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Ask Legalease Your Own Question

Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 14454
Experience:  15 years exp all aspects of general law
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Janette, my sister, is mentally disabled. Growing up my mother

Customer Question

Janette, my sister, is mentally disabled. Growing up my mother and father worked hard to make sure Janette received all the training and support she need to be able to function as an adult when they were no longer able to care for her. She had her own apartment, a full time job, could pay her bills, had her new car almost paid for, money in savings, and good credit. Eight years ago she married a man who had social issues. At their wedding his parents assured my mother that Janette would have everything she needed. They own a great deal of land, cattle, several businesses, and are more than financially secure. After 7 years of marriage filled with mental and emotional abuse from her husband and his family, Janette called my brother to come rescue her because the abuse had become physical and more than she could take. Her husband and his parents have put everything Janette thought was owned jointly into their family name leaving Janette with nothing. She can either stay in the marriage and continue to take the mental and emotional abuse or she can go through with the divorce and leave with her bedroom furniture and $1,500.
Janette has totally and completely regressed because of the abuse she suffered at the hands of her husband and his family. She has nothing, can no longer support herself, her credit is ruined, she has no car, no savings, nothing. She will require extensive rehabilitation and training to get her close to where she was before her marriage. At 50 years of age it will be far more difficult to achieve.
Divorce laws don't address her situation and even though the mediator and judge may have sympathy for her situation, they can't do anything about it.
Where can we get legal help for my sister?
XXXXX XXXXX XXX@XXXXXX.XXX
Submitted: 1 year ago.
Category: Legal
Expert:  Legalease replied 1 year ago.

Legalease :

Hello there. I am sorry to hear about this situation. My own sister is mentally disabled and we are also very familiar with people taking advantage of her. Can you answer a few questions for me as follows:

Legalease :

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Legalease :

(1) You stated that the Judge says he cannot do anything for her. Although the marriage was 7 years long, because your sister is disabled she could make a claim for alimony - at least on a short term basis until she is back on her feet. Was a request for alimony made based upon the fact that she is disabled and needs additional support ?

Legalease :

-

Legalease :

(2) were there any children born to the marriage?

Legalease :

-

Legalease :

(3) was any property EVER in her name or her name and her husband's name from the beginning of the marriage? Texas is a community property state which should be more advantageous to your sister. While her husband can claim that all of the property was his separate property before the marriage -- if they actually bought any property during the marriage and her husband did not put her name on the title to the property, she can claim that the property is still community property of the marriage because the property was acquired through a joint effort of the husband AND wife.

Legalease :

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Legalease :

Once you answer the questions above, I can give you a clearer assessment of what she might be entitled to, but I do believe that she should be eligible for at least alimony for a few years after the end of the marriage -- it is called "rehabilitative alimony" and is designed to give the spouse who is left destitute the chance to get back on their feet after the marriage -- it typically lasts 2-5 years after the marriage has ended.

Legalease :

-

Legalease :

Please let me know what further questions that you have here. MARY

Customer :

In Texas, Janette has not been married long enough to receive alimony, but it is hoped that the Judge Thornton will award it. Request for a court date was mailed today.

Customer :

No children in the marriage.

Customer :

Janette was told the house and three acres belonged to her and her husband. She took their word for it and did not know enough to verify. Her husband also owns land acquired before the marriage.

Legalease :

Hello again and thank you for the responses

Legalease :

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Legalease :

Okay, the key to being able to get a portion of any of the real estate or the other assets is to show that your sister put some money and or effort into acquiring and or keeping any of those assets. I know it will be particularly difficult because if the family itself has money they more than likely have ways to hide assets and make it look like they just belong to the son. But, it is still worth a try -- even if your sister can prove that during the 7 years perhaps 10% of her income went into the property and keeping and maintaining the property -- her claim can be for what she actually contributed rather than a full 50%. It is a longshot -- but I am going to link you here to a website sheet regarding the leading statutes and case law in effect in TX for the allocation and determination of community property. It may or may not help.

Legalease :

Regarding the alimony -- typically alimony is awarded in marriages of 10 years or more -- BUT the Judge had discretion to award alimony in cases where there are exigent circumstances and usually those circumstances are the disability of one spouse who actually needs the support and will become a ward of the state without that support. The Judge is supposed to work on that not happening. My suggestion here is to bring as much evidence forth at the trial or to the judge/mediator that you can to show that your sister was disabled at the time of the marriage and that your brother in law knew full well what her disabilities were and agreed to marry her and support her anyway

Legalease :

Of the two avenues here, If you can focus on the disability and her husbands knowledge of it and also show the court that vocationally speaking she is not really capable of earning a living at this point in time you may be able to get her the short term alimony for a few years. Again, this is up to the judge and he DOES have the power to award alimony if he sees fit to order it -- and the marriage could be a 2 year marriage or a 10 year marriage -- it does not matter.

