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Thomas James Daley
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Thomas Daley’s Answers

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  • Divide a house during divorce

    The house was purchased after marriage and both names are on the title. I paid in cash without mortgage. But I have a proof that my parents gifted the money to pay half the house and I paid the other half by my personal CD account money which I sa...

    Thomas’s Answer

    The house is 100% community property. You have a significant reimbursement claim from the community estate to your separate property estate. All this assumes you can bring court-admissible evidence that clearly and convincingly establishes the separate property character of the cash you paid.

    Here's the rationale:

    1. CHARACTER OF HOUSE: In Texas, property is characterized as separate or community (or, lord help us, mixed) at the inception of title. Not at closing. For real property, inception of title is at the moment you, she, and the seller(s) signed an agreed purchase/sale agreement. The moment that agreement was signed, the home became property of your community estate. There's a ton of case law on that issue and it's beyond debate.

    2. REIMBURSEMENT. You have a reimbursement claim against the community estate's equity in the home. As I said above, 100% of the equity in the house belongs to the community estate, but the community estate owes you the amount of separate property money that you put towards the purchase of the home. For example, if the house is now worth $150,000 and you paid $100,000 from your separate funds to purchase the house, then the house equity would be divided thus:

    (AVVO IS GOING TO MAKE THIS FORMAT UGLY)

    Home Value . . . . . . . . . . . . . . . . . $150,000
    Reimbursement to you . . . . . . .
    Equity to be divided . . . . . . . . . . $ 50,000

    Therefore, $125,000 to husband ($100,000 + half of $50,000) and $25,000 to wife (half of $50,000).

    This analysis assumes that there is NO debt payable by commuity assets and that there are no other assets to be divided.

    Good luck!!

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  • Do I need a divorce attorney?

    Boyfriends Ex girlfriend vandalized my truck. Now she's scared saying if I proceed with law inforcments (press charges) she saying she will come after him. They lived With/in parents house more than 4yrs. She's trying to "divorce" him claiming com...

    Thomas’s Answer

    I don't think the fact that comitted insurance fraud together will satisfy the "holding out" element under the Texas Family Code. LOL!! It's probably something else, but it's not a marriage.

    Don't be intimidated by her. Go after her for criminal charges. What could she possibley win in the divorce? How long have they been apart? How long were they "married" according to her?

    She's just a terrorist. She's going to use this "common law" marriage nonsense against him forever. Frankly, the issue needs to be resolved, so you and your boyfriend should welcome her divorce suit. The outcome of that suit will disarm her forever, at least in terms of using that threat as a weapon.

    Sorry about your truck . . .

    Good luck!!

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  • Ex husband asking for more time when he already has standard visitation?

    My attorney is out of town for a week, and Im looking for some piece of mind until we can talk. We have standard visitation orders, and have been divorced since my child was a year old, and she will be 6 in august. Out of nowhere, my ex has filed ...

    Thomas’s Answer

    Sounds like a child support play. I wouldn't worry about it unless there is some ugly fact you've failed to reveal here. When your attorney returns, I think he or she will be able to make you feel calmer.

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  • Do I need to continue paying child support for my son who is earning money?

    My ex wife opened a DBA under my son's name and she is receiving income. I've been doing research and it appears that she has been doing this since he was in elementary school?

    Thomas’s Answer

    Yes. You can't quit paying child supprt until one of the events specified in the child support order occurs or a new court order terminates your obligation to pay.

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  • Sarah was married to an abusive USC 2009 who had her come to USA on F1 and separated in 2010. He was already married till 2014.

    Names changed to protect anonymity: Sarah married a US citizen (Danish) in 2008 (marriage ceremony in Pakistan) who had her apply for an F-1 visa to come to USA. After she came to US, he was very abusive and got separated (not legally) in 2010 as ...

    Thomas’s Answer

    As I understand it, Sarah and Danish never divorced. If that's true, he and she are married under Texas law. Her marriage would have sprung to life the day Danish divorced Celina. To prove this, she'd need to have proof that they were married, presumably there is some documentation or contract from the marriage ceremony in Pakistan that could be used to establish the marriage.

    So on to your questions:

    1. SUE FOR DAMAGES. The first thing you have to be able to explain to the judge is, what are her damages? In Texas, these will have to be specific and economic in nature. There are some other legal theories she could consider, such as quantum meruit, unjust enrichment, etc. but she would need very specific facts to support such claims and a really good attorney.

    2. SEND HIM TO PRISON? One can only be sent to prison through the criminal process. That means the DA has to file suit against him. The DA will file suit if a grand jury indicts him. The grand jury will consider the case only after the police investigate a crime. So the question is: What crime has he comitted that would result in jail time? You've mentioned the crime of family violence and noted that there has been police action (back in 2010). What is the status of that criminal investigation?

