KalishLawTexas' legal blog The Woodlands

Can you really ever prepare for a divorce?  Although people handle divorce differently, you can do some advance preparation from a legal point of view.   It is harder to prepare emotionally, even if you are the one who desires the divorce, and even you know that it is the only option. Counseling can help prepare you for the emotional ups and downs that follow.

Legally, there are some things that you can do to get ready.  Many people try to "tough it out", not asking for help or advice and hoping that everything will fall into place when the time comes.  But having a legal consult well in advance can help make things easier for everyone.

At a legal consult, you can discuss:

1. What are the options for dividing the property?

2. Are any of the property, accounts, or debts likely to be considered one spouse's "separate property"?

3. How can a family business be divided?

4. How can bonuses that are earned, but not yet paid be divided?

5. What might happen with income tax liability or an income tax refund?

6. What amount of child support am I likely to recieve/be required to pay?

7. What are the options for custody and visitation?

8. What about dating during the divorce?

9.  How do I deal with issues of cruelty or infidelity in the marriage?

10. How long does it take to file the paperwork?

11. How will my spouse be notified that I filed?

12. How much does it cost?

13. How long does it usually take to get divorced?

14. How do we do this without missing payments on the house or car?

15. Will I be able to move away with my children after the divorce?

16.  Can I buy a home or refinance our home while I am getting a divorce?

17. What if we can't come to an agreement and have to go to trial?

The initial consult can help you understand all of your options and help you decide if you are really sure that you want to proceed. Everything that you discuss is confidential, and you don't have to proceed with a divorce. You can go away and think about it and return later, or never.  

If you are contemplating a divorce, don't be hesitant to learn all that you can to help in your decision-making process.  

Kalish Law Office "Passionate, Professional and Personal.  We Make the Difference".  Since   1984.

Once a Texas will has been properly drafted and executed, the original should be kept in a safe place.  This should be a place that is dry and safe, such as a fireproof box.  The will may also be kept in a safe deposit box, however, this is not always the best option because it will be less accessible. A safe deposit box should only be used if someone other than the testator (person who signed the will) has access to the box. Ideally, the other person with access will not be someone who often travels with the Testator because there would still be a problem if something should happen to the two of them together.  Therefore, I always advise married couples who want to place their original wills in a safe deposit box to be certain that a third person has access to the box.

If a will is lost and cannot be found, it is possible to submit a copy to the probate court where a probate case is filed.  The Texas Probate Code specifically allows for this, however, there is no guarantee that the document will be accepted by the probate judge as valid and current (unrevoked), especially if there is other evidence to the contrary.

Therefore, it is always best to be very careful to keep the original will safe at all times, and if it cannot be located when needed to make a complete and diligent search for the will. Keep it safe and dry, with other important documents and be sure that you know where it is at all times.

Kalish Law Office The Woodlands, Texas 281-363-3700 "Passionate, Professional and Personal. We Make the Difference".  Since 1984  Check out our probate page on our website for additional information

My last blog post dealt with caring for and helping senior adults, and mentioned some of the challenges that you are likely to encounter.   Now I want to share my review of a book that I discovered.  

”How to Say it to Seniors; Closing the Communication Gap with Our Elders” by David Solie (Prentice Hall Press © 2004) is an excellent guide to communicating with senior adults.    I highly recommend this book for anyone who is dealing with senior adults in a family or a business relationship.

Mr. Solie is a speaker and educator. He has a background in finance, and worked for several years with companies that primarily dealt with senior adults. 

The book presents a fresh and honest perspective on the communication gap between seniors and middle-aged adults. 

We all go through developmental growth / personality development at different periods of our life, he writes.  What is seen too often as a “decline” in older adults can be seen as a normal developmental process. The older person is simply learning to deal with the changes in life, losses, and independence that aging brings.  

Solie states that “the secret mission” of older adults is to 1) maintain control and 2) leave a legacy.  He suggests ways to allow the person to keep control and dignity while dealing with the changes that the person is going through.  He explains why “trying to help” and explaining things logically (or, what is logical to the younger adult) meets with such strong and sometimes baffling resistance, why an older person’s focused occupation with a certain topic makes sense to them but seems obsessive to a younger person and how to deal with “NO!” 

It is written in a manner that is respectful to all concerned.  The concerns and frustrations of all sides are examined thoughtfully.   Various practical ways to approach common problems are suggested.  Although concerns over the elder’s safety and health are treated as serious, younger adults are also advised that sometimes they just have to “let go” and allow the elder person to choose their path.  The most progress is made when the elder person is allowed to maintain as much control and choice as possible.

Of course there are situations that have progressed to the point where physical, emotional or mental issues have rendered the person a danger to themselves or others and someone must step in immediately and take control.  But even those extreme situations can be helped by a willingness to see things from a slightly different viewpoint.

