Wednesday, December 24, 2014

Fran Brochstein

Fran Brochstein2014video

Thursday, December 18, 2014

DNA testing site

We are the Preferred & Trusted Source for both Personal & Court Admissible
 Paternity & DNA Testing in Texas 

Same Day Appointments Available 

Gotta Know DNA Testing

 HOUSTON (713) 795-9955  
PEARLAND (713) 224-6650  
SAN ANTONIO (210) 305-4918

Walk-Ins Every Friday at Houston Office

Facts about DNA/ Paternity Testing -
As many as 1 in 10 men have doubt about fatherhood. Testing for paternity as early as possible will help bring Peace of Mind sooner, and save a child from future confusion and anxiety. 

We provide the answers to paternity quickly, painlessly, and compassionately.  Paternity Testing simply means establishing fatherhood. Everyone is born with a unique genetic blueprint known as DNA (Deoxyribo Nucleic Acid). 

DNA is passed down from mother and father to a child. DNA Identification provides a conclusive way to determine biological relationships. 

Consequently, DNA Testing has become the most accepted method to determine identity within the legal and scientific communities. 

We use a painless, non-invasive mouth swab (buccal swab) for collection instead of drawing blood (unless requested by the customer). 

The result from using the buccal swab are just as accurate as results obtained from a blood draw. Results are delivered in an average of 3 days.  

We are able to coordinate testing in any city, state or country. We have an exclusive relationship with DDC Lab (DNA Diagnostics) which allow us to offer you excellent and affordable service. 

The cost of court admissible (AABB) paternity test is $345.00. 

If you do not require court admissible test results, Gotta Know Testing now offers Peace of Mind Testing for only $245.00. 

Same day appointments are available in most cases. 

For your convenience we are available by appointment on Saturdays and have mobile collectors available 7 days a week.


Texas Descent and Distribution (The legal effect of not having a will)

The Texas Legislature has laws on how property will be divided if you die without a will in the State of Texas.

The State of Texas will not "take" your property - it will be divided by the heirs of the deceased person after a judge has determined who his heirs are legally.

Unfortunately, often the property is not divided the way the heirs want --

For example, if a man own separate property real estate then his widow gets to live in the house for the rest of her life (but she must maintain it at her own cost) and the children cannot take possession of the property until she dies or leaves the home.

If a woman dies and leave community property (not real estate) but clothes, money, jewelry, investments, etc. then the spouse gets 100% and her children get nothing. The daughters would not be entitled to any jewelry or her personal belongings.

It really gets complicated when there are children born outside of the current marriage, say a first marriage or a child born without the benefit of the parents being married, then the Texas Legislature has protected all children and the widow(er) only receives their 50% interest in the community estate.

Additionally, without a will then probate in Texas is slow and expensive.  The heirs are under the judge's control since the deceased did not express his desires in a will and he/she did not appoint an independent executor (executrix) to handle the affairs of the deceased's estate. The heirs need to probate the estate in order to have a clean title to sell any real estate.

If you don't probate the estate then the bank will eventually turn it over to the State of Texas unclaimed property division and it is very very difficult to get the money released.  You can look on the internet under Texas unclaimed property to learn what you need to try to get money you think belongs to you.

Here is what the Texas legislature decided was fair when a person dies without a will:

Married person with children

a.  Separate property real estate - surviving spouse's life estate in 1/3
and all children take equally subject to the spouse's life estate
all other property - 1/3 to spouse and 2/3 to children to be shared equally

c. community property -
real estate - all to surviving spouse if all children are also children of this marriage
and all other property - all to surviving spouse

d. If there are children from outside the existing marriage on the date of death of the deceased person then:
real estate - 1/2 to spouse and 1/2 to children
all other property - 1/2 to spouse and 1/2 to children

If a person is single or widowed with no children --
If the person died with no children then the deceased's mom and dad split the estate 50/50.
If the person died with parents and siblings then 1/2 to mom or dad and 1/2 to siblings.

Widow(er) with children
real estate and all other property - children share equally or to the descendants of the children.

Married person with no children

Separate property real estate - if both parents are alive - 1/4 to mom, 1/4 to dad and 1/2 to spouse.

Separate property - one parents survives - 1/4 to parent and 1/4 to siblings and 1/2 to spouse.

