FAQs
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FAQs

Family Law FAQs

WHAT ARE SOME REQUIREMENTS FOR OBTAINING AN UNCONTESTED DIVORCE?
  • At least one spouse from the marriage must have lived in Texas for the last six months. Additionally, the person filing the divorce papers must be a resident of the county for 90 days prior to filing in that county.
  • You must wait at least 60 days after the Original Petition for Divorce is filed before finalizing the divorce.
  • If there are children of the marriage to which one parent will be the primary custodian, child support is mandatory.  You cannot opt out of child support, even in an uncontested divorce.
  • Once an answer is filed by your spouse, the divorce moves from an uncontested matter to a contested matter.  This can result in a difference of fees and representation.

 

If you have any other questions regarding requirements of obtaining an uncontested divorce, please do not hesitate to contact us.

WHAT IS THE DIFFERENCE BETWEEN COMMUNITY PROPERTY AND SEPARATE PROPERTY?

Texas is a community property state, which means that when you are married, most property acquired during the marriage is owned jointly by both spouses and is divided equally upon divorce, annulment, or death. Without specific evidence that says otherwise, property acquired during marriage is presumed to be jointly owned by both spouses.

 

Separate property of a married person includes: (1) all property owned by the person before marriage; (2) all property acquired by the person after marriage by gift, bequest, devise, or descent; and (3) the rents, issues, and profits of all such property. Thus, generally speaking, the property that a spouse brings into the marriage and receives by gift or inheritance during the marriage is separate property.

 

For more information regarding the legal implications and effects of community property and separate property in a bankruptcy, probate, or divorce, do not hesitate to contact us.

WHAT HAPPENS IF MY SPOUSE DOESN’T SIGN THE DIVORCE PAPERS?

If your spouse doesn’t sign the divorce paperwork, your case moves from an uncontested divorce to either a contested divorce or a default divorce. Because Texas is a no-fault divorce state, a divorce is granted simply if a party requests one (whether or not the divorce papers are signed by the spouse). In Texas, a contested divorce involves the non-filing spouse (usually through the help of an attorney) filing an answer to the original petition for divorce. Contested divorces typically involve a temporary orders hearing, mediation, and a final hearing, ultimately resulting in a final decree. A default divorce is a divorce where the other spouse doesn’t do anything at all with the divorce. As a result, the spouse ends up defaulting on the case for their failure to respond and you usually get whatever was asked for in the original paperwork you filed. If possible, it is better to obtain an uncontested divorce as opposed to a contested or default divorce as it is typically the cheaper and speedier alternative. For more information regarding contested, default, or uncontested divorce, please do not hesitate to call our offices.

IF I AM BEING DENIED ACCESS TO MY CHILDREN, DO I STILL NEED TO PAY MY CHILD SUPPORT?

Yes. Texas law is clear that even if the other parent is denying you visitation, you are still required to pay your support and you can still be held in contempt for failure to pay. If you are being denied access to your children, you should pursue an enforcement action against the parent denying you access. If the other parent continues to deny you access to your children against the enforcement order, then he/she can be held in contempt for failure to follow the court’s order.

Bankruptcy FAQs

WHAT IS THE DIFFERENCE BETWEEN A CHAPTER 7 & A CHAPTER 13 BANKRUPTCY?

In Chapter 7 bankruptcy, you ask the bankruptcy court to forgive or “discharge” most of the debts you owe. In exchange for this discharge, you are required to list all of the assets you own in your bankruptcy paperwork. If the assets are protected or “exempt” from liquidation, you can keep those assets. If your assets are un-exempt, the bankruptcy trustee can take those un-exempt assets, sell it, and distribute the proceeds to your creditors. In Chapter 13 bankruptcy, you file a repayment plan with the bankruptcy court to pay back all or a portion of your debts over time. The amount you’ll have to repay depends on how much you earn, the amount and types of debt you owe, and how much property you own. You lose no property in Chapter 13 bankruptcy, because you fund your repayment plan through your income. After you pay back what is required of you, you receive a discharge of your debts. For more questions regarding the differences between a Chapter 7 and Chapter 13 bankruptcy, please do not hesitate to contact us.

WHO QUALIFIES FOR CHAPTER 7 BANKRUPTCY?

Before you can file for Chapter 7 Bankruptcy, you must financially qualify by demonstrating that you do not have the financial ability to pay your obligations. This is evidenced typically through the last six months of your pay stubs or other evidence of income from the date you file. You must also take a pre-filing Debtor Education Course. Generally, this counseling can be done via the internet from the privacy of your own home and usually takes approximately 40 minutes to complete. Once completed, a certificate is issued that must be filed with the Chapter 7 Petition.

