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Dallas Divorce Attorneys, Mark Nacol and Julian Nacol
Based in Dallas, Texas, the Nacol Law Firm PC, traces its roots to the firm of Mark A. Nacol and Associates PC, established in 1979. The Nacol Law Firm team shares its experience on a variety of legal topics here. See our recent posts below.
Texas Cohabitation – Domestic Partnership Agreements for Boomer & Senior Couples
Premarital and post-marital agreements in Texas have a complex history immersed in the community property presumption, the state constitution, statutes and case law. Originally, such agreements were found to be unenforceable. But with amendments to the Texas Constitution, evolving statutes, recent case law, and improved draftsmanship, such agreements are now enforceable under contract law.
For many Boomer and Senior couples, living together is a precursor to marriage; for others because of family issues or commitments, there is no intent to ever marry. The simple fact is, domestic partnership agreements address a wide variety of circumstances, many involving established adults who want to be together but because of prior financial and family commitments prefer to have an applicable contractual agreement for their legal needs.
Many couples choose to live together so they do not lose certain benefits under current rules of social security, military and insurance disability programs, or to stop those benefits from being taken away from their children. In other cases, couples who are divorced, and who may have children, may want to protect certain assets. In situations such as trust funds or inherited funds, beneficiaries simply do not want to place family money at risk. Other couples choose to shelter their own resources from the real or perceived obligations of their partner.
The marital agreement is considered to be a contract under Texas law. The premarital agreement must be in writing and signed by both parties. No actual consideration is required; however, to conform to contractual law, it may be wise to provide benefits for the non-monied party to avoid a later finding of unconscionably, particularly if the financial or physical condition of the non-monied party under the agreement is poor.
Matters that may be dealt with in a premarital agreement include, but are not limited to, the following:
- 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;
- 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;
- The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
In post-marital agreements, it has been noted that a fiduciary duty exists that is not present in pre-marital agreements between spouses or prospective spouses. Case law states that a confidential relationship between husband and wife imposes the same duties of good faith and fair dealing on spouses as required of partners and other fiduciaries. However, adverse parties who have retained independent counsel may not owe fiduciary duties to one another. Texas Legislature enacted Section 4.105 with the understanding that married spouses owing fiduciary duties to one another would negotiate and execute post-marital agreements. Notwithstanding these duties, the legislature manifested the strong policy preference that voluntarily made post-marital agreements are enforceable.
Beside a Cohabitation and Domestic Partnership Agreement, what other documents should you supplement for a more complete legal coverage?
- 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
- Partnership agreement to set out and clarify property rights, define ownership and related issues upon dissolution
Cohabitation, domestic partnership, premarital and post-marital 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.
Texas Family Laws : Effective Date Sept 1, 2015
The 2015 Texas Legislature was active on family law bills and changes to the Texas Family Code! These many changes to various provisions of the family code could legally affect you and your family.
Some of the more important 2015 Family Laws, Amendments, and Revisions:
House Bill 826 amends the Family Code to require a child support order to contain a specified statement regarding the circumstances under which a court may modify a child support order. Effective: 9-1-15
House Bill 1447 amends the Code of Criminal Procedure to expand the persons authorized to file an application for a protective order for certain victims of sexual assault or abuse, stalking, or trafficking and to entitle victims of those offenses or the victim’s parent or guardian to additional crime victims’ rights relating to the protective order to provide the notice in the prescribed manner a Class C misdemeanor. Effective: 9-1-15
House Bill 1500 amends the Family Code to require a person who files a motion for a temporary order in a suit for modification of the parent-child relationship to execute and attach to the motion an affidavit that contains facts that support the allegation that the child’s present circumstances would significantly impair the child’s physical health or emotional development. The bill establishes a court’s duty to schedule a hearing if those facts are adequate to support the allegation. Effective: 9-1-15
House Bill 1782 amends the Family Code to establish, for purposes of a family violence protective order, the presumption that family violence has occurred and is likely to occur in the future if the respondent has been convicted of or placed on deferred adjudication community supervision for an offense involving family violence against the child for whom the petition is filed, the respondent’s parental rights with respect to the child have been terminated, and the respondent is seeking or attempting to seek contact with the child. Effective: 9-1-15
House Bill 1923 amends the Civil Practice and Remedies Code to include a retired or former statutory probate court judge among the judges eligible to serve as a special judge in certain civil or family law matters. Effective: 9-1-15
Senate Bill 206 amends the provisions of the Education Code, Family Code, Government Code, and Human Resources Code relating to the functions and administration of the Department of Family and Protective Services (DFPS). The bill revises and streamlines agency procedures involved in adoption cases and child protective services cases by changing various record keeping, notification, and casework documentation requirements and provisions governing the investigation of a report of abuse, neglect, or exploitation of a child and by condensing and updating provisions governing procedures in a child protection suit, including adversary and permanency hearings, and the performance of a child placement review for a child under DFPS care. The bill establishes annual reporting requirements for DFPS regarding key performance measures and data elements for child protection and sets out notification requirements relating to significant events for a child in DFPS conservatorship involving the child’s placement, medical condition, prescribed drugs, and school performance; revises provisions governing foster care, including requirements that foster children be provided access to certain personal information and documents; and sets out requirements for implementing foster care redesign. The bill consolidates and restructures provisions regarding prevention and early intervention services, including the child abuse and neglect primary prevention program, and requires the development and implementation of a strategic plan for those services within DFPS. The bill revises provisions relating to public school admission and attendance of, and eligibility for an exemption from tuition and fees for, students under DFPS conservatorship.