Separate property no siblings or their descents - 1/2 to parents and 1/2 to spouse

No surviving parents - 1/2 to siblings and 1//2 to spouse

No siblings (or their descendants) or parents - all to spouse

All other property - to spouse

Community Property - All real and personal property is taken by the surviving spouse

Tips on how to stay married

I found a copy of an article about how to avoid divorce and stay happily married.

Unfortunately I don't know who wrote it so I could give the person credit.

Marriage advice I wish I'd known:

1.  Never stop "dating" your spouse.  Never take your spouse for granted.  Never get lazy about your love.

2.  Protect you own heart.  Be sure to love yourself fully, love the world opening but here is a special place in your heart where no one must enter except for your spouse.

3.  Fall in love over and over and over again.  Both of you are constantly changing. You are not the same people you were when you married and in 5 years you will not be the same person that you are today.  Change will come and in that you have to re-choose your spouse everyday.

4. Always see the best in your spouse.

5.  It is not your job to "fix" or change your spouse.

6.  Take full accountability for your own emotions.  Your spouse cannot make you sad or happy. You are responsible for finding your own happiness.

7.  Never blame your spouse if you get frustrated or angry at him/her.  These are your emotions and you need to "own" them.  If your spouse "triggers" negative emotions then you need to heal yourself.

8.  Allow your spouse to just be.  It is not your job to fix your spouse.  It is your job to hold your spouse and let him/her know it's ok when they are upset or sad.  Let your spouse know that you are actively listening and that your spouse is important to you.  Don't run away when your spouse is upset - be present and strong and assure your spouse that you are not going anywhere.

9.  It's ok to be silly.  Don't take yourself too seriously.  Laugh and make your spouse laugh.  Laughter makes the hard times a bit easier.

10. Fill your spouse's soul everyday - learn how to make your spouse feel validated and cherished.

11. Be present. Treat your spouse like you would treat your most valuable client.

12. Be willing present sexually too.

13.  Don't be an idiot. Everyone makes mistakes.  Try not to make too many big ones.  Neither of you are "perfect" but don't be too stupid either.  Think before you act.

14.  Give your spouse space.  Everyone needs some space to renew and get re-centered.

15. Be vulnerable.  Share your fears and feelings and quickly acknowledge your mistakes.

16.  Be fully transparent.  Don't wear a mask in your relationship with your spouse.  If you want to have trust then you must be willing to share everything.

17.  Never stop growing together.  Find common goals, dreams and visions to work towards.

18.  Don't worry about money.  It does not help when you fight.  Figure out ways to let both of you win.  Work together.

19.  Forgive immediately.  Don' hold onto past mistakes. Forgiveness is freedom.

20. Always choose love. Love will always endure.

Be the type of spouse that your spouse will want to brag about!

Excellent website for Texas Family Law Information

Saturday, December 13, 2014

Association for Conflict Resolution - Houston Chapter

It's time to join or renew your membership in the Association for Conflict Resolution - Houston Chapter.

Cost $35 per year or $15 per year for students.

Many excellent presentations for members and in 2015 we are going to host an evening to honor local Houston mediators.

The best free Texas website with free forms -

I keep posting about this free website.

Many forms for free on this website:

Divorce forms - for people with and without kids.
Hint: if you have kids be sure to print and fill out "Exhibit A - Standard Possession Order".

Name change forms for adults & minor children

Termination of withholding for child support form

Forms for people over 60

Wills & Estates - have power of attorney forms

This site is fairly easy to use.
If you cannot figure it out then hire an attorney to do the work for you correctly.

The divorce forms are acceptable by Texas Courts.  The Supreme Court of Texas has instructed judges to accept these forms if they are filled out correctly and any other forms that are required are also filled out correctly.

Each court can require extra forms.  So look on-line before going to court.  Many courts list their requirements and even have the forms available for free on-line.

Each county charges a fee for a divorce.  So look on the county clerk's website to determine what your county charges.  For a divorce without kids it's approx. $275 and with kids it's around $300.  That is the only fee - no fee at the end to "finalize" your divorce.

If you are indigent, you can use this website to complete the forms to not pay filing fees.

Good luck!

Tuesday, December 9, 2014

South Texas College of Law - Free legal assistance

South Texas College of Law has dramatically enlarged its free legal assistance for low-income and disadvantaged populations in the Houston area.

Their civil practice clinics are:

Child Welfare Clinic - for youth aging out of foster care

Estate Planning Clinic - preparation of end-of-lice documents including powers of attorney and wills.

