Wills and Estate Planning During Divorce

by Duane L. Coker on May 27, 2010

As this is a divorce blog, we don’t spend too much time talking about probate, Wills, or estate planning issues.  However, those issues are often relevant in family law and divorce matters.  In just about every divorce case we do here at Duane L. Coker & Associates, P.C., we end up preparing new Wills for those clients who already have them and often prepare a first Will for those who don’t.

Most married couples I meet have what are referred to as “Mom and Pop Wills.”  These Wills leave everything to the testator’s spouse, in the event of death, and then to the kids.  It is usually the case that, once a couple decides to divorce, they no longer wish to designate their spouse as the beneficiary of their estate or the person who controls the disposition of their assets.  Accordingly, it’s usually necessary to update or draft a new Will when someone is going through divorce.

Also, Wills usually deal with more than who gets what when a person dies.  It’s possible in Texas to establish trusts for your children in a Will.  It’s also possible to set out who you would want to take care of your kids if something happens to both parents.  This ability is often the most important consideration for divorcing parents.

Finally, when we do Wills for clients, we usually do a complete package of planning documents, including the Last Will and Testament, Living Will (also known as a Directive to Physicians), Durable Power of Attorney, Medical Power of Attorney, and Designation of Guardian.  These additional documents provide for what happens to you and your estate, and who makes important decisions for you, in the event you are unable to do that for yourself.  Again, most married couples, who already have these documents, have designated their spouse to do this for them.  As stated above, during and after divorce, most people want to change this designation.

Through the end of June, our office is running a special for 50% off our consultation fee for Will and Estate Planning Consults.  This discount is for our office Facebook Fans.  If you would like to take advantange of this offer, go to our Facebook Fan Page (www.facebook.com/CokerLegal) and become a fan.  Then contact our office by e-mail or phone, mention you’re a Facebook Fan, and set a time for your consult.  Whether you are involved in a divorce or not, it is important for everyone to have a Will.  Texas has one of the simplest and most progressive Probate processes in the country, but it is only simple and efficient if you have a Will that takes advantage of those processes.

{ 1 comment }

Divorce and Mortgages…did you know?

by Travis T. Scott on April 12, 2010

Over my career in lending, I have seen several customers that have gone through a divorce and did not fully understand the ins and outs of what happens to the existing home mortgage. Too many times, the divorce is finalized and a spouse is awarded a property, and they think that it’s all over. Well, not exactly…

If your divorce decree awards the other spouse the home, but you were both on the original mortgage note, then regardless of who was awarded the house, BOTH of you are still responsible for the payment of the mortgage. The divorce decree does not trump the credit report and who is responsible for the payment.

Let’s look at an example… A few years ago, ex-husband and ex-wife bought a house together (while they were still married) and both were on the mortgage note. Ex-wife was awarded the house in the divorce decree. Per the divorce decree, ex-husband has no financial obligations to the house anymore…or does he? If ex-wife decides not to pay the mortgage anymore or becomes delinquent, then ex-husband’s credit will be affected. Just because she was awarded the house, he is still liable for the repayment of the loan.

Another look…if ex-husband wants to purchase a new home, the previous home that was in the divorce does come into play. If the payment history on that home is spotless, he CAN provide proof that he does not make payments and the ex-wife was awarded the home. If, however, the mortgage payment history is delinquent, his credit score suffers and he may not get approved for the new home loan.

The way to solve this potential issue is to sell the property or to refinance the ex-husband off and put the new home loan into the ex-wife’s name only. This will completely sever any ties that the ex-husband had with the previous house.

{ 1 comment }

Getting an Annulment in Texas

by Duane L. Coker on February 25, 2010

We receive many questions about whether it is possible to get a marriage annulled under Texas law or if a divorce is required. Texas has a number of different grounds for annulment. I’ve listed the different grounds below. However the requirements for an annulment are very fact-specific and, in many cases, subject to strict time limits. If you think you might qualify for an annulment, and prefer that route to getting a divorce, you should see an attorney right away to find out more:

Here are the different grounds for an Annulment in Texas:

Annulment of Marriage of Person Under Age 18

A parent, managing conservator, guardian, or “next friend” can file for an annulment of a marriage of a person 16 years of age or older, but under 18 years of age that occurred without parental consent or Court order. This suit must be filed before the child turns 18 and, if filed by a “next friend,” it must be filed within 90 days of the marriage. Annulment under these circumstances is within the discretion of the Court, meaning that the Court does not have to do it.

