executor being held in contempt of court or even facing jail time.

How Long Does Probate Take?
In Texas, the probate process can take several months to over a year, depending on the complexity of the estate. While an estate administration typically closes by law after four years, disputes or delays in asset management can extend this timeline.

Probate is a necessary process to ensure the legal and orderly distribution of a deceased person’s estate. While it can seem daunting, understanding the basics can help alleviate stress. Hiring an attorney to assist with probate in Texas is highly recommended, as they can help streamline the process, avoid mistakes, and handle legal challenges.
If you have any questions about probate, need help contesting a will, or are unsure about your responsibilities as an executor, it’s essential to consult with a knowledgeable probate attorney. With the right guidance, you can navigate the probate process efficiently and with confidence.

The post What is probate? appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

How does the court decide who gets custody?
In child custody cases, courts generally decide between two types of conservatorships:

• Joint managing conservatorship: Both parents share the responsibility of making key decisions for the child, such as education, medical care, and where the child lives.
• Sole managing conservatorship: One parent is given the primary right to make these important decisions. The other parent, known as the "possessory conservator," has the right to visitation at designated times but does not make decisions about the child’s upbringing.

The court always aims to act in the best interest of the child. If both parents can cooperate, joint conservatorship is often the default. However, if one parent is deemed unfit or unable to make decisions, the court may grant sole managing conservatorship to the more capable parent.

What are the key factors courts consider in child custody cases?
One of the most significant cases guiding custody decisions is Holly v. Adams (1976), which outlined various factors courts should consider, including:

1. Physical and emotional needs: Which parent is better equipped to care for the child’s emotional and physical well-being?
2. Home stability: Courts look for consistency in the child’s living environment, favoring stable homes where the child’s routine won’t be disrupted.
3. Parenting skills: Which parent demonstrates the ability to provide a structured, nurturing, and safe environment?
4. Cooperation between parents: Courts prefer parents who can work together to co-parent effectively.
5. Primary caregiver: Courts may look at who handled most caregiving duties before the separation (e.g., feeding, bathing, doctor visits).

Can a child choose which parent they want to live with?
For older children, courts may consider the child’s preferences regarding which parent they wish to live with. However, the child’s wishes alone would do not determine custody. The court evaluates whether the child’s choice aligns with their overall best interests, considering factors like the parent’s ability to provide emotional support, stability, and a safe environment.
For younger children, the court may appoint attorney ad litem or a custody evaluator to assess the child’s needs and represent their best interests in court.

Can the court consider false allegations of abuse in custody decisions?
Yes, if one parent falsely accuses the other of child abuse, the court may view this as an attempt to manipulate the custody case. This can backfire and result in the other parent being granted primary custody.

What behaviors or conditions will disqualify a parent from custody?
The court will examine the following conditions when determining parental fitness:

• Substance abuse: Drug or alcohol abuse can seriously harm a parent’s custody case.
• Physical or emotional abuse: Any evidence of abuse toward the child or another party will negatively impact the parent’s chance of winning custody.
• Unstable living environment: Frequent moves or an unstable home situation can result in the court favouring the more stable parent.
• Deviant sexual behaviour: Any inappropriate sexual conduct that may endanger the child is a serious red flag for the court.

What doesn’t the court consider in custody decisions?
Certain factors are prohibited by law from influencing custody decisions:

• Gender: Courts can’t favour one parent based on their gender. Mothers do not automatically win custody just for being the mother.
• Marital status: Whether the parents are married does not impact custody.
• Religion: Courts cannot favor one religion over another unless there’s proof that a parent’s religious practices harm the child.
• Immigration status: Courts won’t consider immigration status unless it negatively affects the parent’s ability to care for the child.

Child custody cases are complex, and every situation is unique. The courts use a broad range of factors to determine what’s in the best interest of the child. If you’re facing a custody battle, it’s crucial to understand the criteria the court will consider, and it’s always advisable to consult with an attorney to ensure your rights are protected.

If you have questions about your custody case, feel free to contact us for a consultation. You can reach us at 832-919-6595 or email us at Duana@boswelltexaslaw.com. Our team is here to help you navigate your legal rights and prepare for your case.

