Considering divorce may lead to questions about spousal support

Couples in Texas that are considering divorce may be concerned about their ability to cope financially afterward. It may be beneficial to gain some knowledge related to the state laws about spousal support. This is a complicated part of family law, and there are various aspects to consider in determining eligibility of a spouse and the duration of the alimony payments following divorce.

Statutes of 1995 were amended in 2011, and while previous laws required couples to have been married for 10 years or longer to be eligible for maintenance, the revised legislation takes various aspects into consideration, regardless of the length of the marriage. Aspects considered currently include the possible inability of a disabled spouse to support herself or himself or the spouse’s inability to obtain employment due to the lack of skills or education. In addition, the court may consider awarding spousal support to a custodial parent who has a child who requires special care.

When the court considers the duration of maintenance to be paid, it will consider a reasonable time for the requesting spouse to obtain employment to provide for minimum needs. This is where the duration of the couple’s marriage comes into play, in addition to the considerations mentioned above. The court will allow the minimum reasonable time, which commonly boils down to a period of between 5 and 10 years.

Texas couples may be interested in knowing that they could agree to a maintenance plan — called contractual maintenance — prior to going to divorce court. By reaching such an agreement, the court will not impose any limits on a spouse’s eligibility, nor the amount or duration of spousal support. Couples may benefit from obtaining counsel in order to ensure a legal agreement that will not be challenged in court in the event of future disputes.

Posted in Uncategorized | Leave a comment

Estate Planning is more than “Death Planning”

Estate planning clients usually come to an attorney to eliminate taxes, avoid probate and provide for their family. We attorneys routinely help our estate planning clients achieve all of these goals. Most people, when they initially sit down with us, only see estate planning as death planning. But planning for your death is only half of the problem. The other, potentially more critical part, is disability planning. With proper disability planning, if you cannot make your own decisions because of an accident of illness, your bills can be paid, your assets can be managed, and your health care decisions can be made by the people you love and trust the most.
Unfortunately, whether you are married or single, faulty and inadequate estate planning often results in a judge stepping in; the family then loses a large measure of a very precious commodity: CONTROL. Estate planning attorneys not only focus on disability and death, but also strive to maximize your control during your lifetime and the control you want your loved ones to have at the time of your death.
In addressing both death and disability concerns, attorneys have a toolbox full of proven legal techniques to help your family reach all of your goals. These include Revocable Living Trusts, Wills, Financial and Medical Powers of Attorney, Living Wills, Designations of Guardians for minor children and Special Needs Trusts for families with special children.
Probate often comes with a substantial amount of legal, financial and emotional costs.  With careful estate planning clients can avoid it.

Posted in Uncategorized | Tagged , , , , , , , | Leave a comment

Full financial disclosure during divorce process can avoid costly litigation later.

Image

Every divorce is different, but there are ways to avoid it being a long drawn-out affair that involves legal fights for years after the divorce. Both parties of divorcing couples in Texas deserve to move on and start a new life. However, when one of the parties in a divorce withholds financial information during the asset division process, it may lead to ongoing conflict.

A Texas woman recently filed a lawsuit against her ex-husband six years after their marriage ended. The couple was married in 2005 and the marriage ended in 2008. During the division of their assets, their house was excluded, because the husband allegedly claimed that the house was in foreclosure. However, the wife subsequently learned in 2013 that this was untrue and that he allegedly continued living in the house.

According to the lawsuit, the woman wants the house to be sold and the income to be shared. She claims that the property division during the divorce was unfair, and her accusations against her ex-husband include fraud and breach of contract. In addition, she seeks costs and damages as deemed appropriate by law.

Texas couples who are considering divorce may want to have honest and open conversations about their wishes in the division of their property. Couples who are able to come to mutual agreements may avoid unnecessary litigation. If communication proves impossible, the services of a mediator may lead couples to compromise. However, certain situations can only be solved through litigation, and information related to court procedures are readily available to those who may feel intimidated by the process.  For more information visit http://www.mmconnollylaw.com

 

 

 

 

 

Posted in Uncategorized | Tagged , , | Leave a comment

The Best Estate Planning Advice I can give…..

By Margie Connolly, Attorney at Law, Sugar Land TexasImage

This is a recap of a previous post — but contains information that is very important to consider as you are planning your future as you age, and your family’s future after you or your spouse has passed on.  Please take time to read…..

The bottom line – when you seek the advice of an estate planning attorney, you will get the exact answer to your specific question, which will give you peace of mind and money well spent.