Customer :

Janette was the only one working at the time her marriage began. She made payments out of her income in the form of checks as payment on the house to her husband's parents. When she could not make payments regularly, she was told that the property was gifted to them and no more payments were made.

Customer :

Now her husbands family says the property was gifted to her husband only.

Legalease :

So, she should at least be able to claim the money that she actually put into the house at the beginning of the marriage. Here is the link to that website I mentioned which notes the case law in TX regarding the contributions of each spouse to acquiring and maintaining the property --http://www.stcl.edu/students/SBA%20Outline%20Bank/Marital%20Property%20-%20George.htm The husband will have the burden of proving that she gifted him the property and if her lawyer presents this entire thing correctly, it will be presented to show that your sisters disability worked against her in her marriage because she did not understand what they were talking about and what they were doing when they were claiming this entire "gifting" scheme (in addition to this, your sister should deny that she gifted anyone anything and unless they have something in writing it will be hard for them to prove it anyway)

Customer :

My sister never agreed to gift anything. She didn't know what it was until we met with her attorney.

Legalease :

I figured as much. She should deny the gifting of anything and let them try to prove it. Overall, I think that if the disability is presented as the foremost reason as why many of these things happened and the judge will see reason then she may be able to recover a portion of the property and some alimony from the judge. This is actually a classic situation where alimony for a marriage that lasted less than 10 years SHOULD be awarded -- and if the judge refuses then she shouls appeal to another judge.

Customer :

All this cost money neither she nor I have. Where can we get assistance?

Legalease :

Finally, if you believe that her lawyer is not presenting the disability strongly enough to the court, you and your sister may want to speak with a few other divorce attorneys in the area and see if you can find one that will be willing to present the case in the light most favorable to your sister. If paying the lawyer is an issue, there are many low cost and free legal aid offices throughout Texas -- you should do an online search for LEgal Aid and your county and Texas and you will come up with many of them -- they can then have you speak with free or low cost attorneys in your area --

Legalease :

Please let them know that she is disabled when you call for legal assistance because that will usually put her at the top of the list for the free or low cost legal help.

Legalease :

You may have to call around to a few of the offices but you will find one to assist you based upon income

Legalease :

I hope that helps. I wish I could offer you an immediate solution, but it does seem that it will take some time and legal maneuvering in order to get some funds for her from this marriage.

Legalease :

-

Legalease :

If you have no further questions, can you please press the 3rd, 4th or 5th smile face to rate this session before leaving the chat pages/ I am paid NOTHING for assisting you unless you press a positive rating before leaving this chat session. Pressing a positive rating will NOTcost you any additional money -- it just acts as the trigger to Just Answer to pay me for my time. THANK YOU VERY MUCH !!!

Legalease :

MARY

Customer :

Does marital misconduct include mental and emotional abuse?

Legalease :

Yes it does and those factors should also be used by the judge in determining any property settlement and alimony payments -- marital wrongdoing is supposed to be considered as one of the factors in any property settlement

Customer :

Does the ruling ratified by Federal District Court Judge Orrin Judd on May 5,

1975......
During the three-year course of this litigation, the fate of the mentally impaired
members of our society has passed from an arcane concern to a major
issue both of constitutional rights and social policy. The proposed consent
judgment resolving this litigation is partly a fruit of that process.
The consent judgment reflects the fact that protection from harm requires
relief more extensive than this court originally contemplated, because harm
can result not only from neglect but from conditions which cause regression or
which prevent development of an individual's capabilities.
Customer :

apply to a marriage?

Customer :

What about marital misconduct? Does mental and emotional abuse fall in under misconduct?

Legalease :

Regarding the federal case you cited -- this would Not generally be applicable in a state divorce action -- because the ruling was made by a federal court and divorce, marriage and domestic issues as well as issues of probate are all considered state issues handled exclusively by the states (it is a states rights issue -- which Texas is very big into keeping federal law and rulings out of their courts to the extent that they can do it).

Legalease :

Regarding the second question about marital misconduct -- I answered that earlier - but here is the answer again --

Yes it does and those factors should also be used by the judge in determining any property settlement and alimony payments -- marital wrongdoing is supposed to be considered as one of the factors in any property settlement

Legalease :

-

Customer :

Are you still there?

Legalease :

I am still here. Do you have further questions?

Legalease :

Hello? There may be pauses when I have to respond to other customers at the same time, but I am still online and if you have further questions I can answer them - although I am not sure there is much more at this point to tell you regarding your sisters divorce situation other than I do believe with the right legal argument she can recover some of the property amount and some alimony. MARY

Legalease :

Hello? If you have no further questions for me, I would appreciate it if you could press a positive rating before leaving the chat session. I am not paid anything for this time unless you do so because it is the trigger to the website, Just Answer to pay me for my time. THANK YOU

Legalease :

Hello?

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