Family Law Basic Clinic - divorces without property and no children

Family Law Advanced Clinic - divorces with children, modification of custody or support, SAPCR, (suits affecting the parent child relationship -- usually unmarried couples), and amicus appointments

Government Benefits Clinic - helping people file for Social Security and veterans benefits

Guardianship clinic - assistance for incapacitated adults and special needs minors.

Probate Clinic - helping people with probate

Their transitional clinics are:

Trademark Clinic - helping people and small businesses in filing trademark applications

Patent Clinic - started in fall, 2014 - new clinic to assist inventors with filing for a patent

Their Special Focus clinics are:
Asylum and Human Trafficking Clinic
Actual Innocence Clinic
Domestic Violence Clinic
Mediation Clinic

South Texas College of Law 
1303 San Jacinto Street
Houston, TX 77002


there is also 
Houston Volunteer Lawyers
another pro bono organization 

Illegally obtained Electronic Evidence and Family Law

This is an excerpt from Attorney Greg Enos' post to family law attorneys that practice in the Gulf Coast Region of Texas. His publication is known as the Mongoose and is published on the internet.  

He knows a lot more about this topic than I do!

Thanks Greg...

(Here is the bottom line - Attorneys are now being advised not to represent a person with illegal obtained electronic evidence. Attorneys are also advised not to tell the person - or even hint - to destroy of this evidence.)

PLEASE -- if you have a question about this - don't call me! Call the law firm shown below in large type. 

Illegal Electronic Evidence and Family Law  

Lawyers can be sued, arrested and sent to prison and disbarred for mishandling illegal electronic evidence, such as recordings, e-mails and text messages.   

An attorney can face personal, criminal and civil liability for using or disclosing an illegal recording or illegally intercepted electronic communication (e-mail or text message) provided to the attorney by a client. For example, the following can be separate and independent federal and state wiretap act violations:  (1) a client's disclosure to an attorney of an illegally obtained e-mail, (2) the attorney's disclosure to his staff, co-counsel or expert of the e-mail or its contents, (3) an attorney's use of information obtained from the illegal evidence in pleadings, (4) an attorney's use of the illegal evidence as attachments to pleadings and affidavits, (5) a lawyer's use of information obtained from the illegal evidence when questioning a witness, (6) a lawyer's use of the illegally obtained recording or communication as evidence in court or a deposition.

Each separate illegal use or disclosure of intercepted communication can be a federal or state felony and can result in a $10,000 civil penalty (plus actual damages and attorney's fees).

The Federal Wiretap Act (which applies to interception of phone, voice and electronic communications) can make a lawyer a criminal if she: 

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; 

18 U.S.C. § 2511(1)(c), (d). 

The Texas Wiretap Act is basically the same as the federal law except a lawyer can commit a crime if she is reckless in using an illegal recording or communication (which is a much broader standard of liability than "knows or has reason to know the information was obtained through [an illegal] interception...").  

Under the Texas law, a person commits a crime if she...

(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; 

(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;  

Tex. Penal Code § 16.02(b).   

The Austin law firm of Noelke English Maples St. Leger Blair, LLP has provided excellent guidance for attorneys that we all should follow:  
DO: Advise your clients that they cannot delete, destroy, remove, or otherwise edit electronic data.

DO: Advise your clients on the law of intercepting email and other forms of communication. The best policy is to advise your clients NOT to access their spouse's email accounts at all, even if they think they have consent to do so.

DO: Advise your clients to change all of their passwords. And if you suspect that spyware has been installed, have the computer or phone inspected by an expert.

DON'T: Represent a person who has illegally obtained electronic material. Period. It is not worth the risk.   

DON'T: Take possession of illegally obtained material. If you have it in your possession, read it or listen to it, you may be committing a crime by using it in the preparation of your case.
DON'T: If you have illegally obtained discovery in your possession, don't produce it in discovery without the advice of a criminal defense attorney.

DON'T: Turn over your client's cell phone or computer for copying without a written agreement in place as to how it will be searched. There may be privileged or non-discoverable data on these devices that does not need to be produced.


Monday, December 8, 2014

Happy Holidays & thanks for reading my blog

Happy Holidays!
Merry Christmas!

Hopefully Santa and his elves will be very good to you this Christmas season.

May the coming year bring all of us good health, joy, happiness and unlimited prosperity!

Thank you for looking at my blog.

If you need me to reply, you MUST email me

Do not write a comment and expect me to reply directly to you -- this blog won't let me do that!

Google Ad words on this blog

Google ads are now appearing on this blog.

