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Family Law & Estate Planning FAQ The Woodlands

Probate, Family Law & Estate Planning Attorney Serving all of the Woodlands, Spring & Conroe

Divorce FAQ

How long will the divorce Take?

The truth is that the time it takes to complete a divorce depends upon several factors. The most important one is how cooperative your spouse becomes. Is your spouse is willing to sign all the paperwork which we provide him/her without hesitation or modification? If so, then you can be divorced in a little over two months, depending on the court's schedule. (Texas has a waiting period of 60 days) However, if your spouse is not cooperative, then a divorce can sometimes take more than a year. In any event, we try to work to keep your case moving forward. We understand that this is a difficult period in your life, and want to assist you in putting it behind you.

How much will the divorce cost?

Unfortunately, this question is difficult to answer. We do offer a flat fee for an "uncontested" divorce, but it is difficult to accurately estimate the ultimate cost of a contested case. In a flat rate divorce, we makes several assumptions: (a) your spouse will not hire a lawyer; (b) your spouse will sign a waiver of citation; (c) your spouse will not file an answer with the Court; and (d) there is no pension or retirement plan which has to be divided. We are happy to sit down and discuss the matter with you at one of our Huntsville, Woodlands or Sugar Land, locations. In this way, we can give you a quote based not on "guesstimates," but on the facts of your case.

How much will I get in child support?

Texas has guidelines to assist the Court in setting child support. As a general rule, 20% of the first $7,500 per month of after tax income is assigned for the first child, and 5% for each additional child, up to five children. However, there are exceptions, and other considerations, (E.g. additional children who are to be supported by the obligor, and also the existence of special needs children) which may result in differing child support amounts. To find out the most likely child support award in your case, please contact our office at 936-435-1908 or 281-723-2791 to schedule an appointment to meet with Andrew J. Bolton, Esq., at our Huntsville, The Woodlands, or Sugar Land locations. For a rough estimate of child support, please use this link to find a good starting point: https://www.texasattorneygeneral.gov/cs/calculator/

I don't want a divorce, can I stop it?

Unfortunately, the ultimate answer to this questions is "no." This is true, not only in Texas, but in almost all states. If your spouse is determined to get divorced, they will eventually get a divorce. However, in Texas, courts will not grant a divorce unless there is no "reasonable expectation of reconciliation." So, if you can make a compelling argument that your marriage remains savable, then it is sometimes possible to have the court order you and your spouse to attend marital counseling to determine if divorce is truly inevitable.

Can I get half of my spouse's retirement benefits in Texas?

Retirement benefits accrued during the marriage are community property, and can be split by the Court at the time of divorce. However, there is no requirement that community property be split 50-50. That is why it is important to have an attorney, to make sure that the Judge is aware of all the factors in your case that should affect the division of the property. Andrew J. Bolton, Attorney at Law, will explore all the aspects of your divorce with you to make sure that your rights are protected.

Can a man get custody of youn children in Texas?

Texas law mandates that the judge not consider the sex of the parents when determining who should get custody of the children. The Court is supposed to consider only the best interest of the child. Andrew J. Bolton, Attorney at Law has assisted parents of either sex to secure custody of their children when it is in the child's best interest. For younger children, courts do seem to have an even stronger bias in favor of the parent who has been the primary caregiver. In order to determine how likely you are to prevail in a custody dispute, please contact our office and schedule an appointment to meet with an attorney in person at either our Huntsville, Conroe, Woodlands or Sugar Land locations.

Wills FAQ

Do I need a will?

If you are asking this question because you have heard (on the radio, most often) that a trust may be better, then please see the section on living trusts, below.

If you are wondering if you own enough to justify even visiting with an attorney, then ask yourself these questions: Do I own any real estate? Do I have minor children? Do I have family members who sometimes disagree? (experience shows that the potential for a disagreement becomes 1000x more likely upon death of a loved one) Do I have valuable property of any kind? If the answer to any of these questions is "yes", then my answer is also "yes," you need a Will.

Probating a will is how property is transferred from one person's name to another. If you do not write a will, the State of Texas has thoughtfully written one for you. The catch is, even if you agree with the State as to how your property should be distributed, the lack of one means that under most circumstances, the Court must oversee the distribution of your property, which means that more of your estate goes to lawyers, appraisers, court costs and accountants, and less of your property goes to your heirs. An attorney-drafted will can avoid a lot of costs and time delays later.

Even if you do not own any substantial property, I would still recommend a Will. Why? Three reasons.

First, family members often react unpredictably to death, and lasting feuds have begun over possessions worth only a small amount. Many of these arguments could be stopped before they began if everyone could see a document where the deceased spelled out in writing exactly what they wanted done with their assets.

Second, circumstances do change. You may have more at your death than you realize. For example, if you were to be killed in a car accident, your estate could have a claim against the other driver worth a substantial amount. Similarly, you could inherit funds, win the lottery, or purchase a small recreational property. Thus, there are many reasons why heirs end up having to go to probate court despite someone being sure they did not need a Will.

