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Thomas James Daley
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Thomas Daley’s Answers

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  • Is a reduced income due to enrolling into a PhD program a legal reason to reduce child support accordingly?

    I want to go back to school full-time in order to get my PhD. This is something that was put on hold while my ex-husband got his PhD and then asked me to continue work so that he could prepared to go to medical school. I am non-custodial parent. T...

    Thomas’s Answer

    Voluntary under- or unemployment is normally not a valid basis to modify child support. I understand your "investment" argument. Courts tend to be simplistic in their analysis and, for example, see the children's needs as a constant, rather than something that varies with your employment decisions. For those reasons, your clearest path to success would be to either (a) take out debt to cover the child support while you are in the PhD program (again, you'll make enough additional income when you're out that you can pay off the debt); or (b) get the other parent to enter into an AGREED order modifying your child support until you are out of the PhD program.

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  • TX Divorce - Debt

    My soon to be ex-husband and I figured out our debt and don't want to take this to the court. We don't even have a joint account. We both each have our own debt, credit card, student loan, etc. Does the court pull credit and split the debt? How...

    Thomas’s Answer

    Yes, you can make an agreement and the court will honor it. A good way to make sure this is done correctly is to find an attorney who will offer what we call unbundled legal services for you. In that case, the attorney drafts the paperwork for you and makes sure that it will be acceptable to the court. The attorneys who do this usually charge a flat fee. Since it's just document drafting, any family law attorney in Texas can do the work for you. Good luck!!

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  • In light of the current situation, is the guy under any legal or moral obligation to allow random access to his home?

    Guy has a house prior to marriage and pays for its mortgage and utilities himself. The couple has never lived together in that house or at all. Guy still lives in the house, while the wife remained living in another house with her parents. A div...

    Thomas’s Answer

    The guy's house is his separate property. Wife has a place to stay, so she's not homeless. Do not provide a key to the house or access to the house.

    If community funds were used to improve the value of the guy's house or pay down debt secured by liens on the house (e.g. a mortgage), then wife will have a reimbursement claim in the final property settlement, but no right to the actual property itself.

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  • My husband got deported 3 yrs ago I haven't spoke to him and we have 4 children. We got married in Chicago. Need to get divorced

    Trying to divorce my husband he got deported

    Thomas’s Answer

    Here's what you need to do:

    1. Assuming you've been living in Texas for the past 6 months and in your current county for at least 90 days, file for divorce.
    2. Draft and file an affidavit that satisfies Rules 106, 109, and 109a of the Texas Rules of Civil Procedure.
    3. File a motion for alternative service or service by publication and posting. Consider a 109 motion to serve by Facebook is you can locate his profile.
    4. Serve your husband with the paperwork. This will probably be done through the legal fictions of Rule 109 or 109a.
    5. Draft an inventory and appraisement.
    6. Draft a final decree of divorce.
    7. Prove up your divorce, offering your I&A as an exhibit in order to protect your prove up.

    At that point, you're done!

    These are complicated steps that will require that you have an attorney help you along. But you can get this done.

    Good luck!!

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  • Can I have our custody agreement modified so that the children live with him?

    Been divorced since August 2013. We are joint managing conservators, and the children live with me. He has standard visitation. I cannot provide my four children with a stable home. I just can't make enough money.

    Thomas’s Answer

    Based on your response to Mr. Baker: Is he paying child support? Is it based on his current income? Maybe you could get more child support. You can always file a motion to modify the parent-child relationship and tell the judge you just can't support the children and let the judge figure out what to do--that's what we pay them to do. Just know that if the judge orders the children go to their father, the judge will order you to pay child support to the father. It's probably A LOT LESS than what you are paying to support them now--you'd probably be money ahead, but you would have to pay something.

    Good luck!!

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  • How do I complete a divorce without her involved?

    I have been living separate from my wife for 8 years now. We have no joint property and there is already a child support order. I filed for a divorce and the only thing missing was the paperwork she was supposed to sign and return. She dragged her...