CAN A CHAPTER 13 BANKRUPTCY ALLOW YOU TO REDUCE CERTAIN DEBTS?

In special instances, you can use a Chapter 13 Bankruptcy to reduce a debt, or “cram down” to the value of the property securing it, and then pay off that debt through your plan. For instance, if you owe $25,000 on a car loan and the car is worth only $15,000, you would only pay the creditor $15,000 through the plan and have the remainder of the loan discharged. However, you will not be able to “cram down” your vehicle if you purchased it within 910 days of filing your bankruptcy. You may also be able to “cram down” other types of personal property if you purchased the property more than one year from the filing of your bankruptcy. This type of property includes furniture, jewelry, and electronics. If you would like to receive additional information regarding the “cram down” process, please feel free to contact us.

WILL A BANKRUPTCY RUIN MY CREDIT?

Chances are, if you’re filing for bankruptcy to begin with, your credit wasn’t that great anyway. However, bankruptcy allows you to improve your credit. The key to remember when rebuilding or rehabilitating your credit is that TIME HEALS. The longer it has been since your bad credit or since your bankruptcy, the better your credit score will be. So even if you do nothing, you will have good credit over time.

 

There are ways however, to accelerate good credit after bankruptcy.

 

You can get one free report from the three major credit bureaus each year. Go to www.annualcreditreport.com to access the web site set up by the Federal Government under the FACT Act. You will set up an account with each agency. They will issue you a login and password. Keep this information handy — you will need it later.  Ideally, your credit report should show your discharged debt with a ZERO balance and it should say “Included in Bankruptcy” next to it. If it does not say this, then log back into the web site and go to “DISPUTE.” This will pull up every creditor on your credit report. Just click on the creditor you are disputing and it will bring up a selection of reasons for disputing that debt. All you need to do is click the reason “Was included in my bankruptcy filing.” In about 45 days, the agency will update your report showing the debts being reported correctly..  Important: Make sure that your Credit Report is updated and corrected prior to getting any type of financing. Especially if you are buying a house or car!

 

For the next 2-3 years after filing bankruptcy, continue focusing on living within your means and paying cash.  For good credit, it normally helps to have two to three new credit items on your credit report after a bankruptcy filing. This may mean getting a car loan or applying for a credit card.   Pick and choose credit that is the most affordable with the fairest terms. Once you establish new credit, you must pay on time.

 

If you increase your income, re-establish your credit, and pay on time; then you should find that after four or five years, your credit score will greatly improve and the bankruptcy will not affect you as much anymore. After the fifth year, most lenders will only want to know what have you done with your credit since the bankruptcy and how able will you be to pay for your new credit.

 

Your credit score (FICO) and how high you can get it after bankruptcy are important. We recommend that you download FICO’s 17-page booklet called Understanding Credit Reports and Scores.  You can find it on FICO’s web site at www.myfico.com/CreditEducation/.

 

We provide bankruptcy services in the greater Houston metro area including the cities of Katy, Sugarland, Pearland, Friendswood, Clear Lake and Galveston. We also handle cases from The Woodlands, Spring and Tomball and cases in Baytown and Channelview.

 

We handle bankruptcy cases in all of these counties: Brazoria, Chambers, Galveston, Matagorda, Austin, Brazos, Colorado, Fayette, Fort Bend, Grimes, Harris, Madison, Montgomery, San Jacinto, Walker, Waller, Wharton.  Call us to schedule a free, no-obligation consultation.

WHAT IF I CAN NO LONGER AFFORD TO MAKE MY CHAPTER 13 PAYMENTS?

Converting a Chapter 13 to a Chapter 7

 

It it quite likely that your financial circumstances will change throughout the lifetime of your Chapter 13 Bankruptcy and you may no longer be able to afford to make your plan payments.  Instead of getting your case dismissed for a failure to make plan payments, the Bankruptcy Code allows you to convert your case from a Chapter 13 to a Chapter 7. You have a right to convert your Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case at any time, with one restriction: You cannot convert to Chapter 7 if you have received a Chapter 7 discharge within the previous eight years.  Although you can convert your Chapter 13 bankruptcy to a Chapter 7, in order to proceed with the Chapter 7 you must be eligible for Chapter 7 relief. There are a few eligibility requirements for filing for Chapter 7; the biggest one is that you must pass the means test.

 

Here’s what happens with your paperwork and the process if you convert your case.

