UA-11185405-1
You are here: Home / Blog

Prenuptial Agreements: Hope for the Best; Prepare for the Worst

October 17, 2010 By Nadia Gilkes, Esq. Leave a Comment

A Prenuptial Agreement is a contract prepared for a couple that is about to get married. It outlines each individual’s assets and details how property will be separated in the event of a divorce. This may not be the most romantic of topics, but in this day and age many see it as a necessity.

You may have heard that Texas is a community property state, but do you really know what that means? Essentially, everything earned during the marriage is considered community property (including your salary) and each spouse is entitled to half of the property. For example, if one spouse has a job earning $100,000 per year and the other spouse is a stay-at-home parent – under Texas law each spouse earns $50,000 per year. Since income is community property, anything purchased with your earnings is also considered community property including stocks, bonds, cds, retirement plans, rental properties, etc.

By having a prenuptial agreement, a couple can agree to keep some assets classified as separate property in the event of a divorce. This can preserve your financial health should your marriage come to an end. To have a valid prenuptial agreement, there are certain steps that must be followed.

  1. You should discuss prenuptial agreements early in the relationship – some would say, even before you are engaged. Letting a potential spouse know how you feel about this topic lets them know that you are conscience of your financial health and should open the door to other discussions about how finances will be handled during the marriage.
  2. Honesty is a key component to a valid prenuptial agreement. Both parties must disclose all property and assets they own in an inventory & appraisement (I&A). It is also a good idea to see each other’s credit report to verify that nothing has been overlooked. If assets are purposely left off of the I&A in an attempt to hide or defraud the other spouse, this could invalidate your agreement. There must be full disclosure for a prenuptial agreement to stand up in Court.
  3. To guard against the appearance of undue influence or any conflicts of interest, it is best if each party has their own attorney review the document before signing. Having your own private attorney allows all legal questions to be answered openly and honestly and ensures that each person’s interest are protected to their satisfaction.
  4. To guard against the appearance of coercion, the prenuptial agreement should be signed well in advance of the wedding date. I generally tell couples to use the date the invitations will be mailed out as a guideline. You should meet with your attorneys 4-6 weeks prior to mailing out wedding invitations to begin drafting the terms of the agreement. The agreement should be finalized and signed one week prior to the date you are mailing out invitations at the latest. This gives the couple adequate time to review the terms, consider the implications, and back out of the wedding or agreement if they feel the need to.

Timing is crucial when considering a prenuptial agreement. If the topic is first brought up mere weeks before the wedding, the spouse who is being surprised with the idea can successfully argue that they signed the prenuptial agreement under duress because they didn’t want to suffer the embarrassment and expense of calling off a wedding mere days before the scheduled event. Weddings take a lot of time, energy, and money. There are non-refundable deposits, family members often have to make travel arrangements, decorations and dresses have to be bought or made, and the stress-level in planning all the details is extremely high. It is unfair, as well as unethical, to “surprise”  your future spouse by waiting until the last minute to bring up the topic of a prenup. Judges will usually rule an agreement invalid under these circumstances.

Everyone wants to believe they will have a long, happy marriage, but not planning for divorce could have severe consequences. Many adults find themselves living with their parents after going through a divorce. Statistics show that divorced women with children are 4 times more likely than married women to be at or below the poverty line. With less than 60% of married couples making it to their 15 year anniversary, it is critical that you protect your financial future. If you are contemplating marriage and would like more information on Community Property laws or prenuptial agreements, feel free to call The Gilkes Law Firm. We’re here to help.

Filed Under: Family Law, Financial Health

Make Sure Your Will Is Valid

October 16, 2010 By Nadia Gilkes, Esq. 1 Comment

The purpose of a Will is to list your items and declare where your assets should go when you pass away. In Texas, there are certain guidelines that must be followed for you to have a valid will.

A valid will is:

  • written by an individual (called the testator) that is at least 18 years old, or otherwise emancipated by marriage or military enlistment;
  • written by a testator who is of sound mind and can identify their assets, family members, and understands they are making a Will which will distribute all of their possessions upon death;
  • the Will must be in writing and signed by the testator. If the Will is not completely in the testator’s handwriting, it must also be signed by two witnesses who are at least 14 years old. The will should be signed by disinterested witnesses (individuals who are not inheriting from the Will) and should include a self-proving affidavit;
  • The testator must sign the Will in the presence of the witnesses, and must watch the witnesses sign the Will.

Texas no longer allows oral Wills. All wills must be in writing and properly executed.