I highly recommend this book to anyone who is dealing with older adults. It is pleasant reading, refreshingly honest, and without psychological, medical or legal mumbo-jumbo.  Just good, solid advice.

Kalish Law Office, The Woodlands, Texas.   www.kalishlawtexas.com Wills, Probate and Elder Law. “Passionate, Professional and Personal. We Make the Difference.” Since 1984

In some of my other blog posts over the years, I have mentioned the excellent "client page" that is available every month in the Texas Bar Journal.  These articles are available online in pdf format. 

The April 2011 Client Page is excellent.  It starts by informing us that "The FBI describes mortgage fraud as one of the fastest-growing white collar crimes in America." 

The article then goes on to describe the various types of scams, how to recognize them, and where to report them.   The article is available in pdf format here: http://bit.ly/j4vpZQ 

The Texas State Bar also has a pamphlet titled "Loan Modification Scam", which is available by calling 1-800-204-2222 or at www.tyla.org.

If you have a pending legal case that will require that you attend a trial or hearing, you may be a bit nervous.  That is quite normal, even for people who have been down that road before.   

If you have an uncontested matter (such as an agreed divorce, adoption, or probate case), you won’t have to worry about “the opposition”.  That can make things less stressful, but most people still tend to worry about how they will appear, whether they will become tongue-tied and what to do if they are asked a question and don’t know the answer.

Here are some guidelines to help take some of the worry out of that court appearance:

1. Dress appropriately. No shorts (not even nice dress shorts), no T-shirts or tanks, nothing with a slogan printed on it. Do not chew gum.  Look and feel professional and stand tall.
2. Don’t forget to turn off your cell phone.  Since it is too easy to assume that it’s on vibrate when it isn’t, it’s best to turn it off altogether.   Nothing angers a judge or bailiff more quickly than a ringing phone blasting away at an inappropriate time.
3. Watch your nervous habits.  Laughing or smiling inappropriately can be misinterpreted as disrespect and constant throat clearing, humming, or change jingling can take the attention away from the case that is being presented.
4. When you have a bench trial (trial in front of the judge):  Look the judge in the eyes when you answer him or her. Be respectful and pleasant, even if you don’t like the judge or what’s being said.  If the judge asks you a question directly, answer him or her directly and briefly.
5. If you have a jury trial: The jury’s perception of you is very, very important.  Be quiet and calm at all times. Do not roll your eyes, shake your head or glare at anyone.   Be calm when communicating with your attorney in the jury’s presence. If you appear to be argumentative with your attorney (who is on your side), the jury members may decide that you are probably an unreasonable or difficult person to deal with in general.
6. Take your time in answering questions.  Listen carefully to the whole question and answer as directly and briefly as you can.  Speak up loudly enough to be heard.   Speak distinctly and if you really don’t understand the question, say so.
7. Relax when appropriate.  When you are in court for a happy occasion (finalization of an adoption, a name change, or to solidify an agreement that has been reached in a long-pending case), it is perfectly fine to smile, look happy, respond to congratulations from the judge and attorneys, and let out a big sigh of relief. 

The above guidelines can help you make your courtroom visit less stressful.  If things don’t go exactly as you planned, promise yourself to learn from the experience and do better if there is a next time.

The attorneys at the Kalish Law Office have been accompanying their clients to court since 1984. Located in The Woodlands, Texas, north of Houston. 281-363-3700

If you have a legal issue that may require you to hire an attorney, you will want to get the most from your initial consultation. Here are some tips to help you do that.

1. When you first contact the law firm, be prepared to briefly state what issue you have. (For example:  “I need to file for a child support increase”, or “I am thinking of starting a new business.”  By stating what you need, the staff will be able to direct you to the attorney who is best suited to handle your case.

1. Prepare a brief summary of the problem and what you hope to accomplish at the consultation appointment.  For example, do you want to have your attorney negotiate for you? Do you want to file suit? Do you want guidance in how to handle the matter yourself? Do you just need to know your rights, duties, and options?

1. Gather and bring any documentation that might be important to the case, especially if the case involves a contract, deed, or decree.  If you have photos or phone logs, look those over, put them in a folder and be prepared to refer to them. If you have been sued, be sure to bring the original citation that you were served.  Even if you don’t need the documents at the first appointment, gathering them will help you review the facts and will save time later.

1. Make copies of anything that you want to leave with the lawyer if you decide to hire him/her. Except in rare circumstances, it is best for you to retain your original documents.  Making an additional copy in advance can save time and expense and will allow each of you to review the same document while talking about the case.

