Month: September 2014

Medical Directives in Texas

A Medical Directive in Texas is a document that helps you communicate your end-of-life wishes while you are still competent and able to make such decisions.  During my practice, many individuals have stated that while they were comfortable making medical decisions for their loved ones under the loved one’s medical power of attorney, they were very thankful that when the time came to make decisions about whether or not to allow their loved one to live the rest of their life with artificial measures, such decision had already been made by their loved one via their Texas Medical Directive document.

When completing a Medical Directive in Texas, you are given certain scenarios wherein you are to decide if you want life sustaining treatment withheld and to be left to die peacefully or if you want life sustaining treatment administered.  The Texas legislature has provided certain definitions of which you need to be aware in order for you to make informed decisions about your end-of-life wishes.  Generally, it is a good idea to speak with an estate planning attorney about such language and definitions before signing such documentation as you want to make sure that your decisions are ones that are based upon your full knowledge and understanding of the medical terms used in such documents.

A Medical Directive in Texas is not only signed by you, but is also required to be notarized and signed before two witnesses that are not in anyway employed or connected to your treating physician or hospital facility.

Having a Medical Directive is not only wise in that you are being able to make sure that your end-of-life wishes are being carried out when you are unable to communicate such wishes yourself, it gives your loved ones peace of mind that they were not the ones that had to make such a gut-wrenching decision on your behalf.

How do Texas courts decide child custody issues?

The Best Interest of the Child, Not Moms versus Dads

One of the most common misconceptions which I encounter as a family law attorney in Texas is the idea that the law favors mothers over fathers in issues of child custody. Often, both mothers and fathers expect that Texas courts will automatically give a mother primary possession of children.  This belief, however, is misplaced.  In fact, Texas law forbids courts from considering the gender of the parents in deciding who will be awarded primary custody of a child.  See Tex. Fam. Code Sec. 153.003.

So, how do Texas courts decide child custody issues?  In determining which parent will be the child’s primary joint-managing conservator or sole-managing conservator, Texas courts will determine what would be in the “best interest of the child.”  See Tex. Fam. Code Sec. 153.002.  Of course, both parents often feel that it is in the child’s best interest that he or she be named the primary joint-conservator or the sole managing conservator.  For help in deciding which parent to choose, Texas courts will look at the facts of each case, and weigh what are known as the Holley factors—that is, (1) the desires of the child; (2) the emotional and physical needs of the child, now and in the future; (3) the emotional and physical danger to the child, now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist those individuals; (6) the plans for the child by the parent and the individual seeking custody; (7) the stability of the home; (8) the parents’ acts or omissions which indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parents’ acts or omissions.    See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

Importantly, how the Holley factors will stack up in any particular case is not determined by simply being either a mother or a father, but instead on the individual circumstances of the case.

Spousal Maintenance

When Jill wants Jack to financially support her after the divorce…

It’s a common tale. Jack and Jill went up the hill to fetch a pail of water. After the tumble down the hillside, they moved to Texas, fell in love, and got married. Ten years and many more spills later, Jack and Jill decide to divorce. Jill wants spousal maintenance. Jack wants to understand what it is and why he should pay it. Both need education on the topic before they break their crowns in frustration.

In a Texas divorce suit, the Court may order spousal maintenance to financially provide for a spouse who can’t sufficiently provide for herself. Under certain statutory provisions, either spouse can petition for spousal maintenance. Spousal maintenance is periodic payments from the future income of one spouse for the support of the other spouse (Texas Family Code § 8.001(1)). It is intended to provide limited support to spouses like Jill during the period of uncertainty and transition after the divorce. Although spousal maintenance was originally designed to protect long-term homemakers who had little or no income, it now also protects disabled spouses, spouses who care for disabled children, and spouses affected by family violence.

To be eligible to receive spousal maintenance, Jill must prove that she (1) is a spouse, (2) lacks sufficient property to provide for her minimum reasonable needs, and (3) has met one of the four statutory bases for spousal maintenance (i.e., ten-year marriage, family violence, disabled spouse, or disabled child) (Texas Family Code § 8.051).

In our tale, Jill easily meets two of these three elements: she is a spouse and was married to Jack for at least ten years. The final element is harder: Jill must prove that after the divorce she will lack sufficient property, including separate property, to provide for her minimum reasonable needs. The term “minimum reasonable needs” is not defined in the Texas Family Code, so the Court must use case-specific facts to determine those needs. The result varies couple to couple. Consequently, there is no correct way to present Jill’s minimum reasonable needs. It’s ultimately up to the Court’s discretion.

Some factors that the Court may consider in determining “minimum reasonable needs” include Jill’s list of monthly expenses, Jill’s education level and employment history, Jill’s employability and anticipated future income levels, Jill’s efforts to secure employment, and Jill’s need for medical or mental-health services and the associated costs.

Even if Jill gets a minimum-wage job or is well educated, she may still qualify for spousal maintenance. Also, the Court may consider the characteristics of Jill’s awarded community property and separate property when determining spousal maintenance. For instance, Jill may still qualify for spousal maintenance if she is awarded property in the divorce that is not easily liquidated, like a home, or has heavy tax implications and penalties to liquidate, like a retirement account.

The Court may also consider many other factors in determining maintenance. For example, the Court may consider Jill’s contribution as a homemaker. Additionally, marital misconduct is another possible factor. For instance, if Jack’s fling with Little Miss Muffet was a contributing factor in the breakup of Jack and Jill’s marriage, the Court may take that evidence into consideration too.

The duration of the spousal-maintenance payments typically is based on the number of years of the marriage. For couples who have been married for 10 to 19 years, like Jack & Jill, spousal maintenance is awarded for no more than five years. For couples who have been married for 20 to 29 years, spousal maintenance is awarded for no more than seven years. For couples who have been married for 30 years or longer, spousal maintenance is awarded for no more than ten years. There are exceptions to these time limits, including family violence issues and disability of either the spouse or a child of the marriage.

The amount of spousal maintenance ordered to be paid is statutorily capped. A Court may not order maintenance payments from Jack that equal more than 20% of his average monthly gross income. Monthly maintenance payments may not exceed $5,000.

Ultimately, Jill will have to prove to the Court why she needs spousal maintenance. In opposition, Jack will present arguments why Jill doesn’t need financial support. It will probably be a contentious hearing, and Jack & Jill will likely lament the day that they met tumbling down that faithful hill a decade prior.

If you find yourself in a spousal-maintenance dispute, don’t attempt this seemingly uphill battle alone. Have an experienced family-law advocate at your side who can help you present the best argument to Court that helps to protect your interests. Don’t fall down. Don’t break your crown. Be prepared.