The post Child Custody appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

• Without a court order: If CPS does not have a court order, you are not required to let them into your home. You have the right to ask them to obtain one if they want to enter. However, they can later return with a court order, so it’s essential to consult an attorney immediately for guidance.
• With a court order: If CPS believes your child is in immediate danger, they may have obtained a court order to remove the child from the home. In such cases, they will be required to present you with this documentation upon arrival. A police officer may accompany them to maintain peace.

What Should I Do If CPS Asks Me to Sign a Family Safety Plan?
CPS often asks parents to sign a Family Safety Plan during an investigation. While this may seem like a simple formality, signing this document can have significant legal consequences.

• Is a Family Safety Plan a court order?
  No, the Family Safety Plan is not a court order. It is an agreement between you and CPS that outlines steps you must take to address their concerns. However, signing it could be seen as an admission of guilt or agreement to the allegations.
• Can I refuse to sign a Family Safety Plan?
  Yes, you have the right to refuse to sign the plan until you have had a chance to consult with an attorney. It’s crucial to get legal advice before signing any documents related to a CPS investigation to avoid unintentionally giving up your rights.

What Are My Rights if CPS Removes My Children?
If CPS removes your children, they typically have 12 months to either return your children or seek termination of your parental rights. This period can be extended to 18 months in some cases.

• What services does CPS offer to parents?
  During this time, CPS may offer services like counseling, drug testing, and parenting classes to help resolve the issues that led to the removal. Completing these services is essential to reunite with your children.
• Where will my children be placed?
  CPS prefers to place children with family members or close friends (known as kinship placements) rather than foster care. They will ask for your input on potential caretakers. A quick investigation, including background checks and drug tests, will be conducted before placement.

How Long Does a CPS Investigation Last?
Typically, a CPS case is resolved within 12 to 18 months, but due to COVID-19, many cases are taking longer to conclude. The pandemic has also led to an increase in reports of abuse and neglect, as families face higher stress levels due to financial pressures, job loss, and being home together more often.
What Should I Do If CPS Asks for a Drug Test?
If CPS asks you to take a drug test, they may do so as part of their investigation. Refusing to take the test could result in CPS taking further action, such as requesting a court order for compliance. It’s vital to consult with your attorney before agreeing to any testing to ensure that you understand your rights and any potential consequences.
Can CPS Remove My Child Without Proof of Abuse?
In extreme cases, CPS can obtain an emergency court order to remove your child from your home if they believe the child is in immediate danger. However, they cannot permanently remove a child without presenting evidence of abuse or neglect to the court.
What Should I Do If I’m Involved in a Custody Battle?
If you are involved in a custody dispute, be very cautious about reporting concerns to CPS unless you have solid evidence of abuse or neglect. False or unfounded reports made during a custody battle can backfire and result in negative consequences for you in court. Always investigate claims thoroughly before contacting CPS.
What Are My Options If I Can’t Afford an Attorney?
If CPS is seeking to terminate your parental rights and you cannot afford an attorney, you can request that the court appoint one for you. It is important to have legal representation during these proceedings to protect your parental rights.
What Should I Do If CPS Asks Me to Sign a Safety Plan During a Custody Dispute?
During a custody battle, signing a Family Safety Plan without legal guidance can be risky. It may affect your custody case negatively, as the safety plan may be interpreted as admitting fault. Always consult with an attorney before agreeing to any CPS documents or plans.
What Are Your Rights When Dealing With CPS?
When CPS comes knocking, it’s crucial to understand your rights. You don’t have to let them into your home without a court order, and you should never sign a Family Safety Plan without legal counsel. CPS investigations are serious, and taking the right steps early can protect your family from potential long-term consequences.
If you are facing a CPS investigation or need legal advice regarding your parental rights, Boswell Law is here to help. We help you understand your situation and provide the guidance you need. Contact us today at 832-919-6595 or visit boswelltexaslaw.com for more information.