1. Be sure that you know how much the consult will cost and how much time you will be given.   You will want to state your problem, get the attorney’s opinion, and then have a chance to ask any questions that you might have.  A consultation fee will generally be set for a certain period of time (i.e., 30 minutes). For complicated cases, it may be necessary to schedule additional time beyond the allotted time.

Being organized ahead of time will help you get the most from your consult and will help to provide clear communication between you and your attorney.

Adopting a child requires the completion of very specific legal steps.  Long ago, people “adopted” children informally but that is not the case anymore.  There are many laws and regulations relating to adoption, and more laws are coming into effect every year for both domestic and international adoption.

The laws are necessary in order to keep children safe, and to standardize procedures and governmental record keeping.  

The legal steps taken in an adoption vary, depending on whether or not the adoption is domestic or foreign, within the state of Texas or interstate, agency or non-agency, and whether it is an adoption by a stepparent, foster parent, grandparent, other relatives, or by non-relatives.  

Although there are many variables, here are some basics to adoption procedure in Texas.

1. The child must be available for adoption.   The legal rights of any living or legal parent must be terminated by court order. 
2. Everyone who has the legal right to be notified about the procedure must be notified.   This includes biological parents, guardians, a legal father (who can be a non-biological father married to the mother during pregnancy/birth) and any involved agencies. If a party’s whereabouts are unknown, there are certain methods that can be used to give “legal notice”, even if it isn’t “actual notice”.
3. The adoptive parent or parents must pass certain screening in order to adopt.  In most situations, this involves a home study.  The adoptive parent(s) will need to be capable of financially and emotionally supporting the child.  The adoptive parent(s) background will be examined, especially to discover if there are crimes relating to injury or child endangerment, or crimes involving moral turpitude.
4. There must be a petition filed in a court and a judge must approve and sign a final decree.
5. Notification of the legal adoption and name change (when appropriate) will occur. After the final hearing, the adoption will be registered in Austin, and a new birth certificate will be issued.  The new parents will notify social security. In some cases, paperwork will be filed with U.S. Immigration or the Department of State and official documents such as “green cards” or passports will need to be reissued.   

These steps can take a while to complete, even when all parties are in agreement and the adoption is a “simple” one.  In order to gain immigration benefits from U.S. citizen parents, children must usually be adopted prior to age 16 (there is one exception when adopting siblings). 

If you are planning to adopt a child and have any deadlines (for instance moving to another state or country, travel outside the U.S., immigration deadlines) be sure to allow plenty of time for planning and completion by having an early legal consult with an adoption attorney who is familiar with your type of  case.

Kalish Law Office has been serving clients in the areas of adoption for over 26 years.  www.kalishlawtexas.com  281-363-3700

Adoption of an adult can be a fairly straightforward process.   The adoptee’s biological parents do not need to be notified of the adoption and are not entitled to have a voice in the proceedings.

There are many reasons to proceed with a formal adoption, even after the “child” reaches adulthood.  The most common situation is one in which a stepparent has wanted to adopt the child but has not been able to get the approval of the biological parent.  At the time the stepchild turns 18, the papers for stepparent adoption can be filed without notice to the biological parent.

Waiting until a child turns 18 for adoption works quite well in cases where the biological parent has a lifestyle that is unhealthy for the child.   When a biological parent is unstable or violent, it is often unadvisable to contact the biological parent because it may encourage him/her to try to reenter the child’s life, bringing the chaos and danger along for the ride.  Waiting a few extra years can turn a nail-biting situation into a positive and happy one, and decrease the risk of drama or danger.

Some adult adoptees may be well beyond their 18^th birthday at the time of the adoption.  Some of these situations involve stepfamilies, others involve “just like family” groups who want to make their relationship a formal and legal one.   These adoptions are done for emotional reasons, and the reward is well worth it.

Adoption creates the parent-child relationship under the law. As a practical matter, this affects the parties’ abilities to inherit to and from each other. It also affects next-of-kin issues in health care decision making.   Of course, there are other ways to accomplish inheritance goals and grant powers of attorney through proper estate planning but adult adoption will accomplish some of these goals plus satisfy the emotional need for people to be legally connected forever.

A name change may or may not be part of an adult adoption, but if it is desired, it can be accomplished at the same time.

An adult adoption will not be granted by a judge if it appears that it is being sought to defraud creditors or avoid responsibilities under the law.  It may not be granted if the judge believes that someone is being taken advantage of (the judge will look closely at cases in which one of the parties is or may be disabled, elderly, or under duress).   An adult adoption will not grant benefits under U.S. immigration law.

In order to complete the adoption, a petition will need to be filed in family court and there will be a hearing.

If you considering adopting an adult or you are an adult who is thinking of consenting to being adopted, you should carefully consider how every aspect of your life will be affected, how the family will be affected, and be certain that you understand all of the legalities and steps involved in the process.