Third, a simple weighing of consequences argues in favor of a Will. If you need it and don't have one, that lack could cost your heirs thousands, or even hundreds of thousands of dollars, depending on the circumstances. Like an insurance policy, if you have one, and don't need it, there are few negative consequences. Texas law does require that the Will be filed with the Court, even if it is not probated. However, there is no fee to simply file, and no court appearance, or additional action is required.

Are those will programs and forms for sale to non-attorney's valid?

Obviously we have not reviewed all of the programs available. However, many programs that say "valid in all 50 states", do, in fact, produce a will that is valid in Texas. However, there are several reasons why I do not recommend using them.

1) Texas has a very good probate system, or, as I some often say, "Texas is a great place to die." What is meant by this is that, in most circumstances, if you are taking a will drafted by a Texas attorney through the Texas courts, then the costs and time involved are relatively low. Usually, you only have to go to court but once. You do not need any of the witnesses to go to court with you. After you file an inventory and appraisal, there are no other actions which require court oversight. I have not yet seen a will program, or forms, which are designed to take advantage of Texas probate laws. Which means that if you use the most commonly available legal drafting programs or wills forms, your heirs could end up paying almost as much for a probate as if you had not written a will at all.

2) Many people do not fully understand what they are signing. Although there are exceptions, most non-lawyers cannot tell the difference between leaving property to their descendants "per stirpes" or "per capita". Many people are also unclear about the difference between an executor and a trustee. I have had clients bring in forms after the death of a spouse or parent, and even a quick look reveals that the loved one did not understand what they were filling out. That leaves the survivors and the Court in the difficult position of trying to follow instructions which clearly do not make sense. It is also an invitation for a will contest.

3) The forms are written to cover only the most common situations, and in these days, fewer and fewer families fit the "most common" mold. Most forms will not address, for example, how to leave property to a minor where you have a strong distrust for one of the parents, or the best way to leave property to your child and ensure it will not eventually become considered community property, which would be vulnerable in a divorce action.

4) There is a substantial chance the form will be invalid. Even if the form which you select is a valid form, there is no guarantee it can be filled out and executed properly.

5) You may not realize everything you should be including. One of the greatest benefits of a face to face consultation with an attorney, is the opportunity for the attorney to discuss your personal situation, and point out things that you ought to consider. For example, if your child dies before you and your grandchildren are left to inherit, at what age would you want them to have access to their inheritance?

Can I write my own will?

Yes, but do not be encouraged by this. A law professor once pointed out that the law also allows you to remove your own appendix, but that you should not attempt that either. While attorneys do "write" the provisions which specify your particular instructions and desires, virtually all attorneys begin with form language which decades of courts have held to have specific meaning. In addition, most competent attorneys update their forms regularly based upon changing laws, new court cases, and the attorney's own experience. In addition, I find that most of my clients are not aware of all the issues they should address. The chances are great that if you write your own, you could leave something important out, or that it may have consequences you do not intend. That being said, if you are simply not willing or able to see an attorney, and you are trying to decide whether you should write your own, or let your heirs and the State fight it out after your death, a self-drafted will is often better than nothing. Often, but not always. I cannot possibly list all the pitfalls to avoid in drafting your own will, but can relate a story to you about a woman who drafted a will which gave everything to her husband. Easy enough, right? She was also careful to follow the requisites of law for the drafting of wills. The whole thing looked very professional. But there was one problem: her husband died before her and she didn't not address that possiblity in the will. In sum, she died without a will.

Is a living trust better than a will?

There are some people who have a strong distrust of the probate system, and a dislike of courts. If you are one of these people, you probably prefer your property to pass through a living trust. Even if you are not, there are several reasons you may want to consider using one.

1) Avoidance of probate court. This is the most common reason I hear from people who come to my office asking about a living trust. If you live in California, New York, New Jersey, or many other states, this is an urgent concern. Probate in Texas, by comparison, is simple. If a Texas attorney drafts your will, Texas probate can frequently be completed in less than a month, if necessary, and for, by legal standards, a reasonable sum. However, some clients have had bad experiences with courts, or heard unpleasant stories, and want to be absolutely sure their heirs are not dependent on the Court. A living trust is designed to serve many of the purposes of probate, and is the first choice for clients who, for any reason, want to stay out of probate court.

2) Privacy. This is one of the most common reasons I find myself suggesting a trust. Probate records are public. If your neighbor is curious at your death, he can obtain from the court a copy of the inventory and appraisal filed by your heirs, and find out exactly what was in your estate. So can a disgruntled family member, which in turn sometimes leads to will contests. If you are a private person, and wish to remain so after your death, you may prefer to use a living trust.

3) Real estate owned in another state. Although Texas probate is usually straight-forward, if you own real property in another state, your heirs will also need to file ancillary probate in that state. This can sometimes be messy. When real estate is owned in another state, it is usually my recommendation to form a trust to own the real estate, so that ancillary probate can be avoided.

There are other situations in which a living trust may be advisable. However, I usually do not recommend them unless there is a pressing reason to have one. This is because they are more costly to prepare than a will. Although most people wonder if they should have a living trust instead of a will, the correct question is should you have a living trust in addition to a will.

