Understanding Child Custody Laws: A Parent’s Guide

Whether you are getting a divorce or have a paternity issue, you will have to resolve the matter of child custody. In Texas, child custody is known as ‘conservatorship,’ although many people simply refer to it as ‘custody.’ Below, our Houston family law attorney outlines the different types of custody, how the process works, and what you can expect as an outcome.

Different Types of Child Custody in Texas

There are two main types of custody in Texas. These are legal custody and physical custody. Legal custody gives one or both parents the right to make decisions regarding the child and their day-to-day life. When a parent has legal custody, they can make decisions about the child’s medical treatments, the education the child receives, the religion they are raised in, and other activities.

Physical custody refers to when a parent spends time with the child. In the majority of cases, both parents are awarded joint custody, meaning they will each spend approximately the same amount of time with the child. In the rarest of cases, the courts may completely deny one parent visitation or any access to the child at all. In these instances, it is usually due to domestic violence and abuse. 

Sole custody, which refers to a situation in which one parent lives with the child and makes decisions for them, typically requires the other parent to terminate their rights. This is extremely rare. It is also very difficult to prove that one parent deserves sole custody and the other does not deserve their parental rights.

The courts are much more likely to award joint custody when the parents can show that they are willing to work together in the best interests of the child. Additionally, when the parent who does not have primary custody can continue to live close to the child, they will likely be awarded more time with the child than one who moves further away from their child.

The Best Interests of the Child

In Texas, as in all other states, all child custody decisions are made based on what is in the best interests of the child. The factors that impact the best interests of the child are as follows:

  • The age and health of the child,
  • The age and health of the parents,
  • Whether the parents or the child has special needs,
  • The home environment each parent can provide the child with,
  • The relationship between the child and their siblings or other family members,
  • The preference of the child, depending on their age and maturity,
  • Any history of domestic violence,
  • Where the parent lives and works and how it impacts the amount of time they spend with the child,
  • The educational needs of the child,
  • The level of involvement each child has in their child’s life, and
  • Any other factor deemed relevant by the court.

How Does the Child Custody Process Work in Texas?

Child custody disputes in Texas begin when one parent files a petition for conservatorship with the court. The person who files must officially serve the other parent with the petition. The parent who is served then has 20 days to submit an answer to the court. If the parent who is served with the petition does not intend to contest the terms within the petition, they can waive the need for service.

If a child custody case is uncontested, both parents will agree on a custody schedule and parenting plan. When the parents cannot reach an agreement, it becomes a contested case, and more formal intervention is necessary. The court will likely begin a disputed child custody case by sending it to mediation. During mediation, the two parents and their lawyers will meet with a neutral third-party mediator. Mediators do not provide legal advice or make decisions. They only try to foster communication and compromise so the parents can ultimately reach an agreement.

When parents can agree, either before or after mediation, they will need to draft a parenting plan and submit it to the court. If the plan reflects the best interests of the child, and is fair to both parents, the court will approve the plan. To ensure this happens and that the process moves along as quickly as possible, it is important to work with a Houston family law attorney who can help you create your plan.

There are times when the parents cannot agree and mediation is unsuccessful. In these cases, the issue will have to be resolved in court, where a judge will make all final decisions.

How to Modify Child Custody Orders in Texas

Even when parents agree on a parenting plan, a judge will issue an order that makes the plan final and legally binding. However, just as with everything else in life, your circumstances may change at some point in the future. When this happens, you may want to change your child custody schedule. You can do this, but you cannot do it on your own.

To modify a child custody order, you must petition the court. This essentially means that you are asking the court for permission to change the order. When petitioning the court, you must present clear evidence showing why a change is necessary and argue your case. If you are successful with your case, the judge will modify the order, and the change will become legal.

Without petitioning the court, it is critical to keep custody arrangements the same. If you make changes on your own, you will be in violation of the custody order, and this carries serious penalties. These include high fines, being held in contempt of court, and even jail time. 

Our Family Law Attorney in Houston Can Help With Your Custody Matter

Whether you have an initial custody issue or you need to modify an order, our Houston family law attorney at Integrity Law Group, PLLC, can help. Our experienced attorney can help you draft a plan, petition for a modification, and ensure you receive the best possible outcome. Call us now at (832) 280-8874 or fill out our online form to schedule a consultation and to get more information.

