Articles Posted in Issues Affecting Families

A recent case decided by the Ninth Circuit examined the relationship between immigration law and divorce law. The Ninth Circuit began its review of a Nevada case by reviewing the Court’s ruling in a case named Park v. Barr that the Court had just ruled on a few months earlier. The prior case involved a woman who was in the United States even though she had overstayed her visa.

The woman, Woul Park, married Byung Gug Choi in Korea in 1988. Both spouses were Korean. Ms. Park entered American in 2003 on a B-2 tourist visa. She overstayed her visa. Ms. Park has lived in California since 2003. In 2009, the couple divorced under Koran law. After the divorce, Ms. Park married James Young Park – who is a US citizen. Ms. Park then filed and was granted legal permanent residency (LPR) based on the second marriage.

Ms. Park applied to become a naturalized citizen in 2014. That petition was denied because the USCIS (US Citizenship and Immigration Services) determined that her divorce from Choi wasn’t valid under California law – which, in turn, invalidated her second marriage. USCIS based its finding that the divorce was invalid on California Family Code § 2091, which bars California from recognizing a foreign divorce if both spouses are domiciliaries of California.

While it may seem farfetched to say that social media is the direct cause of broken relationships, according to a 2013 study published in the published in the Journal of Cyberpsychology, Behavior and Social Networking, individuals who spend more time on Facebook are more likely to “experience Facebook–related conflict with their romantic partners,” which could then lead to a divorce.

Speaking with Vox, divorce attorney James J. Sexton notes that social media is a huge factor in a growing number of divorces and separations, adding that he can’t remember a case where social media was not the cause or, at the very least, implicated in some way. The pattern with social media, he says, is consistent: spouses maintain affairs on sites like Facebook or communicate with people they know they shouldn’t.

In other words, Sexton believes that social media has made infidelity easier than ever.

But there are other, subtler, reasons why social media can be dangerous to marriages.

Jealousy and Anger

If you’re in a relationship, you’ve probably, at some point, felt jealous about your partner’s behavior on social media, whether it’s because of the content they ‘like’ on Facebook or Instagram, or their interactions with other people.

And for what it’s worth, your suspicions may not be completely unreasonable, as one survey notes that one in ten adults admits to hiding messages from their partners. Furthermore, eight percent of adults in relationships admit to keeping a secret social media account.

These threats are so real that 14 percent of adults scour their significant other’s social media profiles for signs of impropriety and other questionable behavior.

Excessive Facebook Use

But it’s not just what people do on social media that causes conflict in relationships, it’s also how much time they spend online. More and more people are reporting that their partner’s excessive time spent on social media has negatively affected their romantic relationships.

A study, published in Computers in Human Behavior 22, compared divorce rates between states to Facebook accounts per capita and found a connection between time spent on the social networking site and a decline in marriage quality. In fact, a 20 percent increase in time spent on Facebook over a year was associated with a 2.18 percent to 4.32 percent increase of divorce rates.

The study’s model derived from the individual survey results also predicts that people who avoid social media are up to 11 percent happier in their marriages than people who are on social media all the time.

Social Media Only Complicates Existing Problems

Others, however, argue that social media isn’t so much the cause of separations, as it as a platform that amplifies known issues in marriage, such as distrust, infidelity, and jealousy among others.
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Even under the most amicable circumstances, getting divorced can be tough—more so if you have children. Even if you think your separation is for the best, your children may not see it that way. It’s not surprising then why research tells us that the best way to protect the well-being of your children during a divorce is to keep the process as low-conflict as possible.

For some parents, the solution that works for them is “nesting,” sometimes called “birdnesting.” 

What Is Nesting?
Nesting is the practice where parents keep the family home intact and rotate living with their children. This also means that both parents take turns living in separate residences when they’re not “at home” with the kids.

The idea behind nesting is that it ensures that the children’s lives continue to be as normal as possible. They don’t have to be uprooted from their home and they still get to spend time with both parents. But while nesting sounds like a great thing on paper, there are serious issues that you should be aware of if you’re considering this arrangement.