    3. WAS IT FRAUD? Concealing the marriage was fraudulent, but, again, she has to answer the question, "So what?" What are her damages? Again, there could be a very good answer to that question, particularly, for example, if she helped him build his business and now has nothing to show for it.

    4. GREED CARD STATUS? I have no idea. I only practice family law. You might want to repost that part of the question under Immigration law.

    The bottom line is that she needs to invest in a consultation with a good family law attorney in her area. Don't be fooled by free consultations. Good attorneys are busy and busy people get paid for their time. But a consultation fee between $250 and $400 is an excellent investment. Worst case, the attorney will ask about 1,000 questions and explain all her rights and remedies to her. Best case, is that in the consultation meeting, they identify some causes of action that could bring her some real benefit. I don't know that there's much for her to gain in this case, but it's worth a consultation to figure it out.

    I'm glad she has good friends like you to help her out.

    Good luck!!

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  • I need a lawyer to help me with child suport jugement

    State of texas

    Thomas’s Answer

    Lawyers on Avvo are not allowed to solicit business, so you're not going to get much in the way of help here. Use the "Find a Lawyer" feature and look for an attorney who has extensive experience collecting and defending child support. Enforcement is very technical, so find someone who only handles family law.

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  • How many times during a summer possession can the custodial parent get his son?

    We sent out the request before the 15 of April for my boyfriends visitation who is the custodial parent in the summer vacation with the child's mom but I was reading a question on here but I am not sure if I understand it but my ? Is how many time...

    Thomas’s Answer

    I think you are asking how many times your boyfriend gets to interrupt his child's mother's summer period of extended summer visitation. If that's the question, then it depends on a number of factors.

    First is whether he has a standard possession order in place in his orders. If not, then we'd have to read the actual order to know the answer to your question.

    If yes, then we'd need to know whether mom lives more or less than 100 miles from dad. If 100 miles or less from dad, then she will have the children for 30 days and dad can interrupt that once. If she lives more than 100 miles from dad, then she will have the children for 42 days and dad can interrupt that twice.

    Note that if the order is completely standard, he has to go pick the child up and return the child during these interruptions. She does NOT have to meet him anywhere.

    There are a number of alternate scenarios such as if she breaks her visitation down into more than one long period, etc. So take this answer for what it is: An explanation of how things work under a plain, vanilla standard possession order.

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  • Can a family attorney help me?

    I currently have an order set that was rendered by the judge during my divorce. I didn't have a lawyer and was at odds in every way. I have never abandoned my child, we have always shared custody, even before the divorce was final. However, becaus...

    Thomas’s Answer

    I'm sorry that you're having to go through this.

    I don't think there's anything that can be done to overturn an order from 5 years ago. However, in Family Court, nothing is ever over . . . at least until the last child turns 18.

    Here are two things for you to consider:

    ENFORCEMENT
    If dad is not allowing you to see your child as much as the final decree says you can, you can file a motion to enforce the possession schedule. Enforcement is a very technical process and if you don't do it exactly correctly, with a good attorney, he can get out of it. For starters you need to be able to list specific dates and times that he failed to let you have your child and be able to prove that you were at the place at the time prescribed in your decree for the exchange of your child. If you can't prove that just yet, your attorney will give you some pointers on how to develop the evidence you need to enforce the possession order.

    MODIFICATION
    An order for conservatorship, possession & access, and support can be modified at any time if you can show that there has been a material and substantial change in circumstances involving the child, you, or the dad AND that the change you want to make is in your child's best interest. This does NOT give you the chance to rehash what went on prior to the divorce. The law loves finality more than it likes justice...so once a set of facts is or should have been before the court, they are done.

    What you'd have to do is show how things have changed since the date the divorce order was signed so that you should have primary conservatorship, more possession time, pay less child support, etc. Again, there are some very technical requirements for making this happen and it's not as obvious to judges as it is to when a change should be made. You'll want to have a family law attorney help you through this. People who represent themselves in modification trials ALWAYS lose. Not because they don't deserve changes, but because they don't know the very subtle, technical rules that have to be followed in court.

    Again, sorry you are paying the price for not being more aggressive during the divorce. Go invest in a consultation with a good family law attorney, law out all your facts, and get some advice that is closely tailored to your exact fact situation.

    Good luck!!

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  • I received a child support letter saying I have to file for child support. I don't want to file, but do I have to?

    Child support sent me a letter saying I have ten days to file to get child support from my daughter's dad. However, her dad and I have worked things out and are moving in together soon. Do I still have to file for child support as the letter stated?

    Thomas’s Answer

    • Selected as best answer

    Not if you move in together. But if you don't file for child support, the State of Texas can file anyway in order to protect the interests of the people of the State of Texas in making sure that children are properly supported by their parents.

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  • Easter visitation?

    Is eater weekend considered an extended holiday weekend?

    Thomas’s Answer

    YES, if the children are out of school on Friday and/or Monday. Otherwise, NO.

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