FAQ

EXPERIENCED TEXAS AND NEW MEXICO ATTORNEY LAWYER FOR CLASS ACTION, CONSUMER, DECEPTIVE TRADE PRACTICES AND CREDIT REPAIR LITIGATION LAWSUITS

“Experience is a very important qualification for a lawyer. Diligence, common sense and sound judgment are also important qualifications. I work hard to represent the best interests of my clients and to give them sound advice. Like most lawyers, I advertise my services. But I prefer to attract work by being involved in my community, and by doing such a good job for each of my clients that they refer their friends, co-workers, and even their loved ones to me.”

How can a lawsuit be finalized WITHOUT either a settlement or a full-blown trial? See more about this below under “What is a Default Judgment?”

What is “ERISA”?

If you believe or have heard that you may be affected by a law called “ERISA”, you can thank the United States Congress for passing the Employees’ Retirement Income Security Act (“ERISA”). Congress enacted ERISA as a “tort reform” measure to protect retirement, pension and health-care plans from lawsuits. Sidney Childress has actually sued big corporations with this law, in federal court, for trying to cheat employees out of previously promised benefits.

The United States’ Supreme Court has called the scope of ERISA “deliberately expansive”. Basically, ERISA provides that no plan protected by it is bound to comply with any state court order, or any type of legal process that fails to comply with ERISA.

If you have been ill-treated by an insurer, or retirement, pension or health-care plan, you should consult with an experienced Consumer Law or Class-Action Attorney. When The Childress Law Office is hired, our job is to help clients explore their options and make the best plans possible under the circumstances.

Tax Deductibility of Attorney’s Fees

At The Childress Law Office, we look for ways to benefit clients with tax and estate planning issues.

Attorney’s fees and other litigation costs may be deductible to the extent they are incurred to produce or acquire taxable income.

Attorney’s fees incurred to obtain taxable income, like an interest in a pension or retirement plan, royalties, residuals, and etc., may be tax deductible. Fees incurred in establishing or defending title to property may be capitalized and added to the basis of property. Fees are also deductible to the extent they are paid for tax or estate planning advice.

When deductible in a family case, attorney’s fees are treated as “miscellaneous itemized deductions”. They are deductible only to the extent they exceed 2% of the taxpayer’s adjusted gross income. They cannot be taken into account in computing the alternate minimum tax. In order to take advantage of the 2% rule, all the fees must be paid within one tax year.

In the event the IRS disputes deductions of attorney’s fees or litigation expenses, the taxpayer will need an allocation letter from his or her attorney that expressly itemizes the deductible and non-deductible fees and expenses.

Marital Separation or Property Settlement Agreements. Can I get a “legal separation” in Texas?

Yes. But understand that Texas Courts do not have any legal proceedings or process called “legal separation”.

In family cases, Texas Courts grant things called “Temporary Orders” upon request, for the protection of the parties and preservation of the marital estate, as needed or requested by the parties. Violation of the Court’s Temporary Order is a “contempt of court” and punishable by fine and imprisonment. A person found in contempt of court usually has to pay the attorney’s fees of the other side’s lawyer.

“Temporary Orders” are often necessary or un-avoidable. They mean the parties or lawyers have been unable to reach an agreement without court intervention. They also mean lawyers, litigation and court-hearings. This is very expensive.

A “marital separation” or “property settlement agreement” is simply another form of private contract between 2 people. They are not necessary for a divorce but can be helpful in various circumstances. Some people attempt to avoid Temporary Orders by negotiating favorable separation agreements. This can be effort well spent.

“Marital separation” and/or distinct “Property Settlement Agreements” are simply other ways to try to avoid contested Court proceedings. These type agreements include “pre-nuptial agreements” and “post-nuptial agreements”.

The Texas Constitution specifically authorizes agreements between spouses for the separation or “partition” of property. Texas Courts will enforce these agreements if they are properly drafted, and as long as they are not unconscionable or made under any type of duress, coercion or undue influence.

Texas Courts also recognize that “….. a parent’s interest in his child is of constitutional dimension.” In the Interest of T.J.S., 71 S.W.3d 452 at 461 (Tex.App. - Waco 2002). Within parameters set by the Family Code, Texas Courts will allow almost all agreements regarding children that serve the children’s best

My ex-spouse was supposed to take care of that!

