Texas Same Sex Couples and Domestic Partnership Agreements

July 10th, 2013

Times are changing for the same-sex couple in the United States. There are now 13 states and the District of Columbia that allows same- sex marriages and the Supreme Court has made landmark rulings affecting federal benefits and social security in 2013.
What about Texas? Same-sex marriage is not legal in Texas and Texas will not recognize valid same-sex marriages performed in other states. How can you and your same-sex partner protect yourselves and your properties as a couple until you will have the right to be recognized legally as a married couple in Texas?

The best protection for Texas same-sex couples would be a Domestic Partnership Agreement. In order to provide more complete legal coverage, you should also supplement it with the following documents:

  • A will with a designated executor to handle execution and distribution of all assets
  • A durable financial power of attorney
  • A durable medical power of attorney, directive to physicians, and a HIPPAA release form.
  • Parental rights documents
  • Partnership agreement to set out and clarify property rights, define ownership and related issues upon dissolution.

Matters that may be dealt with in a partnership/domestic agreement include, but are not limited to, the following:

  1. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  2. The rights and obligations of each of the parties in any of the property of either or both of them whenever or wherever acquired or located;
  3. The disposition of property on separation, partnership dissolution, death, or the occurrence or nonoccurrence of other events;
  4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  5. The ownership rights in and disposition of the death benefit from a life insurance policy;
  6. The choice of law governing the construction of the agreement; and
  7. Any other non-marital matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Cohabitation and Domestic Partnership Agreements may be as creative as a party determines necessary. However, care must be given to see that such agreements protect the party, keep with public policy, and adhere to current Texas family law and applicable contractual law.

Big Changes in Texas Spousal Maintenance Laws

February 7th, 2012

Texas House Bill 901 changing the spousal maintenance law in the Texas Family Code became effective for divorce cases filed on or after September 1, 2011. The bill revises the conditions that establish eligibility for spousal maintenance, commonly referred to as alimony, and changes the factors required to be considered by a court in determining the nature, amount, duration, and manner of periodic payments for a spouse who is eligible to receive maintenance.

Eligibility for spousal maintenance requires that the spouse seeking maintenance lack sufficient property to provide for the spouse’s minimum reasonable needs.

The new law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.

Major changes to the Texas spousal support law are:

1. The maximum amount of spousal support that courts may award increased from $2,500 to $5,000.00 per month, although still limited to 20 percent of the payer’s average gross monthly income.

2. The duration of spousal support extended from a maximum of 3 years to a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.

3. The law clarified that if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.

4. The law also clarified that a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.

In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:

(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2) The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3) The recipient is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR

(4) The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

Under the previous law, under most circumstances, the court could only order maintenance for a maximum of three years, regardless of the length of the marriage. Under the new law, the court can order maintenance to continue for:

(1) 5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;

(2) 5 years if the parties were married more than 10 years, but less than 20 years.

(3) 7 years if the parties were married more than 20 years, but less than 30 years;

(4) 10 years if the parties were married for more than 30 years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.

If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support under the expanded provisions of the new law.

Prenuptial Agreements in Texas

December 20th, 2011

A prenuptial agreement is a contract entered into by the parties prior to a marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of the marriage. They may also include terms for guardianship and the forfeiture of assets as a result of divorce on the grounds of adultery, cruelty or legal abandonment. Laws vary between states and countries on how to draft prenuptial agreements.  In the United States prenuptial agreements are recognized in all fifty states, but must be drafted and executed properly.

More and more couples are signing prenuptial marriage agreements. The spouses are not just couples dealing with financial inequality or couples of great wealth. They are couples who want to put all their financial cards and related issues on the table before they walk down the aisle, often to avoid great expense and prolonged painful litigation should the marriage fail.  The following is a partial list of pros regarding prenuptial agreements:

1.  A premarital agreement can protect the inheritance rights of children and grandchildren from a previous marriage.
2.  If you have your own business or professional practice, a premarital agreement can protect that interest so that the business or practice is not arbitrarily divided or unreasonably convoluted or subject to the control or involvement of your former spouse upon divorce.
3.   If one spouse has significantly more debt than the other, a premarital agreement can protect the debt-free spouse from having to assume or be liable for the obligations of the other.
4.  If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.
5.  A premarital agreement can address more than the financial aspects of marriage, and can cover any of the details of decision-making and responsibility sharing to which the parties agree in advance.
6.  A premarital agreement may limit or pre-structure, subject to court scrutiny, the amount of spousal support that one spouse will have to pay the other upon divorce.
7.  A premarital agreement can protect the financial interests of older persons, persons who are entering into second or subsequent marriages, and persons with substantial wealth.

Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce.  The following is a list of the possible pitfalls of a prenuptial agreement:

1.  The agreement may require you to give up your right to inherit from your spouse’s estate when he or she dies. Under the law, you are entitled to a portion of the estate even if your spouse does not include such a provision in his or her will.
2.  If you contribute to the continuing success and growth of your spouse’s business or professional practice by entertaining clients and taking care of the home, etc., thus allowing him or her to focus on professional endeavors, you may not be entitled to claim a share of the increase in value if you agree otherwise in a premarital agreement. Under the laws of many states, this increase in value would be considered divisible marital property.
3.  Starting a relationship with a contract that sets forth the particulars of what will happen upon death or divorce can undermine the sense of trust one wishes for upon marriage.
4.  As mentioned above, a contract can take the wind out of your emotional sails.
5.  It can be difficult to accurately project into the future which potential issues should be addressed, and what may seem like an inconsequential compromise in the romantic premarital period may seem more monumental and burdensome in reality.
6.  A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or she has become accustomed during the marriage if the agreement substantially limits property division by the court or the amount of spousal support to which that spouse is entitled.
7.  In the “honeymoon” stage of a relationship, one spouse may agree to terms that are not in his or her best interests because he or she is “too in love” to be concerned about the financial aspects and can’t imagine the union coming to an untimely end.

For professional legal counsel on Texas laws on prenuptial agreements in the DFW Metroplex area, contact Dallas family law attorney Mark Nacol.

Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.