I have no control over them or the content.

Let me know what you think of them.

So far they look fine to me.  Hopefully, there won't be an issues with them!

Happy Holidays!

Friday, December 5, 2014

Free e-book on Texas family law and medation

My new you tube video on my law practice

Men that claim that they are treated unfairly in Harris County Family Courts

I receive many phone calls from men claiming that they are treated unfairly in Harris County Family Courts.

That tells me that (1) they did not fight or (2) they did not hire a smart, aggressive, experienced family law attorney.

Many attorneys make all sorts of promises about what they will do but they "wimp" out and don't advocate effectively for their clients.

Unfortunately, people don't know how to find and hire a decent family law attorney.  Websites are not enough.  You need to talk to your friends and family about attorneys they know and respect.

Quite frankly, there are many attorneys that I would never hire to represent me or any of my friends and family.  They "talk" boldly but they "bail" when the work gets tough.

One of the best free websites is or  You can read comments made by attorneys voluntarily answering free questions for Texas residents.  This shows a lot of commitment to the area of family law.

Never hire anyone that does not practice primarily in the area of family law.  I would not hire my dentist to fix my car.  Many attorneys that don't practice family law "disrespect" it.  Family law is a lot tough that most attorneys imagine.  Many excellent litigators have "lost" in family courts because they are not familiar with family law.

Texas law is gender neutral.

Judge James Lombardino in the 308th judicial court of Harris County and his associate judge, Alyssa Lemkuiil, treat fathers fairly from my experience.

I once mediated a case with a baby less than a month old.  We did not settle. I followed  up with this case and learned that Dad and Mom got equal access (50/50) to their child that was less than a month old!

So if you are a male in Harris County, I urge you - "beg" you - to do your research and find a family law attorney that you trust and that does not make all sorts of promises just to sign you up and get your money.  A good family law attorney will explain the pros and cons of every case (there always are cons to any case -- there is no such thing as a "slam dunk" case) and will be your advocate and guide you in how to do what is right for your children.

Look around and make your selection carefully.

It's a lot like dogs -- a tiny poodle might make a lot of noise but a big pit bull might be quiet but deadly.  Don't pick someone just because they have a loud bark!

Monday, November 17, 2014

Man complaining of being a "pawn" in a child support case

Question: Child's birth is early 2015. I have supported the mother with financial thioughout the separation. I have been told to stay away which I have concurred. She is planning to take me to court and I have to protect myself and the impending relationship with my child. My concern is the welfare of my child and our relationship. I have even suggested that I would remove myself from the equation. However, I will not be used as a pawn as a payee and not a father. 

My reply:

In order to owe child support the baby must be born alive.  

Basically, in Texas you will be paying child support and you be ordered by a judge to carry health insurance for the child if you are determined to be the bio father. You will also be liable for 50% of all uninsured medical bills.  

If the child ever becomes disabled before the age of 18 then you can be ordered to pay support for the child's entire life! It does not end at 18 if the child is unable to ever support himself/herself.  

So your comment about not being "a pawn" won’t work in front of a judge.  They hear this argument on a daily basis when a bio dad does not want to pay child support.   The judges don’t care whether or not you see your kid -- but you will be required to support it. The Texas Legislature has passed laws about both parents supporting their bio children.  

The Texas Family Code is available on-line for free.  Just google it.

Child support comes BEFORE rent, food, clothing, cars, basically everything.  If you have to sleep on a friend's couch to pay child support then judges expect you to do whatever it takes to pay your child support. 

Until the child turn 18, a judge can threaten you with jail.  After 18, you can no longer be jailed but you owe the monetary debt. 

Child support is the debt that never goes away – at 6% interest.  It is not dischargeable at bankruptcy, you can lose your passport, driver’s license and/or any professional license you have obtained.  You can be jailed for 6 months, your credit rating will be ruined, and it will eventually be subtracted from your social security check if you don’t pay it before you retire. The TX A G can intervene in any inheritance you might be entitled to in the future.  Even when the kid turns 18 the debt remains — I’ve had 2 phones this past month involving kids in their 30’s with dads that still owe child support. 

Pretty soon you are paying interest on the 6% interest.  It grows every month.  

The good news is that the TX legislature reduced the interest rate from 12% to 6% because at 12% the amount of money grows quickly. 

So what do I recommend?

