 Last month, I talked about the need to get a will done if you haven’t already. I also wanted to take the new year to mention other estate documents that can be helpful along with a will.
Physician’s Directive: this is a document that addresses end of life decisions. A typical directive will set forth what medical steps you want taken if you were to have an incurable condition. It also address what medical steps you want taken if you have an irreversible condition. Power of Attorney: this document can be used to give another person the legal authority to make certain decisions for you. It is typically used in situations where a person is alive but for whatever reason cannot make those decisions for themselves (whether due to medical reasons or voluntary reasons). In conjunction with a will, both of these documents work to make sure your wishes are carried out even if you’re physically unable to do so yourself. These documents can also remove the decision making burden from family or friends as to what those wishes might be.  As we head into 2023, I always like to remind people that everyone should have a will. Getting a will done is a great and easy resolution for the new year. Everyone should have a will so that they get to decide themselves how their assets will be divided upon their death. Having a will in place saves families needless hassle and headaches of having to deal with a lengthy and expensive probate process. If you have a young children, a will allows you to decide who will take care of them and how they will receive your assets. For example, you can set up a trust for a minor child and name a trustee who you trust to handle the money for you child. Otherwise, these decisions will be left up to the probate court and may not be what you would choose. Another great reason to get your will done is that it’s a very easy process. Most wills involve just one meeting with an attorney to plan out and a couple of hours at most to get everything done. If you are ready to get started or still have questions, give our office a call to set up a consultation, 972-542-6820.  The vast majority of divorces, child custody cases, and other family law cases do not reach trial. In most cases, agreements are reached between the parties prior to trial. The most common form of settlement is through mediation.
Mediation is where a neutral third party works with the parties and through negotiations back and forth helps promote settlement. A mediator’s job is to encourage communication and help present ideas and solutions that the parties are willing to agree to. Most cases that go through mediation successfully reach settlement. Because mediation can help spouses and parties avoid trials, most courts will require that parties go to mediation before trial. If the parties do reach an agreement they can execute a written “mediated settlement agreement.” If the mediated settlement agreement includes certain language and features, then the agreement is binding upon the parties. A properly executed settlement agreement is binding immediately and even the court has limited power to deny the agreement. A court may only review whether the agreement is illegal or one party entered into it because of fraud, duress, or other dishonest reasons. If no such reason is evident then a party is entitled to judgment on that agreement. Mediation can be a great tool to reach a conclusion in a divorce or custody case. Mediation can help craft a custom solution. A solution that works with each individual party’s particular situation, in a way that might not be possible in a trial. Mediation can also help the parties save the significant time and money required to proceed to trial. One of the main goals in a Texas divorce is to divide the assets from a marriage, however, not all assets are community property. Separate property is property that was acquired or created apart from the marriage.
Community property is defined as property acquired by the spouses during the marriage "other than separate property." Separate property is generally not divided upon divorce and will remain the property of the spouse that owns it. Separate property includes all property that was owned by a spouse prior to the marriage. It also includes property such as gifts, inheretance, or personal injury recoveries that one spouse receives individually. It can even include gifts from one spouse to the other spouse. This separate property will remain with the spouse who brought it into the marriage or received it indiviually during the marriage. Because the separate property is not divided in the divorce it is often "confirmed" as the separate property of the specified spouse. It is important that you and your attorney identify property that may be separate property so that you can make an accurate determination as to what really needs to be negotiated between the parties. I discussed the Best Interest of the Child standard in the last article, but I wanted to go a little bit more into what a judge might be looking for.
The American Bar Association's A Judge's Guide: Making Child-Centered Decisions in Custody Cases identifies different circumstances and questions a judge make look at in deciding best interest. Factors for an Infant might include:
For an Elementary Aged Child:
These situations show how parents may be evaluated based on the age and needs of the child. Everything can be very fact specific. When facing custody disagreements, you and your attorney should goes these to best present you argument to the court. Ultimately, you want to show the judge that, while in your possession, the status quo will remain in place for the child, thus ensuring the child's life is disrupted as little as possible. The main consideration in any case involving children is what's termed in the Texas Family Code as "best interest of the child." Texas Family Code Section 153.002 states that "the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."
The term "best interest of the child" is further explained in the leading case Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The Holley case sets forth nine factors to be “considered by the courts in ascertaining the best interest of the child.” Those factors include:
When custody is a contested issue it is essential that you understand these factors and how they go towards the best interest fo the child. You and your attorney should discuss the factors and strategize how each of them fits the unique circumstances of your case. If you have questions or want to discuss the specifics of your case, you can schedule a consultation at 972-542-6820 or by scheduling online using the button below. The vast majority of divorces, child custody cases, and other family law cases do not reach trial. In the vast majority of cases, agreements are reached between the parties prior to trial. The most common form of settlement is through mediation.
