How long does it take to get divorced?

It depends. Isn't that a great lawyer answer! But it really does depend on many factors like:

--are you in agreement about how to divide your assets/debts?

--are you in agreement about where your kids will live?

--are you in agreement about child support amounts?

--are you in agreement about child custody visitation orders?

In most cases, these factors determine the length of time a divorce takes. However, there is a minimum time required.

In Texas, the Family Code (state law) mandates a 60 day "cooling off" period. What this means is that a Court cannot approve a divorce decree within 60 days of the date the divorce petition was filed. Therefore, even the shortest divorce case will take at least 2 months to complete. We advise our clients not to expect "quick" divorces.

As always, please feel free to contact us through our website (http://www.brazoslawyers.com/) if we can be of assistance.

Am I common law married?

Someone recently asked this question in the office, which caused us to again look at the common law (or informal marriage) statute. According to the Texas Family Code, there are 2 ways to be informally married.

1. Sign a declaration of informal marriage (which is kind of like filling out a birth certificate form)

OR

2. Agreed to be married, live together in Texas as husband and wife, and represent to others that you are married.

Some typical proof of informal marriage is the "wife's" use of the "husband's" last name, the way that you filed a tax return (married filing jointly), or the way assets or bills are titled (Mr. and Mrs. Smith). Other typical proof is the having of children together and the comments made to neighbors, family members or other friends.

A few other interesting things about Texas law on this subject are:

--you cannot be informally married if you are minor

--you also cannot sign a declaration of informal marriage if you are married to someone else

--only a man and a woman can be informally married (i.e. homosexual couples do not qualify).

As always, please feel free to contact us through our website (http://www.brazoslawyers.com/) if we can be of assistance.

Do I need a will?

I recommend that my clients have a will for several reasons. First, with a will, you decide who inherits your money and possessions. Without a will, a Texas statute and the court will make that decision. Many times your wishes would not have been the same as what the statute and courts provide.

Second, in Texas, you are allowed to choose between whether your estate will be independently administered or probated. Independent administration is less costly and less time-consuming than the traditional probate process. The only catch is that independent administration needs to be provided for in your will.

Third, with a will, you get to decide who the executor of your estate will be. Without a will, a court will make that determination.

Fourth, you can set up a trust for your children in your will to provide for their future financial needs. You can also select a family member, friend or financial advisor that will oversee and invest your children’s inheritance until they are old enough to manage it themselves (whether you decide this age is 21 or 51).

Fifth, if your estate is large enough, you may be able to minimize or eliminate any estate taxes paid to the government. With proper planning, you can maximize the amount of money that your children or other heirs will receive, rather than paying extra, unnecessary taxes.

If you want to decide who will receive your estate and you want to maximize what they receive, you need a will.

As always, please feel free to contact us through our website (http://www.brazoslawyers.com/) if we can be of assistance.

Who would raise my children if something happened to me?

I recommend that my clients with minor children choose who they want to be the future guardians of their children through a legal instrument commonly called a Designation of Guardian. By signing a Designation of Guardian, you can decide exactly who your first, second, third and even fourth (or more) choices to raise your children are in the event of your death. This legal document is typically honored by the courts, and avoids disputes between family members (or both sides of the family) as to who will raise your children. The Designation of Guardian will allow you to pick the most suitable person in your eyes to raise your children.

In making that decision, you should consider many factors:

--Is your child familiar with them?

--Will they raise your child with the same religious values as you?

--Are they responsible?

--Will they preserve your child’s contacts with your extended family?

--Do they have the financial resources to take in another child?

--Do they value the same things that you consider important?

I often recommend my clients make this Designation of Guardian when signing new wills. In their wills, we compliment their choice of guardian by also designing a trust for their children to take care of future financial needs, such as college costs. In this way, your child can be provided for emotionally, physically and financially, and you can have peace of mind that these decisions have been made.

As always, please feel free to contact us through our website (http://www.brazoslawyers.com/) if we can be of assistance.

I heard that the estate tax is being repealed. Do I really need to plan for estate taxes in my will?

This is another common misperception that is spread around (and quite frankly asked about by my clients in our initial estate planning conferences).

Estate planning is actually more important than ever because of the complexity and uncertainty created under the 2001 changes in tax laws. Instead of repealing the estate tax, the estate tax is gradually phased out over the next 4 years. In 2010, the estate tax is repealed–for one year. In 2011, the estate tax is reinstated at the 2002 level (the exemption level that year will be $1 million).

Because of insurance payments, the last 20 years of the stock market, and increasing property values, it is pretty easy to get over the estate tax threshold. Thus, planning for estate taxes is still a primary concern when creating a will.

As always, please feel free to contact us through our website (http://www.brazoslawyers.com/) if we can be of assistance.

Medical Power of Attorney

We get a lot of calls at the office about drafting wills, but no one ever calls about powers of attorney. Also, we have lots of clients that come in with a poorly drafted will that was done by some cheap lawyer or by the client himself, but give me a blank stare when I ask about powers of attorney. If you take nothing else from this post, please remember this: IF YOU PLAN FOR DEATH ONLY (AND NOT DISABILITY) YOU HAVE ONLY DONE HALF THE JOB.

I read somewhere that people under 40 years old are 4 times more likely to be disabled than to die. Therefore, if you only plan for death (i.e. a will), you are missing out on 80% of your legal need.

So what is a Medical Power of Attorney? It is a short document that gives an individual you designate the right to make health care decisions for you in the event that you are unable to make them for yourself. Typically, medical powers of attorney your doctor to be the one that certifies (in writing) that you are unable to make the decision.

So why do I need one? Your appointee (attorney-in-fact) will be the one to sign surgical consent forms, admit you to a hospital, and make key medical decisions. It is much better to have decided on one person you trust to make a decision than to have your family members arguing in the hospital hallway about what you would have wanted done. I have so many stories that I could tell you about family squabbles that could have been avoided with this simple document.

So what is the cost? This varies from state to state and attorney to attorney, but it really should take no more than an hour for an attorney to draft one. Most estate planning attorneys have some flat fee will package that includes a will and disability planning documents (medical power of attorney and others).

As always, please feel free to contact us through our website (www.BrazosLawyers.com) if we can be of assistance.

Starting to blog

After much fits and starts, we are now entering the world of blogging. We hope that our future posts will give some basic information about various areas of the law that would be of interest to our clients and the public at large. Please check back for updated posts.

As always, please feel free to contact us through our website (www.BrazosLawyers.com) if we can be of assistance.