1.  Consultation with a family law attorney in your area immediately to discuss the facts of your particular case -- every case is different -- after 25 years of practice I have never had the exact same case two times.  You can call me if you live in the Houston area or a county around Harris County.  I charge $250 per hour for a face-to-face consultation or look on for help.

2.  Do nothing and see what she does.  Be advised that the TX A G or the mother can ask a court to order retro-active child support up to 4 years.  It used to be unlimited so the Texas Legislature does occasionally make pro-father laws.  

If she ever collected any state or federal aide (like insurance or WIC, or food stamps), then the TX A G will come after you.  It will take 2-3 years.  Their forms are horrible and very un-father friendly.  Please don’t set foot in their office without an attorney!  (One guy over paid his child support by $300 a month for 3 years because of a typo -- yes a typo!— his wife knew it all along and just laughed when I caught it — he could not get any money back — too late to fix it.) 

3.  Hire an attorney to file a paternity action (and DNA testing) after the baby is born and set up short frequent visits and address your support obligations.

Ask for joint managing conservatorship with a residency restriction.  Ask for liberal "rights and duties" so make parenting decisions regarding the child.  Don't let Mom have all "independent" rights or she never has to consult with you regarding the child.

4. After you get permanent orders, if Mom won’t or cannot cooperate then you need to have money readily accessible to hire an attorney to file contempt on her.  Judges expect parents to co-parent together.

5.  If you cannot communicate then the judge will order you to communicate through - it's approx. $100 a year for each of you.  The judge can look at your communications & determine how the communications problems are occurring. 

These are the basic options you have available.

I would cut her some slack.  She is pregnant and hormonal.  Be gentle with her since stress can harm the baby.  

Thursday, November 13, 2014

What does custody mean in the State of Texas?

What is custody and co-parenting with other the parent?

Custody is the care and decision-making rights regarding a minor child.  

In Texas we use the term conservator and not guardian of a minor child.  FYI: Guardianship is totally different that conservatorship.  Texas is one of the few states to use this term and many people do not understand it.  If you don't understand then you need to talk in person to a family law attorney so the details can be explained to you full.

In Texas, there are a set of "rights and duties" of a conservator.  These are vital to understand because they impact your decision making ability regarding the minor child.  

Even if parents are "joint managing conservators" it does not mean that child support won't be ordered.  JMC is merely a term in Texas.  It does not mean that the parents will have equal access to the minor child! Visitation is determined in the section of the legal document called "Possession Order".  

In Texas, the non-custodial parent can ask for an Expanded Possession Order for the child and see the child approximately 48% of the time.  It does not mean that child support won't be ordered.  

Co-parenting is a situation in which two unmarried parents essentially share custody of a child.  Each is responsible for equal amounts of responsibility and decision-making concerning a child's upbringing.  The general consensus is that children are at their best when they have an equal relationship with each parent, even when parents are not married or living in the same location.  The law views parenting as both a right and a duty, and in most cases when it is safe for the child, does all it can to allow a child to maintain a relationship with both parents.

Mediation can play a role in settling both custody and co-parenting issues.  When parents prefer to make decisions about their child’s well-being without interference from the court, mediation allows them to discuss the matter at hand and come to a legally binding resolution with less expense and without the invasive nature of taking the issue to court. 

I encourage people to use mediation to resolve their child issues.  For example, in Houston traffic does not move at 6pm on Fridays.  Therefore, I often recommend that the parents exchange at a different time to make the exchange of the child easier on everyone.  Mediation offers a lot of options to parents.  

What is an uncontested divorce n the State of Texas?

What is an uncontested divorce?

An uncontested divorce is an option when both spouses agree to end their marriage and settle the various issues related to the divorce without contention. 

Often, uncontested divorce is used by couples that own no property together and have no children.  

However, even in more complicated cases, if a couple is able to come to an agreement concerning property division, custody, child support, and other financial issues, uncontested divorce can still be an option. 

Though couples in Texas pursuing uncontested divorce do not need individual legal representation, it is smart for them to seek the advice of a divorce attorney before finalizing their arrangement so they fully understand what they are agreeing to do.  

Furthermore, child support and custody issues will need to be approved by a judge in the final legal document that is signed by the judge.  Many judges will sign any other that both parties ask them to do and if both parties have signed the legal document approving their agreements.   Again, this is up to each individual judge in the State of Texas.  No one can force a judge to sign an order.  

A divorce attorney can provide information and guidance concerning what the judge might do in your county.  If a specific matter in an uncontested divorce becomes an issue, mediation can be used to reach a settlement.

