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Must divorce if you want to remarry

By By Richard Alderman
April 19, 2014 at midnight
Updated April 18, 2014 at 11:19 p.m.


I was married seven years ago. After only one year of marriage, my wife and I separated. I have not heard from her since. I now want to get married again. How do I finalize my separation so I can remarry?

In Texas, there is no such thing as a legal separation. You are either married, or you are not married. In your case, you are currently married and have been for the past seven years. If you want to marry someone else, you need to first get a divorce from your current wife. I should point out that for the entire time you have been married, property either of you acquired is community property and may be divided in your divorce. I suggest you promptly speak with a family-law attorney and find out the best way to proceed.

I own a large dog. Am I responsible if a kid climbs over my fence and is bitten?

The owner of a dog is responsible for a dog bite only if the owner was negligent in protecting people from the dog. Negligence means not taking reasonable care. If you take reasonable steps to keep the dog properly fenced-in and a child climbs over the fence, in my opinion you have no responsibility.

My daughter had a baby and is living with the baby's father. They never got married before the child was born. Are they now married? He says he isn't. What rights does she have if he leaves? He is taking care of her and the baby but is threatening to leave her.

Under the law, if he is the father of the child, she has the right to receive support for the child. She is entitled to child support regardless of whether they are married. You seem to believe, however, that because they are living together with a child they are married. That is not the law. For them to have a common law marriage based on living together, they must agree to be married and hold themselves out as married. If they are just "living together" and have not agreed to be married or held themselves out as married, they are not married.

I was sued. Can the creditor garnish my social security payments?

No. Under federal law social security is exempt from garnishment. I should add that a debt collector's threat to garnish your social security payments would violate state and federal law.

I owe a lot of money to credit card companies. I am afraid they are going to sue me. All of my money is in my retirement plan and an IRA. Can they take this money if they sue me?

As I have said before, after you are sued, a creditor can "garnish" money in a bank account. A creditor, however, may not garnish your retirement or IRA funds. Under Texas law, money in a retirement account or an IRA, including a Roth IRA, is "exempt" and may not be taken by your creditors.

I bought a car I can no longer afford. After two years I finally had to return it to the dealer. Am I still responsible for the remaining payments? Can I be sued?

When a car is returned to a dealer, either voluntarily or through repossession, the dealer sells the car and applies the proceeds of the sale to your debt. You then owe the "deficiency," that is the difference between how much you owed and how much was obtained from the sale. For example, let's assume you owed $12,000 when you returned the car. After the car is returned, the dealer sells the car for $8,000. You now owe the "deficiency" of $4,000. The dealer may collect this as it would any other debt, including a lawsuit.

My father recently passed away. In his will he left me his home. He has owned the home for more than thirty years, and owned it before he married for the second time. Now his wife, my step-mom, says she has the right to live in the house and I cannot sell it. Is she right?

Your stepmother is correct. As you seem to understand, the house was your father's separate property and he has the right to will that property to whomever he wants. His wife has no ownership interest in the house. Because he left the house to you in his will you are the owner of the property. Your right to use or sell the property, however, is subject to your stepmother's homestead right to stay in the house as long as she lives. The only way you will be able to sell the property is to get your step-mom to agree to move. Perhaps you can "buy out" her interest.

Richard Alderman, a consumer advocate popularly known as "the People's Lawyer," is a professor at the University of Houston Law School in Houston. His column appears weekly in the Victoria Advocate. Write to him at UH Law Center, Houston, Texas 77204-6391. He also maintains a Web page at www.peopleslawyer.net.

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