Accounting, Property Division, and Spousal and Child Support

Nesting presents potential legal issues. For starters, some states may not consider spouses ‘divorced’ if they engage in the practice of nesting. This, in turn, could throw a wrench in the terms of their property division and child/spousal maintenance orders.

Another problem that may arise from sharing a home in a nesting arrangement is the issue of who owns the property. There’s going to be quite a bit of accounting to be done, including figuring how to share the mortgage and upkeep expenses, deciding who will take the mortgage interest deduction, and deciding tax liability when it’s time to sell the home.

Financial Burden

You also need to consider just how expensive nesting can be. Aside from child support and alimony, you also have to deal with the cost of maintaining two separate residences, which can be too much, even for wealthy families.

It’s for this and other reasons that nesting should only be done on a short-term, transitionary basis. Anything beyond six months will be impractical and may end up confusing the children instead of putting them at ease. It may lead them to believe that reconciliation may happen in the near future.

Only Works If Both Parents Are on Good Terms

Another reason nesting should be done on a short-term basis is because it can create opportunities for the kind of conflict that caused you and your spouse to divorce in the first place. If you can’t agree to set aside your differences and put the children first for a few months, a nesting arrangement will stand on shaky ground.
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According to the Internal Revenue Service, if you have a capital gain after selling your primary home, you may be entitled to a $250,000 tax exclusion on your return. In fact, if you a file a joint return with your spouse, you can exclude up to $500,000 of the return from your income. But what if you and your spouse are in the middle of a divorce but continue to live in the marital home? What happens when you make the decision to finally sell the house?

Background on Capital Gains Home Exclusion Rules

The general rule, as per the IRS, is that spouses have a right to exclude from taxes any profits made from the sale of a primary home, provided they meet two main conditions:

The married couple used the property as their primary home for two out of the last five years
The profit from the sale does not exceed $500,000

If you’re single, the rule of using the home as a primary residence for two out of the last five years still applies. The exclusion however, is slashed by half and is now only $250,000.

Of course, there are other rules on excluding home sales from taxes, but the two above are the most important ones.

What About Divorced Couples?

For divorced spouses, the key is whether one or both parties will continue to live in the home and treat it as the primary residence. If both spouses are in compliance with the home ownership rule and take advantage of it, they should be able to exclude a total of $500,000 from the profit of their sale from federal taxes if they file jointly and up to $250,000 if separately.

But things can change as the divorce progresses. If the divorce has yet to be finalized, you can still continue to file joint tax returns. Of course, you need to consider the fact that among many divorcing couples, one spouse often moves out of the home. When this happens, the clock automatically begins ticking on the residency requirement of two out of the previous five years.

Your best bet to prevent time from affecting your sale is to sell the home in the early stages of the divorce. If the divorce drags on and one spouse decides to move out, that person may no longer be eligible for the full $250,000 federal tax exclusion.

When that happens, be ready for that spouse to ask for a larger share of the marital assets during property division to cover for future taxes as the divorce is finalized.

Other Considerations

If you plan on taking the tax exclusion, you should also remember that you can’t have taken one for another home sold in the last 24 months. In addition, if you remarry before selling your previous marital home, you may forfeit your right to qualify for the exclusion.
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The financial impact of a divorce tends to be one of its more overlooked consequences. For women in particular, what happens next after a divorce can be especially devastating to their financial security. It’s a phenomenon known as the “divorce gap,” and was first documented in a study that showed divorced were more likely to see their income fall by a fifth and stay that way, whereas divorced men were more likely to see their income rise by a third.

But according to a new study published in June this year by the Center for Retirement Research at Boston College, there’s a way for divorced women to their retirement: having their own home.

The study also found that formerly married but currently divorced women have historically been more financially secure than single women who have never married. The Center for Retirement Research attributed the critical factor on home ownership, noting that divorced women are more likely to own a house than single, never married women.

But while these results speak volumes of just what it takes for women to survive a divorce in terms of assets and finances, many divorce lawyers and financial advisors are concerned that it might encourage divorcing women to insist on keeping the house in a separation even when they don’t have the means to continue paying the mortgage, pay taxes, and maintain the property, all while paying for all their other living expenses.

