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What is a Will?

We are all going to die someday, and that means we all need a will. But what is a will? A will defines what you want to happen after you die. In other words, a will is a legal way to declare your intentions upon death. We call it a will because it’s what you will, or desire to happen. It expresses your will or intent. 

 “A will is generally defined as an instrument by which a person makes a disposition of his property to take effect at his death, and which by its own nature is ambulatory and revocable during his lifetime.” In re Estate of Brown, 507 S.W.2d 801, 803.

Texas Divorce Law is changing in 2021. Starting on 1/1/21 there will be new discovery rules that will apply to all family law cases, including child custody and divorce. What does this mean for people starting the process? It means it’s time to get organized. If you are going to meet with a Texas Family Lawyer in 2021 you must have certain documents and information ready from the start.

What’s changed?

Starting in January 1st, 2021 all parties to a divorce will be required to turn over certain documents within 30 days. So as soon as you are served with a divorce or child custody case you will have 30 days to respond, and as soon as you file a divorce case you will have 30 days to turn documents over to the other party.

Appealing a Court’s Ruling on the Division of Property in a Divorce Case

Upon granting a divorce, a trial court must order the division of the parties’ community property and determine any claims for reimbursement by any of the martial estates in a manner it deems “just and right.” TEX. FAM. CODE ANN §§ 7.001, 7.007; see also Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). The party claiming the right of reimbursement bears the burden of pleading and providing the expenditures were made and are reimbursable. Chavez v. Chavez, 269 S.W3d 763, 768 (Tex. App.—Dallas 2008, no pet.). For purposes of the division of the parties’ community estate, community property consists of property, other than separate property, acquired by either spouse during marriage. TEX. FAM. CODE 3.002. Separate property consists of property owned or claimed by either spouse before marriage. 

In the case below, I go over what the law is for the division of property challenges on appeals and why the court affirmed the trial court’s decision. 

What is Constructive Abandonment?

The Texas Family Code section allows involuntary termination of parental rights if clear and convincing evidence supports that a parent engaged in at least one of the twenty-one grounds for termination and termination is in the best interest of the child. See TEX. FAM. CODE § 161.001(b)(1)(A)-(U), (b)(2). A court will look at the parent’s ability to provide a safe environment for their children, the parent’s parental skills, and the best interest of the child when deciding whether or not to terminate parental rights based on constructive abandonment. Grounds for parental rights termination include constructive abandonment if the court finds by clear and convincing evidence that the parent has: 

constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services (“Department”) for not less than six months, and:

Termination of Parental Rights

As a parent, you are the legal guardian of your child. Parental rights pertain to the custody of the child, i.e. (1) the legal right to make decisions for the child; and (2) physical custody to provide and care for the child. Usually, the decisions made by the parent are done with the best interest of the child in mind. However, when the parents of the child act in such a way, that it is in the best interest of the child to terminate parental rights, a court can and will terminate accordingly.

WHAT IS THE BEST INTEREST OF THE CHILD?

In family law, discovery is the process in which your attorney will request and obtain information from the opposing party. One tool for discovery in Texas is Rule 194 of the Texas Code of Civil Procedure, Request for Disclosure. These are used to ask for basic information about the case, names of the parties etc.

Starting in 2021, Rule 194 is going to change. There is no longer going to have to be a request for disclosure. The opposing must provide certain information, even without a request. Here is the new rule 194(a)

(a) Duty to Disclose. Except as exempted by Rule 194.2(d) or as otherwise agreed by the parties or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties the information or material described in Rule 194.2, 194.3, and 194.4.

The Obligations of a Fiduciary

Simply put, a fiduciary duty is the responsibility to place someone’s interest ahead of your own. So important is this responsibility that it requires the highest degree of honesty and loyalty. Key-word there, loyalty

You can be responsible for a breach of fiduciary duty only if you owed that duty. To prevail on a claim, you must establish that a duty existed between yourself and another party. Now, we tend to see fiduciary relationships in business. Whether it’s an agent and the client he or she represents, or attorneys and their clients. Even an employer/employee relationship. But, family dynamics also play a role in establishing and maintaining fiduciary relationships. Fiduciary issues arise out of family law, particularly between spouses. 

It is not uncommon for married couples to live together while a divorce is pending. One of the issues we often have to address for our clients is who is going to live in the marital residence. This can be agreed to, and often one party will agree to move out. However, if there is not an agreement then a judge may have to decide who lives in the marital home during a temporary orders hearing.

Having a divorcing couple living together can lead to confrontation, and it can increase the risk of domestic violence. If you believe that it is dangerous to live with your spouse let your lawyer know immediately. Recently, the Dallas Court of Appeals hearing a case involving an assault between a couple going through a divorce, and still living together.

In that case, Johnelle Hall vs the State of Texas, No 05-18-00424-CR, the couple (Johnelle and Clifton) couldn’t agree on when Clifton (Husband) should move out, or if he should pay child support. The issue was put to a judge at the temporary orders hearing. The judge ruled that Clifton did have to move out, and pay child support. But the judge also gave Clifton two extra weeks to move out. Neither party was happy with this ruling. In family cases, it is not uncommon for both parties to have issues with a judge’s ruling.

Courts are working to head off problems with custody orders caused by the Coronavirus.  If you have a custody order you must keep up with these orders, since they apply to you. The most recent order on family cases in Kaufman County is from March 25th.

Standing Order Governing Possession and Access During the Shelter in Place Order of Kaufman County Judge Signed March 24, 2020

For all cases arising from the Family Law Courts of Kaufman County, the Court ORDERS that:

The coronavirus is impacting courts across Texas. Kaufman County Judges have issued the following orders to reduce the number of hearings and to help with the social distancing recommendation by the CDC.

These guidelines are effective from March 23, 2020, until further order of the Courts-

  1. If a Person is Sick- Everyone who is sick or who thinks they have been exposed to COVID-19 should contact (phone or email) the court to reschedule their hearings or trials. These individuals should not appear in court.
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