Frequently Asked Questions
Do you have questions about estate planning or the probate process? Do you need to know more about family law in Dallas? Are you wondering if you have a personal injury case? Are unsure if you need a lawyer?
The Ashmore Law Firm, PC provides the answers to frequently asked questions (FAQs) about estate planning, probate law, family law and personal injury law. Please select a category from the box below to narrow your FAQ search.
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What is Mediation? Why Am I Being Ordered To Do It?
Mediation is an informal process allowing parties to work with a neutral third party to help negotiate and settle conflicts. Mediators don’t take sides and are used for the sole purpose of trying to help people reach a settlement.
A high percentage of divorces are handled in mediation. In fact, most Dallas judges will want you to attend mediation first, to try to reach a settlement. They want the parties to agree to creative settlements that could not otherwise be ordered by a court during trial. Resolving disputes during this mediation process is very cost-effective. It can save both parties thousands of dollars.
What is the difference between Community Property & Separate Property?
In Texas, property is viewed as separate or community. If you are married, unless there is clear and substantial evidence to the contrary, any assets that are acquired during the marriage are deemed to be owned one-half by the husband of the marriage and one-half by the wife of the marriage. If you are single, a single individual’s estate in Texas consists of all property owned by such individual at the time of death.
Many couples are confused and think that once they are married, everything that they have is community property. This is not true. If you are married, here is a list and description of assets that would be considered separate property
1. If you owned any property prior to getting married, that is your own separate property.
2. Any property that was acquired during the marriage by a gift, devise, or descent, which could be from an inheritance from Uncle Ted or some other friend or relative, would be viewed as separate property and not community property.
3. If you acquired property during your marriage that was traceable as a change that occurred from previously owned separate property you had, this property may still be considered as separate property.
4. If you have property that was transferred from one spouse to another in the form of a gift, this is viewed as separate property.
5. Damages awarded from a personal injury lawsuit, except for damages representing your earning power, would also be separate property.
However, income from separate property during the marriage is considered community property. It gets complicated if one of the spouses dies without a Will, especially if there is separate property involved.
If you’re uncertain whether or not your assets are community property or separate property, you need to consult a qualified attorney.
What is Contributory Negligence?
In Texas, being in any way at fault is known as the law of contributory negligence. Texas and most other states will "compare" the negligence between two people and apportion damages appropriately.
I am on my spouse’s health insurance policy. What will happen after the divorce is final?
The health insurance company will not allow you to stay on your spouse’s policy after the divorce has been finalized. But, you do have some options. You can look into an individual policy, sign up for insurance through your employer or find out if you qualify for COBRA coverage under your spouse’s plan. An insurance agent should be able to help you.
Are Premarital Agreements Only For The Wealthy?
Many people think that premarital agreements, (also known as prenuptial agreements) are only for the wealthy. That is not necessarily true. A Premarital Agreement will protect whatever wealth you have accumulated prior to marriage AND what is acquired during the marriage.
Some people feel that a premarital agreement is setting a marriage up for failure. That is not the case either. It will protect your spouse from debts that may accrue during the marriage. So it is a protection both for assets AND liabilities. We recommend that EVERYONE have a premarital agreement.
For more information on Premarital Agreements, contact us online or by phone at 214.559.7202.
How Often Should I Review My Will?
We recommend that you review your Will annually. And the reason for that is that there are different things that may happen in your life, you may have started a family and now have kids, or you may come into additional assets that you want to be distributed differently. You do want to review your Will and your Estate Planning Documents at least annually to make sure that your affairs are in order and to make sure that your wishes are in writing and signed off on legally.
For more information on Estate Planning, request our free book- Do I Really Need a Will?
Can I Handle my Divorce without a Lawyer?
You do not always need an attorney to go through the divorce process. You can handle it yourself. It’s not necessarily recommended in all instances; however, if you have not accumulated a lot of assets, or for example you do not have any kids with your spouse, you can go through the divorce process without an attorney.
We often times handle cases where we will advise both parties that it is not necessary to hire an attorney to appear for them. However, they can hire an attorney for document preparation. Attorneys can prepare the petition and other documents, so they know that it meets the requirements of the court.
Can I write my own Will?
Yes, you can write your own will. This type of will is called a HOLOGRAPHIC WILL. What exactly does that mean? You can prepare this Will anywhere. The only requirements are that it is wholly in your handwriting, it is signed by you, and it is dated. It can be written on anything! A piece of paper, the back of a menu, the back of a business card, and the list can go on.
These Wills must have testamentary intent. What does this mean? I suggest you have the words Last Will and Testament on the top of the paper. Although this is not absolutely necessary, it is recommended. It should revoke all previous Wills and Codicils signed by you. It should also fully dispose of all of your property and not just certain items. It should appoint an Independent Executor to serve without bond and without court supervision. (Hint: these are buzz words we recommend). Another word of caution I would give is that although this Holographic Will is completely valid, it is not recommended to be used in every situation.
Can I get remarried right after my divorce becomes final?