In other words, keeping the house is not necessarily the best move in all divorce cases.

The researchers, however, note that while the study specifically mentions home ownership as a factor for moving on from a divorce in a more financially sound position, they added that there’s a broader point to be understood. It’s that divorced women tend to benefit from receiving a fair share of any marital assets, compared to never-married women who can only depend on themselves when saving and accumulating assets to fund their retirement.

But there’s an important catch.

The reason the report specifically mentions a home is because of its illiquid nature. In other words, assets that divorcing women accept in the settlement should be kept intact until retirement. And it’s much easier to do that with a house, which also offers the benefit of building equity. But for other assets converted into cash for retirement savings, the researchers note that there’s a high risk of women dipping into their savings for other expenses, whether it’s a holiday or a child’s college tuition.

The report also adds that when it comes right down to it, regardless of gender, marrying and staying married is still the best decision from a purely financial standpoint. The study also reveals that overall, women benefit from an equitable division of assets with the help of their lawyers.
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Parental alienation in a Texas child custody case can escalate this already contentious part of a divorce, which has long been associated with parents trying to make each other look bad, into a level where one parent manipulates a child or children to reject the other parent without a valid cause.

While parental alienation has always happened in bitter divorce battles involving children, only recently have family courts in Texas begun to take notice and take action when this happens, as they realized that this could profoundly harm the child or children caught in the middle of a child custody case.

What is Parental Alienation in Texas?

In a formal sense, “parental alienation” happens when one parent intentionally manipulates the child (or children) to cause him or her to reject the other parent without a valid cause. In many cases, a parent will vilify and demean the other parent in front of a child, causing him or her to share the feelings of hurt and anger, which then strains the relationship between the child and other parent.

Why Does Parental Alienation Happen?

Oftentimes, parents intentionally or unintentionally alienate the other parent because they sincerely believe that having custody is what’s best for their child or children. Other times, parents will smear each other out of spite over the divorce or out of fear that their ex-spouse will cut them out of their child, or children’s, lives.

Under the Texas Family Code, the Court, which will always act in the best interest of the child, will try to ensure that both parents are equally involved in their child’s life. But the problem is that identifying parental alienation can be a counterintuitive process, as any judge or juror would tend to assume that children who dislike one parent must be doing so because of a valid reason. Assumptions would then point to abuse or neglect at the hands of the alienated parent.

Consequences of Parental Alienation

Conditioning a child to hate one parent through propaganda can be extremely harmful to a child’s development, as well as his or her emotional and mental well-being. For all intents and purposes, manipulating a child to believe that one parent has been abusive or unloving is tantamount to child abuse.

But as family courts continue to realize the reality of parental alienation, the burden of proving its existence during a child custody battle will ultimately fall on the shoulders of a capable family law attorney.

If you feel that you are being alienated from your child, a Texas divorce attorney will help you by recommending and facilitating these measures:

Calling in mental health experts to assess the psychological state of the child and your relationship with him or her
Seeking custody modification to move the child to a neutral dwelling
Seeking custody arrangements that let you maintain contact with the child
Requesting the court to order therapy as intervention
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A couple in Texas is considering filing for divorce to change their marriage status just so they can afford the medical bills of their six-year-old child.

Married for nine years, Maria and Jake Grey have arrived at the conclusion that a separation could be the most practical solution for their family. Their daughter Brighton suffers from a rare disease called Wolf-Hirschhorn Syndrome, a genetic disorder that causes delayed growth and development, impaired vision and hearing, seizures, heart problems, and kidney problems among others. The condition demands 24-hour care and expensive medical bills.

The Greys reportedly spend as much as $15,000 per year out of their pockets (representing 30 percent of their income) on Brighton’s health care needs—that’s on top of their health insurance. Because Jake, an army veteran, pulls in around $40,000 annually, the Greys are unable to qualify for Medicaid.

But there’s a solution, albeit a drastic one. If the couple were to divorce, Maria’s marriage status would change to a single, jobless mother of two, which, in turn, would make her eligible for state assistance. And while the family has tried to apply for state assistance in the past, they would be part of a huge backlog of tens of thousands of people, most of who have waited several years for relief.