Mediation is where an impartial third party works with the parties and through negotiations back and forth helps promote settlement. A mediator’s job is to encourage communication and help present ideas and solutions that the parties are willing to agree to. Most cases that go through mediation do reach successful settlement. Because mediation can help spouses avoid trials, most courts will require that parties go to mediation before trial. If the parties do reach an agreement they can execute a written “mediated settlement agreement.” If the mediated settlement agreement includes certain things such as prominently displayed language that the agreement is not subject to revocation and is signed by the parties and attorneys then the agreement is binding. A properly executed settlement agreement is binding immediately and even the court has limited power to deny the agreement. A court may only review whether the agreement is illegal or one party entered into it because of fraud, duress, or other dishonest reasons. If no such reason is evident then a party is entitled to judgment on that agreement. Mediation can be a very effective way to reach a conclusion in a divorce or custody case. Mediation can help craft a custom solution to a party’s particular circumstances that might not be possible in a trial. Mediation can also help the parties save the significant time and money required to proceed to trial. One area that often causes confusion for people considering divorce is spousal maintenance. Spousal maintenance or what’s often referred to as alimony is a set of payments from one spouse to the other spouse after a divorce.
In Texas, spousal maintenance is intended to provide limited support to the other spouse for a specific period of time after the divorce. The Texas Family Code sets forth 3 parts that must be shown for a spouse to be eligible for spousal maintenance- (1) they must be married, (2) the spouse seeking support must show he or she can’t provide for his or her minimum reasonable needs, (3) the spouse must meet one of 4 conditions (either a ten year marriage, family violence, a disabled spouse, or a disabled child). The minimum reasonable needs are considered on a case by case basis. Generally, courts will consider a spouse’s ability to make mortgage/rent payments, property taxes, utility bills, car payments, insurance, groceries, medical expenses, child care, and clothing costs. Then court will then consider what property that spouse has along with that spouse’s monthly income. Generally, the court will compare that spouse’s projected income with his or her projected expenses. If the spouse’s income is less than the spouse’s expenses then the second condition may be met. Finally, after the first two conditions are met the spouse still has to show that there has been a marriage of at least 10 years, family violence, a disabled spouse, or a disabled child. Once it is determined that spousal maintenance is possible the amount and length has to be determined. The Family Code sets out factors to be considered such as earning power, separate property, duration of the marriage, spouse’s education and employment skills, homemaker contributions, marital misconduct, and family violence. These factors along with the spouse’s minimum reasonable needs will help the court set forth the length and amount of the maintenance. However, Texas Family Code §8.054 does set forth caps on the length of the maintenance based on the length of the marriage and special circumstances. Eligibility and appropriateness of spousal maintenance can be an important factor in determining the proper resolution of a divorce case. It is important that clients and their attorneys discuss the ways maintenance may come into play in a divorce. Many times after a divorce or child custody order is finalized, a party is so relieved that the party fails to recognize that the decree or order places certain notice requirements on them.
Texas law requires that certain notices be placed in any child custody order. Under Texas Family Code 105.06, the parties must be notified that they are required to notify the other party, the court, and the state case registry, of any change in address, telephone number, or employer information. This notice can be involved simply by mailing a letter to the court clerk and the other party (with proof), but often times parties don’t even realize it is there. Parents are also required to notify the other party anytime certain medical emergencies come up involving the child. There also is normally a requirement that the parent providing the health insurance provide the other parent with a health insurance card and policy information within a certain time frame. Notices in a decree typically include a requirement that a spouse provide financial information related to the marriage to the other spouse in certain tax situations. These are just some of the notices that are included in a divorce decree of child custody order. Talk to your attorney and be aware of these requirements so that you can be in compliance with your decree or order. The Texas State Disbursement Unit is a facility in San Antonio that collects and records child support payments. In a child support order, the court will order that all child support shall be paid to the State Disbursement Unit and then forwarded to the custodial parent.
Once the Disbursement Unit receives the support, it can remit by direct deposit that money into the custodial parent’s bank account. This keeps everything very convenient for both parties. Sometimes parties get along and the paying parent just sends money directly to the other parent or pays for items directly (school tuition, child care, etc.), however this has the potential for causing problems later on. For instance, there can be disagreements over what has been paid and when. If child support payments are sporadic or inconsistent they can be difficult to keep track of. The benefit to having the money sent through the Disbursement Unit is there is an accurate record of all support payment amounts and the date those payments were made. The State Disbursement Unit helps protect paying parents who send in child support and helps custodial parents show any support not paid. |
AuthorMichael Diaz Archives
February 2023
Categories |
RSS Feed