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Thomas James Daley

Thomas Daley’s Answers

3,038 total

  • What can I do for my family in this landlord/tenant issue.?? we can get sick in this environment specially my 2 1/2 yr old son

    I recently transferred to this apt. complex from a sister community specifically for the location and that I needed a first floor apartment, this was less than a month ago and is a 2BD/2BR we also rent a detached garage! Last Saturday I woke up to...

    Thomas’s Answer

    The manager is probably not authorized to cover the cost of transferring and moving you. However, the manager probably is authorized to abate your rent for a month. So ask for that. Ask for a month of free rent to compensate you for the cost of the move.

    A lawsuit is not going to help you. By the time you file a lawsuit, gather your evidence, go to mediation (which will be required...although your rent contract may require arbitration, which you'll probably lose), and then go to trial...then if you win, can have the money judgment abstracted and collected, you will be 2 years down the road...and you might lose.

    So focus on being cool and negotiating a good deal. If you can't negotiate, maybe hire an attorney to negotiate for you. But a high-pitched word-vomit battle will not serve you well. LOL!! Good luck!!

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  • Texas has MERP. My family & I and my mom live in her home, can I sell her home & use the proceeds to purchase a larger home.

    My mom has Medicare/Medicaid and she has spent some time in a nursing home a few years ago. Her home is small for a family of 6. I was thinking about selling it and buying a larger home for all of us to fit a little more comfortably. She does have...

    Thomas’s Answer

    MERP relates to what actions the state is required to take to recover Medicaid benefits once the recipient of benefits dies. In the federal legislation that requires MERP programs in each state, Congress gave the states the choice of having all of the decedent's assets subject to MERP or only those that pass through probate. Texas chose to have MERP claims only apply to probate assets. That means that if your mother were to execute a Transfer on Death Deed (authorized by the 2015 Texas Legislature) that transferred the home to you upon her death, it would not be subject to a MERP claim. She could also use what we call a Lady Bird Deed, but the new Transfer on Death Deeds are legally simpler and would be equally effective in shielding that asset from a MERP claim.

    Your question about how selling the house would impact her Medicaid eligibility is beyond me. I don't think it's a hard question, I just don't know the answer.

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  • My fiance is currently on 4yrs deferred adjudication for robbery and now has a family violence charge

    My fiance has completed over a year of probation with no violations and is completing all requirements as asked. Recently I filed false charges against him and even though I went in and admitted to my false charges I am comcerned with what the out...

    Thomas’s Answer

    I completely agree with Mr. Baker. Read his response 10X.

    The answer to your question has three parts, only one of which I can answer as a family law attorney. You'd need to attract the attention of a criminal defense lawyer to get the other two answered.

    1. Impact on family law matters. As long as he is not involved in a lawsuit relating to children, the conviction won't have any impact on him. If you two have a child and you sue him for custody, child support, divorce, etc., the family code says that if he has been convicted of a crime that equates to family violence, then it is presumed that he should have no contact with the children.

    2. What kind of sentence might he get? I don't know.

    3. Might this be used by the DA to bust his deferred adjudication and send him to jail? Yes, but I don't know how likely that is. Maybe it's very likely, maybe it is a remote possibility. Contact a good criminal defense attorney.

    I'm in the people business and two things I can tell you are: (1) Your situation is NOT different--he's a thug and you deserve better; and (2) People do not change--he'll always be a thug and bring heartbreak and pain into your life for as long as you know him.

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  • I was divorced from my first wife 1997 she took half of the value of my parents house, there was also a Qudro drawn up

    The Domestic order was issued ans stated the she was to leave approximately 4,000.00 in 401 K in my name I now am retired and try to collect monies due . But her employer Harris Health System is telling she removed that money and there is no money...

    Thomas’s Answer

    You "slept on your rights" as we say sometimes and now, 18 years later, you're having problems. You might try a suit to enforce the terms of the property division, but it's a dice roll. Without seeing your paper work and knowing a lot more about why no QDRO was ever prepared or filed, etc., I can't say whether I think you would prevail.

    If you DID prevail, you'd get your attorney's fees back. If you lost, you'd be on the hook for them. I don't know about attorneys in Houston (yes I do), but I would charge more than $4,000 to try to collect this from her. So if you lose the case, you're out may $9,000 (the $4k from her and $5k for attorney's fees). For those reasons, it would be worth your time and money to go to a good family law attorney in your area (Robert von Dohlen, for example) and bring all your paper work with you to see what he thinks your chances are. The consultation might cost $300 - $500, but that's just the cost of a good diagnosis that might save you $9,000 or win you $4,000+.

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  • Contested divorce process when petitioner is incarcerated and has been for the entire marriage and was not with her before?

    I'm trying to help my brother. He filed a petition for divorce and she filed a general denial answer. He's not requesting anything from her but a divorce. Shes refusing to corporate. Says she doesn't want him to be able to marry anyone else, hes n...

    Thomas’s Answer

    Ms. Laster is exactly correct. If there is no property and no children, then he is absolutely entitled to a status change from married to not-married in Texas. Set the case for trial. You'll need to find out whether the judge will accept testimony by affidavit or by telephone if your brother cannot make it to trial.