If a case is "uncontested" it can save thousands of dollars in legal fees.  For example, the other party does not need to be served by a process server and that easily saves approximately $250.

Each county charges a filing fee to file a divorce.  The cost is usually between $200-$300.  It varies in each county and is determined by the District Clerk's office in each Texas county.  

The Final Decree of Divorce is only one of the documents needed to be submitted to the judge for approval.  Texas requires a Bureau of Vital Statistics form be submitted for any family law matter that is handled by a Texas court.  If there are minor children, then a Employer Wage Withholding order for child support, a medical insurance order to the employer to cover the child on health insurance and perhaps some other forms are required.  Each judge determines what they want submitted in order to sign a Final Decree of Divorce.  Attorneys have no say on in this matter.  

Many judges also require that both parties attend a 4-hour parenting class and submit the proof of attendance.  The cost of these varies.  There are now many sites that offer these classes on-line.  Prices start around $25 - $60.  

I urge people that are divorcing to try to do an uncontested divorce whenever possible.  If there are children involved then you will be co-parenting for the rest of your lives! 

Is there legal separation in the State of Texas?

What is separation in Texas?

There is no official legal separation in the state of Texas.  Couples wishing to legally separate from one another must seek a divorce.  In some instances, attorneys will work with couples to create an informal separation (called temporary orders) that allows them time apart, to seek counseling and restore their marriage.  However, this is not the same as a legal separation available in other states that require a couple to establish financial obligations, custody arrangements, property arrangements, and allocation of employment benefits with their spouse.  Many states acknowledge legal separation in much the same way they do an official divorce, but Texas does not allow for this.

When Texas couples want some form of separation, there are only a limited number of things that attorneys can do to protect each spouse.  Some seek a temporary binding legal document signed by a judge that is commonly known as temporary orders, which is a temporary division of property  and addresses important issues regarding their minor children.   This separates some or all financial affairs for a pre-determined allotment of time while a couple remains married.

What is elder law medaition?

What is elder law mediation?

Elder law mediation offers an out-of-court tool for settling family disputes related to senior family members.  Family disputes related to aging family members might be related to long-term care and guardianship, financial matters and other issues with the family estate, and plans for retirement, benefits, and medical care.  Mediation provides a non-confrontational way by which to settle these disputes. 

Because there are many issues involved in elder law, both practical and emotional, it is often better to resolve conflicts within the family.  Elder law mediation is private and keeps the decision-making control in the hands of the family members.  Mediation is also less expensive and time-consuming than litigation, and makes it easier to preserve family relationships in the long run.  Elder law mediators work with family members to reach a mutually agreed upon resolution that is in the best interest of everyone involved, especially the elderly family member.

Tuesday, November 11, 2014

7 legal documents that every adult Texas needs

I advise my friends and family to have the following 7 legal documents for all adults in the State of Texas :

1. Last Will and Testament (even if you have a Living Trust document prepared you still need a "pour over" will that puts everything not already in your trust into your trust.) 

Very simply, a will is a legal document that directs how your property will be distributed after you die. In your will, you designate a person you trust to manage the distribution of your assets when you pass. You can also create a trust in your will for the benefit of your spouse or children. In addition, you can name a guardian for minor children. 

If you do not have a will, the State of Texas legislature -- through a process called intestacy -- has laws to determine how your estate is distributed. (The State does not take your assets but it tells the Judge who will inherit your property.) Moreover, if you have not appointed a guardian for your minor children in your will, that decision may be left to a court. 

Probate in the State of Texas with a valid will is cheap and easy.  Without a will then the judge will make all the decisions regarding your estate and it adds a lot of time and money to the probate process. 

2. Statutory Durable Power of Attorney 

A statutory durable power of attorney allows you to name a person you trust as your agent, to manage your finances if you are no longer capable of managing them yourself. For example, if you become temporarily or permanently disabled. 

Again, if you do not have this in place, the courts could take charge of this and appoint a guardian to make the decisions on your behalf. 

This is a very powerful legal document so you need to be careful who you select to manage your finances.  

3. Medical or Health Care Power of Attorney 

A medical or health care power of attorney allows you to appoint a trusted person to make medical decisions for you in case you become unconscious or mentally incapable of making those decisions for yourself. You need this no matter what age you are since you could be in an automobile accident and be unable to communicate with doctors. 

4. Living Will or Directive to Physicians 

A living will -- also called a “directive to physicians” or “health care directive” -- allows you to instruct your physicians not to use artificial methods to prolong your life in the event you are diagnosed with a condition that is terminal or irreversible. 

