Preparing For Your Consultation With A Divorce Attorney

Preparing For Your Consultation With A Divorce Attorney

After you make the decision to retain an attorney and file for divorce, or after you are served with a petition for divorce, you will soon find yourself preparing to meet with divorce lawyer.  There is a lot going on at this point.  You may be mentally or emotionally fatigued just making the decision to file for divorce.  You may be angry or hurt because you weren’t expecting to be served with divorce papers.  You may be worried about your children.  You may be worried about your house, your money, your savings.

Unfortunately, once you make the decision to file for divorce or have been served with a divorce petition things will move quickly.  This article is intended to provide some general information on preparing for a consultation with your prospective divorce attorney.

What You Should Bring With You

Many lawyers will send out questionnaires for the client to complete prior to coming in even for a consultation.  This allows the meeting to proceed more quickly and efficiently as you have provided most of the information the attorney will want to see in your answers on the form.  You should complete the form as thoroughly and accurately as possible.

You should bring your financial information.  Initially, this will consist of documents sufficient to establish your wages and expenses as well as anticipated wage and expense information for your spouse.

You should bring with you a sufficient description of the marital estate.  This includes information on any real property owned, such as a house, bank accounts, retirement accounts, personal effects, household items, etc. with balances and estimated values for all of the property.  This would also include information on marital liabilities such as credit card balances, mortgage balances, auto loans, student loans, etc.

The attorney may or may not review this information at your consultation.  However, the attorney will certainly need the information should he or she agree to represent you so you should have it available if requested.

Understand the Purpose of the Consultation

The consultation is an opportunity for you to learn about the attorney by asking general questions about the attorney and the services he or she offers.  The consultation is also an opportunity for the attorney to learn about the facts specific to your case and your situation so that he or she may determine whether he or she can represent you in the matter.  It is also an opportunity for you to learn about the fees involved.

You should expect general information about the divorce process and how your matter would likely proceed.    However, the consultation is NOT an opportunity to receive free legal advice so you should not expect detailed answers on each specific intricacy of your divorce.  Remember – the attorney is not doing any independent research or factual investigation into your situation and providing definitive answers without doing that research would be dangerous.

The consultation is about you deciding whether you trust the attorney to listen to you, to advise you, and ultimately, whether you want to retain the attorney to represent you.

What You Should Expect to Happen At the Consultation

You should expect that the attorney will ask general questions about your relationship with your spouse, your property, your children, and follow up with more specific questions on each topic.  You should expect to answer questions about how your spouse would feel on those same issues.  Depending on where you are emotionally, this can be a difficult and emotional conversation for many people.

You should expect that the attorney will discuss the divorce process, costs, time, and expenses.  You should expect the attorney to explain how the divorce court works.  You should expect the divorce lawyer to discuss the significant choices you will have to make prior to and during the divorce proceedings as well as the impact of those choices on matters such as the time, complexity, and the cost of the divorce.

What You Should Take Away From the Consultation

By the end of the consultation, you should understand all of the following:

  1. The divorce process.
  2. Your options with regard to divorce.
  3. The significant issues anticipated to come up during your divorce.
  4. How your decisions on those issues could impact the case.
  5. The attorney’s fee structure, how the attorney and his or her firm will charge you for all work on the matter.
  6. How the attorney and his or her firm handle expenses.
  7. The role of the divorce attorney.

Understand the Role of the Divorce Attorney

It is important that you understand the role of the divorce attorney and your relationship with your divorce attorney.  Your attorney should explain this at your consultation.

The attorney is not your psychiatrist.

The attorney is not your tax adviser.

The attorney is not your financial adviser.

The attorney is not your friend or family member.

Your attorney is there to represent you in the divorce proceedings and provide you with objective, unemotional, legal advice.  This will often mean telling you, the client, what you need to hear and not necessarily what you want to hear.

Your attorney is there to educate you on the law and provide you with legal advice so that you can make informed decisions.

After the Consultation

If you and the attorney decide you aren’t a good match, then that’s it.  Nothing else will happen.

