The Ashmore Law Firm, P.C.

A Medical Power of Attorney is a document that grants another person the legal authority to make medical decisions on your behalf if you are unable to do so. This Power of Attorney ONLY becomes effective when you become disabled or incapacitated. It’s important to choose your medical power of attorney carefully and it may also be a good idea to discuss your beliefs and wishes with this person so you can be sure they can keep your best interests in mind.

Retroactive child support is when the Court orders a parent to pay child support for past time periods before the child support was ordered. The time period in Texas is generally 4 years. The Court does have the ability to award less than 4 years of retroactive child support, but the presumption that the amount is reasonable and in the child’s best interest must be rebutted. Remember that the Court is not required to and does not automatically order retroactive child support. The custodial parent or the Attorney General must specifically request it. Also, if the obligated parent has previously been ordered to pay child support, the Court cannot order retroactive child support. Once retroactive child support is ordered by the court you must pay it. Failure to pay the support could result in other collection efforts or enforcement actions being taken against you.

Before filing for divorce, one of the spouses must live in Texas for at least six (6) months and in the county where the divorce is filed for at least ninety (90) days.

Yes, a parent may petition the court to have a child be interviewed by the Court in chambers, meaning outside the presence of both parents. The Court is required to grant the interview if the child is 12 or older. It is discretionary if the child is younger than 12. That said, the Court will still make orders it deems in the best interests of the child, and that may or may not be the same as the child’s preference. It is important that you speak to a family law attorney.

To avoid the time, effort, and cost of going through probate in Texas AND in another state, we recommend to our clients that have real estate outside of Texas to create a Revocable Living Trust (RLT). An RLT aims to eliminate the need and hassle to go through the probate process in the state where the vacation home is located.

If your spouse wants to pursue a divorce, there is nothing you can legally do to stop the process. You might try to convince him/her to attend marriage counseling with you to see if you can salvage your relationship, but he/she is not obligated to do so.

Yes. Both parties must be at least 18 years old to obtain a marriage license in Texas. If either party is under 18 years of age, parent consent or a court order is required.

The following are examples of what is considered separate property: ◦Property owned prior to the marriage. ◦Property acquired during the marriage by gift, devise or descent. ◦Property acquired during marriage which was traceable as a mutation of previously owned separate property. ◦Property, or income from such property, resulting from the partition of existing community property. The partition should be in the form of a written agreement between the spouses. ◦Property transferred from one spouse to another in the form of a gift is separate property (note, the gift is presumed to include all income or property which may arise from that gift of property). ◦Personal injury recoveries (other than for loss of earnings). We recommend speaking with an attorney to determine if certain assets are community or separate property.

Child custody possession schedules can vary depending on who is the managing conservator and the possessory conservator. It’s important to know the difference between the two. The managing conservator is often called the “primary parent” and is the party that has the exclusive right to designate the primary residence of the children. The possessory conservator does not have that exclusive right and is subject to a possession schedule.

Under Texas law, you have to wait at least 30 days after your divorce becomes final before you can remarry. If you don’t want to wait 30 days, you can ask a judge to waive this requirement at the time of your divorce.

We recommend that if you own property outside of the state of Texas that you have a revocable living trust. Without having the trust in place, upon your death, your family has to go through the probate process in every state where you own property. This can be a costly and time-consuming process. You can save your loved ones time, money, and stress by having your out-of-state property in a trust.

An administrator of an estate is the person who is in charge of an estate with no Last Will and Testament. When someone dies without a Last Will and Testament, an administrator is appointment by the Probate Court pursuant to the Texas Estate Code.

A property agreement between spouses is a document that you sign within 30 days after marriage. This document ratifies or confirms your premarital agreement, but it’s also important to know that if you do not sign the property agreement within 30 days after marriage, it does not nullify or void your previously signed premarital agreement.

Yes, it is absolutely necessary to have a list of assets. If you are going through probate, meaning that a loved one has passed away, and you are the executor, you are going to want a list of all the assets. That list is what your probate attorney will need.