It is best to keep the original Will in a safe place where it can be easily accessed when necessary. For your convenience, the Court Clerk allows you to deposit your Will with the Court for a nominal fee. Please keep in mind that it is very difficult to probate a copy of a Will in Texas. If you choose not to deposit your Will with the Court, you should have some other arrangement in place to ensure safekeeping of the Will.

Many people attempt to draft a Will on their own with disastrous results. It is best to have a qualified attorney draft your Will and ensure that it is properly executed.

Filed Under: Estate Planning

Facebook & Jury Duty do not get along …

October 14, 2010 By Nadia Gilkes, Esq. Leave a Comment

Traditionally, it was expected that citizens called for jury duty would follow the basic rules given by the Judge:

  • Listen to all the evidence presented;
  • Disregard any evidence deemed inadmissible;
  • Reserve making judgment until the end of the trial;
  • Deliberate in secret;
  • Reserve discussing the case until discharged from duty.

In these current times, where virtually any and everyone can communicate with the world in “real time,” attorneys and court staff have to adapt the way they treat jurors. During the voir dire process (selection of the jury), attorneys may find it necessary to question potential jury members on their internet usage and how likely they are to refrain from using Facebook throughout the trial. Once the trial begins, it is not uncommon for attorneys to monitor the social media accounts of the jury members to see what is being posted. Additionally, Judges often over-stress the instruction that jurors are not to communicate about the trial to anyone, including through postings on websites.

Some of you may be asking, why does it even matter? Well it all boils down to the 6th Amendment right that affords all of us a right to trial by an impartial jury. Based on the current trend, it’s the “mpartial” requirement that is giving the judicial system so much grief. Noncompliant jury members are also finding that their actions during trial could cost them a lot of money.

In a Michigan case last month, a juror posted that ,”it’s going to be fun to tell the defendant he’s GUILTY” before the trial concluded. Defense attorneys brought the posting to the Judge’s attention and the Judge dimissed the juror, fined him $250, and made him write a 5-page essay on the Constitutional right to a fair trial. In February 2010, a New York juror sent a Facebook “friend” request to a key witness in the criminal trial, clearly violating the Court’s instruction which prevents jurors from communicating with individuals involved in the trial. In March 2009, 9 Florida jurors admitted to the Judge that they conducted their own internet research in the case, causing the Judge to declare a mistrial after eight weeks of evidence had been presented.

The examples are endless. Jury misconduct can, and often does, cost a lot of time and money. Citizens serving on juries must remember why they are sitting in that jury box and refrain from actions that compromise the trial. After all, it’s not just the defendant’s rights that are being preserved, but the rights that we all enjoy. We owe it to ourselves as citizens to act in a way that preserves our Constitutional rights, not threatens them.


This blog post topic is a summary of the internet article posted by Harry Valetk.

For more on this topic, visit the internet article posted by Joel Cohen & Susan Helm.

Filed Under: Financial Health, General

Help End Domestic Violence

October 12, 2010 By Nadia Gilkes, Esq. Leave a Comment

End Domestic ViolenceAt least 1 in 4 women and 1 in 9 men will be the victims of domestic violence at some point in their lives. (US statistics)

On average, more than 3 women are killed by their spouse or boyfriend every day. 

2 million women and 600,000 men are injured by their intimate partners every year.

More than 320,000 women are injured each year by their intimate partner during their pregnancy.

1 in 5 female high school students reported being sexually or physically abused by their dating partner. There is a direct correlation between teen domestic violence and teen pregnancy, as well as a correlation between teen domestic violence and teen suicide.

The statistics are staggering and the victims keep getting younger. We must come together to end domestic violence. There are many ways that all of us can work to end this epidemic.

- If you know someone who is the victim of domestic violence, help them find resources such as counseling or domestic violence shelters.
- If you work with someone who is being abused, keep a journal of their injuries and absences. This could be used as evidence if the offender is ever brought to trial.
- Volunteer to man the phone lines at a local hotline call center.
- Join the Million Voices Campaign and become a catalyst in your community. Education yourself on the Domestic Violence epidemic and spread the word. Take advantage of the free education materials provided by the National Domestic Violence Hotline.
- SHOP TIL IT STOPS!! October is Domestic Violence Awareness month and many have joined forces to raise awareness and end the stigma of domestic violence. During the month of October, you can shop for a cause. You just may save a life in the process.