5. HIPAA Authorization 

A Federal Law called "HIPAA" -- the Health Insurance Portability and Accountability Act -- sets strict rules on who can look at your medical records or receive your medical / health information. With a HIPAA authorization, you can designate a person to receive your medical information from your health care providers or health insurance company. 

6.  Designation of future Guardian

If you become disabled and are unable to take care of yourself, you can list someone that you trust to take care of your physical and/or financial needs.  You can also list anyone that you do not want a court to appoint as a potential guardian.

7.  Designate someone to take care of your funeral arrangements

You can designate someone you trust to take care of all of your final arrangements.  I recommend this even if you have a pre-paid funeral package.  It prevents confusion during a difficult time in your family's life. 

Sunday, November 2, 2014

Texas Family Law #16 - I want to bring up my spouse's bad past

Timing is relevant on "bad behavior".

Once a divorce decree is signed by a judge, then everything that happened before the date of the signing can never be brought up in court again.  The judge cannot "listen" to evidence that happened before the signing of the last court order.  So if one party is "very bad" then don't settle and go to the judge to show the judge all the "bad evidence" you have on the other side.

How relevant is the bad behavior?

Writing hot checks is bad but generally it won't impact custody of a child.

A person that molested a child - that will impact a judge's decision on custody.

Can a person that has been in prison ever gain custody of a child?

Yes.  If the person has cleaned up their act and is now a responsible citizen in the community, that person can gain custody.  I was involved in a CPS mediation and one man who had been to prison gained primary custody of his child.  He had worked for over 5 years at the same company, owned a small home and had nothing on his record since his release from prison.

If a person was in prison before you married and you knew it, the judge will also look at you.  If you knew that the person had a "bad record" and you chose to marry and have children, then you cannot expect the judge to question your judgment.

What if he/she "hid" his past? Again, how long did you date before you married, and does it really matter now.

My husband wanted me to have an abortion when I told him I was pregnant - does that matter? No.  What matters is what kind of father he is today.  I actually had one mother tell me this and her child was 15 years old.  I told her to never say it again because her child might hear her hurtful comment.  Plus, he said it one time! He had been supportive of her pregnancy after he settled down.  He had provided for the family for the past 16 years.  This is totally irrelevant.
Plus many men "freak out" when they learn that a woman is pregnant - it's how they behave after the baby is born that is relevant.

Texas Family Law Myth #15 - I want my spouse to pay my legal fees

Generally, both parties pay their own attorney's fees and court costs and fees.

However, if one party controls all the money then the judge can order that party to pay the other party's legal fees.

Also, during the divorce if one party "misbehaves" then the judge can order that all or part of the "innocent" spouse's legal fees be paid.  It is totally up to the judge.

Talk to a family law attorney in your county for guidance.

Texas Family Law Myth #14 - We had $100,000 now we only have $10,000 and I want my $50,000

If during the marriage your savings was at one time $1 million (or whatever) and on the date of separation you only have $10,000 in the bank then you are looking to divide the $10,000.

During a marriage, people can do whatever they want with their money.

If you want more than what currently exists then the burden falls on you as to why you deserve it?  Did the other spouse spend it on their relatives, new "friend", or a child by another relationship? If so, you might be entitled to 50% of the money that has gone to help other people outside of your marriage.  This is often difficult to prove.

If during the marriage one party had major surgery and it ate up all of your savings, then you might not be entitled to anything.  Both parties are obligated to support the other party during the marriage.  Just because one of you had a bad heart, hair transplant, cancer, plastic surgery, etc. it is presumed that you agreed to it.

If you owe money to the IRS, if you signed the tax return then you cannot claim that you are innocent.  By signing you agree that you looked at the tax return. Plus the federal government does not follow Texas family courts - in this case - federal trumps state.

Generally student loans go to the party who took out the loan.  Even though your family "lived" on your student loan money, it is presumed to be your debt.  This can be argued but it is not an automatic division of community debt.

Talk to a family law attorney for guidance.

Texas Family Law Myth #13 - I bought it with my earnings so it belongs to me


All income earned during the marriage belongs to the community estate, so anything that you purchase (real estate, car, furniture, etc.) is part of the community estate to be divided at the time of divorce.

Talk to a family law attorney in your county about your options.

