FAQ’s — Family Law, Guardianship and Probate/Estates

FAMILY LAW FAQ’s

  1. What Does Joint Custody Mean?In Texas, there is a presumption in a divorce that the parents be appointed as “joint managing conservators.” However, this does not necessarily mean that the court divides custody equally with no support being paid. Usually, the court decides that one parent has “primary” possession of the child and has the right to establish the child’s residence while the other parent has visitation rights and is ordered to pay child support. Other parental decision making powers are allocated between both parents.
  2. How are visitation and child support handled in Texas?There are presumptive guidelines for visitation and support, which constitute general rules for the courts to follow. There is a visitation schedule known as the Standard Possession Order, which sets forth the presumptive minimum amount of time for a person named as a joint managing conservator. Likewise, there are somewhat standardized child support guidelines so that, generally, child support is presumed to be set as a percentage of the obligor’s net income. It is important to know, however, that there are certain instances where the “presumed” guidelines may not be applied. By agreement or court order, the actual visitation or support ordered can deviate from the guidelines. This is where having competent legal representation can be crucial. Call me for more information.
  3. How is property divided in a divorce? The judge in a divorce case has the discretion to divide the property in a manner that he or she deems “just and right.” This usually means that the Judge starts out with the presumption that the community estate will be divided equally. However, in certain cases, depending on certain factors such as fault in the break up of the marriage or disparity in earning capacity of the parties, the judge, in his or her discretion, may divide the property in a disproportionate manner.
  4. How does a Lawyer make a difference in Family Law Litigation?  Lawyers in Texas have the title, ‘Attorney & Counsellor’ at law. At this point in my career, I value the role of counsellor most.  Think of the consigliere in The Godfather, played by Robert Duvall (Tom Hagen). Michael Corleone is involved in the ugliest aspects of life, but those aspects are very real, have always existed and will always be with us (in government or out, in religion, education, media and elsewhere).  Corleone needs more than a lawyer who understands capital murder;  he needs someone who understands the people who MAKE law, people who ENFORCE the law, and the judges who APPLY the law.  Corleone needs a counsellor — a consigliere.  Honestly, you pay for good counsel, not a law professor (you can Google the law).  The difference is always in the experience and the wisdom of your consigliere; it’s about knowing people, trends, places and the thing at hand.  Hire a lawyer.  Google the law.
  5.   Do you Offer free consultations?  No, I do not.

GUARDIANSHIP FAQ’s

  1. What is a guardianship, and how does it work?  When a guardianship is established, an individual or entity is appointed to manage the personal or financial matters on behalf of another individual who doesn’t have the legal capacity to act independently. Guardianships are most often used to protect the interests of a minor child (whose parents are deceased or missing) or an adult who is mentally incapacitated  (formally known as non compos mentis, or N.C.M.).
  2. What types of guardianships are there?  There are two types of guardianships in Texas:
    1.  Guardian of the estate — An individual or entity responsible for handling the financial interests of another person;  2. Guardian of the person — An individual who manages the personal interests of another person.  The latter includes decisions regarding residential care and health care, education, and other personal matters.
  3. How does the State of Texas define “incapacitated” in regard to guardianships?  There must be a court order declaring an individual to be incapacitated (a person substantially unable to protect their own affairs).  This most often refers to an adult who is incapable of managing his or her own affairs due to injury or illness, drug or alcohol abuse, mental illness  or other reason. The Court must hear medical evidence to make a finding of incapacity.
  4. What do I need to do to get a guardian appointed?  Establishing a guardianship is a court proceeding. Except in the case of a minor, a medical evaluation is necessary, as well as a letter from the doctor treating the individual for whom a guardianship is sought.
  5. Is setting up a guardianship expensive?   Yes.  On the front end, in the middle and at the end — think of a cash register ringing up all of the charges.  The guardian must obtain court approval for spending amounts and allowances. Additionally, the guardian must account annually for financial decisions in a certain form that the court requires. An attorney is required to represent guardians of the estate, to file all of the necessary applications, which results in attorneys’ fees being paid out of the guardianship estate. The guardian is required to obtain a bond (insurance) and an annual premium payment must be paid from the guardianship funds. All of these components contribute to the expense of establishing and maintaining a guardianship
  6. How can an attorney help with a guardianship?  We explain your options and less intrusive (and less expensive!) alternatives.  If needed, we will establish a guardianship and represent you if you are appointed as guardian of the estate. Our law firm has significant experience in guardianship legal matters. We know the court requirements, when to file, deadlines, and other important administrative matters. We can keep guardians on track to ensure compliance with all court requirements.
  7.   Do you offer free consultations?  No, I do not.

PROBATE & ESTATES FAQ’S:

  1. When can a will be contested?There are a number of circumstances under which an individual may choose to contest a will:
    • If undue influence was a factor
    • If the will was not properly executed
    • If the person who signed the will did not possess “testamentary capacity” i.e. the mental capacity to understand the process and purpose of executing a will
    • If the will was handwritten and it does not meet Texas rules and standards applying handwritten wills
    • If disputes arise between beneficiaries
  2. Can an executor or trustee be removed?Situations in which an executor or trustee can be removed include:
    • When other individuals who have an interest in the estate believe that an executor or trustee is not fulfilling their duties
    • When the executor or trustee does not have expertise or knowledge of his or her duties
    • When the executor or trustee does not have the best interests of all parties involved in mind
    • When the executor or trustee acts fraudulently, self-deals, maybe acts like an asshole, etc.
  3. Is probate or trust litigation expensive?  Yes. However, it is important to explore your payment options. You may be able to hire an attorney on an hourly basis or on a contingency fee basis. The hourly rate of experienced attorneys is about $400 to $600 an hour, but if you’ve got a $100k trust, don’t shop for an expensive lawyer — do your homework.  You might consider a contingency fee arrangement, your attorney will get a certain percentage of the total amount of money he or she recovers for you.  But trust litigation is complicated and costly — in addition to attorney fees, deposition expenses, court reporters, expert witnesses, and costs arising from the discovery process are significant.
  4.   Do you offer free consultations?  No, I do not, and I would appreciate it if you’d stop asking. Do you like to work for free?