Divorce is difficult enough in and of itself when you consider the abrupt changes it can set forth both for you and your family. The divorce case will end your marriage, divide much of the property that you own and alter forever the nature of your relationship with your children as well as your spouse’s relationship with your children. Your kids will begin to have visitation time with both you and your spouse at each of your homes. Two Christmases, two bedrooms to sleep in, and a host of other challenges for you and the kids to work through. These changes may be necessary, but they are rarely easy.
the reason why anyone goes through a divorce is to be able to have some benefit now, but for the most part, the benefit to a divorce is to be able to set a new course for your life in the future. Part of being an adult and making adult decisions is to endure things that are unpleasant right now to receive a benefit of some sort in the future. We go to school now to have a career and earn an income in the future. We exercise and eat well now so that in the future we do not have any number of illnesses and physical issues that may impact our lives. Delayed gratification is a hard-earned lesson to learn but it can serve each of us well.
In many ways, divorce is a road map for the rest of our lives. While nobody enjoys going to the divorce itself it is almost as if we are working inside the divorce to plan a fun journey for ourselves once the case is done and over with period, we can see that a divorce allows us to begin to think about our lives 5, 10 in even more years into the future. It is probably a safe assumption to make that the reason why you are going to a divorce in the first place is that you began to think about your life being married to your spouse having more limitations than it does opportunities. Once you cross that path there really is no going back. A divorce forces you to bite the bullet and consider the rest of your life while ensuring that your present is productive.
It is normal to think about your life outside of divorce even while you are ending your marriage. The trouble with a divorce is that the case eats up a great deal of time, but the rest of your life does not come to a stop. This is one of the major reasons why I always recommend to people that they work with an experienced family law attorney when going through a divorce. Even if you had the wherewithal to process your divorce and represent yourself there are still so many areas of your life that require Your attention. Your children, your family, your work, and any other responsibilities that you had before your divorce will still be there during and after your divorce. For that reason, if you want to prevent those responsibilities from piling up on you during the divorce it is a great idea to work with an experienced family law attorney.
One of the many ways that a Texas family law attorney can help you keep your case and your life in line while going through a divorce is by helping to identify potential problem areas for you and your family. These may be issues that are quite pressing but are nonetheless not something that you had given much thought to. Family law attorneys are great at using their vast amount of knowledge and experience to help you discover solutions to problems that you may not even have known that you had. This helps you to avoid potentially tricky situations for your family and can solidify the foundation of your life both now and after your divorce comes to an end.
One of the concerns that the Law Office of Bryan Fagan has helped people through in their divorce is regarding the question of what would happen to your money and your property if you were to die during your divorce. There isn’t much in life that is worse than a divorce, but I think we would all agree that death Is properly classified as something that you can experience in life that is worse than a divorce. When it comes to these sorts of subjects do you want to make sure that you have taken every precaution and planned as well as possible for these issues?
The fact of the matter is that we all know that at some point we will pass away. We also know that we don’t get to choose that moment in time that will be our last. This is not a pleasant subject to discuss but it is the reality for all of us. The main question that we need to ask ourselves is what we can do to mitigate the negative impacts of our passing on our family. Most specifically, what can we do to protect our children and our property if you were to pass away during your divorce?
In this blog post from the Law Office of Bryan Fagan, we would like to share with you our thoughts on what you can do today to prevent some very undesirable impacts from occurring to your estate into your family were you to pass away during your divorce case. While ultimately preventing your death is not something that I can do for you, we can talk about how you can take proactive measures today to avoid your family being put in an extremely negative situation where you see the end of your life occur while obtaining a divorce from your spouse.
Asking yourself the tough questions should propel you to action
There is something about a divorce that causes us to ask difficult questions about ourselves, our lives, and where everything is headed. The real trouble begins when these questions that we ask ourselves do not have ready answers. It is not always easy to come up with solutions to problems like these because many times this will have been your first divorce. If you have never gone through something before it is difficult to be able to plan for a divorce as well as answer the difficult questions that are associated with the divorce. What can you do to put your mind in the mind of your family at ease? What sort of questions should you even be asking yourself at this time?
I think the most logical question to ask about death and divorce is whether your divorce will continue if you pass away. Next, it would seem relevant to ask what would happen to your community property estate in the event of your passing. Finally, you may want to inquire about how inheritance works. Note that inheritance only comes into play if you pass away without a will. Otherwise, by drafting a well-thought-out and valid you can ensure that your wishes are followed when it comes to passing and distributing property at the time of your death. Otherwise, you are leaving it up to someone else to determine how your property and assets will be distributed once you pass away.
Does your divorce continue in your absence if you pass away?
