Dying Without A Will

A will is a very important document to have.  But it seems many people put off creating a will because their own mortality is a difficult thing to face.  If you are not going to have a will, your property is distributed in a very specific way.  If you die without a will, you have no say in who gets your stuff.  The Texas Probate Code section 38 identifies who, by law, will get your property upon your death.  Dying without a will is called dying intestate.

Your property is divided differently if you are married versus if you are unmarried.                                           
Dying Intestate with No Spouse

If a person dies unmarried, his or her property is divided in the following manner:

1. If the person has children, all property is divided equally among all children and the descendants of any deceased children.  If the person only has one child, then all property goes to that child.
    
2. If there are no living children nor descendants of and previously deceased children, then the deceased person’s property is divided equally between his or her father and mother.
    
3. If only one parent is living, then the estate is divided into two equal portions: Fifty percent goes to the surviving parent and the other half will pass to the siblings of the deceased, and to their descendants.  But if there are no siblings or descendants of the siblings, then the surviving father or mother receives the entire estate.
    
4. If there is no surviving mother or father, all property passes to the brothers and sisters of the deceased and to their descendants.
    
5. If there are no parents of the deceased, no siblings, and no descendants of the siblings, then the deceased property is divided one-half to the paternal side of the family and the other half to the maternal side of the family in the following manner: 

• To the grandfather and grandmother in equal portions but only if one of them is living; one half goes to that grandparent and the other half to the descendant or descendants of the deceased grandparent.
   
• If there are no descendants of the deceased grandparent, then the whole estate is inherited by the surviving grandparent.
   
• If there are no surviving grandfather or grandmother, the whole of such estate goes to their descendants, “and so on without end” in the same manner to the next lineal ancestors and their descendants.
  

Dying Intestate with A Spouse
If a person dies and is married at the time of death, the surviving spouse is entitled to keep all marital property (that which was acquired during the marriage) if the deceased has no children or the only children the deceased has are the children of the surviving spouse. 

If the deceased has children or descendants who are not children/descendants of the surviving spouse, then the spouse retains his or her half of the marital property and the children/descendants of the deceased receive equal shares of the deceased’s half.

For any personal property the deceased owned, it is divided differently.  Personal property is all property acquired by the deceased prior to the marriage, any inheritance the deceased received at any time, and any gifts given only to the deceased during the marriage.

Personal property is divided in the following manner:

1. If the deceased has one or more children or living descendants of those children, the surviving spouse shall take a third of the personal estate with the balance of the personal property going to the surviving children of the deceased and their descendants.  The surviving spouse is also entitled to a life estate in one-third of the land of the deceased with the remainder to the children of the deceased and their descendants.
2. If the deceased does not have any children or any descendants of their children, then the surviving spouse is entitled to all the personal estate and to half of the real property of the deceased without remainder to any other person.  The other half will pass according to the rules set out above for a person dying without a spouse.  But if the deceased has no surviving father, mother, brothers, sisters or any of their descendants, the surviving spouse will get the entirety of the estate.

One final note: For purposes of intestate division of property, a step-child is not considered a child of the deceased.

Ami J. Decker
www.famlawtex.com

Geographic Restrictions

Texas Family Code section 153.001 says it is the public policy of the State of Texas to assure children have "frequent and continuing contact" with both parents so long as each parent has proven the ability to act in the best interest of the child.

How do courts do that? They assure frequent contact with both parents with what is called geographical restrictions. A geographical restriction is an order of the court preventing the parent with primary custody moving the primary residence of the child outside of an identified geographic area. Sometimes the person with primary custody is called the custodial parent and the person with the possession schedule is the non-custodial parent. For both parents to have "frequent and continuing contact" with their child, the parents must be located in the same geographic area. If one parent is living in Lansing, Michigan and the other parent is living Fort Worth, Texas, there is no way both parents will have frequent or regular contact with his or her child. The non-custodial parent will not be able to go to the child’s soccer games or school events on a regular basis.

So what does a geographical restriction look like? In Tarrant County, Texas, a geographical restriction often says the custodial parent cannot relocate the child outside of Tarrant County and counties contiguous to Tarrant. Sometimes that restriction is limited to Tarrant County only. The parents can also agree to some variation. For example, parents might agree the parent with primary custody cannot move the child outside a specific school district or a 20-mile radius of a particular municipality.