The Impact of Divorce on Your Last Will and Testament

Under state law in Texas, a divorce or annulment of a marriage will revoke any portion of a will that involves a former spouse. For example, if you left everything to your spouse and did not change your will after you divorce, those provisions would be revoked. Your assets would then be distributed according to the intestacy laws in the state. Although your spouse will not receive any of your property if you pass away, it is still of critical importance that you update your will after divorce.

Reasons to Update Your Will After Divorce

There are many reasons to update your will after divorce. They include:

  • Protect your child’s inheritance: Reviewing and updating your will after ending your marriage will allow you to make sure that any inheritance left to your children is protected. If your children are still minors, you may want to consider establishing a trust for your children, which may require you to appoint a new trustee.
  • Appoint a new executor: It is not uncommon for spouses to name each other as executors of their will and estate. Also review any trusts you have created, as you may have to appoint new trustees, as well.
  • Add or remove beneficiaries: One of the main purposes of a will is to provide for your beneficiaries in the event that you pass away. After a divorce, you may want to add beneficiaries or remove them, particularly if you left property to people on your former spouse’s side of the family.
  • Prevent challenges to the will: If you do not update your will after divorce, it may be easier for your former spouse or other family members to challenge it. Updating your will ensures that you can clearly outline your intentions and preferences and minimize the chance of challenges and other disputes arising.

The above are just a few reasons to review your will after your divorce. A lawyer can review the document with you and advise of the necessary changes to make to ensure your best interests are protected.

Other Estate Planning Tools to Review After Divorce

Your will is not the only estate planning tool you should update after your divorce. Other important documents to review and change, if needed, include:

  • Beneficiary designations on policies and accounts: If you listed your former spouse as a beneficiary on an insurance policy or retirement account, they may still receive funds if you pass away, as the law does nothing to change that. As such, it is critical that you review these accounts and policies and make the necessary changes to reflect your current wishes.
  • Advance directives and powers of attorney: If your former spouse is appointed as your power of attorney, or you named them as your agent to make healthcare decisions on your behalf, it is important to change these documents so you can choose another person to have this authority. Always make sure you choose a person you trust in your advance directive or as your power of attorney, which is likely no longer your former spouse.
  • Tax considerations: A divorce can have tax implications for your estate, as well as any beneficiaries you have appointed. It is important to speak to an experienced attorney who can advise on your estate and any tax implications you may not have known about or have not considered.

How to Update Your Will After Divorce in Texas

While you may know that it is important to update your will after divorce, you may not know how to do it. The main steps involved are as follows:

  • Review your existing will: Of course, to know which changes you need to make to your existing will, you first have to review it. Read through your current will carefully and identify any provisions you would like to change. Any terms involving your former spouse will need to be changed, but now is a good time to determine if you need to make any other changes, as well.
  • Contact an experienced family law attorney: A family law attorney can guide you through the divorce process and help you obtain the fair settlement you deserve. After your divorce, however, an attorney can also help you navigate the process of making changes to or updating your will to make sure it complies with state law and is enforceable.
  • Create a new will or codicil: A lawyer can assist you with drafting a new will or creating a codicil. A codicil is an amendment to your current will. Regardless of whether you creating an entirely new will or making amendments, the document should distinctly state the changes you want to make. A lawyer will also inform you of how to execute the will so it complies with state law. For example, you may have to sign your will in the presence of two witnesses in order for it to be enforceable.
  • Store your new will in a safe place: You should keep your will in a secure place, such as at your attorney’s office or in a safety deposit box. Your lawyer can advise on whether you should destroy previous versions of your will. Sometimes, this is beneficial, but if there is any question of the validity of a new will, it can be useful to retain previous versions. Working closely with an attorney can ensure the validity of a new will is not brought into question.

Our Estate Planning Lawyer in Houston Can Help Update Your Will

If you have recently gotten a divorce, you should not overlook the importance of updating your will. It is important to ensure your wishes are fulfilled, and our Houston estate planning lawyer at Integrity Law Group can help you navigate the process. Our attorney has the necessary experience to make sure your will is valid and executed properly so it is not subject to challenges in the future. Call us now at (832) 280-9576 or fill out our online form to schedule a consultation and learn more about how we can help.