 

  • The petition and schedules. In most courts, the bankruptcy petition and forms that you filed for your Chapter 13 case become a part of your converted Chapter 7 case. However, you may have to amend some of the forms to list any debts you incurred after filing your Chapter 13 case (these can be discharged in your Chapter 7 case if they are otherwise dischargeable). And you’ll have to file another form, the Statement of Intention (this form tells the court what you plan to do with your secured debts.)
  • Proofs of Claims. The creditors’ Proofs of Claims, if already filed, carry over to your Chapter 7 case.
  • The creditors’ meeting. You must attend another meeting of creditors, even if one was already held in your Chapter 13 case.

 

If you believe that you may have difficulty continuing in your Chapter 13 Bankruptcy, please consult your attorney at your earliest convenience.

WHAT DEBTS AM I STILL RESPONSIBLE FOR AFTER MY BANKRUPTCY IS OVER?

When you receive a bankruptcy discharge (a court order indicating that you are now absolved from any liability for debts listed in your bankruptcy petition), there are still certain debts that cannot be eliminated.  The most common debts that are non-discharageable according to the Bankruptcy Code are listed below:

 

  • Child support or other domestic support obligations
  • Student loans
  • Debts resulting from personal injury or drunk driving
  • Certain income taxes
  • Debts incurred under false pretenses or deceit
  • Purchases of luxury goods or services for $500 or more and made within 90 days of filing bankruptcy
  • Cash advances of $750 or more made within 90 days of filing bankruptcy
  • Unlisted debts (this is a big one, to get a discharge, you must list the debt)
  • Debts incurred fraudulently or as a result of embezzlement
  • Government fines such as traffic tickets

 

The above list is certainly not an exhaustive list.  For more information on what debts you would still be responsible for after your bankruptcy is over, feel free to contact our offices.  We would be more than happy to answer your questions.

HOW CAN A BANKRUPTCY STOP MY FORECLOSURE?

When you file either a Chapter 13 or Chapter 7 bankruptcy, the court automatically issues an order called the “automatic stay.”  When the automatic stay is in effect, all collection activities from all creditors MUST cease. If your home is scheduled for a foreclosure sale, the sale will be legally postponed while the bankruptcy is pending.  A Chapter 13 bankruptcy lets you pay off the “arrearage” (late unpaid payments) typically over five years.  However, you’ll need enough income to at least meet your current mortgage payment at the same time you’re paying off the arrearage.  Assuming you make all the required payments up to the end of the repayment plan, you’ll avoid foreclosure and keep your home.  When your bankruptcy plan is completed, you are deemed current on your mortgage and can go back and resume the regular monthly mortgage payments you were making prior to filing bankruptcy.  To learn more about Chapter 13 bankruptcy and how it can help you avoid foreclosure, contact our office to speak with an attorney who can assist you.

Wills & Probate FAQs

WHAT HAPPENS IF I DIE WITHOUT A WILL?

If you do not have a will, the State of Texas will distribute your property as follows:

 

Single person without children:  All of your estate will be divided equally between your parents. If your parents pass before you do, then your estate will be divided equally between your brothers and sisters.

 

Single person with children:  Your estate is divided equally between your children.

 

Married without children:  Your personal property (not real estate) will go to your surviving spouse. One half of your real property will go to your spouse and the other half of your real property will go to your parents or if they predecease you, to your brothers and sisters. If you do not have parents or brothers and sisters at the time of your death, your spouse will get your entire estate, both personal property and real property.

 

Married with children:  One third of your personal property will go to your spouse and two thirds of your personal property will go to your children. Your spouse will get a life estate (a right to the use of the property during their lifetime without ownership rights) in one third of the real property. All ownership rights in the real property will be given to your children. However, your children will not be able to sell the one third of the real property in which your spouse has a life estate until after the death of your spouse.

 

To avoid the expense to your estate of having your heirs declared by the state, you need to take the time to write the will that is tailored to what you want. In the long run, consulting with the attorneys at Pratt & Thomas, PLLC will be the safest and most cost effective plan for both you and your family.

WHAT IS PROBATE?

Probate of an estate is the process by which the state court recognizes a person’s death and authorizes the administration of that person’s estate.  The Texas Probate Process requires that all of the decedent’s property be gathered, that all the decedent’s debts are paid, and the remaining assets distributed.  The probate process can occur whether or not the decedent had a will.  If the decedent passed with a will, his or her assets would be distributed according to that will.  If the decedent passed intestate or without a will, his or her assets would be distributed according to the state’s laws regarding intestacy.

OTHER FORMS OF ESTATE ADMINISTRATION: SMALL ESTATE AFFIDAVIT
If your loved one, also known as the decedent, has died without a will and his/her estate is worth less than $50,000 in value, you may be able to file a small estate affidavit to obtain the decedent’s property. A Texas small estate affidavit is ideal in this situation because it is less expensive and allows the heirs to obtain the decedent’s property without the formalities of probate.

