Articles Posted in Uncategorized

Do I need a Will? If so, What’s It All About?

Let’s start with the first question. Do you need a will? The answer is 1,000% YES! No matter what age you are, if you are married, have kids, or you live on a lonely island that you own out in the Bahamas, everyone needs a will. If you don’t have one, who gets the island?!

After a person dies, there are a lot of decisions that need to be made. Decisions ranging from funeral arrangements, what to do with your remains, along with who gets your property. Well, a will can take care of all of these decisions for you and give your family members time to grieve and celebrate your memory rather than making these hard decisions blindly. 

Are there different types of probate? 

When a loved one passes there are different types of applications that can be filed with the court to probate the estate. The type of action that needs to be filed will rely on whether your loved one had a will, how much time has passed, and the value of the estate. 

Muniment of Title 

If you can’t come to an agreement on the division of assets in a family case then you might have a trial. If you have a trial, then a judge might divide the assets in a way you don’t like, or think is unfair. What are your options if the judge awards the spouse assets you believe are separate property? Or awards your spouse a disproportionate share of the community estate?

You can file an appeal, and ask the court of appeals to overturn the judge’s ruling. The law requires that trial courts “order a division of the parties’ estate in a just and right manner considering the rights of each party and any children of the marriage. TEX. FAM. CODE § 7.001. That’s a pretty broad standard, and numerous factors are considered by the trial court, including the disparity of incomes or earning capacities of the parties, “benefits which the party not at fault would have derived from the continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition, and obligations, the disparity of ages, size of separate estates, and the nature of the property.” Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). That kind of sounds like the judge can do what they want if it reflects those conditions and a consideration of those factors. And that’s kind of right, the trial courts in Texas family cases are only held to an abuse of discretion standard. If you want to overturn a trial court’s ruling in a family case on appeal, you have to show the judge abused her discretion, which is a legal way of saying they really screwed up and didn’t follow the law correctly.

One way to challenge the judge’s ruling is to look at the evidence the judge considered in diving the estate. That is, did the consider any evidence that was “of a substantive and probative character?” If so, then it’s probably not an abuse of discretion on appeal. You’d probably want to argue on appeal there was no evidence on an issue, or if there was, it wasn’t substantive or probative.

In Texas a parent can have their rights terminated. Texas law allows a court to terminate a parent-child relationship only if the court finds clear and convincing evidence for one or more statutory grounds for termination and that termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001

How does a court decide if parental termination is in a child’s best interest? 

Texas courts use what are called the Holley factors from this case, Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

Prior to the Supreme Court of Texas Opinion in In the Interest of H.S., on June 15, 2018, many family law attorneys would have told you that in order for a non-parent to have standing under Texas Family Code § 102.003(a)(9), the person would have had to have had “exclusive” care, control, and possession, of a child for six months. That is, the person would have had to have care, control, and possession of the child without any help or interruption from the legal parent. This would mean that the child would be living with the non-parent and the non-parent would be making all decisions for the child. The court made clear in In the Interest of H.S., that section 102.003(a)(9) is broader than that and that there is no “exclusive” requirement.

Texas Family Code § 102.003(a)(9) and Standing

 
To fully understand section 102.003(a)(9) you have to first understand what standing is. Standing is basically the ability of a person to get in front of a judge in a case and request an order. If someone does not have standing, they don’t get to bring their case to court at all. It is very difficult for a non-parent to bring a case regarding a child under the Texas Family Code because of a United States Supreme Court Case and a strong parental presumption policy in Texas. Section 102.003(a)(9) of the Texas Family Code gives a non-parent a way to have standing. It says that a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition can have standing.

A question we get asked frequently is whether a client or potential client can get “joint custody” of a child. The term “joint custody” is NOT a term that has legal significance under the Texas Family Code. The language in the family code that does use the word “joint” is “joint managing conservator,” and that doesn’t mean what most people think it means. This blog post is going to explain the difference in the two terms.

What is Joint Custody?

            In Texas, we don’t use the term “custody” to describe the time parents spend with their children. We use “possession and access” to describe what most people think of when they use the word custody. When people use the term joint custody they typically are speaking of a 50/50 possession and access schedule. For more information on what that may look like and what that means look here: What Does 50/50 Custody Mean. The long and short of that blog post is that there is no 50/50 possession and access schedule listed in the Texas Family Code and that there are multiple “equal” possession schedules that courts use.

There is no way that anyone can give you an exact timeline of how long your divorce will take. Each case is different. However, there are a few things that can be known for sure and this blog post is going to go through some of the things to keep in mind when trying to figure out how long your divorce is going to take.

1. There is a Mandatory Waiting Period

 
In Texas, divorces cannot be finalized before 60 days have elapsed since the date of filing. This is almost always the case, unless a judge waives the waiting period. Typically, judges think the 60-day waiting period is a good thing and they do not waive this requirement. However, under a few extreme circumstances, such as deployment or an imminent birth that is not of the marriage, judges have been known to waive the waiting period.

There are a lot of changes that happen because of a divorce. One that may not be at the top of people’s minds when going through a divorce is the impact their divorce is going to have on their property when they pass away. Divorce can change the way property is treated with respect to certain deeds, life insurance policies, wills, and other estate planning documents.

What Impact Does a Divorce Have on a Will?

In general, Texas law takes into account that people don’t want to leave things to their ex-spouse after a divorce. Without express language that says otherwise written into a will, anything left to a spouse will be treated as if the spouse is essentially dead at the time the will is probated under Texas law. This means that anything that was meant to go to an ex-spouse will now go to whoever is next in line. This could mean that an alternate beneficiary was designated and the property will go to that next person listed or it could mean that the property now will pass as if no will was drafted because no alternate beneficiaries were named.

Many people are familiar with the standard possession schedule that is written in the Texas Family Code. It basically involves first, third, and fifth weekend possession with rotating holidays and extra time during the summer. Less people are familiar with section 153.015 of the family code that provides a way for judges to order electronic communication with a child as a way to supplement the time a parent has to spend away from their child under a possession order.

What does section 153.015 say?

The court may award a party reasonable periods of electronic communication with a child upon request of the party.  In determining whether to award electronic communication, the court will consider whether electronic communication is in the best interest of the child, whether equipment necessary to facilitate the electronic communication (phone/ipad/computer) is reasonably available to all parties subject to the order, and any other factor the court considers appropriate.