The post Can CPS Take My Kids? appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

What Should I Do if It’s Unsafe to Complete a Custody Exchange During a Hurricane?

If it’s dangerous to travel due to severe weather conditions like a hurricane, your child’s safety should come first. Courts expect parents to use reasonable judgment, and they do not want you to put your child at risk just to stick to the original custody exchange schedule.

If you believe it’s unsafe to complete the exchange, communicate with the other parent as soon as possible. Explain the situation and suggest rescheduling or finding an alternative arrangement. Make sure to document your communications, whether through text or email, to avoid any misunderstandings later on.

Can I Reschedule Missed Visitation Due to a Natural Disaster?

Yes, rescheduling missed visitation is typically encouraged during emergencies. If a hurricane or natural disaster prevents a scheduled visit, work with the other parent to agree on a new date. For example, if visitation was planned for a weekend that falls during a hurricane, you can agree to make up the time on the next available weekend.

Make sure any changes to the schedule are put in writing to ensure that both parents are on the same page. Courts are generally supportive of efforts to make up lost time, as long as both parents cooperate.

Should I Modify My Custody Order to Include Disaster Plans?

If you live in an area prone to hurricanes or other natural disasters, it’s a good idea to modify your custody order to include provisions for emergencies. Disaster plans can help clarify how custody exchanges will be handled in unsafe conditions, where the child should stay during an evacuation, and how parents will communicate during the emergency.

By including disaster-specific instructions in your custody order, you reduce the potential for disputes and confusion when emergencies arise. Speak with your attorney about drafting these provisions to ensure they meet your family’s needs and the court’s standards.

What Are My Legal Options if the Other Parent Is Endangering My Child During a Disaster?

If you believe the other parent is putting your child in danger during a natural disaster, you may need to seek an emergency custody order. For example, if one parent refuses to evacuate with the child in the face of a serious storm, the other parent can file for emergency custody to ensure the child’s safety.

Emergency hearings are typically fast-tracked, and the court can issue temporary custody orders to protect the child until the situation is resolved. Always consult with your attorney as soon as possible if you believe emergency action is necessary.

What Happens If I Violate a Custody Order During a Hurricane?

While your child’s safety should be your priority, it’s essential to avoid violating a court-ordered custody agreement unless it’s absolutely necessary and you have a clear, documented reason. Unilaterally withholding the child without informing the other parent or seeking legal guidance could lead to serious legal consequences.

In Texas, for example, parents can file enforcement actions if they believe the other parent is violating a custody order. Violations can result in fines, contempt of court, or even jail time. Texas law also includes criminal penalties for interference with child custody under Section 25.03 of the Penal Code, which could apply if you violate the order during a natural disaster.

Always aim for open communication with the other parent, and document any changes to the custody schedule to avoid legal complications.

How Can I Ensure My Child’s Well-Being During a Hurricane?

During a hurricane or natural disaster, both parents need to work together to ensure the child’s well-being. Here are a few things to keep in mind:

• Communicate Frequently: Stay in touch with the other parent about your child’s location, safety, and any updates on the situation.
• Create a Safe Evacuation Plan: If possible, agree on an evacuation plan in advance, so both parents know where the child will be if an emergency occurs.
• Stay Calm for Your Child: Children can feel anxious during disasters, so maintaining a calm and cooperative approach with the other parent will help your child feel secure.

Remember, the child’s safety and emotional well-being are the top priority during these stressful times.
Managing child custody and visitation during hurricanes and other natural disasters can be complicated, but it’s important to prioritize safety, communicate openly, and, when necessary, modify custody agreements to fit the situation.
If you’re unsure about how to handle your custody arrangement during a disaster or want to modify your custody order to include disaster-specific provisions, reach out to Boswell Law Firm. We help you understand your options and ensure your child’s safety in any situation.
Contact Us: Call 832-919-6595 or visit our website for more information.

The post Child Custody and Visitation During Hurricanes and Natural Disasters appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

1. Your Consent: Your attorney can share information with others if you give explicit permission. For example, if you authorize them to share certain details with a family member to help progress your case.
2. Written Authorization: At firms like Boswell Law, written permission is required before any case information can be shared with anyone other than the client.

