Access to Intestate's Financial Accounts

I receive calls from parties who, after a loved one has passed, have no idea what that balances are in their loved one's financial accounts.  They do not know whether the estate would be solvent (able to pay its debts) or insolvent (unable to pay debts).  They do not know if there is a small balance or large and how that would affect cheaper probate alternatives.  Not knowing the balance of accounts can make a difference as to whether a case qualified foraSmall Estate Affidavit or needs an more typical Probate or Heirship proceeding.

There is a way to look into balances on a decedent's accounts. Texas Estate Code 153.003 provides that an "interested person" (heir, spouse, creditor, claim holder) can request a probate court to order a financial institution to release the balance information on each account in the deceased party's name with their financial institution.  The court can do this only if: (1) at least 90 days have passed since the date of death, (2) no probate petition has been filed (yet), AND (3) no one has already been appointed as a personal representative of the estate. 

The exception to this is the bank does not have to provide information about a financial account that already has a beneficiary designation, payable on death (POD) account, a trust account, or an account that provides for a right of survivorship.  These types of accounts automatically transfer on death and become the property of the named successor, so you cannot invade that person's right of privacy in their newly inherited accounts.  You can only see balance for the accounts left hanging after a death with no where to go except through the probate process.

 

Change to law regarding Modification of Prior Orders - Temporary Orders

The Texas legislature meets every other year to handle the legislative processes for the State.  Every two years new laws come out or old laws get changed.  Some of those changes effect Divorce and Custody matters.

The Legislature changed the law regarding what's required if you want to modify an old custody/visitation order.  Now, if you want to change who is the primary parent or create/change/eliminate a primary residence restriction, then you have to include a statement with your initial court pleadings to establish how the child(ren)'s physical health or emotional development would suffer unless the Judge granted your requested changes.  Previously, this statement was only required if you wanted to change the primary residence designation, i.e., the child switch which parent they lived with during the school week.  See Texas Family Code 156.006.  Now the law includes both.

Bottom line is if you are trying to change your old custody or visitation orders and are trying to change the child(ren)'s primary residence or the geographic restriction designation, then you would have to include a sworn statement alleging the potential harm to the child(ren) you are trying to avoid with the modification.  Without such a statement your case might not get a hearing and might be dismissed out of hand before you can reach any real issues, causing delay and additional expense.

Settlement Week

How do I settle my divorce case quickly?  How do I settle my custody case quickly?  How can parties work out their child support case without the need for costly litigation and court hearings?

These are some of the questions I get after potential clients understand the possible costs of litigating a case.  A full on fight in a divorce, custody, modification, or child support case can be financially and emotionally draining.  Most people would prefer to come to the table, air out their issues, and try to find creative solutions to their problems.  The best solution is mediation.  In mediation you have control and can walk away from the table if you feel the discuss is not being productive, taking the case to court instead.  Mediation can happen early on in a case or later after hearings and/or discovery is conducted.

Williamson County, and many Counties throughout Texas, have something called "Settlement Week."  Settlement Week is when parties can find inexpensive mediators to assist them in reaching an agreement on their case, if possible.  Williamson County offers settlement week twice per year, once in the Spring and once in the Fall.  There are only so many slots available so usually they are reserved on a first come first served basis.  The program is usually run by the courthouse or local bar association.  Your local attorneys or court staff will know if a Settlement Week, or similar low-cost mediation program, is offered in your area.

Settlement Week is mediation, just a rose by another name.  Sometimes cases have too many complex issues to be solved in a short, low cost, mediation setting like settlement week.  There are many experienced mediators throughout the state who can spend extra time or use their unique expertise to assist you in resolving your complex case.  These might be good options if you believe your case might be too complex for a shorter mediation session.  Check with the local bar association in your area for experienced mediators for familiarity in your needed area of law.

Registration of Out-of-State Order in Texas

I receive calsl asking whether a parent can register an out of state order here in Texas.  The answer is, yes, but to what end? 

In Texas, to register an our-of-state Order, you follow the steps listed in Texas Family Code 159.602.

Registering an Order from another state is usually accompanied with a request to modify that order, or enforce it.  Rarely are out-of-state Orders just registered in the local court's files just for good measure. 

When parties are living in different states it can become very complicated very quickly to enforce or modify a court order.  You run into problems with Jurisdiction and proper Venue that may restrict where and how you can proceed with your case. 

If you live in a different state from the other parent and/or the children then it is vital for you to consult with an experienced attorney.  UIFSA, UCCJEA, and the Uniform Parentage Act will need to be consulted and applied to your specific case facts. 

Joining a Child Support case with a Divorce

In Texas, when there is an old Child Support/custody case from before the Divorce was filed, the old child support/custody case needs to be transferred and joined up with the divorce case.  See Texas Family Code 6.406 & 6.407

Child Support cases are sometimes filed by the Attorney General or when parties initially separate.  Parties might let these child support or custody cases run their course before turning their attention to the divorce and dividing marital property/debts.  It's better to handle all the child-related issues and Divorce all at the same time, but sometimes people just put off the divorce and let the child support and visitation case take care of the immediate need for child support to start.  If you settle the child support and custody before tackling the divorce issues, then you might lock yourself in to something you might not want when later dividing assets and debts in the divorce.

If you have an old custody or child support case, and then later file the divorce, you MUST mention the old custody or child support case in the divorce filing.  A Motion to Consolidate is the best way to join the two cases up if they are both filed in the same County.  If the old custody case is filed in a different county than where the divorce is filed, then a Motion to Transfer, filed in the old county where the custody/child support case is filed, would be the best step.  Failure to bring together the older custody/child support case into the divorce might result in delays and increased costs. 

For these reasons, it is highly advisable that when you meet with an attorney or attempt to file a divorce on your own, that you disclose prior court actions that might effect your divorce case.  It is always easier to tackle such issues in the beginning than to have to back up and redo major paperwork and court hearing dates.  If you have this type of problem, just bring your old paperwork along with you to the consultation or at least mention the old case and where it was filed to whomever you are consulting with on your divorce.