Your state divorce court cannot waive or stay your lawful debts. If you signed any type of promissory note or made any agreement for debt during your marriage, you can still be held legally liable for that debt even if the Divorce Decree specifies that your spouse is obligated for that debt. Your remedy for violation of your divorce agreement is against your ex-spouse.

The Childress Law Office is available for enforcement actions under the Texas Family Code, including collection of past due and owing spousal support or maintenance, retired pay, child support, and agreed-upon or court-ordered division of property.

Child Custody Modification

Texas courts allow children at the age of 12 to have substantial say in their preference of which parent to live with. The child does not get to make the decision entirely, but the child is allowed to have substantial say in his or her desires.

Another grounds for change of child custody is if the parent with the court-ordered right to establish the domicile of the child voluntarily relinquishes the primary care and possession of the child for 6 months.

Terms and conditions of conservatorship can also be modified if the modification is found to be in the best interest of the child and there has been a material and substantial change in circumstances.

The Childress Law Office is available to assist parents with the the proper drafting, filing and service of legal documents necessary to effectuate their agreed upon or uncontested Texas child custody or conservatorship modifications. For more info, goto: WWW.EZ-TEXAS-DIVORCE.COM

Child Support Modification

In Texas, Child support modification is available by filing a Motion with the Court that made the underlying child support order. It requires a showing of a material and substantial change in circumstances of a person affected by the order, such as a loss of employment or dramatic increase in earnings.

Texas Courts will also routinely review and adjust child support orders if: 1) it has been 3 years since entry of the order and 2) if the amount ordered differs by either 20% or $100 from the amount that would be awarded under Texas’ child support guidelines.

Texas Family Code Section 156.402 indicates the Court can modify child support if this is in the best interest of the child involved, and the court-ordered support is not in substantial compliance with Texas’s child support guidelines.

Another grounds for modification of child support is if the parent receiving the support voluntarily relinquishes the primary care and possession of the child for 6 months.

The Childress Law Office is available to assist parents with the the proper drafting, filing and service of legal documents necessary to effectuate their agreed upon or uncontested Texas child support modifications. For more info, goto: WWW.EZ-TEXAS-DIVORCE.COM

What is a Default Judgment?

Sometimes lawsuits are finalized WITHOUT either a settlement or full-blown trial by something called a “Default Judgment”. To answer the question, you should understand a little about a concept called the “jurisdiction” of the Court, a complicated subject, most of which is beyond the scope of this website.

But in order to provide information to the visitors of this website, we will explain it to the extent it pertains to: How a case can be concluded without the agreement or cooperation of the other party.

Before any court can take an act that effects people’s lives, it has to have “jurisdiction”. This is required by, among other things, the Due Process Clause of the U. S. Constitution. Our courts proceed on the principal that all involved must have “due process” - a concept of fairness and proper procedure.

A non-contested lawsuit is accomplished by both parties voluntarily submitting to the jurisdiction of the Court. The person filing does so by filing. The other party must sign and file papers that indicate to the Court this person does not object to the jurisdiction of the court on any legal or factual basis.

What if the non-filing party will not cooperate and voluntarily submit to the jurisdiction of the Court?

They must be in-voluntarily submitted to the jurisdiction of the Court. The Court must issue an official court document called, in Texas, a “CITATION”. In federal courts, these are called a “SUMMONS”. This document must then be properly delivered or “served” on the non-filing party, usually in person delivery by a Sherriff or Constable. If the non-filing party does not respond within the time limits specified by the Court on the CITATION or SUMMONS, the Court can then proceed and grant a Judgment by “default”. This is considered the minimum “due process” required.

Ignoring a CITATION or a SUMMONS is an act of negligence. Many people don’t realize this until its too late.

The issuance and service of a CITATION or a SUMMONS is sometimes a necessary next step that must be taken. Even if a case is not settled or dispute resolved promptly, sometimes it can still be resolved with minimal difficulty. We try to go the extra mile at The Childress Law Office, and if we are not able to accomplish the result you want promptly, we remain available to assist you step by step.

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Many State Attorneys General have toll-free consumer hotlines. These numbers may be listed in the government section in the front of your phone book. These agencies can offer you advice and may also be able to help you resolve your complaint. You can find your Attorney General's address and phone number online at the National Association of Attorneys General web site (www.naag.org).

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