• Adoption – Do you need information and help with an anticipated domestic or foreign adoption or  step parent adoption?
• Wills - Why do we put off making a will and providing for the ones we love and want to protect?
• Power of Attorney – Should you be unavailable or incapacitated, have you taken the simple steps to plan ahead with a general power of attorney or a medical power of attorney or a HIPPA release?
• Paternity –  What is involved in legally establishing a child’s father  as a legal parent and what are the consequences of doing so or not doing so?
• Probate – When is probate necessary and how long is the process?
• Joint Custody -  What are Texas Rules for a child’s Joint Managing Conservatorship?
• Standard Visitation -  When divorcing are there Guidelines for Visitation with children?
• Guideline Child Support – What are Texas Court Rules for parents to pay child support?
• Domestic Violence – Would a Protective Order or a Restraining Order help?
• Alimony – What spousal support laws are applicable when parties divorce?
• Property – Will a disproportionate division or an equal division apply in my divorce?
• Divorce Fault Grounds -  What  if alcohol, drugs, gambling, or pornography involved?
• Elder Law – Special concerns for the senior citizen with a family law matter?
• Interstate Family Law – Parents  living in two different states face jurisdiction conflicts?
• Modification - May a Support or Visitation Court Order be modified for a  minor child?
• Enforcement – How is child support best collected and how are visitation issues best resolved?
• Children’s Education – What about college expenses for the kids?
• Social Security Eligibility – Is Social Security subject to property division in a divorce?
• Estate Documents – When and how should you update your will or power of attorney when  becoming a new parent, divorcing, or  having health problems?

All your questions and concerns are important to you. We offer both office consultations and telephone consultation if you live outside the Dallas Ft Worth metroplex, but think you have a matter for the Dallas/ Ft Worth/Denton/Collin County’s metroplex courts.

• What are private placement adoptions?
• How do agency adoptions work?
• What constitutes parental consent?
• What alternatives exist if consent is contested?
• How do step-parent adoptions work?
• What is the difference between open and closed adoptions?
• What are practical tips for families considering international adoption?
• How do you avoid problems dealing with U.S. Citizenship and Immigration Services when adopting an international child?
• What is the role of the guardian ad litem during the adoption process?

The following is a testimonial of one party to a divorce who chose to resolve divorce, property and child related issues by the collaborative process with two lawyers trained and experienced to assist spouses who choose the collaborative divorce process.

“I like everything about how my case was handled – by BOTH lawyers.”

“I believe that every divorcing couple should have to try the collaborative process before resorting to traditional adversarial divorce. I believe that the divorcing couple should have to attend – together – a class that explains in detail the effect of divorce on their children (if they have any), and emphasizes the steps parents can take to minimize the impact.”

“We both wanted out of the marriage, but we didn’t want our children to “pay” for our mistakes. The process also allowed my ex and I to remain focused on this goal, rather than being focused on “getting” the other person.”

“Once we started working together to craft a solution we both thought was fair, we had incentive to work together – giving and taking – to reach a truly fair outcome. We allowed our children (because it was age-appropriate to do so) to have input on issues that concerned them. This was comforting to them. I believe that we set a good example for them by being parents who worked together to cause them the least amount of emotional impact as possible during and after our divorce. They have both thanked me for how we handled the divorce, and for us preserving our friendship through the process.”

“Before we worried about division of assets, we did a “current” budget together and a projected future budget for our separate lives. When we finally turned our focus to division of assets, we had a much better picture of each other’s future needs. We then had the flexibility to move all or part of each asset into one of our columns based on who would need access to what types of assets in the near and far term.”

Since our children were older, the standard custody agreement did not fit the needs of our kids. With collaborative divorce we were able to write our own child custody agreement, and back it up with a more “standard” agreement that applied only if we were unable to agree. Our younger child’s interests were put ahead of our individual interests, while maintaining an agreement that both parents are important in his life. We weren’t forced to live with standard rules that would have been very uncomfortable for our youngest and awkward for us.”   

“I was concerned that all of the 4-ways (Meetings with both lawyers and both clients present) would cost many hours of lawyers fees without producing a large number of resolved issues. After the first meeting, I was still concerned about the issue of cost of all that time spent with 2 lawyers while working out everything necessary. After the second meeting, I was no longer concerned. Our lawyers made sure that each meeting produced significant results and significant movement on issues important to both me and my ex-spouse. I was also pleased that we used a collaborative divorce financial planner, who cost less per hour and who knew how to help us evaluate our assets and creatively pursue division of assets (as well as current and projected monthly expenses for both spouses) to meet our needs and goals.”