Under Influence of Alcohol or Narcotics

A Court may annul a marriage if at the time of the marriage the person requesting the annulment was under the influence of alcohol or narcotics and, as a result, did not have the capacity to consent to the marriage AND that person has not voluntarily cohabited with the other party to the marriage since the effects of the alcohol or narcotics ended.

Impotency

A Court may grant an annulment if either party, for physical or mental reasons, was permanently impotent at the time of marriage AND the person asking for the annulment didn’t know of the impotency at the time of marriage AND the person asking for the annulment hasn’t voluntarily cohabited with the other party since learning of the impotency.

Mental Incapacity

A Court may grant an annulment if either party to a marriage, at the time of the marriage, did not have the mental capacity to consent to the marriage or understand the nature of the marriage because of mental disease or defect AND since getting married that party has not voluntarily cohabited with the other person during a time when that party had the capacity to understand the marriage OR, in the case when the party asking for the annulment is not the party with the mental incapacity, the party asking for the annulment did not know about the other party’s incapacity and didn’t reside with that person after finding out.

Concealed Divorce

If a person finds out after marriage that their new spouse was divorced from a third party within the 30-day period preceding the date of the marriage ceremony AND at the time of the marriage the person didn’t know about the divorce AND hasn’t cohabited with the recently-divorced party after finding out, then the Court can grant an annulment. To get an annulment under these circumstances, the suit has to be filed within one year from the date of marriage

Marriage Less Than 72 Hours After Issuance of License

A Court can grant an annulment if the marriage took place within 72 hours after issuance of the license and the suit is brought within 30 days of the date of marriage.

While you might or might not meet the grounds for an annulment, it is important to visit with a good family lawyer when considering your options.  In some cases, getting a divorce is preferable to having your marriage annulled.  In other cases, annulment is preferable.

{ 0 comments }

A Word About Upcoming Elections

by Duane L. Coker on January 27, 2010

Primary elections for Denton County Judge positions are just around the corner. Early voting starts on February 16th and the primary election will be held on March 2nd.

While Denton County residents will be voting on a number of elected officials, including several judicial positions, our office here at Duane L. Coker & Associates, P.C. regularly practices in two of these Courts.  We handle family law matters in the 158th Judicial District Court and probate and guardianship matters in the Denton County Probate Court.

For the 158th Judicial District Court, I am supporting the current Judge, who is running for reelection, Judge Jake Collier.  Judge Collier hads loads of family law experience, having practiced in Denton County since 1969.  He took the bench 7 years ago and has enjoyed high marks in the Denton County Bar Association annual judicial poll.  I believe he is fair and extremely hard-working, often spending his day on the bench, even when Court isn’t in session. 

Find out more about Judge Collier at his website:  www.jakeforjudge.com

While I’m personally very sad to see our current Probate Judge, Don Windle, retiring, we’re lucky to have more than one very well qualified candidate for the Denton County Probate Court position. 

I decided to support Robert Ramirez, a very experienced probate and guardianship attorney, who is extremely familiar with the inside of the Denton Probate Court, as soon as he decided to run.  Despite the fact that he now has well-qualified competition for that position, I believe he’s the best person for the job.  Find out more about Robert at his website: http://www.electrobertramirez.com/

Be sure to get out and vote in the upcoming primary election.  Denton County historically only elects Republican candidates.  In most cases, there are no Democratic opponents.  The primary often amounts to the election so they are definitely too important to miss.  I hope if you do vote, you’ll vote for the above two candidates, who I think will do a great job for the citizens of Denton County.

{ 0 comments }

Geographic Restrictions in Divorce and Child Custody Cases

by Duane L. Coker on January 13, 2010

One of the most common issues that our office is dealing with in divorce and custody cases in Denton and Collin County, Texas, is the issue of either establishing, enforcing or lifting a geographic restriction on the residence of the child in the case.

First, it is important to explain what a geographic restriction is and what it isn’t. Normally, but not always, when a Court in Texas enters an order related to a child, whether a divorce decree, paternity decree, or an order in a suit affecting the parent-child relationship, the Court gives one parent the exclusive right to establish the residence of the child. Even though, in most cases, the parents are appointed as Joint Managing Conservators, this right is usually given to one parent and that parent is the one with whom the child will primarily reside. The other parent is given some type of possession schedule.

In Texas, and in most states nowadays, it is common for the Court to establish a geographic area in which the parent with the right to establish residence can establish the residence. Our most common restriction in Denton County reads that the parent can establish the primary residence of the child within Denton County, Texas, or a county contiguous to Denton County, Texas. However, it is not uncommon to see bigger or smaller areas set out in orders.