  • Throughout October, Celtic Rock Band Apsylon is donating 100% of the profits from all digital downloads from their website. The proceeds will go to benefit the National Domestic Violence Hotline and loveisrespect.
  • Project Runway’s Tim Gunn joins Marshalls in presenting their shoe promotion. From October 1st, 2010 – October 15th, 2010, Marshalls will donate $1 to the National Domestic Violence Hotline for every pair of shoes sold. Click the link below to watch the video.

Tim Gunn and Marshalls presents Shop Til It Stops!

For more information on Domestic Violence and to see what you can do to help, including making a donation to the cause, please visit the National Domestic Violence Hotline.

Filed Under: Family Law

Paternity Matters

October 12, 2010 By Nadia Gilkes, Esq. Leave a Comment

It’s been over a year since Steve McNair was killed and his estate is still up in the air. Since he didn’t leave a will to manage his estate, his widow was left to move forward with the Probate Administration without much guidance as to how the estate should be distributed. McNair and his wife Mechelle had two young children, Tyler and Trenton. McNair also had two other children from two additional women – Steven L. McNair, Jr. and Steven O.K. McNair. Despite the fact that the older two children carried her husband’s name and knew him as their father, Mechelle initially left them out of court documents when identifying McNair’s heirs to the Court. Her reasoning was that she lacked sufficient information to confirm or deny whether Steve was their father or not. Rumor has it, there was strife among the families long before Steve McNair passed away.

This is an excellent example of 1) why everyone should have a  Will; and 2) why it is important to establish paternity for your children.

If you have a properly executed Will, the Court will distribute your assets as you have requested as long as the items are available in your estate. Barring a lawsuit to contest the Will, beneficiaries cannot easily be overlooked when their share of the estate is outlined in the Will and accepted by the Court. In our current society where blended families are the norm, it is strongly recommended that you put your wishes in writing so no one can discredit your intent later. This prevents confusion over where your assets should go, and it would help to prevent your spouse or some other relative from disowning your children after you are gone.

In the case outlined above, Steve McNair named his two oldest kids after himself and reportedly took care of them throughout his lifetime, so one would think this would be enough to protect their rights as his heir. Well this is not necessarily the case. In some states, such as Texas, your rights as a father are not established or protected until you have formally taken the responsibility of being a father. There are three types of fathers in Texas:

1. Presumed Father
- You are married to the mother of the child when the child is born; OR
- You were married to the mother and the child is born within 300 days of the divorce; OR
- You married the mother of the child after the child was born AND voluntarily placed your name on the birth certificate, signed an acknowledgement of paternity, or promised to support the child as your own; OR
- You reside with the child during the first two year of his/her life and represent to others that you are the father.

2. Acknowledged Father
The mother must sign an Acknowledgment of Paternity with the man claiming to be the biological father of the child. This form must be signed under oath, in the presence of a certified official, and filed with the Bureau of Vital Statistics. A DNA test is not required to sign an Acknowledgment of Paternity. This document has the same effect as a Court determining that you are the father.

3. Adjudicated Father
A Judge determines that you are the father after reviewing evidence (usually a DNA test) or hearing testimony on the matter of paternity. A man may also submit a pleading to the Court stating that he is the father, or testify to that effect under Oath in open Court.

As you can see, your legal rights are not preserved by merely giving the child your name or even by signing the birth certificate. There are a few additional steps to be taken before you are considered a child’s father under the eyes of the law. Once you are legally determined to the be father of a child, your parental rights are then protected. This includes the right to visitation and/or custody, as well as the right to make decisions regarding the child’s upbringing. Establishing your rights as a father also attaches the duty to support the child which generally means paying child support and medical support if you are not the primary custodian. Legally establishing your paternity also gives your child the right to inherit from you after you have passed away. When your rights are properly established and accepted by the Court and/or Bureau of Vital Statistics, it is very difficult if not impossible for someone to invalidate that later.

The Texas Department of Vital Statistics keeps track of parentage records and has devoted a FAQ section to their website to answer general questions. If you would like to file a Petition to Adjudicate Parentage, feel free to call our office to discuss the circumstances of your case.

Filed Under: Estate Planning, Family Law, Paternity

Steps to Financial Freedom

September 25, 2010 By Nadia Gilkes, Esq. Leave a Comment

 

Can’t seem to get ahead financially? Debts piling up? Maybe you’re making some of these mistake unknowingly. These mistakes listed below will help you understand where you may be going wrong and how to get back on track quickly. You can be debt free.

Mistake 1. Living Beyond Your Means

This is the real cause of your worry and stress. If you are spending more than you are earning, whose money are you spending? It’s the credit card provider’s or the bank’s. The cost of this money is interest.