Not all restraining orders have a time component. Consult with your family law attorney to determine if the protective order is still in force or if you will need to apply for protection again.

The purpose of a will package is to ensure your assets are protected both while you are alive and after your death. The foundation of your estate plan begins with a will package. The following are documents included in a will package: Last Will and Testament, Statutory Durable Power of Attorney, Medical Power of Attorney, Directive to Physicians, HIPAA Authorization and Declaration of Guardian.

Your child can go through the courts to be declared independent, but by consulting a family law attorney, other solutions may be found.

When using the collaborative law method in a divorce, you do not have to rely on the court; instead, a settlement is reached after a lot of discussion and negotiation. When you use the collaborative law method, you and your spouse each hire your own lawyer, but you also involve third-party financial and/or mental health professionals, such as a financial advisor, certified public accountant (CPA) and therapist. These professionals are supposed to advise you on the most logical agreements, in order to reach some form of resolution. The collaborative law method is a lengthy process. You have to be willing to commit yourself for the next three to six months and there is no guarantee that after this grueling process that you will have reached an amicable agreement. Be advised: If you cannot reach a settlement using this method, you actually have to fire your current lawyer and find a new one.

There are a few different ways that grandparents can attempt to gain rights to their grandchild in Texas. In order to see the child, grandparents must have approval from one of the parents. If both parent’s object to visitation, the grandparents can petition the court for visitation rights. If a grandparent has had possession of a child for at least six months, they can file suit within 90 days for possible conservatorship (custody) for the child or children. Another way grandparents most frequently get standing to gain access to their grandchildren is through temporary orders. Consult with a family law attorney for more information.

A Guardian is the person that is appointed to take care of any minor children in a Last Will and Testament if both parents are deceased. A guardian may be in charge of caring for the child or the child’s property. However, in order to for someone to legally become the guardian of a minor, they must go to Court and begin the Guardianship proceedings. Once appointed, the guardian can make decisions on their behalf regarding medical needs, schooling, etc. If parents do not appoint a guardian, it is the court that decides who takes care of the minor children. A Judge must consider the Texas Estates Code's statute that specifies who has priority to be a guardian over a minor child. A Judge also must look at who is suitable to serve as guardian, in other words, who will be in the best interest of the child.

Have you been named in a Will but the Executor has failed to do anything? An Executor serves in a “fiduciary capacity.” An Executor has a fiduciary duty to an estate. This means that they are in charge of probating the Will, collecting the assets of an estate, paying the debts and taxes, and properly distributing the assets of the estate pursuant to the terms of the Will. They are held to a higher burden, meaning they MUST put the interests of the beneficiaries and the estate ahead of their own. If fail to do so, they can be removed as executor.

The following are examples of what is considered separate property: ◦Property owned prior to the marriage. ◦Property acquired during the marriage by gift, devise or descent. ◦Property acquired during marriage which was traceable as a mutation of previously owned separate property. ◦Property, or income from such property, resulting from the partition of existing community property. The partition should be in the form of a written agreement between the spouses. ◦Property transferred from one spouse to another in the form of a gift is separate property (note, the gift is presumed to include all income or property which may arise from that gift of property). ◦Personal injury recoveries (other than for loss of earnings).

In Texas, a Qualified Domestic Relations Order, also known as a "QDRO", is an order signed by the divorce court, usually in conjunction with the Final Decree of Divorce or shortly thereafter regarding retirement benefits. This is the Order that needs to be sent to the plan administrator of a retirement account to obtain your portion of your spouse’s retirement benefits. If you are awarded retirement benefits not in your name, but did not have a QDRO signed, you will be unable to receive those benefits.

In a Texas divorce, real property can be considered community property or separate property. Any real property that was purchased during the marriage, no matter whose name the property is titled in, will be considered community property and is divisible by the Court. Any real property that was owned by either spouse prior to the marriage will be considered that spouse’s separate property and will not be divisible. However, there are some exceptions.

In a divorce, the engagement ring is considered the separate property of the person it was gifted to (absent a different agreement between the parties). In Texas, separate property is defined as anything that was owned prior to marriage, gifted during the marriage, or inherited during the marriage. Thus, after you marry the person who gave you the ring, you have fulfilled your promise to marry and it is your separate property.

