FREQUENTLY ASKED QUESTIONS
More often than not, divorce is emotionally traumatic and financially burdensome and it is difficult for the participants to keep their focus on their ultimate goals.
Do I need a will?
Most Americans die without leaving a will. Unfortunately, the failure to have a will can cause property to be distributed in a way that the deceased would not have wanted. In addition it can result in your loved ones having to incur unnecessary expenses to settle your estate after death. As a result, every adult should consider whether they need a will. Generally, if any of the following apply, you should have a will:
- You have minor children
- You or your spouse has children from a prior marriage
- You own a house or other real property
- You want to leave some or all of your property to a person other than a blood relative
If you die without a will, the state determines how your property will be distributed.
If you are married, your property is divided as follows:
- If you have children, your spouse inherits 1/3 of your personal property and has a life estate in 1/3 of your real property. The rest is inherited by your children.
- If you do not have children, your spouse inherits all of your personal property and of your real property. The rest of your real property is inherited by your parents, if living, or by your brothers and sisters and their descendants.
- If you are not married, your property is generally awarded to your children or to your parents if you have no children. In the event that your parents are deceased and you have no children, Texas law provides for inheritance by statute to other descendants. The best way to have control over the distribution of your assets at death is to have a will.
What if I am injured, can I sue?
An individual who has been injured has the right to bring a lawsuit if another person or company is legally responsible for the injury. These types of claims are called "tort" claims and they generally depend upon a finding that the other person or company was negligent and that the negligence caused the injury.
A person who is injured as a result of another party's negligence is entitled to a recovery of the damages suffered as a result. The general types of damages that can be recovered for an injury include:
- Medical expenses
- Lost wages
- Pain and suffering
- Mental anguish
Whether or not you are entitled to make a claim may depend upon a large number of variable factors such as, (1) where the injury occurred, (2) whether the injury occurred on the job, and (3) when the injury occurred.
Many times the insurance company for the other party in the accident will try to get the case settled before the injured party gets legal representation. It is usually a mistake to engage in negotiations without seeking legal counsel. Typically, injury cases are handled on a contingent fee basis. This means that the lawyers are paid based upon a percentage of your recovery.
If you have suffered an injury caused by another person's negligence, you should seek legal counsel before signing any papers in connection with the injury.
What if a loved one is killed in an accident?
When a loved one is killed in an accident, Texas law provides that certain relatives can bring a wrongful death action against the persons or companies responsible for the death.
Persons entitled to bring a wrongful death action include the spouse, children and parents. These persons are entitled to recover for the economic and other losses they have suffered as a result of the person's death. They are also entitled to recover for their own mental anguish and the loss of their relationship with their loved one.
In addition, the representative of the estate of the deceased person is entitled to bring what is known as a survival action on behalf of the estate.
There is a specific time period, known as the statute of limitations, during which a suit must be filed arising out of a person's death. If the action is not filed in a timely manner it is barred forever. The length of time during which the claim must be filed depends on the type of accident and where it occurred. In some states this limitations period is short as 1 year.
Claims arising out of the death of someone can be very complicated. A large number of legal issues must be considered. Any time a loved one suffers an accidental death, you should consult with any attorney to determine what if any legal rights you have. You should never engage in the negotiation of a claim with an insurance company involving the death of a loved one without consulting a properly qualified attorney.
What if I am sued?
If you are served with papers in connection with any kind of lawsuit take the following steps:
- Don't ignore the suit! Once you have been served there is a specific time period in which the suit must be answered. In some cases it is as short as 10 days. If a timely answer is not filed, you may lose by default.
- Don't call the other lawyer or person who has sued you without consulting your own attorney. Statements you make to the lawyer or other party and can be used against you.
- If the suit is covered by insurance, call your insurance agent or carrier immediately. Most auto accidents are covered under automobile insurance. Other personal injury suits may be covered by your homeowners policy. If covered, your insurance company will hire a lawyer for you.
- If the suit is not covered by insurance, consult with an attorney immediately. In choosing your attorney, you should consult with one experienced in the handling of civil lawsuits. Ask the attorney about his or her experience.
- Turn over all of the papers served on you to your insurance carrier or attorney.
- Follow up with your insurance carrier or attorney to make sure that a timely answer has been filed.
- Cooperate fully with your attorney or insurance carrier in the defense of the suit.
What should I do if I am in an accident?
- First, make safety your primary concern following the accident.
- If the accident is minor, clear the roadway. If the accident is serious or if there are injuries leave the vehicle in place and call an ambulance and the police.
- If appropriate, administer first aid.
- If you have a camera phone or digital camera, take picture of the vehicles at the scene. If there are skid marks take pictures of them.
- Do not make any admissions of fault to the police or other drivers.
- Do not say that you are not injured. It is common for injuries to show up hours or even days after an accident. If you are asked about being injured simply say, “I don’t know.”
- Cooperate fully with the police at the scene.
- Exchange information. Make sure you get the following from the other driver:
- Name, address and telephone number;
- Driver’s license number;
- Make, model and license number of the other vehicle;
- Name of insurance company and policy number if available.
