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.
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.
