Contested Divorce Strategy #387: Navigating Standing Orders for a Tactical Advantage

When divorce becomes unavoidable, strategic pre-filing preparation can be crucial. Advanced tactics can significantly impact the outcome, whether the primary concern is property division or child custody and support. Understanding Texas divorce standing orders—automatic court-imposed rules that take effect at the moment of filing—can help individuals plan effectively.

Understanding Texas Divorce Standing Orders

Texas courts enforce standing orders to regulate financial and property-related actions during divorce proceedings. These orders typically restrict both parties from:

• Spending money beyond necessary living or business expenses.
• Cancelling home utilities or insurance policies that affect the other party.
• Removing the other spouse’s name from financial accounts.
• Making large withdrawals from joint accounts.

Gaining a Strategic Edge

To avoid violating standing orders, some individuals withdraw funds or adjust utilities before officially filing for divorce. This can create an advantage, as any retaliatory action taken by the spouse after filing might put them in violation of court mandates.

Potential Risks & Legal Considerations

Pre-divorce financial maneuvers can have consequences. Judges may view actions such as removing a spouse’s name from financial accounts or stopping auto-payments on their loans as unethical, potentially resulting in court-ordered penalties. Wealthier spouses should also consider whether the court may require them to financially support the other party during the divorce process.

Judge-Specific Outcomes

Divorce rulings vary based on judicial perspective—some judges prioritize procedural fairness, while others penalize aggressive financial tactics. Consulting an experienced divorce attorney is essential to assess risks, local court tendencies, and strategy effectiveness.

The Power of Financial Leverage

Strategic financial moves can make divorce negotiations more favorable, especially if one spouse is left without funds to secure legal representation. A weakened financial position can drive quicker settlements, preventing lengthy courtroom battles.

Conclusion While pre-divorce financial tactics can shift the dynamics in your favor, they carry potential risks depending on judicial temperament. Seeking legal counsel ensures a well-informed approach tailored to your circumstances, avoiding penalties while securing the best possible outcome.

Removing a Probate Executor: What You Need to Know

When dealing with probate law, the executor plays a crucial role in managing the estate according to the deceased’s wishes. If there is no Will, this role is typically referred to as an administrator. However, conflicts can arise—especially when an executor is a sibling and other heirs feel their interests are being neglected or the estate is being mismanaged.

Grounds for Removing an Executor

If tensions escalate, heirs may seek to remove the executor and appoint a more suitable replacement. Courts can also remove an executor without notice under specific circumstances outlined in Texas Estates Code, Section 361.051. However, heirs must formally request removal through probate litigation.

Common reasons for removal include:

• Embezzlement or serious financial misconduct
• Failure to provide an accounting as required by law
• Disregarding probate court orders
• Gross mismanagement of the probate estate assets
• Incapacitation preventing the executor from fulfilling duties
• “Other causes” that hinder proper estate administration (admittedly wide-open).

Challenges in Executor Removal

Before pursuing removal, heirs should consider potential pitfalls:

• The court must decide who will replace the executor. If heirs propose a replacement, the current executor may object.
• In many cases, courts appoint a neutral third-party probate attorney, whose fees are charged to the estate—often making this option less desirable than keeping the current executor.

What Happens at a Removal Hearing?

If the court finds significant estate mismanagement affecting heirs’ distributions, then the executor is likely to be removed. However, if the issue is a lack of communication, the court may simply order the executor to provide more information rather than remove them.

Final Considerations

Removing an executor is a legal step that should be pursued only if it truly benefits the estate. If the issue is merely a personal conflict, then removal may not be the best course of action. A good suggestion is to suggest a pre-motion mediation with the executor.  Oftentimes, this is a cheaper means of settling disputes.  Consulting a probate attorney experienced in estate litigation can help determine the best approach.

The Probate Process When a Will Exists: A Step-by-Step Guide

Probate plays a crucial role in settling the estate of a loved one or friend who has passed away. During this legal process, the probate court examines the validity of the will to ensure it meets all requirements for distributing the decedent’s assets. The court also ensures heirs and creditors receive proper notifications regarding their rights to estate property.

Why Contact a Probate Lawyer Immediately?

When a loved one passes, anyone interested in managing or receiving estate property should seek legal counsel as soon as possible. A probate attorney can provide essential guidance on preserving assets and navigating potential creditor claims, ensuring a smooth administration of the estate.

Filing for Probate and Will Approval

In most cases, the probate process begins with filing an application with the court clerk. Alongside this filing, the original will is submitted for review. The court posts a notice—typically at the courthouse—before the named executor appears in court. The executor must testify about the validity of the will and their qualifications to serve in this role.

If the judge grants approval, the court issues an order validating the will. The executor then swears an oath, committing to fulfill the terms outlined in the document.