When considering if you need to hire an estate planning lawyer, consider this – estate planning is serious business. One wrong word or one missing signature can change the entire intent of a will or trust. Aside from this, the three reasons listed below should be enough to convince you to go out and find and hire a qualified estate planning attorney to draft your estate planning documents

1.     State laws are very specific about what can and can’t be in a will, trust, or medical or financial power of attorney; who can and can’t serve as a personal representative, trustee, health care surrogate or attorney in fact; who can and can’t be a witness to a will, trust, or medical or financial power of attorney; and what formalities must be observed when signing a will, trust, or medical or financial power of attorney.

2.     The old Latin saying, “Caveat Emptor,” or “Buyer Beware,” certainly applies to estate planning. If you think that you’ll be saving a few dollars by using forms found on the internet or in a do-it-yourself book to prepare your estate planning documents, then your family will be in for a rude awakening when they learn that part or all of your will, trust, or medical or financial power of attorney isn’t legally valid or won’t work as you had anticipated. Thousands of dollars will then be spent by your loved ones working with a qualified estate planning attorney after the fact to fix your mistakes.

3.     Take a look at your life and your assets to see if you fit into one or more of the following categories:

  • You’re in a second (or later) marriage
  • You own one or more businesses
  • You own real estate in more than one state
  • You have a disabled family member
  • You have minor children
  • You have problem children
  • You don’t have any children
  • You want to leave some or all of your estate to charity
  • You have substantial assets in 401(k)s and/or IRAs
  • You were recently divorced
  • You recently lost a spouse or other family member
  • You have a taxable estate for federal and/or state estate tax purposes

If one or more of these situations apply to you, then you’ll need the counseling and advice of an experienced estate planning attorney to create your estate planning documents. Otherwise, it may be a probate lawyer and your state’s department of revenue and/or the IRS that will receive the largest chunk of your estate.  Read more about Margie Connolly at http://www.mmconnollylaw.com

Posted in Uncategorized | Tagged , , , , , | Leave a comment

Would you give yourself root canal? Even if you read how on the internet?

By Margie Connolly, Attorney at Law, Sugar Land TexasImage

The best estate planning advice I can give, and all that you really need to know to protect you and your loved ones – talk to an estate planning attorney. Yes, it’s really that simple, but in this day and age of the internet it seems that there are many people who believe that they can get the answer to any question, even a legal question, online, for free, and without any strings attached.

The problem with relying on the internet in the estate planning, probate, and estate and trust settlement context is that each and every situation is unique. Couple this with the unique laws of all 50 states and the District of Columbia, and there is only a very slim chance that you will find the exact answer to your specific legal question in cyberspace.

OK, so you’re worried about how much it will cost for you to speak with an estate planning attorney. If you have limited finances, then be upfront about this when you make an appointment. Fortunately many questions can be answered in short order while others may take an hour or so for a meeting and then a few more for research. Some estate planning attorneys even offer free initial consultations so that they can determine exactly what you need and then give you a fixed fee or a fee estimate for the actual legal work involved.

The bottom line – when you seek the advice of an estate planning attorney, you will get the exact answer to your specific question, which will give you peace of mind and money well spent.

When considering if you need to hire an estate planning lawyer, consider this – estate planning is serious business. One wrong word or one missing signature can change the entire intent of a will or trust. Aside from this, the three reasons listed below should be enough to convince you to go out and find and hire a qualified estate planning attorney to draft your estate planning documents

State laws are very specific about what can and can’t be in a will, trust, or medical or financial power of attorney; who can and can’t serve as a personal representative, trustee, health care surrogate or attorney in fact; who can and can’t be a witness to a will, trust, or medical or financial power of attorney; and what formalities must be observed when signing a will, trust, or medical or financial power of attorney.

The old Latin saying, “Caveat Emptor,” or “Buyer Beware,” certainly applies to estate planning. If you think that you’ll be saving a few dollars by using forms found on the internet or in a do-it-yourself book to prepare your estate planning documents, then your family will be in for a rude awakening when they learn that part or all of your will, trust, or medical or financial power of attorney isn’t legally valid or won’t work as you had anticipated. Thousands of dollars will then be spent by your loved ones working with a qualified estate planning attorney after the fact to fix your mistakes.

