Questions Answered by Shawn H. Smith

Q: For temporary orders shouldn't all community assets be exhausted first before separate property is used to pay bills?

1 Answer | Asked in Divorce for Texas on Jul 21, 2013

Answered on Aug 4, 2013

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Shawn H. Smith's answer
Probably not, unless it was specifically stated in the order. It also depends on what you are considering to be your separate property at this point. It would be a good Idea to consult your attorney about this, since you may be confused. If you don't have an attorney, it sounds like now would be a good time to get one since there is some confusion that is too involved to clean up on an open forum like this one. Many, including myself, will give a free consultation to discuss your issues....

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Q: How long does the court give you to complete required actions?

1 Answer | Asked in Divorce for Texas on Jul 23, 2013

Answered on Aug 4, 2013

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Shawn H. Smith's answer
Your divorce will be final when the decree is signed by the two of you and a judge. If that is what happened on 3/2/12, then you have been divorced for a while now. If she has not done one of the terms of the Decree, then you can file a motion to enforce on her to get her to behave. You should probably call a couple of attorneys for a consultation. Most, myself included, will give you a free consultation so you can figure out where you stand. Good luck.

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Q: How do I get my rights to my son that lives with his dad? We never married and we have A little girl too, that lives with me...

1 Answer | Asked in Family Law for Texas on Jun 24, 2013

Answered on Jul 4, 2013

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Shawn H. Smith's answer
In order to get rights to your children, you will need to file a suit affecting the parent child relationship asking for custody. Contact a couple of family law attorneys in your area to find out what you need to do specifically in your case. Good luck.

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Q: What will terminate child support payments if the parents reunite?

1 Answer | Asked in Family Law for Texas on Jun 10, 2013

Answered on Jun 23, 2013

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Shawn H. Smith's answer
There is usually a clause in the divorce decree that terminates child support payments upon remarriage of the parents. You will need to inform the attorney general of the change in circumstances to get them to stop any wage withholding etc.

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Q: Is there a Texas statute of limitations for prosecuting sexual assault of a minor?

1 Answer | Asked in Criminal Law for Texas on Jun 19, 2013

Answered on Jun 20, 2013

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Shawn H. Smith's answer
In Texas the statute of limitations is 10 years from the 18th birthday of the minor. Alternately, if there is DNA evidence there is no statute of limitations.

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Q: I have been paying child support & working overtime. OT is not available anymore. Will they go by my 40 hr week salary?

1 Answer | Asked in Divorce for Texas on Jun 9, 2013

Answered on Jun 18, 2013

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Shawn H. Smith's answer
You may have to file for a modification if the support was based on your higher salary. Call some attorneys in your area for a consultation to get an idea of what this process looks like. It is not automatic, you will need to take action to make sure it is adjusted properly.

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Q: What right do I have to get a divorce since my husband is drug abuser? I need to protect myself.

1 Answer | Asked in Divorce for Texas on Jun 14, 2013

Answered on Jun 18, 2013

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Shawn H. Smith's answer
You should contact some local attorneys right away. If you are concerned for your safety, call the police. There are several ways that you can protect yourself during the divorce process, including filing for a protective order. Most attorneys will offer you a free consultation, call around to discuss your options.

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Q: May a private party initiate proceedings and prosecute another in a criminal court, or must this be done by the DA?

1 Answer | Asked in Criminal Law for Texas on Jun 13, 2013

Answered on Jun 18, 2013

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Shawn H. Smith's answer
Must be done through the DA. A private party can make a complaint to the police or the DA, but it is up to the state as to whether they will pick the charges up or not.

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Q: Do I need a lawyer for divorce decree amendment?

1 Answer | Asked in Divorce for Texas on May 20, 2013

Answered on May 22, 2013

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Shawn H. Smith's answer
It is difficult to answer that question without more details. Technically you don't, but you are much more likely to get it done properly if you do hire one. At this point, I would recommend calling a few local family law attorneys. Many of us will give a free initial consultation, and that way you may be able to get a better idea of what you will need to do. Good luck.

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Q: Married for 16 year he is in the military do i get any of his pension? Or any marital property that's all in his name?

1 Answer | Asked in Divorce for Texas on May 4, 2013

Answered on May 20, 2013

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Shawn H. Smith's answer
Texas is a community property state, so it doesn't necessarily matter whose name the property is in, but rather was the property acquired during the marriage with community funds. Community funds include any salary your husband was paid during the marriage, which also gives you the rights to a portion of his retirement. That is where it starts to get a little complicated, so you will want to speak to an attorney about the specifics, but the short answer is that, yes, you are entitled to...

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Q: If my husband was abusive, can I get a settlement?

1 Answer | Asked in Family Law for Texas on May 15, 2013

Answered on May 16, 2013

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Shawn H. Smith's answer
This is a pretty vague question, we would need a few details at least to answer fully. If you are talking about a settlement as part of a divorce, then yes. Abuse during the marriage can cause the judge to award you more of the property than they would otherwise, but it is not automatic and you would need an attorney to help you make your case to the judge.