The Risks of Breaking Confidentiality
It’s essential to be careful when allowing others to be involved in your legal matters. For instance, if you discuss sensitive information about your case with someone who is not your attorney, that information can be brought up in court, as these individuals are not protected by attorney-client privilege. This means that private details could become accessible to the other side in your case, which could potentially harm your position.
Even if someone else is paying for the attorney’s services, the client is the person listed on the employment agreement. The privilege of confidentiality applies to them alone.
Work Product Protection
In addition to communications, an attorney’s work product—such as evidence charts, trial preparation notes, and other materials created for your case—also enjoys protection. These items are generally not discoverable by the opposing side, keeping your case strategies safe.
Exceptions to Attorney-Client Confidentiality
While attorney-client privilege is strong, there are a few notable exceptions where an attorney may need to disclose information:

1. Preventing a Crime: If your attorney reasonably believes you are about to commit a crime or that someone’s well-being is at risk, they are allowed to disclose information to prevent harm.
2. Mandatory Reporting: Attorneys are required to report cases of suspected child abuse, elder abuse, or any other situation that involves potential harm to a vulnerable person.
3. Protecting Themselves: If a client files a grievance or malpractice claim against an attorney, the attorney can disclose confidential communications to defend themselves.

Medical Information and HIPAA
Many legal cases involve sensitive medical information. Attorneys are bound by HIPAA (Health Insurance Portability and Accountability Act) regulations when handling your medical records. This means they must take extra care when storing and sharing this information, both for you and the opposing party. Releases from clients or court orders are needed before medical records can be shared, and attorneys are responsible for ensuring HIPAA compliance throughout the legal process.
Confidentiality is vital to the trust and success of the attorney-client relationship. As a client, it’s essential to understand how attorney-client privilege works and the potential risks of sharing case details with third parties. Encourage your family and friends to respect these boundaries as well to ensure your case remains as strong as possible.
If you have any concerns about confidentiality or need more information, reach out to your attorney. At Boswell Law, we are always available to answer your questions without any obligation.
Remember, protecting your confidential information helps ensure the best possible outcome for your case.

The post Attorney-Client Confidentiality: What You Need to Know to Protect Your Case appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

Why the Increase in Name Change Requests?
Recently, there’s been a rise in requests for name changes due to Texas’ new enhanced driver’s license requirement. This form of identification requires that your name match exactly across all documents—such as your driver’s license, social security card, and birth certificate. Many individuals are finding that the names they have been using for years on different forms of ID don’t match their birth certificates. As a result, they are required to resolve these inconsistencies before renewing their licenses.
The Legal Process for Changing Your Name
In Texas, the process for legally changing your name is relatively straightforward. Here’s how it works:

1. File a Petition in Court

• You’ll need to file your name change petition in the county where you live. The petition must meet specific requirements, including whether you have a criminal record. While a criminal record (such as a felony or registered sex offender status) doesn’t necessarily prevent a name change, it may involve additional steps.

Submit Fingerprints

• After filing your petition, you’ll need to get fingerprinted. Texas uses an outside company, Safran, for this service. You can find locations throughout Texas by visiting the DPS website or Googling “DPS fingerprint locations.”

Notarize Your Petition

• Your petition must be sworn, meaning it needs to be signed in front of a notary or under a sworn declaration.

Pay Filing Fees

• Filing fees vary by county but generally start around $200. If you can’t afford the fees, you can file a “Statement of Inability to Afford Court Costs.” Supporting documents, such as a rejection letter from a legal aid organization, can help speed up the process.