Take a look at your life and your assets to see if you fit into one or more of the following categories:

  • You’re in a second (or later) marriage
  • You own one or more businesses
  • You own real estate in more than one state
  • You have a disabled family member
  • You have minor children
  • You have problem children
  • You don’t have any children
  • You want to leave some or all of your estate to charity
  • You have substantial assets in 401(k)s and/or IRAs
  • You were recently divorced
  • You recently lost a spouse or other family member
  • You have a taxable estate for federal and/or state estate tax purposes

If one or more of these situations apply to you, then you’ll need the counseling and advice of an experienced estate planning attorney to create your estate planning documents. Otherwise, it may be a probate lawyer and your state’s department of revenue and/or the IRS that will receive the largest chunk of your estate.  Read more about Margie Connolly at http://www.mmconnollylaw.com

 

 

Posted in Uncategorized | Tagged , , , , , | Leave a comment

Grandparents’ Rights in Texas

Written by Margie Connolly, Attorney at Law, Sugar Land, Texas.

Families change forms on many levels.  Birth, death, divorce, incarceration, and many other events can occur which change the dynamic of the traditional nuclear family.  When the parent of a minor child leaves the family for any of these reasons, grandparents may wish to inquire as to their rights to access and possession (visitation) with the grandchildren

Grandparents rights generally means laws, statutes, and case law that relate to the custody and visitation of a grandchild. Today, every state has specific laws on grandparent visitation. However, the law varies from state to state. Some states, such as Utah or Oklahoma, are considered more “friendly” to grandparents rights, and refer to the “rebuttable presumption” that although a parent’s decision about grandparent visitation is deemed to be in the best interest of the child, the grandparents can potentially rebut that presumption if they meet several specific factors. Other states, such as Florida, have struck down various grandparents rights laws as being unconstitutional if the laws attempt to go against the parents wishes (citing that the parents should have the final say in who their child spends time with), unless the grandparents show with ‘clear and convincing evidence’ that the child will suffer irreversible harm without the visits.

In Texas, normally grandparents can see their grandchildren any time, per the parent’s wishes. But if the parents object to the grandparents visiting the grandchildren, or having a relationship with the grandchildren, there are no “automatic” or “inherent” grandparents rights. Put another way, grandparents have no rights of visitation with their grandchildren unless they go to Court and have it established through a Court order.

When grandparents seek possession or access to a grandchild through the Courts in Texas, they must file a petition with the Court and execute and attach an affidavit, with supporting facts, stating that the denial of possession or access to the child would significantly impair the child’s physical health or emotional well-being. TEX. FAM. CODE. § 153.432 (c). If denial of access is the issue, the Courts will presume that the parents are acting in the child’s best interest. The presumption must be overcome by a preponderance of the evidence. TEX. FAM. CODE § 153.433(a)(2).  Assuming there is another parent who has custody of the children, grandparent’s rights are limited by the parent’s constitutional right to raise his or her child as she sees fit, even if that means restricting grandparents’ visitation.

The U.S. Supreme Court ruled in 2000 that grandparents’ rights to visitation are subservient to a parent’s right to decide. After their son died, the paternal grandparents brought a petition requesting visitation with their granddaughters. The mother agreed to some visitation, but did not agree to the extended visitation requested. The grandparents filed suit in the Washington State court seeking visitation. The state court granted visitation to the grandparents and the mother appealed the ruling as unconstitutional. The Supreme Court held that the lower court’s presumption that it is normally in the best interest of children to spend time with the grandparent failed to provide any protection for the mother’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.

If you have questions about your rights to visit with, or attempt to gain custody of a grandchild, you should consult a family law attorney about the requirements.  For more information, visit my website at http://www.mmconnollylaw.com

 

Image | Posted on by | Tagged , , , , , | Leave a comment

Never Mind,…. You already have an estate plan.

ImageMargaret McCullough Connolly, Attorney at Law, Sugar Land, TX.

If you live in Texas and do not have a Will or written estate plan, the State of Texas has already provided for the distribution of your property following your death.  This is called the law of intestate succession, provisions included in the Texas Estates Code.  This law, combined with the community property laws of Texas, will determine who receives your property when you die.

This determination may or may not meet your expectations and desires about which of your possessions ends up being distributed to which of your heirs or relatives.  Texas’ plan also involves more delay in probating and distributing property, and potentially more expense. In other words, administration of an intestate estate costs more time and money than does administration of a testate estate (one with a Will.)

If you want to make sure your property passes to the people you intend it to go to, and if you want to make sure the person (executor) who is responsible for these distributions is the person you want it to be, it is advisable to consult with your attorney.

“Where there’s a Will there’s a way,…… Where there is no Will — Who knows?”

Posted in Uncategorized | Tagged , , , , | Leave a comment

Are you too YOUNG for a WILL?

A will is a document which describes the manner in which the maker wants his or her estate to be settled.  Within a will one can accomplish one or more of the following:

  1. Designate who gets their property at death,
  2. Designate one or more trusts to manage the distribution of their property,
  3. Make specific gifts (bequests),
  4. Designate a guardian for minor children,
  5. Give instructions regarding funeral arrangements.