However, if you decide you would like to retain the attorney and the attorney would like to represent you, then you will be required to execute a Representation Agreement (sometimes called an Engagement Letter or Engagement Agreement). This will set forth the scope of the attorney’s representation, the fees the attorney will charge, and additional terms governing the representation.

At that point the attorney will give you further instructions on what information he or she requires from you, the immediate next steps in the process as well as a timeline for accomplishing them, and likely schedule a follow up call or meeting to discuss how you will proceed with the matter in more detail.


Am I Required to Probate a Will in Texas?

Am I Required to Probate a Will in Texas?


The short answer is no – there is generally no legal requirement to probate a will in the State of Texas.  Having said that – there is a legal requirement to file a will with the county clerk upon learning of the passing of an individual.  A court may also order someone in possession of a person’s will to turn that will over to the court or designated executor and failing to obey such a court order could lead to a contempt of court charge. I should also note that in certain circumstances there may be a contractual relationship between beneficiaries that mandates probating a will as well.

Why You Might Not Want to Probate a Will

Everyone has heard horror stories of beneficiaries hiding wills when they are unhappy with the terms or disgruntled spouses doing the same.  There are always bad actors but that is a subject for a different post.  This article is not about such bad actors and their reasons for not probating a will.  The fact is, there are a variety of very legitimate reasons why you may wish to avoid probating a will.

One reason might be privacy – probating a will in court is a public matter meaning that most filings in the case as well as the contents of the will become public information.  This includes the inventory, appraisement, and list of claims.  Some families or beneficiaries might prefer to keep such estate matters private.

Another reason you may not wish to probate a will is a concern over costs.  Perhaps the value of the estate compared to the costs of the probate process make probate prohibitively expensive.

Another reason you might not probate a will is because of the nature of the estate.  Perhaps the estate consists solely of personal property and the beneficiaries are in agreement regarding the distribution of the estate property.

Things to Consider Before You Decide Not to Probate a Will

A primary consideration is whether there exists a need to probate the will that cannot be satisfied outside of the probate process.  For example, transferring title to real property will generally require some form of probate if held in the deceased’s name.  Having said that – there may be cheaper alternatives to a full probate available  (such as probating the will as a muniment of title) depending upon the nature of the estate assets and claims against the estate.

You must also consider who has possession of the deceased’s assets.  Third parties in possession of the deceased’s assets might require probating a will to establish the authority of an individual to receive those funds.  For example, if the deceased did not have a POD designation on their account then funds held at a bank might require the appointment of an executor through the probate process before a bank will release those funds.

Another important consideration is providing for and appropriately documenting the distribution of the deceased’s assets if you do not probate his or her will.  Even if you and the other beneficiaries agree at this point in time – you don’t want to risk someone changing their mind or deciding they want more from the estate at a later date.  At that point you might end up in court in a contested situation that will cost more to settle and you will have to handle it without the benefit of the full estate to fund the proceedings.  A family settlement agreement is often useful in these types of situations to document the beneficiaries agreement not to probate the will and on the distribution of estate assets.

If you recently had a loved one pass away and are considering whether it is appropriate to probate his or her will, you can contact my office to schedule a free consultation to discuss your options.


An Estate Planning Solution for Parents Whose Children Have Student Loans

There has been a significant increase in student loan debt as well as default rates by borrowers leading to an increased risk that the estate a borrower’s parent intends to pass to their child could instead end up in the hands of a student loan lender or collection agency.  If your child has significant student loan debt, difficulty repaying their student loan debt, or if you just want to minimize the chance your estate could end up in the wrong pocket, then you should continue reading below to understand how you can protect your child and your assets from these creditors.

Understanding the Scope of the Student Loan Problem

There is over $1.45 TRILLION dollars in student loan debt outstanding in the United States today.  That is over 600 million more than outstanding credit card debt.  Outstanding student loan debt has increased over 170% since 2006!  Even more alarming – according to the New York Federal Reserve, borrowers are making less progress in paying down those student loans even as the amount of student loans issued continues to increase.  Over 42 million Americans now have student loan debt.

This is a recipe for disaster.  Delinquency rates on student loans are in excess of 11% (meaning loans more than 90 days past due).  Default rates are much higher.  The New York Federal Reserve has done significant research over the past year on default rates and some of the results are stunning.  According to the New York Federal Reserve, over 35% of students attending for-profit private colleges have defaulted on their student loans by the age of 33.