Now, this doesn’t mean that the Court is telling that parent where they can live. What it does mean, though, is that the Court is ordering that the parent can only establish the child’s residence within that area. If the parent chooses to move off to another state, for example, they don’t have the right to take the child with them and, without further Court order, the child would have to remain within that area with the other parent (assuming that the other parent remains in that area).

Because of our increasingly mobile society, it is not uncommon for a parent to want to have the right to establish the residence of the child and to have the right to move to another part of the state or country. My experience has been that, while the Court might empathize with the parent’s desires, if the other parent plans to remain in the area, and is involved in the child’s life, then the Court will usually put a geographic restriction in place. This is so that both parents remain involved in the child’s life.

There are a number of factors the Court considers in deciding whether to establish a geographic restriction or, if one is already in place from a prior order, whether to lift that restriction. In most cases, the parent wanting to move wants to do so for job purposes or to be closer to a family support group. These are good reasons and, in some cases, may be good enough to convince the Court to allow the move. However, we’re finding more and more often that the Court will go to great lengths to keep the child close to both parents.

Often, if the Court considers allowing a move (either by not establishing or lifting an existing geographic restriction), the Court will try to even things out by giving the remaining parent more time with the child, ordering the moving parent to pay some or all of the transportation costs, decreasing or eliminating the remaining parent’s child support obligation to offset transportation costs, and so on. Many times, the moving parent will get the right to move and establish the child’s residence in another area, but then elect not to because the considerations given to the remaining parent offset the perceived benefits in the move.

Further, in most orders, the geographic restriction also includes provisions that, if the parent without the right to establish residence (the parent with the possession schedule), moves outside the area of the restriction, then the restriction is lifted. For example, if the Court says that a parent may establish the child’s residence within Collin County, Texas, and the other parent then moves to Nebraska, the restriction is lifted so that the parent with the right to establish residence does not have to stay in Collin County. This is because the original reason for the restriction is gone.

The bottom line is that every case in which establishing or lifting a geographic restriction is an issue is different and involves a number of factors that may or may not be important to present to the Court. There are far too many factors to discuss here, but most of these factors are time sensitive. Further, if you are seeking to lift a restriction for a new job opportunity or other reason, these cases can take time (often months) so it is important to see a good family lawyer who has experience in the jurisdiction in which the case is pending to discuss your options and evaluate your chances of success.

{ 0 comments }

New Google Search To Open Legal Research For All

by Duane L. Coker on December 1, 2009

As Google continues to work toward total search domination (assuming they’re not already there), they do come up with some pretty nifty stuff. One of the latest developments, Google Scholar, is a search engine that’s still in beta form and is, according to Google, a “simple way to broadly search for scholarly literature. From one place, you can search across many disciplines and sources: articles, theses, books, abstracts and court opinions, from academic publishers, professional societies, online repositories, universities and other web sites. Google Scholar helps you find relevant work across the world of scholarly research.” 

According to an article on the American Bar Association site (http://www.abajournal.com/news/article/google_offers_legal_research_for_the_average_citizenand_lawyers_too), one purpose of the search engine is to open up legal research to the average citizen.  In the past, this type of research has often required extremely expensive search engine subscriptions or confusing trips to the local law library.

Next time you face a legal conundrum, finding an answer could be as easy as finding a picture of Angelina Jolie . . . just Google it!

{ 0 comments }

Collaborative Divorce in the News

by Duane L. Coker on November 18, 2009

As many of you know, our attorneys and staff at Duane L. Coker & Associates, P.C. are trained in the use of Collaborative Law in family law and divorce cases.   We have assisted many clients in using this new and innovative way to resolve their differences.  It really is on the cutting edge of dispute resolution in family law cases here in Texas, and in all types of disputes around the world.

I’m a member of the International Academy of Collaborative Professionals and just recently received an update from them that included several articles about the growing popularity of collaborative law.  As I found several of the articles interesting, and I had a couple free minutes this morning, I thought I’d share a few:

These links and summaries are from this month’s issue of the IACP newsletter and link to articles from around the world republished on the IACP website:

Courts Use Collaboration Model To Try And Dial Down Emotions In Divorce Cases 

Collaboration Allows For a Kind Divorce

Collaboration Converges on Divorce Cases

If you find yourself involved in a divorce or family law action, or about to become involved in one, you should at least consider Collaborative Law as an option to resolve your differences.

{ 0 comments }

← Previous Entries