Attending Your Court Hearing
After your petition is filed, a court hearing will be scheduled. At the hearing, you’ll explain the reason for your name change, and in most cases, it will be granted without much hassle.
If you have a criminal record, additional steps may be required, such as attaching a completed sex offender registration update to your petition or showing that you’ve completed your sentence or received a pardon.
After the Name Change: What to Do Next?
Once your name change has been approved by the court, you’ll receive a certified copy of the court order or a name change certificate. This is where the real work begins. You’ll need to update your new name in various places, such as:

• Driver’s License or State ID
  Go to your local DPS office to get a new driver’s license reflecting your new name.
• Social Security Card
  Fill out form SS-5 on the Social Security Administration (SSA) website to update your name on your social security card.
• Banks and Credit Accounts
  Notify your bank and other financial institutions of the name change. Pull a credit report to ensure you’ve contacted all your creditors.
• Taxes
  Make sure your new name is updated with the IRS to avoid tax return delays. Your name on your social security card must match your tax filings.
• Utilities
  Update your name with your gas, electric, water, and phone service providers.
• Medical Providers
  Notify your doctors and health insurance companies about your new name.
• Employers
  Let your employer and HR department know so they can update your records, including tax and retirement documents.
• Legal Documents
  Update your will, power of attorney, and other legal documents to reflect your new name.

How to Handle a Name Change During Divorce
If you’re changing your name due to a divorce, the process is much easier. You can revert to a previous name, such as your maiden name, as part of the final decree of divorce. Simply request the change during your divorce proceedings. The court will ask if the name change is to avoid creditors or criminal prosecution.
Don’t Forget!
Changing your name requires a bit of paperwork, but it’s not overly complex. Just remember to notify all the necessary organizations and update your legal documents. It’s a good idea to make a checklist to ensure that you don’t forget anything.

The post How to Legally Change Your Name in Texas? appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

• Inception of Title: This principle considers when and how the property was acquired. If it was obtained before marriage, it’s typically considered separate property.
• Tracing: If the property has changed form or been mixed with community property, tracing is used to determine its original character.

Types of Separate Property

1. Pre-Marital Property: Assets owned before marriage are considered separate property.
2. Gifts and Inheritances: Property acquired during marriage through a gift or inheritance is also separate property.
3. Property Designated in a Marital Agreement: Spouses can agree, through prenuptial or postnuptial agreements, how certain properties will be treated, allowing them to designate assets as separate or community property.
4. Survivorship Agreements: These agreements allow a spouse to designate that their separate property interest will automatically pass to their spouse upon their death.

How Different Assets Are Treated

• Income: Income earned during the marriage is generally considered community property. However, if income is earned after separation, it is considered separate property.
• Real Property: Real estate acquired before marriage or through a gift/inheritance remains separate property. If you sell separate property and use the proceeds to buy another property, the new property retains the original character.
• Business Interests: The date the business was established determines whether it is separate or community property.
• Debts: Debts are presumed to be community property unless proven otherwise. If a spouse incurs debt using separate property, it may be classified as separate debt.
• Gambling Winnings: Winnings earned during the marriage are community property.
• Tim Cole Compensation: Compensation for wrongful incarceration is considered separate property.
• Interest and Dividends: Interest earned on separate property is considered community property. Stock dividends follow the same rules, with cash dividends treated as community property and stock dividends retaining the original character of the stock.
• Livestock and Horses: Animals owned before marriage are separate property, but their offspring are considered community property.
• Pets: Pets are treated according to when and how they were acquired, following the general rules of property characterization.
• School Degrees and Loans: Degrees and loans are separate property unless otherwise agreed upon.
• Stocks and Investments: Stocks acquired before marriage or through separate funds remain separate. If they grow in value or split, they retain their original character.
• Liquidated Stocks: Funds from the liquidation of separate property stocks remain separate.
• Mergers and Trusts: Stocks received from mergers retain their original character. The corpus of a trust retains its character, while the income from the trust depends on various factors.

Protecting Your Separate Property
To protect your separate property, consider the following:

• Keep Detailed Records: Maintain clear records of your property and how it was acquired.
• Use Separate Accounts: Avoid commingling separate property with community property by keeping separate accounts.
• Consider a Marital Agreement: A prenuptial or postnuptial agreement can help clearly define the characterization of your property.

Understanding the characterization of your assets and debts is essential in navigating the complexities of a divorce. If you have specific questions or need legal advice, reach out to an experienced family law attorney.