 

 If the following conditions are met, a small estate affidavit can be filed in Texas :

 

  1. The decedent has died without leaving a will. (A small estate affidavit cannot be used when the decedent has left a valid will.)
  2. There is no petition for personal representatives, either pending or granted.
  3. A period of 30 days has passed since the death of the decedent.
  4. The value of the entire estate is less than $50,000. (Note: The decedent’s homestead and non-exempt property are not included in the calculation of the value of the estate. Moreover, a small estate affidavit can not be used when the decedent owned non-homestead real property at the time of death.)
  5. The small estate affidavit is sworn to by the heir or heirs making the request.
  6. Two disinterested witnesses have filed a sworn affidavit affirming heirship.

 

If you believe that an estate may qualify for a small estate affidavit, please feel free to contact Pratt & Thomas, PLLC for a free consultation.

WHAT MAKES A WILL VALID IN TEXAS?

To make a valid will in Texas, you must have legal capacitytestamentary capacity, and testamentary intent. Additionally, certain formalities must be followed.

 

You have legal capacity to make a will in Texas if you are 18 years of age or older, are or have been lawfully married, or are a member of the armed forces of the United States.

 

Testamentary capacity refers to being of “sound mind”. You have testamentary capacity to make a will in Texas if you have the mental ability to understand: the business in which you are engaged; the effect of making a will; the nature and extent of your property; the persons who are the natural objects of your bounty (your relatives); the fact that you are disposing your assets; how all these elements relate so as to form an orderly plan for the disposition of your property.

 

You have testamentary intent if at the time you sign your last will and testament, you intend to make a revocable disposition of your property to take effect at your death.

 

In addition to legal capacity, testamentary capacity and testamentary intent, certain formalities need to be followed for a will to be valid. The formalities that need to be followed depend on what type of will you have made.

 

Texas recognizes two types of written wills:

 

An attested will is the most common type of Last Will and Testament. To be valid, it must be in writing, signed by you, or another person at your direction and in your presence, and attested in your presence by at least two credible witnesses over the age of 14.

 

holographic will that must be written completely in your own handwriting, and signed by you. There is no requirement that it be signed by any witnesses.

 

The Texas Probate Code provides the person making a will with the option of adding a self-proving affidavit to the will. A self-proving affidavit is signed by the person making the will and two witnesses before a notary public.

 

When a will is probated, the self-proving affidavit substitutes for in-court testimony of witnesses as to the validity of the will, which saves considerable time and expense.

 

If a will does not meet all the requirements set forth by the statutes, it will be declared invalid, meaning that your estate could be distributed according to a statutory formula rather than the way you would have preferred.

 

Feel free to contact Pratt & Thomas, PLLC to have your will drafted or for more information regarding your estate planning wishes.

Non-Profit FAQs

WHAT DOCUMENTS DO I NEED TO FORM A NON-PROFIT ENTITY?

Formation of Corporation – A Certificate of Formation must be filed with Texas Secretary of State. The Certificate of Formation will need to include the following information: entity name; name and address of the registered agent who will receive service of process for the corporation; office address; management structure; names and address of the initial board of directors; statement as to whether there will be members or there will not be members; purpose of the organization; and a statement regarding how assets will be distributed upon dissolution of the corporation.

 

Filing of SS-4 Form – The SS-4 Form will need to be filed with the IRS to obtain an Employer Identification Number (EIN) for the entity.

 

Power of Attorney Form 2848 – A Power of Attorney Form will need to be submitted to the IRS if someone other than the non-profit corporation will be filing for tax exempt status on behalf of the non-profit entity.

 

Bylaws – The bylaws govern the operation of the organization. The bylaws should include the following: the description of the roles of the officers; the process for nominating and electing officers and directors; organization of members if the organization has members; standards and process for removing members, officers, and directors; notice and quorum requirements for meetings of directors and members; establishment and power of committees, if any, and the operation and management of committee meetings; indemnification and limitation of liability of officers and directors; and establishment of the organization’s tax or fiscal year.

 

Conflict of Interest Policy – The IRS requires a non-profit entity to submit a conflict of interest policy as a requirement for receiving tax-exempt status from the IRS.

 

IRS Form 1023 or Form 1024 – These applications should be filed with the IRS to obtain federal tax-exempt status. Form 1023 is should be filed by public charities or private foundations. Form 1024 should be filed by social welfare organizations, civic leagues, business leagues, and social clubs.

 

Texas Form AP-204 – This application should be filed with the State of Texas to obtain exemption form sales tax and franchise tax.

 

If you have any other questions regarding the documents needed to form a non-profit entity, please do not hesitate to contact Pratt & Thomas, PLLC. We would be glad to assist you.