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.
Can you get a Prenuptial Agreement after you are married?
No, you cannot get a Prenup (also called a Premarital Agreement) after you are married. You CAN get what is called a Postmarital Agreement. You can enter into a Postmarital Agreement any time after marriage. It is a contract between you and your spouse on how things such as, assets, businesses & debts are going to be handled moving forward.
What assets are considered separate property?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).See what community property consists of.
Will collaborative law work in my divorce?
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.
Want more information? Get our Free Book on Divorce.
What is a Last Will and Testament?
A last Will and testament is a legal declaration of how an individual would like his or her property to be dispersed after death. Doing so will provide the peace of mind needed to know one’s family will be taken care of no matter what happens. If a person dies without a Will, the state will decide what will happen to their assets. Find out more about what a Will Package includes.
Do I Need A Power of Attorney?
Yes. You need a statutory durable power of attorney and a medical power of attorney. Without these documents, you have no control over who makes decisions for you if you should become disabled or incapacitated and unable to handle your financial affairs or make your own medical decisions. The Court will step in and decide who your Guardian will be without these power of attorneys.
A Statutory Durable Power of Attorney lets you give another person the power to legally handle your affairs should you become disabled or incapacitated. You choose when this becomes effective. This Power of Attorney can take effect immediately and is not affected by your subsequent disability or incapacity OR it takes effect only upon your incapacity or disability.
For example, suppose you are seriously injured, you may not be able to pay bills or keep up with your financial obligations. A power of attorney allows a trusted family member or friend to handle financial matters and access accounts on your behalf.
A Medical Power of Attorney grants another person the legal authority to make medical decisions if you are unable to do so. This Power of Attorney ONLY becomes effective when you become disabled or incapacitated. It is a good idea to discuss your beliefs and wishes with this person so you can be sure they understand what you want.
What is Liability Insurance?
Liability insurance protects your assets if you cause a car wreck and hurt someone. The Liability coverage you have will protect your assets from the person you injured. The insurance company will defend you (including hiring an attorney for you if you are sued) and pay the injured person up to the limits of the liability coverage you bought.
What is the difference between guardianship and adpotion?
A guardianship is the legal process where someone is appointed to assume legal responsibility over the care and management of a minor or estate of an incapacitated individual who cannot act for himself/herself. Guardianship can be temporary or permanent.
A guardianship of a minor child becomes necessary if that minor child is entitled to receive any assets under a Last Will and Testament or if they were designated as a beneficiary on a life insurance policy or IRA, etc. A guardian of the estate is necessary because a minor child cannot legally own any real property or be entitled to receive any assets. A parent is always the natural guardian of the person of a minor therefore a guardian of the person of a minor is only necessary when the minor's parents are deceased or unable to care for the minor.
In a guardianship proceeding, the court will appoint a guardian to protect the interests of an incapacitated person. An incapacitated person means a person under the age of eighteen years, or an adult individual who is unable to provide food, clothing, or shelter or unable to manage their financial affairs. There are two types of Guardianships. A Guardian of the Person is responsible for the care and maintenance and personal needs of an incapacitated person. A Guardian of the Estate is responsible for all financial matters of an incapacitated person.
An adoption is the legal process when an individual assumes all the rights and responsibilities involved in parenting and caring for a child. Adoption permanently relinquishes the rights and the responsibilities of a child's biological parents.
What is a Prenuptial Agreement?
A prenuptial agreement is defined as a written contract between a couple who is about to marry, which establishes the terms of possession of assets, treatment of future earnings and control of the property, but most importantly, it spells out how everything will be divided if the marriage was to end.
Why should I get a prenuptial agreement?
There are numerous benefits associated with a prenuptial agreement:
- It puts the power of property settlement in your hands, instead of to the court.
- It makes the business portion of the divorce (separation of assets, property, etc.) much easier to handle & the legal fees are much less.
- It protect any personal businesses from becoming community property or from a spouse receiving voting rights or becoming a shareholder in the business.
- It can even protect you from creditors. For example, if your spouse came into the marriage with a lot of debt, a prenuptial agreement will protect you from being pursued by his/her creditors. The last thing you would want to deal with following a divorce is having your spouse’s creditors harassing & threatening you.
What happens when someone dies without a will in Texas?
Texas law requires that estates for individuals who died without a Will be distributed to the closest family members, if there are any. It is the state of Texas that determines who these people are and how much they get.
What should you expect from a lawyer BEFORE you make an appointment for a consultation?
Before you make an appointment with any lawyer, you should ask them to send you their package of written information, which should include the following:
1. A sample fee agreement.
2. A listing of sample verdicts, settlements and testimonials from former clients.
3. A full written explanation of the steps involved in a personal injury lawsuit.
4. A written assurance that they carry errors and omissions ("malpractice") insurance in the amount of at least $100,000 (you’d probably be surprised to see how many lawyers carry NO insurance.) Ask for this representation in writing.
5. A full explanation of fees and costs, the difference between the two, and how the percentage fee is calculated.