“The common theme in all of my points is that we were able to create a custom solution for our specific family’s needs. We were partners in creating a solution, not individuals forced to live with a statutory “cookie cutter” plan for divorce where everyone seems to lose.”  

1. the disparity of incomes or earning capacities of the spousess,
2. the spouses’ capacities and abilities,
3. benefits which the party not at fault would have derived from a continuation of the marriage,
4. business opportunities of the spouses,
5. education of the spouses,
6. relative physical conditions of the spouses,
7. relative financial conditions of the spouses,
8. differences in the size of each spouse’s separate estate,
9. the nature of the property to be divided,
10. fault in the break up of the marriage, and
11. attorneys fees of the parties.

Of course, evidence of fraud, length of marriage, custody of children, tax consequences and liabilities, size of separate estate, health of the spouses, age of the spouses, future employability, need for future support, credit for temporary alimony paid, wasting and concealing of community assets, reimbursement, debts and liabilities, and nature of the property in the community estate are important factors to determine if the estate should be split 50/50, 45/55, 60/40, 65/35, etc.

We take the time to find out the details of your case and explain your options so that you can make the best choices for yourself and your future.

What if my husband is self employed? How will that effect property division and child support?
When the community estate includes a close corporation, partnership, sole proprietorship, or business of some kind, there will be a need to obtain a financial expert (1) to examine the business records and find the fair market value of the business as a part of the community estate and (2) to determine the earnings of the self employed spouse for purposes of determining child support. We rely on experts that have forensic experience in gathering the data to testify as to the value of business interests and as to the profitability of the business from both the viewpoint of the business owner and of the spouse unfamiliar with the workings of the community property business interest.

Do you have grounds for divorce?
You will want to discuss this issue with your attorney to determine what grounds for divorce may be available to you in your divorce case.

Does it matter what grounds for divorce that you may have?
Yes, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.  A divorce granted on these grounds often will be the basis for an equal split of the community property by the Court.

Other grounds for divorce, that are fault grounds, include, Cruelty, adultery, conviction of felony, abandonment, living apart without cohabitation for at least three years, and confinement in mental hospital.

The family district courts are located in the George Allen County Courthouse, on the corner of Commerce and Houston Streets, with entrances on Commerce. Plan to pay for parking or ride the DART, as there is no free parking. Underground parking runs $5-10 dollars for part of a day, with entrance at corner of Houston and Commerce on the edge of the “Old Red Courthouse”. Ground parking is located generally on east side of courthouse, and ranges up to $10.00. Lower priced coin lots ranging from $2.00 to $3.00 are located in the west end near Katy Railroad Yard, with a short five block walk. Currently, all functions of the Civil District Clerk are on the first floor (street level), with records requests one level down at Ground. The central jury room is located on the first floor, along with child support office and pass port office.

Dallas drivers not familiar with downtown, may want to leave early or test drive the trip the weekend before. The George Allen County Courthouse is white Granite and is located across from “Old Red” Courthouse.  Family District Courts locations are found listed on the Court Index located on the first floor of the courthouse by the escalators.
All of the courts request litigants, attorneys, and support personnel to be appropriately dressed in “Sunday” clothes. No shorts are allowed at anytime. The courthouse strictly enforces a “No Smoking” city ordinance, while in the county’s buildings. Pagers and cell phones should be turned off or set not to make an audible noise in the court room. Failure to observe these rules in the courtroom may subject one to delay of proceedings and/or contempt. No children are allowed inside the courtroom.

Dallas County conducts a search of all persons entering the courthouse using walk through metal detectors and x-ray devices for hand carried items. Be prepared on entering to place keys, cell phones, change, and pagers in trays provided. Security personnel may ask you operate your electronic devices to insure they are genuine. Please be reminded that long blade pocket knives and mace like sprays are considered weapons, and may be taken up by the security.

Address: George L. Allen, Sr. Courts Building, 600 Commerce Street, Dallas, Texas 75202

Directions

When we die, most of us leave an estate, which consists of property owned at the time of death. A will is a document containing instructions by the testator (the person making the will) concerning how the estate will be divided.