It is common not to bind the parent with primary custody to this geographical restriction if the non-custodial parent moves out of that same area. For example, if there is a geographical restriction in place for Tarrant and contiguous counties, mom has primary custody and dad has a standard possession schedule. Mom cannot move with the child outside of this defined geographic area. However, if Dad, packs up and moves to Austin, Mom is free to move anywhere she wants with the child. The purpose of the geographic restriction in this situation is to allow Dad the opportunity to see his child frequently. If he moves to Austin, he has already forfeited that ability so Mom is free to move wherever she wants.

Is a geographical restriction automatic? Not necessarily. If a parent asks for it, that parent will most certainly get a geographical restriction in a Tarrant County court. Usually the parent who wants the restriction is the parent who does not have primary possession of the child.

So what happens if, several years after the divorce, the non-custodial parent lives in the geographically restricted area but the custodial parent wants to move somewhere outside of that area? Lifting the geographic restriction rarely, if ever, is allowed by a Court in Tarrant County if the non-custodial parent does not agree. If for some reason a Court allowed the custodial parent to move outside of the geographic area, that custodial parent usually is ordered to pay all travel expenses for the child to see the other parent.

This payment of travel expenses would also hold true if the non-custodial parent moved outside of the area and the custodial parent remained in the geographical area. Any parent who moves outside of the geographically restricted area ordered by the court will have to pay travel expenses for the child to visit so long as the other parent remains in the geographic area.

Just remember, the overarching requirement is for Courts to act in the best interest of the child at all times. It is presumed it is in the best interest of the child to have "frequent and continuing contact" with both parents. To get around a geographical restriction, you will have to prove to the Court that the other parent cannot act in the best interest of the child.

Ami J. Decker
www.famlawtex.com

Mediation and Family Law

How does mediation work in a divorce?  In Tarrant County, many of the judges require parties to attempt mediation before a contested final trial to see if an agreement can be made thus eliminating the need for a final trial.  The family law courts in Tarrant County are very busy courts and have very heavy dockets.  Mediation is used to increase judicial efficiency and provide families a non-adversarial resolution to their family law matters including divorce.

It is important to use a mediator who is experienced in mediating family law issues.  If your divorce is primarily concerned with child issues, you want a mediator who is effective at reaching mutually beneficial agreements in that vein.  Same goes for a divorce that is heavy in property concerns.

Mediation is a good option for divorce as it gives the parties more control over the outcome of their situation.  If you go to trial, your fate and the fate of your family is left up to a complete stranger or strangers - either the judge or a jury.  At least in mediation your concerns and your feelings are  heard.  In a trial, you are bound by the rules of civil procedure and rules of evidence and it is a matter of what you can prove with evidence.  It doesn’t matter so much how you feel about things in a trial.  The judge won’t care how you feel; he only cares about what you can prove.  And saying something on a witness stand is not necessarily proof.

So what does mediation look like?  Well, it doesn’t look like the TV version.  The parties and lawyers don’t sit across from each other at a table and try to broker a deal.  A neutral third party acts as a mediator.  Mediators are trained in alternative dispute resolution.  Some are also family law lawyers; others are former judges and some are even former family law judges.  Your lawyer will help identify a mediator who will work well for your situation.  What normally happens is you and your attorney sit in one room and your ex/spouse sits in another room with his or her lawyer.  The mediator will shuttle back and forth between rooms to try to reach an agreement.

If a deal is made, a Mediated Settlement Agreement (MSA) is drafted and signed by the parties, the lawyers and the mediator.  In Texas, that MSA is binding.  There are no do-overs.  An order is drafted and a judge must sign it so long as it comports with the MSA.  The order cannot deviate from the agreement made at mediation and memorialized in the MSA.  If it does, the judge cannot sign it.

You do not have to walk away from mediation with an agreement.  If you cannot live with the agreement, you should never sign the MSA because if you do, you are stuck - you are bound by the agreement.  I always tell my clients, if you don’t think you can live with the agreement, you should not sign the MSA.

If an MSA is signed at the end of mediation, one of the attorneys for one of the parties is identified to turn the MSA into an order the judge will sign.  Because all of the details cannot be put in the MSA, the order is always much longer than the MSA assuring required language is in the order.
   
The final very important aspect about mediation is that it is confidential.  If you do not reach an agreement, the mediator cannot testify to anything that happened in mediation.

In the majority of cases, I recommend mediation as I believe it is best for children if you can keep your divorce out of the courthouse.