There are certain requirements that a Last Will and Testament must meet in order for it to be valid in the State of Texas. Here are requirements that must be met when creating a Will in our state: Free Will, Sound Mind, Legal Age, Signatures, and Witnesses.

In the event of a spouse’s death after the filing of a divorce proceeding, but before the entry of a final judgement, an attorney or party to the case will file a suggestion of death pursuant to the Texas Rules of Civil Procedure. This suggestion notifies all parties to the suit and will essentially vacate or terminate the divorce proceeding. If your spouse becomes incapacitated during the divorce proceeding, a guardian may need to be appointed for them. What the guardian will have the power to do will depend upon the nature and severity of your spouse’s incapacity. If there is a complete incapacity, the guardian may be able to negotiate settlements or attend a final trial on behalf of the incapacitated spouse.

A Temporary Restraining Order sets forth the acts which either or both parties are prohibited from doing immediately after a petition is filed. Sometimes this order is called a "TRO."

In Texas, you can keep your divorce proceedings private by requesting the Court sign an “Agreed Order to Seal” the case file. This prevents the pleadings from being publicly accessed and also prevents non-parties from attending any hearing or trial. However, whether the Court signs an Order to Seal is up to the discretion of the judge and is not guaranteed.

The answer depends on several factors, some of which include when the father finds out, the case history and the best interest of the child. The establishment of child support in Texas is a very serious legal process that can be difficult to undo, and it can only be undone by going back to Court. Judges in the State of Texas take the establishment and ordering of child support very seriously. In the event that you are paying child support for a child that you find out is not your own, it is important to seek the counsel of an attorney to discuss your options.

If President Biden’s estate tax plans pass, it is important to take note that his proposed changes could potentially come into effect on: 1. The date the bill is signed, 2. A future date, or 3. Retroactively, meaning they could be considered effective at an earlier date. For example, if the bill is signed on February 1st of 2021, the effective date could be September 1st of 2021, February 1st of 2021, or they could even decide that the bill took effect as of January 1st of 2021.

There are Trusts the can be set up within a Will to protect children from spending their inheritance all at once. The Trust can take effect after you die or take effect while you are living. A Spendthrift Trust will ensure that you have a trustee in place to give distributions to your beneficiaries (children or grandchildren). The trustee can distribute the funds to the beneficiaries for health, education, maintenance and support. These terms ensure that a child or grandchild does not get a lump sum of money outright.

If you notice a caretaker beginning to isolate a loved one from their family and friends, there may be a few options. One would be to contact Adult Protective Service or the Elder Exploitation and Financial Service. If not, it may be necessary to begin Guardianship proceedings. For additional information and options, we recommend speaking with a qualified Guardianship attorney.

Although you are the parent, the insurance company will not release funds to any minor child. You will need to either institute Guardianship proceedings, or have the funds placed in the court registry until your child reaches age 18. At that point, the funds will be given directly to your child.

After the date of your marriage, you can make new agreements, though not by amending your prenuptial (premarital) agreement. The new agreements would be the legal document known as a post-marital (post-nuptial) agreement.

A common law or informal marriage is recognized in Texas as a legal marriage. You do not need a marriage ceremony to be legally married in the State of Texas. However, you must comply with certain requirements by law to create a common law marriage. Those requirements are the following: 1. You agreed to be married; 2. Lived together as spouses after the fact; and 3. You represented to third parties that you are married.

An ascertainable standard is put into a trust in order to give the trustee guidance as far as when and how they need to make distributions to the beneficiaries.

As a parent, you have control over your children until they are 18 years of age. At the age of 18, they become an adult. However, prior to the age of 18, a child can be or may be emancipated, or declared an adult in the eyes of the state of Texas.

We recommend NOT keeping your Will in a safe deposit box. In order for a loved one to gain access to the box, the bank generally requires some type of order from the Court. Instead, keeping your original Will and other important documents in a fireproof safe or lock box inside your home will make the documents readily available and easier to access.