Preparing a will is something people tend to put off like a visit to the dentist. We know we really should do it, but dread the process.

In fact, preparing a will is not as painful as you might think. And in the long run, having a will makes things easier for your family, friends, the court system–pretty much everyone.

The information on this page is not a substitute for legal advice, but is intended to provide some basic information about wills and why they are important.

While most wills are not complicated, they must be prepared carefully in order to be valid and completely carry out your wishes. You should seriously consider having your will drafted by an attorney to ensure that it is done correctly.

How will my property be distributed when I die?
The bottom line is that if you have a valid will when you die, your property is distributed according to your will. With few exceptions, you may prepare your will however you choose.

After you die, your will must be proven valid in court, through a process called probate. The executor or administrator of your estate will then collect your assets, settle your debts and taxes, and distribute the remaining assets to beneficiaries named in your will.

What if I die without a will?
If you die without a will, or “intestate,” your property will be distributed according to a strict set of legal rules (this is called “intestate succession”.) Under these rules, the law determines who your heirs are and how your property will be divided. Your family, your friends, and the courts cannot alter this division — they must follow the law.

Dying without a will can create some problems:

• Because the rules of intestate succession will not necessarily follow your wishes, persons you would want to inherit your property might get nothing, and vice versa.
• The property in your estate might be tied up in avoidable court proceedings, which can be costly and time-consuming. This will not only be frustrating to your heirs, but may also deplete the value of your estate.

What about my children who are under 18?
Your will can designate a person or persons to take care of your children when you die (your child’s guardian). You may also include a testamentary trust in your will, to be managed by a person of your choice (the trustee) and distributed to your children according to rules that you establish. For example, the trustee could be required to use the funds for your childrens’ health, education, maintenance, and support.

What is a Living Will?
A living will, or “directive to physicians,” is a document that instructs your physician to withhold or withdraw life-support if you become terminally ill and certain conditions are met. If you do not wish to be kept alive by artificial means in the event of a terminal illness, you should consider signing a living will.

Many people find it convenient to execute (sign) a living will at the same time they execute a regular will, because both documents require two witnesses.

Another document, called a power of attorney, is routinely signed along with a living will. A power of attorney for health care gives a person designated by you (your agent) to make health care decisions on your behalf if you become unable to make them. A durable power of attorney gives your agent the authority to manage your property on your behalf, either immediately or in the event that you become incapacitated, depending on how it is drafted.

I’ve heard that a Living Trust is better than a will.
This is not for all people. A living will, or inter vivos trust, is a document executed during a person’s lifetime, usually instead of a will. Property in the trust passes according to the terms of the trust and is not subject to probate. While living trusts are advertised as offering tax advantages and fewer expenses than a will and probate, this is not always the case. You should consult with an attorney about the best approach for you.

Reprinted here from the adapted version found in the Texas Bar Journal on the “Client Page”, Vol 61, No. 6, page 613, from the brochure “To Will or Not to Will,” prepared by the Texas Young Lawyers Association and published by the State Bar of Texas. For a free copy, call (800) 204-2222, Ext. 2610.

The courthouse is in McKinney, Texas, and fronts on 2100 Bloomdale Road, McKinney, Texas 75071 with free parking at the front of the building.

The District Courts are located in the Collin County Courthouse Building and the District Clerk and main jury room are located on the ground floor. See Court Room Index for each District Court room location located by the escalators.

All of the courts request litigants, attorneys, and support personnel to be appropriately dressed in “Sunday” clothes. No shorts are allowed at anytime. The courthouse strictly enforces a “No Smoking” city ordinance, while in the county’s buildings. Pagers and cell phones should be turned off or set not to make an audible noise in the court room. Failure to observe these rules in the courtroom may subject one to delay of proceedings and/or contempt.

Collin County may conduct a search of all persons entering the courthouse using walk through metal detectors and x-ray devices for hand carried items. Be prepared on entering to place keys, cell phones, change, and pagers in tray, if requested. Security personnel may ask you operate your electronic devices to insure they are genuine. Please be reminded that long blade pocket knives and mace like sprays are considered weapons, and may be taken up by the security.

