WILLS, GUARDIANSHIPS & PROBATE
DIVORCE RESOLUTION PROCEDURES
What is a Will?
A Will is a document that expresses how you want your estate to be handled and designates your beneficiaries and heirs. You may set up a Trust in your Will and name guardians and trustees for minors or special needs children.
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What is Probate?
Probate is the simple legal process of admitting the contents of a Will into the county records and naming the executor to administer the estate of the deceased. Admitting a Will to Probate is normally a simple, private, and informal procedure that allows the assets of the estate to be gathered and distributed after the bills and liabilities are addressed by the Executor.
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Do I need a Will?
We recommend that our clients have a Will, particularly after a divorce, remarriage, adoption or other change in the family status. A Will is the best method of passing along property, especially real property. If you have an old Will, or a Will from a state other than Texas, we can review it for you to determine if you need to replace it with an updated Will.
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What is a Statutory Durable Power of Attorney and why do I need one?
A Statutory Durable Power of Attorney gives the person you name power to handle certain financial or business matters on your behalf. It can be effective immediately, which is what most married couples choose, or can be effective only upon your disability. It can be revoked by you at any time. A Statutory Durable Power of Attorney is a standard form created by the legislature that is intended to eliminate the need for a person to have to sign a different POA at every bank or institution they need to business with. Having a POA in place when you know you may be facing uncertainty in your health or mental status is very important. Once you lose mental competence, it is too late to get a POA, and you may need a guardian appointed by the court to manage your affairs, a costly alternative.
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What is a Medical Power of Attorney and why do I need one?
A Medical Power of Attorney names a person you choose to make medical decisions for you if you cannot make them for yourself. It can be revoked only by you. Most adults need to have a MPOA and your hospital will require it. If you need to be admitted to the hospital in an emergency, your spouse will make decisions for you in the absence of a MPOA. This can cause problems for adults who do not have family nearby, are unmarried, or for “blended families” where your spouse is not the parent of your adult children. Planning ahead with a MPOA settles the question of who will be in charge of making critical medical decisions for you when you cannot make them for yourself, particularly when you do not have an Advance Directive.
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What is an Advance Directive?
An Advance Directive allows you to direct how you want to be treated when you have been diagnosed with either an irreversible condition from which you will not recover and will die without medical intervention, or a terminal condition from which you are expected to die within six months regardless of medical intervention. You may choose that you be kept alive using everything medically available, or only palliative care that allows you to die as pain free and gently as possible. Your MPOA cannot override your wishes expressed in an Advance Directive, but if your do not have an Advance Directive, your MPOA can make this decision for you.
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What is Collaborative Law?
Collaborative Law is a structured way to solve children and property issues that avoids litigation and court hearings, and focuses on your family’s interests instead of forcing a particular outcome on you or your spouse. Trained in Collaborative Law, we encourage divorcing couples to explore using Collaborative Law to come to an agreement that meets the needs and interests of parents and children without court intervention.
In the case of Collaborative Law, both the attorneys and their clients enter a contractual agreement to work things out, amongst themselves, without the litigation. The agreement puts in writing a desire to act in “good faith” through the process. The attorneys for each party are actively involved in the process and seek to find solutions that are fair to both parties.
With Collaborative Law, the goal is fairness to all. Collaborative Law attorneys are trained to assist the client in focusing on the interests of the spouses rather than advocating for a result, and they often involve neutral third party experts, such as financial planners and communications specialists to help identify interests and facilitate the process. The focus is to meet everyone’s interests, rather than goals, so that everyone can walk away at the end of the process with peace of mind. Most collaborative law cases involve thinking “outside the box” for creative, non-traditional solutions that work for your particular situation.
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Why should I choose Collaborative Law over a traditional divorce?
In addition to the privacy a non-litigated Collaborative Law process gives you, Collaborative Law allows each party to the divorce to retain their dignity and integrity. No court hearings, cross examination or costly litigation will occur, and because it is a guided process, it is more efficient than traditional litigation, and usually less costly.
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Is this quicker than a traditional divorce?
Yes; because there is a commitment to cooperation, divorce using Collaborative Law can move quickly. However, with the goal of making sure everyone is treated with dignity, and ensuring the needs of the children are adequately addressed, sometimes it is helpful to call in outside neutral experts (therapists, communications specialists and financial specialists) to assist in gathering information and facilitating mutual cooperation.
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What is involved in Collaborative Law?
There is a series of scheduled meetings, with an agreed agenda for each meeting. Meetings usually last about 2 – 2 ½ hours. Our first session involves gathering financial information. Many divorces handled collaboratively require only two to three sessions. The Collaborative Roadmap gives a good overview of the general process. Agreements are drafted into temporary orders as they are reached and a final order is entered with the court at the end of all negotiations. If at any time, either party wishes to discontinue the collaborative process, both spouses will be released from the agreement, but will need to find new attorneys to represent them and start over and litigate in court.
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Do I have to use the Collaborative Law process?
No. Both parties and their attorneys must agree to use the process. Collaborative Law is not always the best choice for all couples, particularly when the parties have already reached an agreement and do not want or need to hire two attorneys, which Collaborative Law requires. You may find out more about Collaborative Law at The Collaborative Law Institute of Texas website, www.collablawtexas.com. Please contact us to discuss whether Collaborative Law is right for you.
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What is Mediation?
Mediation is a formal method of negotiating a settlement when the parties simply cannot reach an agreement otherwise. With the use of a neutral expert trained in family law mediation, clients and their attorneys generally devote a full day to working out a final settlement agreement that is binding and irrevocable once signed and filed with the court. Mediation costs vary, but it is always less than a contested trial and usually successful. Parties generally share the cost of the mediator. Mediation is required in many Texas counties before you can have a contested final hearing to encourage parties to settle.
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Can you mediate my family law case?
Yes! We offer mediation services for those dealing with family law issues and work with you as a mediator, rather than an attorney, and help you settle your case. Once we complete the mediation, you can take the Mediated Settlement Agreement to your attorney to draw up a final order or decree of divorce. Please contact us if you are interested in setting up a mediation.
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What is Informal Settlement Negotiation?
Most divorcing couples want to be fair, do not want to go to court, and want to avoid having a judge or jury make decisions for them. Some couples want to use one attorney to file the divorce and draw up an agreement. Although we can only represent you, we can negotiate with your spouse if he or she chooses not to hire an attorney, and prepare the final paperwork for you. The Texas Family Code provides a method for you and your spouse to enter into a binding agreement through informal settlement negotiations between the parties. Informal Settlement Agreements can be very cost-effective and save time over mediation. As an experienced family law attorney trained in alternative dispute resolution and settlement negotiation, we offer you the opportunity to reach an agreement with your spouse without unnecessary litigation or court ordered mediation, even if your spouse chooses to hire an attorney.
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