People initially may believe mediation is costly because not only are you paying your lawyer to prepare for mediation and attend it, you also have to pay the mediator for that time.  But going to final trial will end up costing you five to ten times what mediation would cost. Not to mention the stress of a trial.

Ami J. Decker
www.famlawtex.com

Texas is a Community Property State

From time to time, you may here this phrase: Texas is a community property state. What does that mean? It means that everything acquired during a marriage is considered property of the community or marital estate. This includes assets and debt, regardless of whose name is associated with it. For example, even if a credit card has only your name on it, all debt on that card is community property and all community property is subject to division in a divorce.
Contrary to community property, separate property is any property purchased or owned by one party prior to the marriage. But if you think you have separate property in a divorce, you must prove it is not community property.

With regard to community property, there is a statutory "rebuttable presumption" in the Texas Family Code that all property and debt in either spouse's name is considered community property and thus divisible in a divorce. A rebuttable presumption means the person who claims the very opposite of the presumption has the burden to prove his point. For example, if a spouse owned a 1968 Chevrolet Camaro prior to marriage, he or she must prove that the car is not community property thus subject to division in divorce and should remain his or her separate property. This means the spouse must prove he or she purchased the car before the marriage and that is was not purchased during the marriage.

Other items considered separate property, so long as it is proven, is a gift to one spouse and an inheritance to one spouse. As an example, if the husband's father gave the husband, and the husband only, the 1968 Camaro during the marriage, it is the husband's separate property.  Further, if the husband's father died while the husband was married and the Camaro was given to the husband from the father's will, it would also be the husband's separate property and not to be divided in a divorce.

Ami J. Decker
www.famlawtex.com

Why Should I Hire an Attorney for My Divorce when I Have Children?

I do not recommend anyone with kids represent themselves (pro se is the legal term for being your own lawyer) in a divorce or try to use some forms you find somewhere to do your divorce on your own. Have you ever heard someone say "I don’t know what I don’t know?" This phrase rings true in the area of family law.

I realize because I am a family lawyer, my saying this may hold little weight to you as you may think I am saying this because I make money as a divorce lawyer. But before you make up your mind on this, please hear me out.

For the majority of folks, their family is the most important part of their lives. Doing your divorce on your own may strip you of rights you have with respect to your children. Maybe even rights you didn’t even know you have.

For example, which parent is going to make the educational decisions for the kids? Your initial reaction may be "We both will." But what if, at some point, you don’t agree with your ex spouse? If the language in your divorce decree says you both must agree before any action is taken with respect your children’s education, and you disagree, nothing can ever be done.

Additionally, you have no idea what your situation is going to be in ten years. And what is an educational decision? Educational decisions are not limited to simply what school your child will attend. Should she be tutored in a certain subject? Who will the tutor be? Where will she go to get the tutoring? Is a choir trip to New York City educational? If so, who should decide if your daughter goes on that trip? What happens if one of you want your son to attend SAT preparation classes and the other parent believes it unnecessary. Should you and your former spouse have the independent right to make educational decisions? If so, then your former spouse could have your child doing something you don’t agree with. Or you both could do something similar at the same time. Should you have the exclusive right to make those decisions? Should your spouse have that exclusive right? Or should one of you have the exclusive right after conferring with the other parent?

When there are children, there are a myriad of issues in a divorce an experienced family lawyer can help you with. Educational decisions are just a drop in the bucket.

Who will make medical decisions? Will you get a second medical opinion when an invasive medical procedure is needed one of your children? Who will decide if my minor child can join the armed forces? Or get married? If you don’t have primary custody of your child, can you assure you are on the school records to get information about your child’s education? How can I prevent your ex-wife from moving across the country with your kids? Can you even prevent that? Can you call your kids when they are with the other parent? Your child is special needs, can you get more child support than the statutory minimum? What is the statutory minimum child support? If your child plays a sport, do you have to take him to practices and games when you have him? You want you ex to pay half of the sports costs, can you get that? You need to get a passport for your child, how do you get your ex to sign the paperwork? Your ex-spouse is taking the children out of the country on vacation, do you have the right to know where they are going and when? Do you have to agree to see your kids every other weekend? Your spouse and you want to agree no one should pay child support; can you do that?

This list of questions is just the tip of the iceberg. You really don’t know what you don’t know.