Address: Collin County Courthouse, 2100 Bloomdale Road., McKinney, Texas  75071

Directions

Afraid of the Hook – Pick a Will
Formal Typed Will:
96% of the individuals who have a will have this form. A typed will may not contain handwritten strikeouts or interlineations, even if initialed by the testator.

Holographic Will:
must be “wholly in the handwriting of the testator” and signed by him/her. The down side of this will is that it is often litigated for lack of testamentary intent and is only recognized in a minority of states. Also, planning alternatives are not available to avoid or reduce estate taxes. Holographic wills are not be witnessed at time of execution.

Oral Wills (Nuncupative):
Otherwise known as a ‘Death Bed Will’, valid only as to personal property and only if made in the ‘last illness.’ If the value of the property exceeds $30.00, the oral will must be witnessed by three (3) or more credible witnesses.

Planning Takes More than a Sharp Pencil
The Internal Revenue code (IRS) provides for the imposition of the Transfer Tax to the Estate of every decedent who is a citizen or resident of the U.S. The tax rate begins at 18 percent on the first $10,000.00 and gradually increases to 55 percent at $3,000,000.00. As you can see, 40-50 percent of your estate can be lost without proper planning.

Exemption
I.R.C. regulations provide for a credit against estate tax in the amount of $202,050.00. This credit is equivalent to a $625,000.00 reduction in estate taxes; the loss of one credit;

Q-Tip (Martial Deduction)
A surviving spouse, by utilizing the unlimited deduction, can defer (not eliminate) estate taxes on property they received from the first spouse to die. Thus, no estate taxes will be owed on the estate of the first spouse to die. However, upon the death of the surviving spouse, estate taxes will be owed on both the property the surviving spouse owned at death and that which they received from their spouse. If the first spouse to die leaves the property outright to surviving spouse, the property can be lost due to creditors of the surviving spouse or due to a remarriage or any other contingencies. By placing the property into Qualified Terminable Interest Property (QTIP) trust, the survivor will receive income at least annually, and have the right to principal if needed. The property while held in trust will not be subjected to the survivor?s creditors or accessible by a new spouse. The spouse whose Will created the QTIP trust, retains the control as to who will receive the property upon the survivor?s death. Thus, you can ensure that your children will not be disinherited by the survivor while not limiting the survivor?s rights to the property during their lifetime.

Generation-Skipping Trust
IRC provides for a Generation Skipping Transfer exemption of $1 million per donor which may be allocated by the individual (or their executor) to any property with respect to which such individual is the transferor. Generation Skipping does not mean we skip your child’s level from a benefit standpoint; it only means we skip the child’s level from a tax standpoint. Thus, upon the death of both parents, the child can be the beneficiary of the Generation Skipping Trust (having rights to both principal and interest), and upon the child’s death the trust will terminate and pass to the grandchildren without estate taxes being due upon the child’s death.

Inter-Vivos Trusts
During life, an owner can create one or more trusts, revocable or irrevocable, in which he/she may retain an interest until death. It makes no difference whether the trust is irrevocable or revocable (as long as the owner has not revoked it prior to his/her death, or has not revoked it by means of his/her will if the trust contains a provision allowing for such means of revocation). Once established during the owner’s life, the trust has a life of its own (completely aside from questions of federal income tax) and continues until the time of its termination as provided in its provisions, even though the time of termination is subsequent to the date of death of the owner (also known as Grantor or Settlor of the trust. This trust completely avoids the probate process, unless it provides for being ‘poured over’ into the owner’s will particular circumstances, such he successful launch of an attack by someone against the validity of the trust at any time. In effect, a ‘reverse’ pour over. This way, the attacher would not only have to contest the living trust, but also the Will. Trusts of this nature can have different purposes. Some examples are:

Living Trust

A living trust is probably the most encompassing form of inter vivos trust. Owner creating trust immediately transfer most of his/her property to the trust with someone, perhaps himself/herself, being the initial trustee.

Why Use a Living Trust?

• Avoid the probate process;
• Have the trust take the place of a power of attorney;
• Protection against a future attack questioning competency, with family member becoming guardian and thereby in control of property; and
• Possible help to protect assets from creditors.

What are the Advantages of a Living Trust over a Will?