Texas Family law Myth #12 - My earnings are my separate property in the State of Texas


Income earned during the marriage by either party is community property.
This income retirement and contributions to a 401(k) or IRA or pension.

I am aware that there is a railroad pension that expressly remains the sole property of the party that earned it.  However, these sorts of "separate property" issues are rare in the State of Texas.  There are a few exceptions to the presumption of community property - talk to a family law attorney to see if your case is one of them.

If some portion was earned before marriage, that would remain your separate property.  But the burden lies on the party asserting separate property to prove it.  Having a print-out on the date of your marriage showing what was in your account on that day goes a long way in proving separate property.

However, if during the marriage the asset dropped below the starting number, then the lowest number would become your separate property.

You have a bank account on the date you married with $10,000 in it.  Two years after you marry the account balance drops to $5,000.  On the date you file for divorce there is $50,000 in the account.  Only $5,000 is your separate property (lowest balance) and the remaining balance of $45,000 is community property to be divided by the parties or the court.

Texas Family Myth #11 - If the property is in my name only then it's mine.


All property acquired during the marriage is presumed to be community property.

The burden is on you to prove that it is your separate property.

Separate property is inherited money or gifts or recovery for personal injuries sustained during the marriage (except for loss of wages).  In personal injury lawsuits, the settlement agreement becomes vital and must be disclosed if you are claiming that the money is your separate property.

However, if you add your separate property to a joint bank account then you have co-mingled it and it is presumed that you intended for it to be community property.  It is presumed that you intended to "gift" this money to the community.

In order to prove separate property, you must "trace" the money from inception to current date.  This can be difficult to do.  It is also expensive and can require expert testimony to establish which portion of an account (or other property) is still separate versus community property.

Talk to a family law attorney in your county for guidance on this technical and expensive issue.

Texas Family Law Myth #10 - Texas does not have alimony

Trick question.

Texas calls alimony "spousal maintenance".

Under Chapter 8 of the Texas Family Code (which you can read on-line for free) courts can award "spousal maintenance" in a divorce case.

If a spouse is eligible for spousal maintenance then the judge can award up to 20% of the other spouse's gross monthly income or $5,000 whichever is less.

Of course, the parties can "agree" to a different amount.  This is often done in mediation.

In order for a party to be eligible for spousal maintenance the party must meet certain eligibility requirements.  Generally, being married 10 years or more and the party is unable to provide for their minimum needs, a person is unable to earn sufficient income to provide for his/her minimum reasonable needs because of a disability, victims of family violence.

One party will often claim to be a victim of recent domestic violence in order to ask for alimony.

Texas has not opened the door to spousal support as widely as other states.  But it does exist and judges have become comfortable ordering it.

Courts can also look at "marital misconduct" in awarding spousal support.

Be aware that this is a gender neutral statute.  So the party making significantly less money (husband or wife) can ask for spousal maintenance.  If there are no community assets to award to the spouse asking for it, then spousal maintenance may be ordered by a judge.

Talk to an experienced family attorney about how your county handles spousal support/spousal maintenance.

Be aware, that most courts are generous in awarding spousal maintenance on temporary orders. Both parties need money to survive while the divorce is pending.  The person with money cannot "abandon" the spouse that never worked and has no resources to provide for their minimum daily needs.

Texas Family Law Myth #9 - Texas no a no-fault divorce system so my marital affair is irrelevant


Texas still allows a party to file for "fault" grounds in a divorce.

It generally goes to property division.

I've only seen once or twice a judge ordering a 100/0 split or a 90/10 split.  That occurred when one party had a huge separate property estate and there was not much community property.

Generally the property division is 55/45 or 60/40.

The burden is on the person wanting more than 50% to "prove it" to the judge.

Texas Family Law Myth # 8 - If there is joint custody of the children then no one pays child support


Joint custody is just a term in the State of Texas.  It does not mean that you are even having 50% possession of the children.

Many times the parties agree to joint custody but then one parent receives all the rights and duties of a "sole managing conservator".

So don't rely on the term "joint custody" to protect your rights as a parent.

You need to look at the rights and duties and the amount of time that you spend with your children.

Generally, in the State of Texas, the non-custodial parent (aka non-primary parent) can elect an expanded standard possession order so that the parent has possession of the children 48% of the time.  But that does not mean that you won't pay child support.

But don't sign up for an expanded possession order unless you can truly do it.  Otherwise, you forfeit your visits with the kids if you don't pick them up when ordered to do so.

Talk to an experienced family law attorney in your county about your options.