The bill broadens the authority of DFPS to obtain criminal history record information regarding certain persons; authorizes the executive commissioner to adopt rules regarding the purpose, structure, and use of advisory committees by DFPS; and requires the development and implementation of an annual business plan for the child protective services program to prioritize the department’s activities and resources to improve the program. The bill provides for an enforcement policy for the regulation of certain child-care facilities, homes, and agencies and revises provisions governing administrative remedies for those regulated entities.
The bill requires DFPS to study whether provisions governing authorization agreements between the parent of a child and a nonparent relative should be expanded to include authorization agreements between a parent of a child and a person who is unrelated to the child. Effective September 1, 2016, the bill updates provisions governing the licensing and certification of certain child-care facilities, homes, and agencies. Effective: 9-1-15
Senate Bill 314 amends the Family Code to detail what information the Department of Family and Protective Services and a court appointing a nonparent as managing conservator of a child must provide to the nonparent. Effective: 9-1-15
Senate Bill 550 amends the Family Code, Government Code, Insurance Code, and Labor Code to establish a court’s duty to render an order for the dental support of a child in a suit affecting the parent-child relationship or in a proceeding under the Uniform Interstate Family Support Act. Effective: 9-1-15
Senate Bill 813 amends the Family Code to establish that a digitized signature on a pleading or order in a proceeding involving the marriage relationship, the child in relation to the family, or a protective order satisfies the requirements for and imposes the duties of signatories to pleadings, motions, and other papers identified under the Texas Rules of Civil Procedure. Effective: 9-1-15
Senate Bill 814 amends the Family Code to establish the authority of a party to a suit to remove the disabilities of minority, a suit to change a person’s name, or a suit affecting the parent-child relationship to waive the issuance or service of citation. The bill revises requirements for a waiver of service in a suit for dissolution of a marriage. Effective: 9-1-15
Senate Bill 815 amends the Family Code to expand the types of activities a court may prohibit by temporary restraining order in a suit for the dissolution of marriage. Effective: 9-1-15
Senate Bill 818 amends the Family Code to require a court to order that each conservator of a child has the duty to inform the other conservator of the child of certain information regarding the conservator’s involvement with a person who is the subject of a final protective order or if the conservator is the subject of such an order. The bill establishes deadlines for providing the notice and makes a conservator’s failure to provide the notice in the prescribed manner a Class C misdemeanor. Effective: 9-1-15
Senate Bill 1726 amends the Estates Code, Family Code, and Government Code to revise and clarify provisions relating to suits affecting the parent-child relationship, including provisions relating to Class 4 claims against an estate, the conditions under which a court is authorized to order that certain information not be disclosed to a party to a suit, notice requirements regarding enrollment in or termination of benefits under an employer’s health insurance plan, and notice requirements and enforcement mechanisms for certain child support orders. Among other provisions, the bill provides for electronic notarization of required signatures in a proceeding filed under provisions relating to the parent-child relationship. Effective: 9-1-15
To view more information on the 2015 Texas family law bills, amendments, and revisions go to Texas Legislature Online @ http://www.capitol.state.tx.us/
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization