Property and Asset Division

Jun
18

What Happens to Your Will After a Divorce in Texas

A divorce can be grueling is transformed by law, probate, and insurance decisions made prior to divorce. It is important to know exactly what will happen to your will and life insurance if this misfortune happens to befall your family. The family unit is important and if it is fractured the question of what happens to “my will”, “my life insurance”, or “my trust” is a relevant and important one that needs to be answered.

If you are divorced from your spouse then your previous will may be in many aspects considered revoked automatically. Under the Texas Estate Code § 123.001 after a valid divorce, all provisions in a will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise. The translation of this states: if you receive a valid divorce then your will is in many respects revoked and your spouse and stepchildren will receive nothing from the previous will. The one exception is if the will explicitly states that in case of divorce the previous spouse or children will still inherit. This revocation applies to fiduciary appointments as well. For instance if you have a trust and your spouse is the trustee, then she will be revoked from the trust in its entirety.

If you divorce your spouse, then your spouse’s beneficiary status pertaining to your life insurance will be automatically revoked. Texas Family Code § 9.301 states an automatic revocation upon divorce and lists three exceptions:

  1. If the divorce decree names the former spouse as a beneficiary
  2. The individual adds the divorced spouse as a beneficiary to the policy after the divorce
  3. The former spouse receives the life insurance as a “guardian” of the children

These are the exceptions for life insurance. If you decide to divorce your spouse unless further action is taken, the spouse will not benefit from your death regarding the life insurance.

Finally, the inheritance of a divorced spouse in reference to a trust depends on whether the trust is revocable or irrevocable. If you have set up a Revocable Trust then after the divorce your prior spouse will automatically lose his/her beneficiary status within the trust. On the other hand, if you set up an Irrevocable Trust then regardless of a divorce the prior spouse will still inherit and be considered a valid beneficiary. A divorce will have no effect on an Irrevocable Trust. If you decide to create an irrevocable trust, be sure to understand that your spouse will inherit the assets in the trust even after a divorce.

In a Texas divorce, the law protects you from unchecked gifts to your prior spouse and stepchildren with regard to your will, life-insurance, and revocable trusts. The prior spouse will not take from these unless one of the few exceptions apply. Divorces are riddled with complexities and it is prudent to seek advice from an experienced Texas divorce attorney during these proceedings to ensure that the divorced spouse is removed completely from your will and does not reserve an argument to acquire your assets post-divorce .

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Jun
09

Unique Possession Orders that Work with a Fathers Profession

Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.

First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.

Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.

Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.

The Mediated Settlement Agreement § 153.0071 must be:

  • In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
  • Signed by Both Parties to the agreement
  • Signed by the lawyers (if represented) of each party

The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.

These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.

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May
28

Fatherhood in America 2019 – Changing Trends!

Many Fathers are becoming more aware and knowledgeable about home, fatherhood and what this really means to the growth and mental wellness of their children.  Whether they live with their child and mom, are a single parent, or as a divorced parent, or co-parent, studies in the last 10 yrs have shown the importance of the involvement of the father in promoting the child’s well-being, especially regarding issues of diet/nutrition, exercise, play and parenting behaviors. Most fathers are present at their child’s birth, even though 40% of births are between unmarried couples.
( AAPpublications.org/news/2016/13/Fathers061316 ).

Today’s fathers are taking a very active role in caring for their children and helping around the house.  The share of stay-at- home dads has increased to 17% in 2016, up from 10% in 1989. 68% of fathers who stay at home to care for family are younger than 45. (Pew Report/2018/09/24/Stay-at-home-moms-and-dads). Younger fathers are leading the trend for more quality family time with their children. Sadly, 63% say they spend too little time with their kids, with only 36% says they spend the right amount of time with their children (www.pewsocialtrends.org/2017/10/18/methodology-12/).  Could this be because many of these younger fathers were raised in divorced or single parent families?  

Pew Research Center 6/13/2018 published a new survey on “7 Facts about American Dads” and this is very eye opening. Here are some of the more interesting items:

  • 57% of Fathers see parenting as central to their Identity and 54% report parenting is rewarding all the time.
  • Dads are more involved in child care averaging about eight (8) hours weekly on child care and 10 hours a week on household chores, which is about triple the time provided in 1965.
  • Work-Family balance challenge for Fathers: 52% of Fathers say it is difficult, but 48% of dads say they need the income for the family.
  • Who is the better Care Giver? Mom or Dad? 53% of Adults still say Mom, but 45% of Adults now say fathers and mothers do equally well.  
  • Most Americans (64%) say men and women have different approaches to parenting. 56% of Americans say the gender difference in parenting is a Good Thing.
  • Seven-in ten adults say it’s equally important for new babies to bond with both their father and mother.  49% of adults said employers put more pressure on Fathers to return to work quickly after the birth or adoption of a new child.

This is really a good time to be a Dad!  Public Opinions are changing about who is the better parent for the child’s growth, influence and advancement to healthy, positive adulthood. In the legal arena, States Legislatures and Courts are working on changing obsolete laws and statues favoring one parent over another and trying to work on having more even opportunities for both parents to equally raise their child.

If you are a father and having problems with having or enforcing your rights with your child, don’t give up. You are important to your child. Find a caring Attorney who can help.

Nacol Law Firm PC  

Dallas, Tx 75231

By Nacol Law Firm | Property and Asset Division
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May
06

Getting a Divorce? Should I Move Out of the Marital Home?

This is a complicated question to answer depending upon the facts of each case.  If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety.  Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out.  In this situation contact an experienced family law attorney now!

In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the marital residence.

Why is this?  One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.

Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.

The higher wage earning spouse who moves out of the marital home must expect to continue to pay most of the household expenses, including the insurance and mortgage!  What about the personal property and furnishings in the residence?

If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.

Secure a court order ASAP to equalize property and household expenses.

 

By Nacol Law Firm | Property and Asset Division
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Interstate Jurisdiction – Enforcing Your Rights in Texas

In a Texas child custody agreement, interstate jurisdiction refers to the state which has the legal authority to enforce and modify a Texas child custody agreement. The state that has jurisdiction decides your Texas child custody case.

For help with a child custody case that crosses state lines, contact a qualified interstate jurisdiction attorney to make sure your rights are protected!

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