When a person dies owning property, the title to the property, whether it is real estate, a bank account, motor vehicle, etc., must be transferred to the heir in order for that heir to exercise control over the property.  This transfer can be made much simpler if a will is established and probated.  An executor, named by the maker of the will, is appointed by the probate court and given authority to pay debts, and transfer property in accordance with the maker’s wishes.

Without a will, or proper estate planning, the court process can be much more complicated and lengthy.  Affidavits of heirship may be required, or an administration, overseen by the court, may be required.

Similarly, if a couple or a single parent dies while their children are minors, they may provide in their will a person of their choosing to be the guardian for the children.  Without such a provision, a guardianship proceeding must be brought in court and the court will decide who will be the guardian.  Further, minor children cannot inherit property.  A will can provide for a trust for the children in order to prevent putting the property in the hands of a court-appointed guardian, who may or may not use the property for the sole benefit of the children.

No matter what your age, if you are an adult with property and/or minor children, you have the opportunity to save your loved-ones unnecessary litigation and expense by establishing a will and/or small estate plan.   A lawyer can help.  It is well worth the investment.

For more information visit mmconnollylaw.com

Posted in Uncategorized | Tagged , , , , , | 1 Comment

Thinking about marriage? Is a pre-nup for you?

A pre-marital agreement, “pre-nup”, is a contract between two parties, made in anticipation of marriage, which defines how each party’s property will be treated in the event of divorce or death of a spouse.  It is a document, recognized in Texas, which allows the parties to choose to treat certain property as “separate” or “community” property.  Under Texas law, all property owned by married persons is presumed to be “community” property upon the filing of divorce or upon the death of one spouse.

“Community” property is presumed to belong equally to both spouses, unless one of the spouses can “trace” the property to an origin making it that spouse’s “separate” property.  For example, property acquired by inheritance, gift, personal injury recovery, or owned prior to the marriage, may be deemed “separate” property, if it can be properly traced.

In the absence of a pre-marital agreement, which specifically defines each spouse’s separate property, by agreement with full disclosure, a spouse may find him or herself in litigation, attempting to prove to a court that certain assets are “traceable” to separate property.  Obviously this can be time-consuming and costly.

With a pre-marital agreement, both parties know where they stand in the event of death or divorce, and litigation can be avoided or minimized.  Spouses can also enter into a post-marital agreement if they are already married, which can accomplish the same things.

A pre- or post-marital agreement can also set out the parties’ position on spousal maintenance (alimony), but it cannot be used to limit child support obligations.

For more information about pre- or post-marital agreements, visit www.mmconnollylaw.com.

Posted in Uncategorized | Tagged , , , , , | Leave a comment

Advance Directives and your right to choose your medical treatment.

photo  Margaret McCullough Connolly, Attorney and Counselor at Law

Advance Directives are a way to protect your rights as a patient.  In the event you lose your ability to understand the nature and consequences of health care decisions, or the ability to make informed decisions, an advance directive assures that your wishes concerning treatment will be communicated to your physician, medical staff and/ or hospital.

I’d like to discuss two important advance directives recognized in Texas.  First, the Medical Power of Attorney.  This document allows you to name or appoint an agent to make health care decisions for you in the event you become unable to make those decisions for yourself.  This “agent” can be a family member or trusted friend, to whom you give authority to consent or refuse, on your behalf, medical treatment.  This person may also make decisions regarding starting or stopping life-sustaining treatment.  Note that this document applies only to medical decisions, not to financial decisions.  You can change or cancel the document at any time so long as you are capable of making that decision..  You should always give a copy of this document to your appointed “agent.”  You can, and should, make a medical power of attorney while you are healthy.  You never know when an accident, illness, or injury could cause a need for important medical treatment decisions.

The second document is called “Directive to Physicians and Family.”.  This document sets forth your instructions to physicians to administer, withdraw, or withhold life sustaining treatment when you have been determined to have an irreversible or terminal condition and are unable to communicate your wishes.  It is a document that supplements, but does not take the place of the Medical Power of Attorney.  And, it relieves your “agent” from having to make decisions regarding life-sustaining treatments by himself.  These are your instructions in such a situation.

I recommend every adult have these documents in order to protect their legal rights to choose medical treatment, and to make decisions easier for family in the event of disability, injury or illness.  I recommend consulting with your physician, family, and attorney in making the decisions involved in drafting these documents.  Templates may be obtained online, or your attorney can prepare them for you following your instructions.  For more information, visit my website:  mmconnollylaw.com

Posted in Uncategorized | Tagged , , , , | Leave a comment