Creating a Will is extremely important for individuals that have a sizable estate in the Dallas and DFW metroplex. Time and time again, individuals refuse to properly prepare for death and do not see the proper preparation of a legal and valid will as a necessity. 

When you refuse to prepare a Will, then your entire estate will pass through the intestate process. Intestate rules apply if: (1) there is no will, (2) the will does not completely dispose of the entire estate, or (3) there is a pretermitted child/adopted child born after the will’s execution.

In certain situations, a child born outside of a marriage may still claim inheritance rights per the rules of Intestate succession. Nonmarital children may establish inheritance rights from the alleged father if the presumption of paternity is proven in court. Paternity is presumed if one of the following elements are met per Tex. Fam. Code § 160.204:

1. The child was born during (or within 300 days after) the marriage of the man and the child’s mother; 
2. During the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his; or 
3. The parties married after the Child’s birth and the man voluntarily asserted his paternity of the child in one of the following ways:

   a) The assertion of paternity is in a record filed with the Bureau of Vital Statistics;
   b) The man was voluntarily named as the Child’s father on the birth certificate; or
   c) The man promised in a record to support the child as his own.

   In many cases a child that was born out of wedlock may still inherit from the father’s estate if the above mentioned actions can be proved. Depending on the estate, this ability to prove the presumption of paternity can have a great impact on the allocation of the estate’s assets.

   Paternity may be rebutted, even if the presumption is proved by a preponderance of evidence, by a DNA test. DNA testing is the only option to rebut the presumption of paternity. Depending on the estate and the desires of all parties involved, a Judge may order that the body be dug up for a DNA sample of the deceased. This is rare, but the Court does have the authority.

   It is important to remember that the Statute of Limitations to establish inheritance rights or the presumption of paternity begins at the date in which the father died. The statute of limitations is four years, which means any potential claim must be brought within four years of the individual’s death.

   If you are a nonmarital child or born out of wedlock in the DFW area, you may still inherit as a matter of law. A will created prior to the birth of a nonmarital child will not cut off the child from his or her rightful inheritance. For situations like this, please contact Nacol Law Firm to acquire an experienced attorney to navigate through intestacy laws and probate.

   Julian Nacol
   Dallas Probate Attorney
   Nacol Law Firm P.C. 
   tel: (972) 690-3333

In Texas, adultery or infidelity may play a significant role in how a divorce unfolds, impacting asset division in a divorce and even custody issues to a certain extent. Here’s how adultery generally affects the divorce process in Texas:

1. Grounds for Divorce:

• No-Fault Divorce: Texas allows for “no-fault” divorces, where neither spouse has to blame the other for the breakdown of the marriage. Commonly, the reason cited is “insupportability,” which means that the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
• Fault-Based Divorce: Adultery is also one of the grounds for a fault-based divorce in Texas. If one spouse can prove the other’s infidelity, it can influence the divorce proceedings, particularly in financial settlements and custody decisions. The Court of Appeals has given the following definition of Adultery: “the voluntary sexual intercourse of a married person with one not the spouse.” In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.)

2. Impact on Division of Assets:

• In Texas, the court divides marital property based on what is “just and right.” While this typically starts with the presumption of a 50/50 split, proven adultery can lead the court to award a more favorable division to the non-adulterous spouse. This is because the court may consider the circumstances and factors under which the property was acquired and the behavior of the parties during the marriage. Such factors include: Such factors include (1) the nature of the marital property, (2) the relative earning capacity and business opportunities of the parties, (3) the parties’ relative financial condition and obligations, (4) the parties’ education, (5) the size of separate estates, (6) the age, (7) health, and (8) physical conditions of the parties, (9) fault in breaking up the marriage, (10) the benefit the innocent spouse would have received had the marriage continued, and (11) the probable need for future support. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).

3. Impact on Child Custody and Visitation:

• While adultery by itself does not necessarily impact custody arrangements, the circumstances surrounding the adultery might. For instance, if adulterous behavior also involved other conduct that could be deemed harmful to the children it could influence the court’s decisions regarding custody and visitation rights. More common repercussions for Adultery or Infidelity in a divorce are what the Court’s call a  “morality clause”. This provision usually prohibits one parent from having a romantic third-party guest stay in the house while the children are present from 8:00 pm to 9:00 am the next day.