    Thomas’s Answer

    You have three paths through this:

    (1) AGREED: If she will agree to the divorce, you can file a petition, she can sign a waiver of service (which needs to be filed with the district clerk), and then you can both sign an agreed divorce decree.

    (2) NOT AGREED - YOU KNOW WHERE SHE LIVES: If you know where she lives, then file your petition. After your petition has been on file 40 days, request citation and have her served. After she is served, draft a divorce decree. If she does not file an answer, then on the 61st day AFTER THE DATE YOU ORIGINALLY FILED, take your decree to the judge, get it signed, and you'll be done. If she does file an answer, then set the case for trial, make sure she gets 45 days' written notice AND THAT YOU CAN PROVE SHE GOT NOTICE, and then hash it out in front of the judge.

    (3) NOT AGREED - YOU DON'T KNOW WHERE SHE LIVES - File a petition along with a either a TRCP 106 affidavit or a TRCP 109 affidavit. Have her served as per rule 106 or 109/109a. After she has been "served" in that manner, on the 61st day after you filed your petition, take your decree to the judge and get it signed.

    Good luck!!

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  • How much does it cost and can I get an annulment

    I marry someone I've been with for a while we were married less than a month when we separated I found out he was on drugs and lied about some things in his past as well as was doing illegal activity through my bank account

    Thomas’s Answer

    Under the family code, there really isn't much of a difference between an annulment and a divorce. One of the main differences is that with annulment, you have to prove WHY you want to end the marriage. With divorce, all you have to say is that "I want a divorce" and that's good enough.

    If you found out about all his problems AFTER you separated, you probably don't have a basis for annulment. But you always have the basis for a quick divorce.

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  • What legal documentation can i get that we both sign that says he is giving me equity / property at the close of the house.

    Unmarried couple, breaking up and selling house, splitting the equity. I am not on the loan, nor the deed. This is a good faith offer on his part and we both want a legal document that states he is giving me partial equity and property within th...

    Thomas’s Answer

    The cleanest thing would be a lien in favor of you for the amount he agreed to pay you. Whether a lien is valid or not is in the eyes of the title company. If you know the title company that will be closing the sale, then you can ask them what instrument you can file against the property so that they will pay you out of the proceeds of the sale.

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  • What are some examples of 'fraud on the community estate' and '..survive the death of Respondent and become the obligations...'

    Information from Temporary Orders documents: 'Fraud on the community estate' and 'Petitioner request that the payments for the support of the children survive the death of Respondent and become the obligations of the respondent's estate....'

    Thomas’s Answer

    You have to distinguish between MOTIONS and ORDERS. It sounds like you are quoting from a motion for temporary orders or perhaps a notice of hearing. From the text you quoted, it sounds like you are being accused of seriously misusing community assets (Fraud on the community estate) and it sounds like your spouse wants you to pay child support, even after you're dead (that's a very common request).

    I don't know anything about the facts in your case, but your spouse is bringing some serious allegations. Don't try to represent yourself because your spouse is coming at you hard. You need someone to defend you and maybe take the fight back to the other side.

    Good luck!!

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  • Does a new trial agreement negate the original MSA?

    X and I have an MSA in place. After final hearing (simple prove up) I discovered I was pregnant (not Xs) and X asked for new trial and temporary orders. Judge said he would grant a new trial to include my baby, so we agreed to new trial only on cu...

    Thomas’s Answer

    I think the issue is that the judge can't grant judgment if you are pregnant. The MSA still stands, but the final order can't be entered until your "husband" is excluded as the father of the child. You can do prenatal genetic testing, but I think that presents risks to the baby.

    If the judge did grant a motion for new trial, then you are exactly where you were 5 seconds before the judge signed your final decree. So you still have a valid MSA. Your prior temporary orders should still control until the baby is born. Once the baby is born and your "husband" can be eliminated as the genetic father AND the genetic father signs an acknowledgment of paternity, the court should re-sign the decree that was already signed.

    Again, any attorney advising you needs to see the order granting new trial.

    Good luck.

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