Articles

Family Law Guide

Few things in life affect an individual as much as marriage, divorce and having children. These matters are generally considered very private and some of them are quite painful, but they can all be made easier and more comfortable with the assistance of your family lawyer. The time to see your lawyer is before you marry, before you decide to adopt a child and before you determine that you must dissolve your marriage.

I. MARRIAGE

Persons are considered adults for the purpose of entering into marriage at the age of 18. Special laws apply to persons who are under the age of 18, and must be followed in order to have a valid marriage. Common Law marriages that meet statutory requirements are recognized in Texas, but not in Arkansas.

It is wise to consult your lawyer prior to marriage in order to discuss the effect the marriage will have on your separate property, to discuss the effect it may have on your estate planning, and the effect it may have on your children by a prior marriage. It is better to plan for these before the marriage rather than try to straighten them out after the marriage.

II. ADOPTION

A child may be adopted by an adult who is not the natural parent of that child. Adoption may be accomplished only through very strict judicial proceedings. Before a child may be adopted, the rights of the natural parent(s) must be terminated. If the natural parent(s) are still living, this termination must be done by a court order. The natural parent(s) whose parental rights are being terminated may voluntarily give up those rights and consent to the adoption.

The key to the adoption process is the court's finding that the adoption is in the best interest of the child. Generally, the Court will require that the appropriate state agency or other qualified investigator make a study of the adoptive parent(s) and the prospective home environment and then report its findings to the court. Also, the court will generally appoint a guardian ad litem to represent the interests of the child.

If an adoption is granted, the adoptive parent(s) acquire all the rights and obligations of a natural parent as to the adopted child. The child is thereafter considered to be the natural child of the adoptive parent(s) for all legal purposes.

The adoption process is sometimes used when a step-parent wishes to adopt the natural child of his/her spouse. In such circumstances, the expenses which would be incurred would include attorney's fees, court costs in filing the proceeding, costs for notifying the natural parent whose parental rights you are attempting to have terminated, costs of a home or social study, the fees of the attorney or guardian ad litem appointed for the child and, if applicable, the issuance of a new birth certificate.

III. NAME CHANGES

A person may elect to use any name he or she chooses, so long as it is not being used for a criminal purpose. In order to avoid confusion in payroll and social security records, it is wise to use one's full legal name in connection with employment, and in the event a different name is to be used, have it legally changed. At the time of divorce, a woman may be restored to her maiden name or her prior name. Courts are reluctant to do this, however, if it results in her having a last name different from her children born to that marriage.

A woman who gets married may, simply by doing nothing, retain her maiden name. She may elect to use her maiden name for professional reasons and her married name for social events. If she wishes to adopt her husband's name as her new legal name, her social security card, driver's license, credit cards, insurance and other accounts should be changed to reflect her new name.

IV. ANTENUPTIAL AGREEMENTS

An antenuptial agreement is an agreement entered into by both parties prior to their marriage, and sets out the interests of each party in property which they own at the time. It generally will provide that such property is to remain the separate property of the person who brings it to the marriage, and may provide that property acquired after the marriage is to be designated the separate property of one of the spouses. An antenuptial agreement is not entered into in contemplation of divorce, but may govern the division of property if a divorce does occur. It is most often used to protect the interests of the party's children from a prior marriage in assets acquired during that prior marriage. Provisions of an antenuptial agreement may be changed by Will, or by gifts and conveyances made by the spouses to each other. In order for an antenuptial agreement to be valid, it is vitally important that the parties fully inform each other regarding the extent of their wealth and property interests. Each party should be represented by his/her own lawyer.

V. DISSOLUTION OF MARRIAGE

Divorce

A divorce is an absolute and final dissolution of marriage. It is a lawsuit brought by either the husband or the wife. A divorce action also settles questions of property division, child custody and child support.

