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Frequently Asked Questions

Family & Divorce Law

Estate Planning, Probate & Guardianship

Family & Divorce Law

12 FAQs

Simply call our office at (214) 225-9138 or Contact Us by e-mail to arrange a consultation at your convenience.

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Albin Oldner Law, PLLC always recommends that a client obtain competent tax advice before making any significant financial decisions. Our firm works closely with our clients’ tax consultants to ensure that the legal advice our firm provides harmonizes with the tax advice received from our clients’ tax specialists.

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No. If the parties cannot negotiate a fair division with the help of their respective attorneys the judge or jury will divide the marital assets and liabilities in a manner that is “just, right, fair and equitable.” That may result in a 50/50 division; it may result in a 60/40 division, or some other division. There are many factors that the fact finder may consider, including disparity in earning capacities between the spouses and evidence of fault in the breakup of the marriage.

In addition, not all property is subject to division by the court. As a general rule, property that a spouse owned before marriage, or obtained by gift or inheritance during the marriage, belongs to that spouse as his or her separate property. This kind of property is generally not included in the division of the marital estate.

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Collaborative Law is an alternative method of resolving disputes without the use of a judge, jury, or even a courtroom. It is a process in which both parties retain separate lawyers whose only job is to help the parties settle their disputes. The dispute is handled more like a business negotiation than a boxing match. All of the participants agree to work together, and to be respectful, honest and to participate in good faith to try to reach an agreement.

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Most cases resolve by agreement of the parties prior to a contested final trial. It is therefore possible to go through the entire divorce process without ever having to step inside the courthouse. However, even in these cases, at least one party will have to make a brief, uncontested, court appearance to obtain the judge’s signature on the final documents.

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Mediation is one alternative method to resolve your case without the necessity of a contested final trial. Through a one or two-day conference, the parties negotiate with the assistance of their attorneys and a neutral third party, who is dedicated to helping the parties reach a resolution. No one can or will force either party to compromise or settle, but if the parties do, in fact, reach an agreement, it is immediately reduced to writing, signed by the parties and their attorneys, and then filed with the Court. Once the agreement is signed, it becomes binding and enforceable. Our attorneys are trained and experienced family law mediator.

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Each case is fact specific and the attorney will discuss the benefits and costs of all pertinent options with the client during the initial interview. In general, however, if there has been family violence or threatened family violence in the recent past and there is a continuing threat of future violence, then you should consider contacting either your local police department or a family law attorney immediately to obtain a Protective Order. A Protective Order will temporarily grant you and the children legal protection from the offending family member. The penalties for violating a Protective Order are criminal in nature, subjecting the violator to immediate arrest and possible prosecution.

A Temporary Restraining Order may be appropriate if you have concerns about the other family member’s spending habits, use of marital property, or if the other spouse presents a disruptive or negative influence on the children’s daily routine. The penalties for violating a Temporary Restraining Order include invoking the contempt powers of the court, which can result in monetary fines and jail confinement.

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The projected costs of a family law case are typically discussed with the client during the initial consultation. Because it is difficult to determine costs from the onset of a case we quote a competitive retainer and our contract provides for costs that exceed the initial retainer.

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While there are many fine attorneys who practice in the area of family law their entire careers without becoming board certified, there are potential advantages to the client who chooses to retain a board certified attorney or a firm that employs a board certified attorney: The client may rest assured that the attorney has already demonstrated substantial experience and involvement in the specialty area, and is committed to excellence in the practice of family law. Perhaps more importantly, because of that experience and involvement, the board certified attorney may be able to handle complex issues more efficiently than another attorney, thereby saving the client time, aggravation, and money.

At Albin Oldner Law, PLLC, we have a team of attorneys who work extensively in the field of family law. When a client retains us, we bring all of our resources to bear on the client’s case to ensure that the client receives the highest quality of professional legal

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Texas law presumes that both parents should be named as “Joint Managing Conservators” of their children. Although this does not necessarily mean that both parties will split parental rights and possession times equally, the presumption that the children will benefit by the active and regular participation of both parents in raising the child is strong. Nevertheless, in certain cases evidence exists or develops that may override the statutory presumption. In such cases, where primary custody is disputed, we will aggressively pursue the best interests of the children by empowering the judge or jury to render a decision based upon what the facts reveal rather than what facts are concealed or unknown.

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In divorce cases, the action should be filed in the county in which one or both of the parties resided for the immediately preceding 90-day period. In addition, at least one of the parties must have lived in Texas for the preceding six months. In a modification of a prior final order involving children, the case can be transferred to and heard in the county of current residence of the child.

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By statute, a divorce cannot be finalized until after at least 60 days have elapsed from the date the original petition is filed. If the case is uncontested it is entirely possible to finalize the case on the 61st day after filing. If the parties cannot reach agreement on all issues, however, finalizing the divorce will take longer.

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Estate Planning, Probate & Guardianship

8 FAQs

You must have standing as an interested party for the court to allow you to bring a cause of action. Heirs, devisees, a spouse, creditors and a person with legal authority to act on a minor child’s behalf are considered interested parties, as well as a person who may have been listed as a beneficiary in a prior will

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ou must have grounds to challenge a will. Common reasons include lack of mental capacity, undue influence, fraud, lack of proper execution and the existence of a more recent will or codicil.

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Your spouse does not have the right to dispose of your interest in the marital/community property. However, subject to some limitations, your spouse can leave his or her share of the marital/community property as well as her separate property to whomever they choose. Such limitations may include a right for the surviving spouse to continue to reside in the homestead property, an allowance in lieu of homestead, as well as other rights.

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Parents are under no obligation to leave their children an inheritance. However, the court may find you have the right to an inheritance if you prove you were unintentionally disinherited or if the Will is invalid for a number of other reasons. To make this determination, the court reviews the language of the will and other evidence.

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A mistake may be considered a good faith breach of your trustee’s fiduciary duty and you may be able to hold the trustee accountable. You must prove improper motive to show a bad faith breach, which carries additional penalties.

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The trustee of your trust has a fiduciary duty to act in your best interests. If the trustee’s investment decisions jeopardize your account funds, you may have a valid claim for removal them from acting as your trustee.

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When appointing a guardian for a minor, the court gives priority as follows: parents, person designated in the will or a separate documents designating a guardian of the last surviving parent, grandparents, great grandparents, next of kin, non-relative. However, the court has discretion to choose a person of lower priority if a person of higher priority is unsuitable for the role or unable or unwilling to serve.

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To be named a guardian, you must prove that your child is incapacitated, meaning your child is unable to care for his or her physical health or maintain basic needs, such as food, clothing and shelter. The court sets a high standard for showing incapacity, which requires expert evaluation by doctors and clear and convincing evidence that there is a need for a guardian. However, it is common for a parent or parents to be named as guardian of the person for a child that meets the required level of incapacity. The court may also appoint a guardian of the estate for such person, but often it is unnecessary since the primary income for such persons is in the form of governmental benefits such as social security disability income which does not require the appointment of a guardian of the estate.

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