The post A Guide for Protecting Assets in Divorce appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

1. Item Tracing: This method is used for non-cash assets. You must show how the property was originally obtained and then trace each change in its form. For example, if you owned a house before marriage, sold it during the marriage, and used the proceeds to buy a car, that car remains separate property, even though it was purchased during the marriage. You need to provide documentation showing the flow of funds from the house sale to the car purchase.
2. Value Tracing for Cash Assets: This method involves tracking cash assets that have been mixed with community property. Several techniques are used in value tracing:

• Clearinghouse Method: You deposit a large sum, like an inheritance, into a community property account and immediately withdraw it to place it in a separate account. The key here is that the deposit and withdrawal amounts must be equal or nearly equal.
• Identical Sum Inference Method: Similar to the clearinghouse method but allows for a small time gap between deposit and withdrawal. The inference is that the funds withdrawn are of the same character as those deposited.
• Minimum Sum Balance Method: This method is used when the balance in an account never drops below the amount of separate property deposited. The assumption is that the separate property remains intact in the account.
• Community Out First Method: In accounts where separate and community funds are mixed, it is presumed that community funds are spent first, leaving the separate property intact.
• Pro Rata Method: This method is used when both separate and community funds are combined in an account. The final balance is divided proportionately based on the original amounts of separate and community funds deposited.

The Importance of Keeping Records
The process of tracing can be time-consuming and requires meticulous record-keeping. The cleaner your records, the easier it will be to prove which assets are your separate property. While we don’t plan for divorce when we marry, keeping clear financial records can protect your assets if the unexpected happens.
Good record-keeping isn’t just important in divorce—it’s also crucial if one spouse faces bankruptcy. Proper tracing can protect the non-filing spouse’s separate property from creditors.
Marital Agreements: A Proactive Approach
One of the most effective ways to safeguard your separate property is through a marital agreement. Whether it’s a prenuptial agreement before marriage or a postnuptial agreement after marriage, these legal documents can clearly define the character of each spouse’s property, reducing the need for tracing in the event of a divorce.
This is especially important if one spouse owns a business. A marital agreement can ensure that the non-business-owning spouse is protected if the business encounters financial difficulties.
While tracing can be complex, understanding the process and keeping detailed financial records can make a significant difference in ensuring that what’s yours stays yours.

The post Protecting Your Assets: Mastering Tracing Techniques in Divorce appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.

• Separate Property: Includes anything you owned before the marriage, as well as anything you received during the marriage as a gift, inheritance, or through a will.
• Community Property: Generally includes anything acquired during the marriage.

The key challenge during a divorce is to prove which property is separate if you wish to protect it from division. Since the law presumes that all property owned at the time of divorce is community property, the burden is on you to prove otherwise.
Proving Separate Property
Proving that certain assets are your separate property can be achieved through a couple of methods:

1. Contractual Agreement: If you and your spouse have agreed, either in a prenuptial or postnuptial agreement, or through an agreement during the marriage, you can establish that certain property is separate.
2. Inception of Title: This method determines the character of property based on when and how the ownership interest was first acquired. For example, if you bought a house before marriage, that house is your separate property.

The Process of Inception of Title
To determine whether property is separate or community, attorneys follow these steps:

1. Determine the Date of Acquisition: Identify when the property was first acquired.
2. Check Marital Status at That Time: Determine if the property was acquired before or during the marriage.
3. Analyze the Manner of Acquisition: Assess how the property was acquired (e.g., through purchase, gift, inheritance).

Special Considerations

• Salary and Earnings: Income is categorized based on when it was earned, not when it was paid. This can affect whether salary earned during separation, but before divorce, is considered community property.
• Bank Accounts: While a bank account may be separate property, any interest earned during the marriage is considered community property.
• Real Property: If you use separate funds to purchase real estate during the marriage, the property may remain separate, but you’ll need to trace the funds to prove it.
• Retirement Accounts: Retirement benefits may be mixed, with portions considered separate and others as community property, depending on when the benefits were earned.

The post How do I keep my property during a divorce? appeared first on BOSWELL LAW FIRM Houston Attorney Duana Boswell.