Why would I have a will if I have a living trust?

You have a will in addition to a living trust in case there is property inadvertently left out of the trust. Even with careful planning, many people who utilize a living trust accidentally leave property out. This could be because they neglect to have everything retitled at the time the trust is created, or because property is gained after the trust is created, the person forgets to put the property in the name of the trust, or even because the person is not aware they have an interest in some property. A will should be drafted at the same time as a living trust, for many of the same reasons that I recommend a will for individuals with little or no property.

What is a Power of Attorney?

A power of attorney gives another individual the right to act for you. This can be a very powerful document, and can cover many purposes from allowing your son to deposit your social security checks and write checks to pay your bills, to allowing your spouse to sell your homestead without you having to be present. A power of attorney is needed when an individual travels a great deal, or when they are incapacitated. While it is usually possible to plan ahead for travel, we rarely know in advance when a power of attorney can be needed to deal with incapacity. If you have an individual that you would trust to handle your financial affairs if you were unable to do so, I would urge you to execute a power of attorney in favor of that individual. Andrew J. Bolton, Attorney at Law, does not charge an additional fee for a power of attorney if it is prepared and executed at the same time as a will.

What is a Medical Power of Attorney?

A medical power of attorney allows you to designate who should be allowed to make medical decisions concerning your body in the event that you are unable to. Andrew J. Bolton, Esq., does not charge an additional fee for a medical power of attorney if it is prepared and executed at the same time as a will (as a part of a package).

What is a Directive to Physicians?

You may have heard this referred to as a "living will". This is a document which specifies under what circumstances you would want life support to be discontinued. No matter which side you supported during the Terri Schiavo case, it is a tragedy that Ms. Schiavo did not execute a Directive to Physicians so that there everyone could ensure that her wishes were carried out, regardless of what they were. Like the medical power of attorney, Andrew J. Bolton, Esq. offers directives to physicians as a part of a will package.

Bankruptcy FAQ

Will I be able to get credit after filing for bankruptcy?

There is no way to exactly predict the future. This is only one of the factors creditors use in determining whether to extend credit. Our experience is that most debtors can obtain credit at the conclusion of their bankruptcy, and, if they are diligent in making post bankruptcy payments, can reestablish an acceptable rating over time. Most debtors have found that when applying for credit soon after their filing, it is not so much a question of it credit is available, but a question of what interest rate will be charged. This statement, of course, must be qualified by current credit market conditions and the economy in general. Even so, most debtors will find that when applying for creditor soon after filing, it is usually not a matter of whether they can get it, but what interest rate they will be charged.

Why choose Chapter 13 bankruptcy?

There are two reasons that many debtors find themselves in Chapter 13.

First, due the changes brought about by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), some Chapter 13 debtors simply earn too much to be eligible for Chapter 7. The second reason for electing to file Chapter 13 is that a debtor has a home or an automobile, or both, which he is attempting to save from foreclosure (difficult to do under a Chapter 7 if payments have been missed). Under Chapter 13, a debtor can require that a lien holding creditor patiently wait while the debtor attempts to catch up on past, unpaid loan installments. Often, the courts can give a debtor behind on his mortgage up to five years to catch-up depending upon the circumstances.

If you desire to learn more about which chapter of bankruptcy will be best for your situation, please contact Andrew J. Bolton, Attorney at Law, at 936-435-1908 or 281-723-2791.

Who willknow that I have filed for bankruptcy?

If you file a Chapter 7 bankruptcy, most likely, the only people who will ever find out are your creditors and bankruptcy case administrators. In a typical bankruptcy, the Court does not send out notices to your employer, your co-workers, your neighbors, or your family. If you file a Chapter 13, however, a wage-withholding order is frequently issued to your employer. Although it is illegal for your employer to discriminate against you for filing, many people would prefer that their employer be unaware that they have filed. Depending upon which court presides over your Chapter 13 bankruptcy, you may have the option of asking for an automatic bank draft order (called an "ACH order").

Please note, however, that bankruptcies are part of the public record, and technically, anyone can look up who has filed, but as a practical matter, other than creditors performing credit checks--few people do. The record will remain on your credit report for seven years in a Chapter 13, and up to ten years in a Chapter 7.

How will filing forbankruptcy protection affect my credit rating?

This depends on what your credit rating looks like now. If you have never been late on a payment, and currently have perfect credit, you rating will take a substantial hit. However, if you have had a vehicle repossessed, or a home foreclosed on, and have several 90 days past due notices on your account already, you will probably not see a big difference in your credit score. Unfortunately, there are three major credit reporting agencies, and they all use different and very complex formulas in determining your score. They do not reveal their formulas, and they are frequently adjusted, so there is no way you can figure out in advance how much your score will drop, but a good rule of thumb is, the better your score is now, the more of a hit it will receive. If you have already reached the point where obtaining credit is difficult, you will likely not see much difference.

Contact Us

To get more information or to schedule an appointment with an experienced lawyer, please contact us at 936-435-1908 to reach either of our offices in Huntsville, Conroe, or The Woodlands, Texas. Sugar Land or Stafford residents may call 281-723-2791.

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