Further, it isn’t enough to simply consult an attorney at the beginning of the divorce and then write your decree yourself or check some boxes on a form. The wording of your divorce decree is everything. The absence or existence of a single word in a decree could determine if you have a specific right or not. Once you give up a right either accidentally or intentionally, it is difficult, if not impossible, to get that right back at a later date.

Remember the effort you put into planning your wedding? Please don’t spend any less time or effort in your divorce than you put into your wedding. Your family is at stake.

Ami J. Decker
www.famlawtex.com

How Much Does It Cost to Get Divorced?

People often ask me how much it costs to get divorced. Or how much their divorce is going to cost. That is not a straight-forward, easy question to answer. Especially with no information about a person’s particular situation.

Asking an attorney how much your divorce will cost is like asking a home builder how much will it cost to build a house. Answering that question requires a great deal of information. What type of foundation? How big do you want your house? One story or two? Brick or siding? What type of roof? Granite countertops in the kitchen? The list of information needed to determine the cost of a house goes on and on.

Same goes for a divorce. What do you and your spouse agree about? Anything? Do you have kids? How many? What are their ages? Do the children have special needs? Do both you and your spouse want custody? What kind of property do you have? What type of debt do you have? Is your spouse going to hire an attorney? Who is your spouse’s attorney? What issues does your spouse want to fight about? Is it everything? Or just one or two? As with a house, the list of information needed to determine how much your divorce is going to cost goes on and on. And as your divorce goes on, the estimate can go up or down depending on what happens. For example, if your spouse agrees to everything at first, the initial cost of your divorce could be relatively low. But what if sometime during the divorce process, your spouse discovers you have a new significant other. Now he wants to fight everything. With that change, the cost of your divorce just went up.

I always feel bad that I can’t give clients or potential clients a straight and clear answer regarding the total cost of their divorce. But to quote a solid price is unfair to you. I might be able to get in the ballpark, but if something in your case changes, that ballpark goes out the window.

Ami J. Decker
www.famlawtex.com

Structure of Family Law Courts

Tarrant County has six courts who hear all family matters for the County. Smaller counties not in metropolitan areas have what are called courts of general jurisdiction. Courts of general jurisdiction hear all kinds of matters: criminal, civil, and family. But because of the larger populations, counties like Tarrant and Dallas have courts that specialize in civil, criminal or family law.
Such is the case in Tarrant County. We have six district courts who hear all family law matters including Department of Family and Protective Services (DFPS): the 231^st, 233^rd, 322^nd, 324^th, 325^th, and 360^th. Additionally, the 323^rd District Court hears some DFPS cases as well as all juvenile matters.

Each of the six family law courts have two judges: the Associate Judge and the District Court Judge. Some people refer to them as the "big" (District Court) and the "little" (Associate) judges. This is because the District Court Judge is essentially the "boss" of the Associate Judge. The District Court Judge is elected while the Associate Judge of the court is selected by the District Court Judge and appointed to the seat.

The Associate Judge and the District Judge have defined areas regarding what they hear. All hearings for Temporary Orders and enforcements (of child support and visitation) are heard by the associate judges. The District Court Judges generally hear all of the final trials, motions for continuance, and appeals of the rulings from their associate judges. In some courts, if both parties agree, the Associate Judge can hear the final trial for a case.

Hear are a few questions I am often asked about the courts here in Tarrant County:

Q:      How do I know what court my case is in?
A:      At the top of anything filed with the court is what is called the "caption." The first line is a number in the following format: XXX-XXXXXX-XX. The first three numbers is the court. The last two number is the year the case was initiated. You can also find the court on the right side of the caption.

Q:     How is the court for my case picked?
A:     It is randomly chosen by a computer program.

Q:     Can I pick what court I want for my case?
A:     No. Even if you get a court you don’t want and cancel your case (called a nonsuit) in hopes of filing again and getting a different court (this is called forum shopping in the legal community), the computer is smart enough to recognize the names of the parties and children and put you in the same court you had in the first place.

Q:     What if I had a divorce years ago and now want to modify child support or visitation for my children? Will I get a new court?
A:     No. When a court has jurisdiction over a child in any matter, that court has what is called "continuing, exclusive jurisdiction" over that child. Therefore, if three years after your divorce you want to modify your child support, you will end up in the same court you had for your divorce. The only way to potentially change this is if the child moves out of the county and remains for at least six months. In this situation, you would need to consult a lawyer to find out how you can change courts.

Ami J. Decker
www.famlawtex.com