Securing Your Financial Future: Strategies for Protecting Your Assets During Divorce

You did not get married thinking it was going to end in divorce. Sadly, the divorce rate in the country shows that divorce is all too common. Ending your marriage will bring with it mental, psychological, and emotional hardships. Still, there are also many financial matters you must consider, as well. Our family lawyers know how to protect your property from divorce proceedings, even if your case seems extremely complex. Below are just a few ways to protect your assets during divorce.

Identify Separate and Community Property

If you know that divorce is inevitable, you should start creating a complete list of property owned by you, your spouse, or jointly. Separate property includes assets either of you owned before the marriage, while community property is considered jointly owned by both parties. Common examples of community property include:

  • Vehicles
  • Shared investment accounts
  • Bank accounts
  • The marital home
  • Retirement accounts
  • Real estate, such as an investment property
  • Personal property, including furniture
  • Equity or proceeds from a business
  • Pensions
  • Cryptocurrency

Remember that when creating a list of inventory, you must include all debts and liabilities, as well.

Determine the Value of Your Assets

After you have written a comprehensive inventory of your separate and marital assets, you then need to determine the value of the property. When resolving property division issues, a judge will consider the income level of each spouse before and after the marriage, as well as the amount of separate and community property owned by the couple. To obtain the most accurate valuation, it is important to speak to a professional.

Open Separate Accounts

As soon as you know you are getting a divorce, you should also open separate accounts. Open a separate bank account, apply for a credit card that is in your name only, and separate your personal property as much as possible. If you have a joint bank account or credit card with your spouse, try to remove your name from it as soon as possible. Gather the financial documents for all separate and joint accounts and transactions, as your attorney and judge will want to review them.

Consider Tax Implications

Taxes are commonly overlooked in divorce cases, but they are one of the most important things to consider. While the tax law on alimony changed several years ago, there are other implications to think about. 

For example, the tax law regarding retirement accounts still applies, and so when dividing this property, you must know how it will affect you. You do not want to agree to accept a taxable retirement account while your spouse receives one that will not be impacted by taxes. It is best to work with an asset protection lawyer who can advise on the tax implications of dividing certain types of property.

Change Your Will

State law will automatically revoke your spouse as a beneficiary in your will after you get a divorce. Still, it is important to review your last will and testament to revoke your spouse on your own and to confirm that all previous versions of your will are invalid. You may also want to change certain terms so your children or other trusted individuals receive what your spouse once would have. Of course, if you have a joint will with your spouse, you need to ensure you have one of your own after divorce.

Use a Trust to Protect Assets

A trust is a legal document that can also protect assets during a divorce. To shield the trust assets from being subject to division, the document must be drafted prior to the marriage. Still, any assets placed within it at that point can be classified as separate, and you can retain them after your divorce is final.

There are many different types of trusts that can protect your assets during divorce. A Domestic Asset Protection Trust (DAPT) is an irrevocable trust that can provide the protection you need. Some individuals choose to open an offshore trust, as this provides the highest level of protection. You should always speak to an asset protection lawyer who can advise on the best trust to use for your situation.

Draft a Prenuptial or Postnuptial Agreement

Most couples should have a prenuptial agreement prior to getting married. A prenuptial agreement mainly outlines financial provisions in the event you get divorced. A prenup can outline which property is considered separate and therefore protected from being divided during divorce. A prenup can also stipulate terms surrounding alimony and how income will be used during the marriage.

A postnuptial agreement can include all of the same terms as a prenuptial agreement. The only difference between the two is that a postnuptial agreement is drafted after the marriage. There are many reasons couples draft postnuptial agreements. For example, you may start a business after you get married. To prevent it from being divided during a divorce, you can draft a postnuptial agreement that classifies it as separate property.

Keep Inheritances Separate

Under Texas law, inheritances and gifts are generally considered separate property and, therefore, will not be divided during the divorce process. There is a large caveat to the law, though. If you commingle the inheritance with marital property, it will no longer be considered separate. For example, you may place your inheritance in a joint bank account you hold with your spouse. There would then be no way to determine which funds are from the inheritance and which are marital property. The entire account would be divided according to the state’s community property laws.

Our Family Lawyers in Houston Can Protect Your Assets

At Integrity Law Group, PLLC, our Houston family lawyers have the knowledge about real estate and business law to protect what is most important to you in the event that you get a divorce. Call us now at (832) 280-9576, contact us online, or email us to schedule a consultation with one of our skilled attorneys and to learn more about how we can assist with your case.

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