The way out – Make a Commitment to yourself only to spend within your income limits. Maybe you could increase your income (or cash in) by applying for more skilled positions, selling some of your unused articles or assets. Is the second car really a necessity? What about working out ways to make your hobby pay for itself?

Why not find ways to reduce your spending? How much would you save each year if you decided not to have the daily coffee shop coffee? Why not make your work lunch each day rather than buying it? Commit to only buying the necessities.

Mistake 2. Paying Off Less Than the Full Credit Card Balance Each Month

Get this debt under control and your life will be much easier. If you are like many others and only pay the minimum balance each month, the interest on the interest makes those purchases oh so expensive.

The way out – Find ways to put aside more money to apply to the credit cards. It will take time to reach this goal. However, if you don’t make a start now you may never pay them off. This situation did not occur overnight and neither will the solution. But, by diligence and commitment you’ll get there.

Mistake 3. Not Really Knowing Your Financial Situation

Before you can set meaningful goals and develop savings strategies you need to know your financial situation now. The best, proven and tested method by far, is by developing your own personal budget. This is not hard to do. Please don’t give up now. Just follow these simple steps:

The way out -

  1. Find your latest credit card statements. Write down all the unpaid balances.
  2. Are there any other unpaid debts (not home or car) then include these balances as well.
  3. List out your (or family) monthly income. Only the amounts “brought home”. Include all types of income.
  4. Work out your monthly spending. List out where all the money goes. Don’t leave anything out.
  5. Minus the monthly spending total from the monthly income total and review the answer.

This will give you an initial idea as to whether you are living within your means or on borrowed money.

Mistake 4. Continually Adding to Your Debt

If debt has got you into this situation it is critically important not to add to the state of affairs and thus make it worse.

The way out – cut up the credit cards, keeping only 1 for emergencies. Don’t buy on impulse. Ask yourself twice or three times before you buy anything “Do I really need this?” before you hand over your hard-earned money. Don’t buy at the height of the fashion or fad. Commit to never paying full retail for anything. Get it on sale or negotiate a lower price.

Mistake 5. Spending All Your Income

It may sound OK to spend any money you earn but there are risks attached to this strategy. How are you going to pay for emergency items? What about major car repairs. What about major electrical appliance replacement? Are you going to pay for these on credit? Bad idea! How are you going to save for a substantial deposit on the next car?

The way out – Once you’ve prepared your budget you will clearly see what you need to do to put some income aside for other needs such are emergencies and repairs.

Mistake 6. Spending Without Caring About Your Future

Unless you are planning for your future and financial security, you cannot be really happy. There are always worries lurking in your mind about how you would survive in a financial emergency if you have no savings. It can be very rewarding to see how quickly your savings multiply over time with only a small investment each payday.

The way out – Take stock of your life and realize that tomorrow won’t look after itself. It needs your attention. Keep some funds aside to put away for your retirement, children’s college costs, emergencies, holidays and major purchases.

Avoid these 6 spending mistakes and you’ll be well on your way to financial freedom. Guaranteed.

Source: Free Articles

Filed Under: Financial Health Tagged With:

Gay Adoption

September 24, 2010 By Nadia Gilkes, Esq. Leave a Comment

On Wednesday it was announced that the 3rd District Court of Appeals overturned the ban on gay adoption in Florida – the only state in the Nation to have a law of this magnitude. The court ruled that there was no rational basis to allow gay couples to act as foster parents and guardians, but prohibit them from adopting simply based on their sexual orientation. Even those with a criminal records are allowed to apply for adoption and be reviewed on a case-by-case basis.

It is almost a guarantee that this case will be appealed to the Supreme Court where the ultimate decision will be made. But for now, gay couples in Florida can consider this a small victory. This article was posted 9/22/10 at Breaking Legal News: Court affirms overturning Fla. gay adoption ban

In Texas, single parent adoptions are allowed by the GLBT community, however joint adoptions and second parent adoptions vary per County. If you are a gay couple seeking to adopt, please visit Adoption Pride’s website for a list of gay-friendly adoption centers.

Filed Under: Family Law Tagged With:

Facebook Can Be Your Downfall

September 23, 2010 By Nadia Gilkes, Esq. Leave a Comment

Forgot to de-friend your wife on Facebook while posting vacation shots of your mistress? Her divorce lawyer will be thrilled.

“Oversharing on social networks has led to an overabundance of evidence in divorce cases. The American Academy of Matrimonial Lawyers says 81 percent of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the last five years.

“Oh, I’ve had some fun ones,” said Linda Lea Viken, president-elect of the 1,600-member group. “It’s very, very common in my new cases.”