Notifying Beneficiaries and Creditors

Once probate is approved, beneficiaries receive official notifications along with a copy of the will. The executor also ensures that secured creditors are informed. To maintain transparency, the executor must provide a written inventory of estate assets. This step helps beneficiaries understand what they may inherit, while creditors assess available property for settling outstanding debts.

Probate Administration: Why It Often Remains Open

Interestingly, many probate cases remain open indefinitely. This allows executors to address unexpected claims or changes in estate settlement, ensuring all legal matters are appropriately handled over time.

Treatment of Creditor Claims in Probate

There are often time limits involved in these procedures which may not be discussed below.  Therefore, it is important to get a probate attorney to give you proper advice on handling creditor claims.

Probate creditor claims are generally handled by Section 355.102 of the Texas Estates Code.  Claims and are typically paid in full, but by class, until the property of the estate is exhausted.  Creditor claim classes are roughly provided in the following order:  First, funeral expenses and expenses of the decedent’s last illness; Second, expenses of administration of the probate estate, including expenses incurred in preserving estate property; Third, secured claims by which an election has been made to pay as a matured secured claim; Fourth, delinquent child support; Fifth, unpaid child support; Sixth, taxes and tax penalties; Seventh, any other claim for money.  If the estate runs out of money prior to the payment of all such claims, then those claims of lower priority simply must do without.

SECURED CLAIMS

As secured claim is a claim in which the creditor has a right, in some form or fashion, to recover, foreclose, or repossess the collateral.  Typically, car loans, home mortgages, tax liens, etc., are examples of secured claims.  When a secured creditor has a claim, then it must indicate whether it wishes to have such claim treated as a “matured, secured debt,” or, alternatively, as a “preferred secured debt.”  If the election is made to be paid as a matured secured debt, then all estate property (not just the collateral) may be used to pay such claim, but there is no longer a right to foreclose or to repossess.  On the other hand, if a preferred debt is elected (a preferred debt is the default option, where no election is made), then only the collateral itself may be used to satisfy the creditor’s claim.  With a preferred claim, the creditor maintains its right to foreclose on the property.

There are options, such as family allowances, etc., which affect how claims may be satisfied from estate property.

DIVORCE – DON’T SHOOT YOUR OWN FOOT OVER BUSINESS ASSETS

If you have a spouse who owns a business, then that business is likely going to be a community property asset, regardless of whether you have ever had any involvement in either its creation or its management. Consequently, in divorce cases wherein feelings may be bruised, and emotions high, there may be a temptation to harm your spouse’s business—colloquially known as “burning down the business.” But as you now know, that business is likely to be half yours, so never harm your own property. Secondly, even if you feel that you are incapable of running your spouse’s business, you still can benefit enormously from it, post-divorce. As a going-concern, businesses are often worth several multiples of their current assets and income due to “good will,” or the tendency for customers to bring repeat business or to recommend a business to other customers. So, where you’ve got a spouse with a business, make sure that he or she stays in business. Upon division of the marital estate, that business, even if not awarded to you, may go far in determining how much of the house, the 401k, pension, or other assets are eventually granted you.

Nevertheless, if your spouse is in business, then literally THOUSANDS of dollars can be saved in a contested divorce by quietly accumulating business records and tax documents, pre-divorce, which may show what value the business truly has for your spouse. This is true because, once a contested divorce is filed, it is almost certain that your spouse is going to find inventive ways of making that business appear to be worth much less than it actually is. For your part, taking pictures of inventory on a typical day, or collecting phone records showing customer calls, all can go far in refuting your spouse’s claim that the business is “nothing more than a hobby” or that it’s a failing concern and should be shuttered.

Child Support Modification

Changes to child support modification suits. Commencing September 2018, the legislature changed the conditions for modifying a child support order. Under the previous scheme, a court could modify a child support agreement which deviated from the statutory guidelines set forth in the Texas Family Code, for any one of three reasons:

Reason #1: There has been a “material and substantial change in the circumstances of the child or person affected by the order” since the rendition of the original order.

Reason #2: The parents of the child have reached a mediated or collaborative law settlement which does not following the guidelines.

Reason #3: Within three years of the original order being rendered or last modified, the monthly child support payments deviate either 20 percent or $100 from the amount that would have been awarded under Code’s guidelines.

However, commencing September 1, 2018, the courts are now only be able to modify child support orders, even if agreed to, if “the circumstances of the child or person affected by the order materially and substantially changed.” This means that if proposed child support payments differ from Texas Family Code guidelines, then custodial parents will no longer be able to agree to an increase or decrease in child support payments without also showing that the circumstances of the child or a parent have “materially and substantially changed.”

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A Quick Look at Living Trusts

Legal Disputes Regarding Guardianship Over Minor Children

The Basics of Estate Tax Planning