4. Proving Adultery:

• Proving adultery in a divorce case requires evidence that convinces the court of the likelihood that infidelity occurred. Direct evidence is not necessarily required; circumstantial evidence that suggests the likelihood of both opportunity and inclination to commit adultery might suffice. The burden of proof is the preponderance of the evidence, thus just a little more than 50%. It should be known that actions of adultery and infidelity are still probably even after separation and during the divorce litigation. 

Adultery and Infidelity are not as damaging in the modern era, though it is completely fact intensive and dependent on the Judge in your case. Some Judges take Adultery in a Texas Divorce more seriously than others. It is a liability to mitigate if it has occurred. 

Julian Nacol
Nacol Law Firm P.C.
Dallas Divorce Attorney
(972) 690-3333

If you are a Victim of Domestic Abuse, you must fight back! No one has the legal right to physically, mentally, or verbally abuse another individual!  If you are a relative, friend or acquaintance of a potential victim or victims, please look for warning signs of abuse being committed on these people, asset legal defense on this conduct, and report your findings to the police.  

Often victims are so mentally and verbally abused, they do not have the strength to defend themselves or their family. Truly be a friend and help to protect their lives by reporting any fact based suspicion of abuse to the proper authorities.

Some warning signs to look for in an abuser or a potential abuser’s conduct in a relationship:

Push for Quick involvement

A victim often has known or dated the abuser for a brief period of time before getting engaged or living together. The abuser pressures the victim for an exclusive commitment immediately.

Jealousy & Controlling Behavior

An abuser will equate jealously with love and controlling behavior to concern for the victim. The abuser becomes jealous of time spent with others. The abuser may call the victim frequently during the day, drop by unexpectedly, refuse to let the victim work, check the car mileage, or ask friends to watch the victim. As the behavior progresses and the situation worsen, the abuser may assume all control of finances or prevent the victim from coming or going freely.

Unrealistic expectations

An abuser expects the victim to be the perfect partner, and to frankly, without error, meet his or her every need.

Isolation

An abuser will attempt to isolate the victim by severing the victim’s ties to outside support, relationships, and resources. The batterer will accuse the victim’s friends and family of being “trouble makers.” The abuser may block the victim’s access to use of a phone, car, and also discourage the victim from working. No outside contact with the rest of the world.

Playing the Victim

An abuser will blame and project upon others for all problems shortcomings. Someone is always out to get the abuser or is an obstacle to the abuser’s achievements.

Blames others for feelings

An abuser will use feelings to manipulate the victim. Common phrases to look for: “You’re hurting me by not doing what I want.” “You control how I feel.”

Hypersensitivity

An abusive person is easily insulted, claiming hurt felling when he or she is really mad.

Cruelty to animals or children

This is a person who punishes animals brutally or is insensitive to their pain. The abuser may also expect children to perform beyond their capability and use physical force if a child cannot comply. 65% of abusers who beat their victims will also abuse children.

“Playful” use of force in sex

This behavior includes restraining partners against their will during sex, acting out fantasies in which the partner is helpless, initiating sex when the partner is asleep, or demanding sex when the partner is ill or tired. The abuser may also find the idea of rape exciting.

Verbal abuse

Constantly criticizes or says cruel things, degrades, curses, or calls the victim bad names. Sleep deprivation could be involved with relentless verbal abuse.

Rigid sex roles

The abuser will expect the victim to serve, obey and remain home to serve on the abuser

Sudden Mood Swings

Explosive behavior and moodiness, which can shift quickly from sweet to violent in minutes.

Past battering

An abuser will beat any partner if the individual is involved with the abuser long enough for the cycle of abuse to begin.

Threats of violence

This consists of any threat of physical force meant to control the partner. Most people do not threaten their mates but an abuser will excuse this behavior by claiming “everyone talks like that.”

Physical force during an argument

This may involve an abuser holding down the victim, blocking escape routes and physically restraining the victim from leaving, pushing or shoving. Holding someone back in order to make demands, such as “You will listen to me!” is also a show of force.