As the old saying goes, it takes two to tango. Divorce is no exception. If you were to pass away during your divorce, then the case would come to an end. There needs to be a valid marriage in place for a divorce to occur and if you pass away during your divorce then your spouse is no longer married. In that case, there is no marriage to dissolve and your case would be nonsuited. It would be necessary for your spouse to file a motion to nonsuit the divorce based on your passing. Once a death certificate is received that could also be forwarded to the court to further solidify the request to nonsuit your case.
This is a different situation than if your spouse must refuse to sign the divorce paperwork or even answer your original petition for divorce at the beginning of your case. In that situation, you can potentially obtain a default judgment in the divorce against your spouse. In that case, there would still be a valid marriage in place and your spouse would be alive for you to obtain a judgment against him or her. When you pass away during the middle of a divorce there was no longer a case to be had.
What you may want to inquire about, is whether your divorce case can then be transferred to a Texas probate court for a state to be divided between your beneficiaries or heirs. Depending upon the county in which you reside your spouse may be able to transfer your divorce case into the probate court for your separate estate to be inventoried, appraised, and ultimately distributed to heirs or beneficiaries once any debts are associated with your state have been paid. This is a complex process where are you and your spouse could benefit from having experienced legal counsel. Coming on the heels of a divorce there are certainly elements of both family law and probate law associated with this sort of circumstance.
For that reason, I would recommend that you reach out today for a free of charge consultation with the experienced probate and family law attorneys with the Law Office of Bryan Fagan. The benefit you would gain by speaking with one of our attorneys is that our lawyers, paralegals, and staff work frequently both in the world of family law as well as in probate in estate planning. Having these dual areas of expertise at your fingertips is a major advantage for you. If you have complex circumstances impacting your life, then reaching out to our office for a free-of-charge consultation may be one of the most important decisions that you make in your entire life.
Community property and what happens to it were you to pass away during your divorce
Texas is a community property state. This means that most property that you acquired during your marriage is subject to division In your divorce case. At the beginning of your divorce, you will be asked to inventory the property that you own. This means going through your home, bank accounts, retirement savings, and any other physical or digital space to notate the property that you own. Next, you will be asked to appraise or estimate the value of this property. All of this is submitted to the family court judge at the beginning of your case to assist him or her in determining issues related to temporary spousal support, bill payments during the divorce, and eventually how to divide your community property after your divorce.
In many cases, if asked to do so a family court judge will divide your community property in a fairly even fashion. This is absent any circumstances involving false that led to the divorce or considering the sizes of your and your spouse’s separate estates. What we need to discuss in today’s blog post is what would happen to your community estate were you to die before the divorce is finalized.
All things being equal if you were to pass away before the end of your divorce then your property would be inherited by your spouse. Additionally, your children, if you have any, would stand to inherit a portion of your separate estate. Usually, that means 2/3 of your separate estate would be inherited by your children with one-third of your separate estate going to your spouse. Your spouse would gain a life estate in any real property that he or she inherited because of your death.
All these changes, however, if you were to pass away with a will. A will would override any of the probate laws of Texas and would dictate how the property would be distributed upon your passing. Many people have wills that act as if the Texas probate code helped guide them on the division of their property once they pass away. Specifically, their spouse or their children would stand to inherit much of the property that they had acquired during their lifetime. However, you may be in the category of people where you would prefer that your church, extended family, or other entity or persons would inherit much of your property upon your passing.
The beauty of having a will is that you get to determine where your property goes after you pass away. By choosing not to have a will you are telling the state of Texas and a probate court judge that you believe he or she should determine where your property goes at your passing and not you. I can’t speak for you but for most people, this is not they are winning argument. I think all of us are better suited to dictate what happens to our property after our passing more so than a probate court judge. You should pay close attention to your court orders from the divorce to determine whether you can update your will during the divorce. It would make sense to want to update your will to remove your spouse as a beneficiary but much of the time you will be prohibited from doing so under the temporary orders of your divorce case.
Child custody issues were you to pass away during a divorce
As you may have guessed, if you were to pass away during her divorce and had minor children then your spouse would have full custody of the children at that point. It will be as if you passed away before the divorce process even began. Any revocable or living trust arrangement outlined in your will in terms of having someone take on custody responsibility for your children were you to pass away while your children were under 18 would not go into effect because your spouse would still be alive. He or she would take on full responsibility associated with raising the children.
All of this is to say that if you don’t have experienced incompetent representation in your divorce then you are putting yourself and your children in a seriously disadvantaged situation. Take the time to reach out today to one of our experienced family law attorneys and take advantage of the online videos and resources provided on our website.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family, probate, and estate planning attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to plan for life’s major events and also understand how your family circumstances may be impacted by filing a divorce, child custody, or probate case.