- Name, address and telephone number of any witnesses.
- Report the accident to your insurance carrier immediately.
What should I do if I am stopped for DWI?
Initially, you should never drink alcohol and then drive a vehicle. If you plan to drink, use a designated driver. In the event you have been drinking, take a cab. However, if you have been drinking and are stopped, you should:
- Be polite and courteous to the officer;
- Respectfully decline to perform any field sobriety tests without your attorney present, unless you are certain that you are not under the influence of alcohol;
- If arrested, respectfully decline to perform any sobriety tests or take a breath tests without your attorney present. The police cannot require you to perform a breath or sobriety test;
- Request to speak to your attorney; be polite but firm in your request to consult with an attorney. Do not take no for an answer.
- Call your attorney. If you do not have an attorney, ask to use the yellow pages and call an attorney that specializes in criminal defense.
- Follow your attorney's advice.
Am I married?
Common Law Marriage in Texas
Informal or "common-law" marriage is recognized in Texas. In Texas, the requirements for an informal marriage are:
- An agreement to be married;
- Living together as husband and wife;
- Representing to others that you are married.
Unless all of these exist you do not have an informal marriage. In the absence of an informal marriage, couples living together do not have the rights of a spouse. For example:
- They do not inherit from one another absent a will;
- In the event of an accidental death, they are not entitled to sue for the loss of the other;
- They are not entitled to file joint tax returns, seek governmental assistance or benefits as a spouse;
- They cannot be covered under the roommate's health insurance policy.
However, if there is a common-law marriage, the responsibilities of a formal marriage are applicable to the relationship.
- Property acquired during the marriage is community property;
- Debts incurred during the marriage are community debts;
- Upon break up, the parties are required to get divorce.
A certificate of informal marriage may be filed in Texas and this will remove all doubt about the parties' status as being married. To file such a certificate or if you need guidance about whether you are part of an informal marriage, consult with an attorney. If you would like our help with divorce see our pages under the Individual | Family Issues menu in the navigation bar above or go directly to this page: Individual | Family Issues : Divorce and Related Issues.
Can my employer fire me?
Texas is an employment "at will" state. This generally means that your employer can fire you for no reason at all. However, even in an employment at will state, your employer is prohibited by law from doing certain things in connection with your employment such as:
- You employer cannot fire or discriminate against you because of your race, sex, religious beliefs, national origin, skin color or physical handicap;
- Your employer is also prohibited from firing you or discriminating against you because of your age if you are over 40;
- Retaliate against you for making a good faith complaint about discrimination or sexual harassment;
- Discriminate against you for refusing to perform an act with criminal penalties or being a whistleblower;
- Fire or discriminate against you for filing a worker's compensation claim;
- Fire or discriminate against you for reporting a health or safety violation to OSHA;
- Fire or discriminate against you for taking leave under the Family Medical Leave Act.
Claims for employment discriminate must generally be made to Equal Employment Opportunity Commission before suit can be filed. These must be made within 180 days of the discriminatory conduct.
If you think you have been a victim of employment discrimination consult with an attorney immediately.
What is sexual harassment?
Sexual harassment is prohibited by law. Sexual harassment is not gender specific. The harasser and victim can be male or female. There are two kinds of sexual harassment: quid pro quo harassment and hostile environment harassment. Quid pro quo harassment occurs when an employee is threatened by a superior with demotion, termination or some other adverse employment result in exchange for "sexual favor." This includes:
- unwelcome sexual advances
- requests for sexual favors
- verbal or physical conduct of a sexual nature, such as lewd comments or inappropriate touching.
Quid pro quo harassment also occurs if an employee is offered promotion, better pay or other employment incentives for "sexual favors."
Hostile Environment harassment occurs when:
- a person is subjected to sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature;
- the conduct was unwelcome;
- the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.
If you are or have been subjected to sexual harassment of either type, you should make a record of the offensive behavior, including the date, time and place of each instance that has occurred.
Like discrimination, sexual harassment claims must be made to the EEOC within 180 days of the offending behavior. If you have been the subject of sexual harassment in the workplace, you should consult with an attorney. If you would like our help with a sexual or other harassment claim see our pages under the Individual | Employment and Workplace Issues menu in the navigation bar above or go directly to this page: Individual | Employment and Workplace Issues : Sexual and Other Harassment.
What should I do if I am arrested?
- Do not physically resist or try to get away from the police.
- When requested, tell the police you name and address and nothing else.
- Ask if you are under arrest and what the charge is.
- Tell the police you want to have you lawyer present. Do not answer any questions or make any explanation until you have spoken to an attorney.
- If you cannot afford to hire a lawyer, you have the right to have one appointed for you.
- You have the right to speak to your attorney in private.
- Do not consent to any testing until you have spoken with your attorney and he or she is present.
- Do not consent to a search of yourself, your car or your home. If the police say they have a warrant, ask to see it.
- You have the right to make a local phone call within a reasonable time after your arrest. Call a lawyer, bail bondsman and someone who can arrange for bail.