1. A divorce is filed in the county in which either the Plaintiff or Defendant lives. In Texas, it is necessary that one of the parties live in Texas for at least 6 months before the Petition is filed and, in Arkansas, 60 days residency is required. After the Petition is filed, the divorce cannot be granted for at least 60 days in Texas, and at least 30 days in Arkansas.
2. It is necessary that grounds for divorce be established in Arkansas. "No fault" divorces may be obtained in Texas, but establishment of certain grounds for divorce may also be the basis of a divorce petition. Your lawyer can advise you as to what constitutes grounds and how they are to be proven.
3. Property falls into two general categories. Separate property is that property owned by a spouse prior to the marriage, or property acquired by gift or inheritance. Community or marital property is that property acquired during the marriage of the parties, other than by gift or inheritance. As a GENERAL RULE, separate property belongs to the spouse who acquired it, and community or marital property belongs 1/2 to each spouse. There are special considerations which may apply to the division of property in each individual case and your lawyer will discuss these circumstances with you.
4. Custody of minor children is awarded by the Court based upon what it believes to be in the best interests of the children. The non-custodial parent will be awarded visitation rights. Joint custody may be awarded, but generally does not mean equal periods of possession. Child support is set by the Court based upon a Child Support chart and is calculated based upon the net income of the parent paying child support. It may be raised or lowered by the Court during the minority of the children, based upon the parent's ability to pay. Failure to pay child support could result in a Judgment being entered against you, a fine, a jail sentence, or all three. If problems occur with visitation or child support, do not take matters into your own hands. See your lawyer.
5. Following a divorce, Texas law prohibits the divorced parties from marrying within 30 days, unless the parties re-marry each other. There is no waiting period in Arkansas.
6. The expenses to be paid in connection with a divorce, apart from attorney's fees, are generally a filing fee, the citation fee and service fee to notify the defendant that the lawsuit has been filed.
   Attorney's fees will be determined by the difficulty and amount of time required to assist you in obtaining the divorce. If there are no property issues and no child custody and support matters to address, the divorce will generally cost much less. If the parties have worked out an agreement to divide their property and provide for custody and support, costs are substantially reduced. Your attorney will discuss the potential cost with you at the initial interview and discuss with you how the fee is to be paid.
7. Following your divorce, you will want to review your business affairs and make plans for the future. This could include changing your life insurance beneficiaries, re-doing your will, establishing credit in your own name, changing legal records to reflect any name change, etc. Your attorney can assist and advise you in these matters.

Annulments

An annulment is also a dissolution of a marriage, but unlike a divorce, an annulment finds that the marriage was never valid. It may only be obtained under very special facts and circumstances such as: (1) the parties are underage; (2) the marriage was never consummated; or, (3) one of the party's consent to the marriage was obtained by fraud.

The residency requirements for an annulment are the same as those for a divorce. Generally no property has been accumulated and no children born.

Divorce from bed and board

A divorce from bed and board is available in Arkansas. Essentially, it has all the requirements of a divorce (grounds, residence, division of property, establishment of child custody and support), but the final decree does not grant an absolute divorce. Instead it allows the parties to maintain separate property from the date of the divorce forward but they are still legally married to each other. This is not often used, but your lawyer may advise this alternative in unusual circumstances.

Legal Separation

This is not generally a separate cause of action but is a term many people apply to the period between filing for a divorce and the final decree. During this separation period you may want to have a temporary hearing to establish child custody and support, possession of certain items of property and/or to resolve other questions until such time as the final divorce hearing. An action for separate maintenance is available in Arkansas and allows one spouse to petition the court for support without requesting a dissolution of the marriage.

VI. PATERNITY

The paternity of a child may be established through court proceedings. This may be accomplished by the natural father filing a lawsuit to have himself declared the father or by a civil lawsuit brought against the alleged natural father to establish paternity.

If the natural father executes the appropriate statement acknowledging paternity, or if at the conclusion of a trial the Court determines that the alleged natural father is in fact the natural father of the child, then the Court will be in a position to enter a Decree establishing the paternity and legitimation of the child. If the alleged natural father still wishes to contest paternity, he has the right to appeal.

The Decree establishing paternity may be used to have a new birth certificate issued identifying the natural father named in the Decree.

The establishment of paternity results in the natural father having obligations such as child support and having rights such as child visitation or custody if it is determined to be in the best interest of the child.

Expenses related to a paternity proceeding could include attorney's fees, court costs for filing the proceeding and notifying the alleged natural father, DNA tests and the issuance of a new birth certificate. If the alleged natural father is found to be the natural father, he may be ordered to pay some of these expenses.

CONCLUSION

Your family lawyer can be a friend and counselor during all these experiences of life. Ask for advice before you take one of these important steps.

DUNN, NUTTER, & MORGAN, L.L.P.
-- ATTORNEYS AT LAW--
Practicing in Texas & Arkansas

3601 Richmond Road
Texarkana, TX 75503-0716
Phone (903) 793-5651
Fax (903) 794-5651
http://www.dnmlawfirm.com
lawfirm@dnmlawfirm.com

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