Facebook is the unrivaled leader for turning virtual reality into real-life divorce drama, Viken said. Sixty-six percent of the lawyers surveyed cited Facebook foibles as the source of online evidence, she said. MySpace followed with 15 percent, followed by Twitter at 5 percent.

About one in five adults uses Facebook for flirting, according to a 2008 report by the Pew Internet and American Life Project. But it’s not just kissy pix with the manstress or mistress that show up as evidence. Think of Dad forcing son to de-friend mom, bolstering her alienation of affection claim against him.” Article originally posted on Breaking Legal News

If you are currently going through a divorce or custody battle, it is best to deactivate your social networking accounts until your legal woes are over. Many people are not familiar with the privacy settings on their account and end up revealing much more than they anticipated. It can also be difficult to determine who’s side your “mutual friends” are on, until they are in court testifying against you and backing up their testimony with posts from your social networking pages. Family Law trials can be very costly and you don’t want to lose your case because of a Facebook posting. Be on the safe side and be VERY careful about what is posted or just deactivate the account for the time being. The short inconvenience of being offline could save a lot of humiliation and heartache down the road.

Filed Under: Family Law Tagged With:

Divorce Insurance

September 20, 2010 By Nadia Gilkes, Esq. Leave a Comment

A new concept was brought to my attention today that I wanted to share with you. I’m sure you’re familiar with Life Insurance, Health Insurance and Auto Insurance. Now, there is a new insurance hitting the market – Divorce Insurance. That’s right, you can purchase insurance to protect you in the event your marriage ends in divorce. This is a new concept, but with the divorce rate over 50% in many jurisdictions, it might be worthwhile to consider. In many instances, people take a huge financial blow after divorce.

In Texas and many other community property states, everything in a marriage is split 50/50 including salary, stock options, and retirement benefits. If one person is the primary breadwinner while the other person remains at home throughout the marriage, the breadwinner can work years to accumulate wealth and security – only to see their spouse walk off with half of it in a divorce. As a consequence, many people spend years after a divorce living at or near the poverty level while trying to get back on their feet. This reality makes divorce insurance a great idea.

The cost of divorce insurance starts at $15.99 per month which pays out a minimum of $1,250 upon divorce. Additional insurance can be purchased to pay out a maximum of $1.25 mil. The amount of your payout depends on the policy limit purchased and the length of time you’re insured. Your marriage must last a minimum of 4 years to qualify for a payout.  If your marriage ends sooner than 4 years, you may qualify to receive all of your premiums back. For more information, visit Wedlock Divorce Insurance. This just might be your financial lifeline should your marriage take a turn for the worse.

Filed Under: Family Law Tagged With:

The Ins & Outs of Guardianships

September 16, 2010 By Nadia Gilkes, Esq. Leave a Comment

Are your parents or another loved one getting forgetful? Are they unable to care for themselves or manage their own finances? Have they been diagnosed with Alzheimer’s or Dementia? If so, then it may be time for you to consider Guardianship.

A guardian is a court-appointed individual who is responsible for making personal and financial decisions for an incapacitated individual who can no longer take care of their personal well-being or manage their financial affairs. The person who is given a guardian is often called a Ward. The guardian decides everything from where the ward lives to what medical procedures will be administered. A guardianship is generally necessary when there is no power of attorney in place or some other provision to allow an agent to make decisions for the incapacitated person.

Once a guardianship is put in place, the ward loses all of their personal rights including the right to drive, vote, marry, and enter into a contract. Guardianships can also be somewhat invasive. Each year the guardian must supply an updated report to the court detailing the ward’s current status. The court also sends an investigator out each year to meet with the ward and evaluate his/her conditions.

The guardianship process can be somewhat costly, depending on the circumstances. There are filing fees due to the court and doctor’s fees for the evaluation of the proposed ward. If there is enough money in the estate to cover the costs, the Judge will order the costs to be paid by the Ward’s estate. The individual seeking to be appointed as guardian will also need to hire an attorney to act on his or her behalf throughout the guardianship process.

The primary goal of a guardianship is to make sure an incapacitated person is properly cared for. If you are in a situation where a loved one is in need of assistance, you should start the process right away. It can be anywhere from two to six months to finalize a guardianship, barring any complications.

For more information on guardianships or viable alternatives, feel free to give me a call. I’d be more than happy to answer any questions you may have and guide you through the process of ensuring your loved one’s safety and security.

Filed Under: Guardianship Tagged With:
« Previous Page
© 2012 - Sitemap - Privacy Policy
Admin