The Kalish Law Office has been helping families for over 26 years with adult adoptions, child adoptions, family law and estate planning.   www.kalishlawtexas.com  281-363-3700

If you or a loved one has had a major illness, you may find that you have a confusing array of medical bills left after the illness. Getting the paperwork organized so that you know what you are dealing with will help reduce the stress.

Here are steps that you should take to regain control:

1. Organize your bills.  Get control of the paperwork by grouping the bills in a way that makes sense to you, for instance, by in-patient facility, health care provider or by month.  Get folders and label them so that you can easily see what is in each folder.
2. Organize your payment information.  Gather information from your checkbook, cash receipts, or credit cards so that you will know what has been paid, to whom, and when.
3. If you have insurance, collect your EOB (explanation of benefits) documents and put them in order. You can either put them in date order or put each document next to the medical bills that correspond to them.
4. Audit the medical bills.  Check to be certain that you have been given credit for any payments made. Make sure that the health care provider has given you credit for any participating plan reductions ("negotiated or allowed" amount of fee).  Do this by comparing your payment information and EOBs to the medical bills. 
5. If you have been an inpatient in a facility, be sure to ask for an itemized bill.  Audit the bill for accurate dates or double charges, and ask questions if you don’t understand a charge. Remember, unintentional mistakes are made, even with computer-generated bills.
6. If you have insurance, make sure that you are getting the benefits that your plan entitles you to have. For instance, if you see that you have been billed a higher co-payment for being “out of network”, but you don’t believe that is accurate, call and speak with your insurance company.  In some situations, you may be able to have the charges reconsidered and paid at a higher rater (for instance, if it was an emergency or if there was not an in-network provider available).
7. Talk with the hospital or provider to inform them of the “big picture”.  If you have several thousand dollars in medical bills because of a catastrophic illness you may be able to receive a reduction in the bills or a payment plan.  Some facilities have specific guidelines for situations in which there has been a catastrophic illness, or there is little or no insurance coverage.  Telling your story and sending small regular payments may prevent your bills from going to a collection company.
8. If you are the surviving spouse and are looking at “last illness” bills, you may want to have a legal consult. A probate attorney can assist you by helping you plan how to pay the bills and manage the funds of the estate.
9. Seek professional assistance from an attorney if you need help with understanding your insurance contract, debtor/creditor law, formulating a plan for paying your debts or other legal aspects of your situation.

So…. you want to start a new business. 

There are a lot of practical and legal considerations to doing so.  Unless you have decided to just run the business under your personal name, then you are going to have to choose a name for the business.  Here are some tips for doing so, from both a legal and a marketing perspective.  

Ideally, the name of the business will say something about what type of business it is.  A name that immediately makes the consumer think about the goods or services you provide will take advantage of every marketing opportunity.   For instance, what if you saw a business named “Yellow”? Some people would immediately think of clothing.  Others would think of home decorating.  Or, it could be a flower shop or gardening center.  But, if the business is called “Yellow Cab Company”, the consumer does not have to guess.  This means that every time a “free basic listing” occurs online or in print, the owner of that business reaps some benefit without having to pay the additional fee for a category listing.

Be memorable but know your audience.   An amusing play on words can make a business memorable.  But don’t be too “cutesy” unless you are targeting babies, children or pets as your audience. A cloying, overly cute name can turn off serious consumers.

Be sure people can spell it.  If you have a name that no one can spell, consumers may get frustrated when they try to find you online or when they call directory assistance. This especially applies to foreign words.  Just because you think that “articoli meravigliosi” would be a great name for your Italian jewelry business, it doesn’t mean that consumers will take the time to figure out how to spell and pronounce it.   

If you are marketing to particular ethnic groups you should make sure that your business name doesn’t mean something undesirable or unintentionally funny in the foreign language.  If you are opening a restaurant, make sure the name doesn’t sound unappetizing.  

Most importantly from a legal point of view, make sure you are not taking someone else’s business name!  One of our prior blogs explained the different types of filing, for registration and protection of a business name. http://bit.ly/csSgTE   Filing/registration may be appropriate at the local, state, or federal level.  

If you don’t take the time to properly name your business it could cost you dearly.  You may pay the price in legal fees (defending a lawsuit against you: for using someone else’s name), lost profits (if customers can’t find or pronounce the name), and/or reprints of letterhead, business cards and website changes.

The Texas Secretary of State maintains a search function on its website so that you can check the availability of names which are registered at the state level.

An experienced business attorney can assist you with the legal aspects of the business set-up, and can share insights into the practical aspects as well.  An experienced business attorney who has operated a business in your geographical area and has been experience in representing small businesses and family businesses is a wise choice.