Some parents might have children that attended community college and think that defaulting on student loans is a problem that is unique to 4 year universities or private for-profit universities.  It’s true, borrowers attending private for-profit colleges have historically seen some of the highest default rates.  However,  borrowers attending public 2 year colleges (think community colleges) have seen the greatest statistical increase in default rates with borrowers defaulting at rates almost as high as private for-profit colleges.

The impact on the lives of these borrowers is dramatic.  Student loans are one of the few debts that can NOT be discharged in bankruptcy.  This leaves student loan borrowers with little hope of escaping the debt without paying it.  The burden of repaying these loans means that student loan borrowers are less likely to own homes and save for retirement.

Private lenders aggressively pursue collection of delinquent borrowers through collection agencies, law suits, and garnishments (in some states).  If students default on federal loans, then the government has even greater powers to collect on the loans including garnishing the borrower’s social security payments which impacts the borrower’s ability to provide for his or her self during retirement.  When borrowers default, they incur penalties and interest that cause the outstanding debt amount to increase significantly over time.

How Your Child’s Student Loans Affect Your Estate

If you have a child with student loan debt, have you talked to them about the status of their loans?  Are they able to repay them? Have they defaulted on their loans?  Would they be honest in telling you about their troubles if they had them?  What if they run into financial trouble after you have already passed away?

These are difficult conversations that parents often do not have with their children.  But they need to.

Remember – these loans are not dischargeable in bankruptcy and lenders are quite aggressive in collecting these debts.

This means that if you leave any assets to your child, and that child defaults on a student loan, then those assets become subject to a lender’s collection efforts.  Your child may not inherit anything until 10, 15 , or even 20 + years after he or she defaulted on their student loans.  But those debts did not go away.  They just kept growing and accruing penalties, interest, and likely court costs as well as attorneys fees.

A collection agency cannot attach, execute, or garnish the assets of your child.  Collection agencies operate through coercion and guilt.  But the original creditor, or in some cases a collection agency that purchased the loans, can go to court and secure a judgment.  Any attorneys fees and court costs the creditor incurs in trying to collect the outstanding loan balance are added to the judgment and accrue interest as well.

At this point, the creditor has much more significant collection powers including the power to execute a judgment by confiscating assets or potential garnishing bank accounts.  Judgment creditors may, in certain circumstances, have a receiver appointed pursuant to a turnover order to help collect on that judgment.

The net result is this – that estate you worked so hard to grow and pass on to your child could be wiped out by your child’s student loan debt.

Using A Trust to Protect Your Child and Your Assets

What if I told you that there is a solution in Texas? That there is a way to allow your child the benefit of your estate without risking that the assets may be taken by a creditor.  Well, there is.  It’s through the use of a trust.  Trusts are not just an estate planning device for the super wealthy.  Trusts can be used to make sure that your estate is passed on and used according to your wishes and not the wishes of a creditor.

The law is clear – you have the right to choose who receives your estate.  More importantly, when you leave your assets in trust, you have the right to choose how, when, and for what purposes those assets may be used.  You have the right to choose who will manage those assets.  You have the right to prohibit their use to pay off the debts of a beneficiary.  When that trust is properly formed and managed – your child’s creditors cannot touch the assets but your child can still benefit from use of those assets.

Establishing the trust and protecting its assets from a beneficiary’s (your child’s) creditors is highly technical.  But it is perfectly legal.  There are restrictions on who can put assets into the trust and rules for when and how assets are distributed.  The language in the trust agreement is critical.

With a properly drafted and managed trust, your assets are protected for your child’s benefit.  You child and your grandchildren can enjoy the use of the trust assets for such things as healthcare, health insurance, dental and eye care, housing, paying the bills, property taxes, paying educational expenses, as well as general maintenance and support.  And your child’s creditors cannot take those assets.  You can make sure your estate goes to supporting your child and his or her family instead of paying off a debt to a creditor.

If you would like more information about whether a trust is appropriate for your situation, then please complete the contact form below and someone form the Firm will contact you shortly.

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