This kind of financial planning is by no means new. The expansion of Medicaid under the Affordable Care Act (also known as Obamacare) provided health care coverage to all kinds of adults. In particular, it helped couples where one spouse was healthy and the other sick, ensuring that the sick person’s health care would not bankrupt the couple of their assets or make it difficult to keep their health insurance.

And so, some couples would seek a “Medicaid divorce” or a “medical divorce,” separating legally so that one partner could enroll in Medicaid and the other person could still keep their assets, whether it’s the family home, the car, or retirement. This option certainly has its appeal—it’s a vast improvement over drawing down on your home equity or retirement accounts until they run out.

Usually, couples who have filed for a Medicaid divorce stay together and continue to care and love one another—the divorce was only on paper. Still, this plan would still involve spending money and possibly cause family unrest. There’s also uncertainty as to whether a court would even approve this kind of divorce strategy.
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Anyone who has ever gone through a divorce knows that when a child custody battle is involved, the gloves tend to come off. Anything can and will affect the outcome of the child custody case—that includes factors like age, location, income, parenting ability, and relationship with the child. And if the child is a baby, this adds another layer of complexity to your case.

But what if one parent is breastfeeding the baby?

As is often the case with child custody cases in Texas, the answer to this questions rests on several factors. What’s clear, however, is that the complex nature of child cases highlights the importance of working with an experienced Texas child custody attorney as soon as possible. When a child is under three years of age, the Court will consider the following before finalizing a parenting plan for a child under the age of 3:

– The Status Quo – who previously provided care and/or the amount of contact between parents and child
– Any Expert Opinions – how the child will be affected by separation from either party
– Current Family Dynamics: the availability and willingness of parents to personally care for the young child
– Co-Parenting Relationship – the ability of the parties to share in the responsibilities, rights, and duties of parenting, how well the parents get along.
– The Child’s Individuality – child’s physical, medical, behavioral, and developmental needs
– Your Personal Relationships – the impact and influence of individuals, other than the parties, who will be present during periods of possession
– The Family Unit – The existence of siblings
– Geographic Considerations – how close or far apart the parents live (the geographic distance between parents)
– The adaptability of the child – whether a transition schedule is needed to help the child adjust
any other evidence of the best interests of the child.

Specifically, with breastfeeding, How Are Child Custody Cases Involving Breastfeeding Decided?

All states encourage the divorcing spouses to arrive at their own child custody arrangements, provided it’s in the best interests of the child/children.

In the case of a breastfed child, the parents may come to an agreement that lets the father visit the child but allows for breaks where the mother can come in to feed the baby every few hours or so. Alternatively, the mother could agree to pump breastmilk so the baby can stay with the father for longer periods of time. This is something more feasible as the baby gets older (and much more difficult with an infant).

Again, parents are free to negotiate visitation and parental arrangements as they see fit so long as it is what’s best for the child.

Does Texas Consider Breastfeeding in Child Custody Cases?

Because each state determines their own child custody laws, different states will have different views on considering a breastfed baby’s situation when approving custody agreements. States like Maine, Michigan, and Utah have laws that specifically require judges to consider whether a child is currently breastfeeding or of a certain age requiring sustenance and nutrition from breastmilk when determining parental rights and responsibilities.

Texas, on the other hand, does not have any such laws. But the Texas Family Code, however, does specify that unique consideration must be given to custody cases involving children below the age of three (as stated above). In other words, the court may exercise its discretion to decide what is best for infants when making an initial custody order. And because of the unique needs of the baby, the court will issue another order, which will take effect when the child turns three.

This also means that a judge’s decision can be swayed by how well the mother or father can argue their case for getting custody of the baby.

For example, in a custody battle, a mother can use the argument that breastmilk is best for babies, so she must have primary custody of the baby—at least until the baby turns three. On the other hand, the father’s attorney can argue that it is in the best interest of the baby to develop healthy attachments to both parents, and that awarding exclusive custody to the mother would inhibit the father’s right to bond with the child.

