September 2012 – The Law Offices of Bobby L. Warren, PLLC

After a person goes through a divorce in Texas, they should have a task list of matters that must be handled soon after the divorce is completed. Some are obvious, such as removing a spouse from bank accounts, changing names on deeds or titles, or perhaps even changing their own name immediately after the divorce. An often forgotten task that should be on that list, however, is changing the beneficiaries on various insurance policies, retirement accounts and bank accounts.

Many newly divorced people (and sometimes even their attorneys) mistakenly rely on Texas law to protect them in this circumstance. Someone might tell you, “It’s okay – Texas law prohibits your ex-spouse from being a beneficiary unless you re-designate them on the policy.” That statement, however, doesn’t tell the whole story.

Section 9.301 and 9.302 of the Texas Family Code describes the effect of divorce on a life insurance policy (9.301) or a retirement or other financial plan (9.302) in the event the ex-spouse is a beneficiary. In a nutshell, the designation is no longer effective unless you re-designate the spouse, if the spouse is a beneficiary under the divorce decree, or unless they are named as a trustee or beneficiary of a trust to which the benefits are to be paid.

Keep in mind, however, that unless the insurance company or plan administrator is advised of the divorce before benefits are paid out, your family could lose out on the ability to go after the insurance company or plan administrator for wrongfully recognizing the old beneficiary designation. Sure, you could still go after the recipient of the funds, but that could be a much more difficult task than going after the company handling the policy or fund.

What is the lesson to be learned from this post? First and foremost, a divorced spouse needs to review all of their retirement, insurance and other financial plans to ensure they know who the beneficiaries are and to change those beneficiaries to reflect who they wish to ultimately benefit from those plans in their event of their death. If, however, that is not done in a timely manner, the alternate beneficiaries or the divorced spouse’s heirs need to notify the insurance company or plan administrators as soon as possible after the death of the divorced spouse in order to invoke the protections provided under the Texas Family Code.

To find out more about the effect of divorce on your insurance policy, retirement plan or other financial matters, contact our Houston divorce attorney, Bobby L. Warren, at 713-579-9702.

Most of my new clients are often confused at first when we refer to a “standard possession order”? What is it, exactly? What makes it “standard”?

As the Texas legislature has further developed the Texas Family Code, they attempted to create a default possession order that courts would be obliged to implement unless there was evidence that a different schedule would be in the best interests of a child. Hence, the standard possession order was born.

In essence, under Texas law, the standard possession order is deemed to be the minimum amount of time of possession for a non-primary conservator (the parent who doesn’t determine the residence of the child) which is in the best interests of the child. In other words, absent some evidence to the contrary, once a court determines who a child is living with on a regular basis, the court must award the other parent, at a minimum, the custody schedule contained in the standard possession order.

That does not mean, of course, that the court cannot hear evidence that less access and possession would be in the child’s best interest. If a parent shows an inability to care for a child for an extended period of time for whatever reason, a court could choose to curtail that time. On the other hand, if a parent presents evidence that more time with the non-primary conservator would be in the child’s best interests, time above and beyond a standard possession order may be awarded.

So what sort of schedule is implemented in a Texas standard possession order? Initially, we should examine the weekend possession. Under a standard possession order, a conservator is awarded access and possession on the weekends following the first, third and fifth Friday of each month. If you look at a calendar and focus solely on the Fridays on that calendar, you will see either four or five Fridays. If a month has four Friday’s, the conservator with a standard possession order would have the child on the weekends following that first and third Friday. Generally, about four months out of every year have a fifth Friday (2016 is one of those odd ducks containing five months with a fifth Friday), allowing the non-primary conservator an extra weekend. You should note that this creates a situation where the fifth Friday is immediately followed by the first Friday of the following month. This does provide a conservator under a standard possession order back-to-back weekends of access and possession of the child.

In addition, the non-primary conservator will generally have time on Thursday evenings throughout the school year. Why only during the school year? This restriction is put in place in order to avoid the conflicts that these Thursday periods of possession would inevitably have with various holiday periods of possession, as we will investigate further below.

For holidays and school vacations, the schedule usually varies depending on whether it is an even or odd year. Parents generally alternate Spring Break and Thanksgiving vacation by even and odd years. Christmas vacations is split in half (with the exchange occurring at Noon on December 28), with parents getting either the first or second half of the vacation depending on whether it is an even or odd year. Finally, the non-primary conservator will generally get 30 days with the child in the summer, either to be taken all at once or divided up into two periods of possession, with some restrictions.

Finally, it should be noted that a slightly different schedule applies for conservators who reside more than 100 miles from one another.

Keep in mind that this is not an exhaustive look at the standard possession order – this is merely a primer on the concept of a standard possession order. If you have questions about implementing a standard possession order, or perhaps modifying your own possession order, feel free to contact our Houston child custody attorney, Bobby L. Warren, at 713-579-9702.