• Avoids Claim of Incompetency. The living trust serves as a conservatorship in the event of incapacity (incompetency) or in the place of a court in a incapacity proceeding; provide benefit for the owner and his spouse (if any) for the rest of their lives. It should fen off any attack a member of the family with the intention of taking control of the property.
• Avoids Problems of a Power of Attorney. A living trust is stronger than a power of attorney or designation of a future guardian. A trust could proceed easily and more inexpensively than a guardianship and avoid the constant presence of a court. An individual or entity approached, such as a bank, broker or title company, would far more likely to be agreeable to dealing with the trust. There could also be the question of the recognition given in a state where property is located to the law of that state where the power of attorney was signed.
• Protection in Case of Divorce. A living trust can possible offer protection in case of a future divorce. In the case of some non-community property states, inter vivos (living) trusts have been used by individuals in common law states with varying degrees of success to defeat the statutory shares of surviving spouses. There could also be the interrelation of forced heirship and a living trust, and thus the possibility of using trust to defeat the statutory share of a child.
• The 65 Day Rule. A living trust has greater flexibility than an estate in timing its distributions by taking advantage of the ‘65 day rule’ of the IRC. Distributions made during the first 65 days following the end of the trust?s tax year are treated for all purposes as though made on the last day of the previous tax year to the extent that the trustee elects to do so.
• Lower Income Tax Bracket. A living trust would be an additional separate taxpayer after death, if there is in any event a will covering some property. This would provide the advantage of perhaps keeping the overall bracket lower.
• No Public Record. A living will is not a matter of public record.
• Avoids Probate. A living trust avoids probate to the extent that it had been fully and properly funded. Fully funding a living trust with all the Grantor’s assets would avoid the possible need for an ongoing dependent probate administration which could be time consuming and expensive.
• Defense Against Challenge. It is normally harder to challenge a living trust than a will as to its validity. For one thing, in the case of a living trust a contesting party must initiate the legal action. One of the greatest obstacles in setting aside a living trust is for the attacker to obtain standing to sue.

Okay, I want a Living Trust, Right?
In the great state of Texas, there are advantages for most with a will over a living trust:

• Larger Income Tax Exemption. A larger annual exemption from income taxes is available ($600.00, as against $300.00 for a ’simple’ trust or $100 for a ‘complex’ or other trust).
• Lower Income Tax Bracket. A will (even if it only covers some property), in conjunction with a living trust, can spread income over two tax brackets, and thus perhaps keep the overall bracket down.
  Less Preparation Cost. A will is cheaper to draft than a trust, and no immediate funding is required.
• Easier to Read. A will is easier for clients to understand.
• Easier to Fend Off Creditors. There is also the consideration that because of the provisions of the Probate Code, it might well be easier for the executor or other personal representative of a will that has been probated to effectively (and legally) avoid various creditors than would be the case with respect to the trustee of a living trust.
• No Throwback Rule. An estate under a will escapes the “throwback rule” upon later distribution of income taxes to devises, legatees, or a testamentary trustee. The ?throwback rule? of the IRC applies to all trusts, even a post-death living trust, but not to an estate under a will. The estate could thus assume part or all of the income of a pre-death trust which terminates, when the estate would otherwise have little, if any, income of its own.”Throwback Rules” tax beneficiaries on distributions of income accumulated by the trust before the year of distribution as though the income had been distributed currently to the beneficiaries in the years received by the trust.
• Takes Advantage of Tax Losses. In transactions between an estate and its beneficiaries, losses are recognized for income tax purposes. This rule would also apply to an election to treat property distributed in kind as a sale, rather than allow the basis to be carried to the distributee and carry distributable net income only to that extent.
• An estate may still elect a fiscal tax reporting year. All trust tax years beginning after 1986 must close on December 31, whereas an estate may still choose any fiscal year.
• An estate is not required to pay estimated taxes for its first two taxable years. Also excused is a post-death living trust, if it constitutes a grantor trust as to the decedent and if either (a) there is a pour-over will, or (b) the living trust is primarily responsible for paying debts, taxes and expenses of administration.
• Where a charity is the residuary beneficiary of an estate, capitol gains realized during the estate?s period of administration are exempt from the income tax “charitable set aside” deduction. As a result, the only way a living trust could avoid income tax on such capital gains would be to make a current year distribution of the gains to the charity.Where a decedent had actively participated in a rental real estate tax shelter, his/her estate (but not his/her living trust) may deduct up to $25,000 or losses from that venture for the 1st two taxable years after death.