Cases involving babies can be the most challenging. New parents not only have to get used to adjusting with their new baby and becoming parents but also with co-parenting in less than ideal situations.
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When Texas parents get divorced, it is not unusual for one or both spouses to move to another city, state, or even country to begin life anew. Issues may arise, however, when one parent wishes to bring the child who is bound by an existing child custody order.

Under the Texas Family Code, a divorced parent’s ability to move with a child depends on the existing custody arrangement established after the divorce. So, before you make any decisions about relocating with your child, it’s imperative that you understand the basic factors and rules of child custody in Texas.

What Is the Custodial Arrangement?

While Texas law recognizes many types of custodial arrangements, the most common setup is joint custody, also known as joint managing conservatorship. The reason is simple—the Family Code assumes that awarding both parents with shared custody of the child/children is ultimately in their best interests, unless of course there is a proven history of abuse and violence in the family.

If the divorced parents are able to come up with a joint managing conservatorship agreement on their own, they may file a parenting plan stipulating the details of their agreement in court. Normally this parenting plan will also specify the child’s place of residence, which can be a specific geographical area in Texas, such as a particular county or any contiguous counties.

If the parents are unable agree on terms, the court may intervene and determine a custody arrangement that is in the best interests of the child/children. In many cases, the court’s custody orders will place restrictions on a parent’s ability to move with a child.

It’s for this reason that settling out of court with the assistance of a skilled Texas divorce attorney is important, as it gives you some control over the terms of the custodial arrangement.

What If There Is a Need to Relocate Outside the Agreed Place of Residence?

A parent can’t just pack up and move with their child outside of the agreed geographical area in their custodial agreement without first notifying the court. Under Texas law, the parent who wishes to move must seek a child custody modification from the court to change the initial custodial arrangement.

What’s more, even if the original parenting plan or custodial arrangement does not restrict the child’s residence to a specific area, a parent can’t just relocate with the child without informing the other parent. The other parent can file a motion to challenge the relocation and can even file a temporary restraining order until a hearing can be held.
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One of the bitter realities of going through a divorce in Texas is having to decide where to live while the divorce proceedings are ongoing and after things have wrapped up. There are no right or wrong answers here. Your decision ultimately depends on your specific circumstances, even if a certain option turned out well for a friend or family member.

Continuing to live in the family home may add to your personal debt and tax liabilities. On the other hand, moving out can mean paying more out of your pocket every month for rent or a new mortgage.

Here’s a closer look at your options and their pros and cons.

Continue Staying in the Family Home

If you have young children or currently don’t have the resources to move and find a new home, you can negotiate to continue living in the family home. Obviously, this means you can maintain a part of the quality of life you’re accustomed to, not to mention you get to stay close to your friends and family in the neighborhood through this tough time.

But this option also comes with issues. For starters, you need to prepare yourself financially for the costs of maintaining a home on your own, such as maintenance, cleaning, utilities, and taxes. If you are assuming the mortgage, you need to find out if you have the monthly cash flow and financial capability to refinance. Note that monthly mortgage payments cannot be counted towards spousal maintenance or child support.

Moving into a New Home

While many divorcees fight tooth and nail to continue living in the family home, there’s something to be said about starting life anew and moving into a new neighborhood, city, or state. And given the right real estate market, this can lead to an opportunity to build equity, serving as a launch pad towards greater wealth.

Of course, it goes without saying that buying a new home is expensive, so before making any final decisions, you want to be realistic about whether you can even afford the total cost of moving. These expenses include:

New furnishings
Home improvements
Transaction costs (e.g. down payment and settlements)
Closing costs

If your joint accounts are frozen or the divorce proceedings are taking longer than expected to resolve, moving into a new home may not be the smartest option.


Renting is perhaps the most practical option on this list, especially when it comes to figuring out where to live while the divorce negotiations are ongoing. At a time when emotions are high and your life is going through major changes, the last thing you want to do is make any decisions that may damage your finances permanently.

Finding a temporary home also lets you buy some time and space to think about what to do next after the divorce. By not committing yourself to a mortgage, you have more options to consider.
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