    I've never tried this, but if he can't make it to trial and the judge won't allow testimony by affidavit or telephone, then you might try hiring an attorney and then YOU show up for your brother. If you can testify from your own personal knowledge that:

    1. He is presently married to his wife.
    2. At the time he filed for divorce he had been a domiciliary of the State of Texas and a resident of the county he filed in for the preceding 90 days.
    3. He was married on such and such date (were you at the wedding?)
    4. They have now ceased to live together as husband and wife.
    5. The marriage has become insupportable due to discord or conflict of the personalities that destroys the legitimate ends of the marriage relationship (how can you testify to that based on your own personal knowledge? Have you seen them fighting? Arguing? Craze facebook posts between them?)
    6. That there is no hope for reconciliation. (How can you testify to that based on your own personal knowledge? Has he called you in a state of grief-filled excitement and told you that they can't reconcile? Has she told you that in any state of mind?)
    7. They have no kids born or adopted and he has been in prison more than 9 months so wife can't be expecting from him.
    8. No property other than personal effects.

    If you can convince the judge that you have personal knowledge of all that OR if his attorney can elicit that from HER, you may be able to get him divorced.

    This is easier...just now thought of it: Did she file an answer? If not and the answer period has expired, ask the court if they will accept prove-up by affidavit and just default her.

    Good luck!!

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  • I was served in Maryland Court Papers from Texas for Child Custody to respond in 20 days. I couldn't find the forms to respond.

    My son came to my resident in May of this year. His mother and I have no custody rights established. I decide to keep my son. Because his mother is a victim of domestic violence and is still residing with her boyfriend, who is her abuser. She sent...

    Thomas’s Answer

    You must hire a Texas attorney ASAP. You don't want to file an answer. You want to challenge the jurisdiction and make an "inconvenient forum" argument. Those are complicated and must be done perfectly for you to have a prayer of being successful.

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  • Will this hurt him in court for his child?

    I can't do much. So people have been telling me to document everything that happens between my husband, their child and the child's mom. Like when they talk on the phone, when he sees his son etc. So she bashes my husband on Facebook like he's a d...

    Thomas’s Answer

    Words are the source of almost all misunderstanding. The more you use the more misunderstandings there are. Then posting those words on Facebook (or any social media site) only magnifies the problems.

    Two facts: First, no one cares one way or the other. The Facebook friends are probably tired of the back and forth. They just want to post pictures of their food, kids, and vacations and watch cat videos. Therefore you are not winning any hearts or minds with Facebook posts.

    Second, there are no words from you that will change reality. If she wants to bash him, she's going to do that. If her friends want to believe it, they will.

    So just leave it alone. Whether what you posted will hurt him depends on exactly what you posted. I would expect an eye-roll from the judge on that. He might consider using HER FB posts to show that she is not willing to work toward providing their child with a good relationship with both parents. That can be a factor in deciding custody. But if he's got a girlfriend who is posting the same kind of stuff, then it looks like NEITHER parent is capable of nurturing a mutual relationship for the child and that probably hurts his ability to seek primary conservatorship, if he actually wanted it.

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  • I live in Texas, how will the property be divided in the divorce?

    I found out my husband was cheating on me after 5 years of marriage and have proof. I just wanna know how our property will be divided in the divorce? He is the bread winner in the relationship, by the way. We do not have children, thankfully.

    Thomas’s Answer

    Depending on the judge, the cheating won't matter a tremendous amount in the division of assets. Most judges that I practice in front of start with a 50:50 division and then move the needle back and forth a little based on a number of factors such as infidelity, transmission of disease, ability of the spouse to provide for his or her own needs, etc.

    After a 5 year marriage, I would be surprised if there is much accumulation of community property. The only property that the court can divide is property that was acquired during the marriage, excluding gifts and inheritance. For those reasons, there may not be much to divide anyway.

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  • Married 18 years 3 kids. Husband wants divorce. Can i get alimony even if we have joint custody?

    Husband works days, i work overnight. I will take kids to and from school to my house. He picks them up after work and they sleep over at his house. We will alternate weekends. He is filing no fault. Can i receive alimony after 18 yrs of marriage ...

    Thomas’s Answer

    We don't really have alimony in Texas. We have it's poor cousin called "spousal maintenance." Spousal maintenance can only be ordered for a limited time and only if the person who wants it (you) are not able to earn enough money to pay your minimum reasonable living expenses. It's a tough state.

    On the other hand, custody and spousal maintenance aren't really connected to each other.

    What you might be better off doing, depending on how much you each earn, is asking for child support. Most people think of "joint custody" as being a 50:50 possession schedule where each parent has the children 50% of the time. In Texas, of course we don't use the word "Custody" we say "Conservatorship." In Texas Joint Managing Conservatorship is what most people get, but that does not mean they have a 50:50 deal on time with the children nor does it mean that neither parent gets child support.

    If he makes significantly more than you do and even if you do a 50:50 possession schedule, ask the court for "offset child support." In that situation, the court subtracts your income from his and sets child support based on the difference.

    I know you don't have a lot of money, but you should go talk to an attorney for a consultation. I think that there are technical details relating to a Texas divorce that you don't understand and that lack of understanding might make you take a settlement that is worse than what you have to accept. If you can't afford a private attorney, at least go to a Legal Aid intake session and meet with an attorney there for free.

    Good luck!!

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  • What type of attorney would I need to hire to pursue a restraining order and property (truck) issue with a family member?

    I bought my sister a vehicle last year with the stipulation that she would get it out of my name within six months. This never happened, instead due to mechanical issues, we traded it in on a 2014 F150. The same stipulation applied, and it has now...

    Thomas’s Answer

    If the truck is titled in your name, go get it, if you can do so without disturbing the peace (e.g. getting shot).

    A general civil litigation attorney can help you.

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