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Q: How can my common law husband file a petition for joint custody which states my child cannot leave the state?

1 Answer | Asked in Family Law for Texas on May 15, 2013

Answered on May 16, 2013

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Shawn H. Smith's answer
He can file a petition asking for whatever he wants, that doesn't mean that the judge will grant it. Joint custody agreements often contain geographical restrictions, but they usualy refer to the child moving outside of an area, not just leaving Texas to visit another place. It sounds like you should probably get an attorney to look this over, particularly if he has a history of violence. Don't try to go in there on your own, especially if he is represented.

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Q: My boyfriend is getting charged with domestic violence, can charges be dropped if victim never wanted charges filed?

1 Answer | Asked in Criminal Law for Texas on May 14, 2013

Answered on May 14, 2013

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Shawn H. Smith's answer
This is a very common situation. Usually, in a domestic dispute, the police will charge him and take him in just to diffuse the situation. What you need to understand is that, at least in Texas, civilians don't actually press charges, the district attorney does. It is your choice as to whether you want to cooperate as a witness, but they can charge him without you. They likely can't convict him without you, though, so with an sn experienced criminal defense attorney you may be able to get the...

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Q: How do I go about getting my record expunged?

1 Answer | Asked in Criminal Law for Texas on May 11, 2013

Answered on May 13, 2013

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Shawn H. Smith's answer
In Texas you qualify for an expunction in a few different cases. If you receive deferred adjudication for a class C misdemeanor and complete it successfully, you should qualify. If you were charged with a higher offense, but subsequently had the charge dismissed or were acquitted, then in most circumstances you would also qualify. In order to see if your particular offense can be expunged, contact a local criminal defense attorney. Most of us give free consultations and can tell you right...

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Q: How much time will my husband be facing if he got arrested in Garland, Texas for aggravated assault against his father...

1 Answer | Asked in Family Law for Texas on May 4, 2013

Answered on May 11, 2013

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Shawn H. Smith's answer
If the aggravated assault was not due to the fact that he used a weapon, then they must be alleging that he caused serious bodily injury. This is a second degree felony in Texas, carrying a punishment range of 2 to 20 years in prison, with a possible fine of $10,000. The actual amount of punishment he receives will depend on several factors, including the severity of the injury and the circumstances of the assault. They will also take his criminal history into account. I see that you say he...

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Q: My husband and I were split up we have 2 boys and he fathered a child how much child support does he have to pay

1 Answer | Asked in Family Law for Texas on May 8, 2013

Answered on May 10, 2013

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Shawn H. Smith's answer
The amount of child support will be based on his income. You may want to speak with an attorney about getting an order together to handle both child support and visitation/custody assuming he wants to be in the child's life. It is always best to get this type of situation under control early so he doesn't get stuck paying back support, and you want the payments to be official, because if he is just handing her a check it may not count and she could still try to come after him later. Good...

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Q: What is the penalty for possession of marijuana on school grounds?

1 Answer | Asked in Criminal Law for Texas on May 2, 2013

Answered on May 10, 2013

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Shawn H. Smith's answer
Depends on how much they get caught with. Generally it gets bumped up one level for being on school grounds since that is a "drug free zone". So if they had under 2 ounces, it will be a class A misdemeanor instead of a class B misdemeanor.

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Q: My husband was appointed a lawyer who, in his profile doesnt handle criminal cases, to a criminal case...

1 Answer | Asked in Criminal Law for Texas on May 8, 2013

Answered on May 10, 2013

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Shawn H. Smith's answer
Not sure what profile you are speaking of here, but that doesn't mean that he doesn't practice criminal law, just that he is not advertising it in the particular profile you are looking at. If you are not happy with the representation he has been appointed, the best idea is probably to scrape together enough cash to hire your own attorney so you can choose for yourself. Call around, alot of criminal defense attorneys will work out payment plans for you. Good luck.

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Q: When you cant afford a lawyer are the one they give you really going to help

1 Answer | Asked in Criminal Law for Texas on Apr 24, 2013

Answered on Apr 27, 2013

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Shawn H. Smith's answer
Court appointed lawyers are still bound by the same ethical responsibilities to represent their clients that a lawyer you hire would be. They should do everything in their power to assure that your rights are protected. The downside of having a court appointed lawyer is that you don't get to choose them, so it is kind of luck of the draw as to how good they are at their job and how well you communicate with them. You may want to consider calling a few local attorneys to see what kind of...

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Q: Spouse is in jail on a family violence charge. he turned down his crt appointed attorney. will this put off court date?

1 Answer | Asked in Family Law for Texas on Apr 17, 2013

Answered on Apr 27, 2013

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Shawn H. Smith's answer
That depends on the Judge. He will still be brought before the court and admonished by the judge to either hire an attorney or accept a court appointed one. Most of the time judges will not allow this to delay things for very long, if at all. If he is doing it to delay, it will not work out well for him. The last thing you want is for the judge to be annoyed with you before the case even really starts. Also, there are probably things an attorney would be doing for him at this point that...

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