Things You Probably Don’t Know(But Really Should)

About Family Law in Texas

Houston Bar AssociationFebruary 11, 2015

Elizabeth S. Pagelwww.lanierandpagel.com

epagel@lanierandpagel.com

116 S. Avenue C Humble, TX 77338Tel: 281-446-1000Fax: 281-446-1646

110-B Hilltop SquareCleveland, TX 77327Tel: 281-593-3100Fax: 281-593-3101

1. Texas recognizes both formal, or ceremonial marriage, and informal, or common-law marriage

2. Ceremonial marriage requires that the couple obtain a license, participate in a marriage ceremony, and record the license

3. Informal marriage, also called common-law, requires that certain actions be taken by the parties.

What is Marriage?

1.AGREE to be married

2.Live together in Texas as Husband and Wife (yes, that means what you think it means)

3. Represent to others that they are married.

INFORMAL MARRIAGE

You Cannot Get Married (formally or informally) if:

1. You are a minor (under age 18) (some exceptions for a formal marriage; none for informal)

2. Same-sex couples3. You are related4. You are currently married

COMMUNITY PROPERTYVS.

SEPARATE PROPERTY

Separate Property1. Anything you owned before you got married2. Anything you acquired during the marriage as a gift or

an inheritance3. Recovery for personal injuries, except for recovery for

loss of earning capacity

EVERYTHING ELSE

COMMUNITY PROPERTY:

WHO’S YOUR DADDY?

Presumption of Paternity(Man is legally presumed to be the father of a child)

1. Married to Mom when child is born2. Used to be married to Mom, and child is born before the

301st day after the marriage ended3. Married to Mom after the child is born, voluntarily claims

he’s daddy, AND:a. Files his claim with BVS, ORb. Voluntarily puts his name on the birth

certificate, ORc. Promises in writing to support the child

4. Continuously resides with the child for the first two years of the child’s life and represents to others that he is Daddy

How Much is Child Support?Obligor: The Person Paying Child SupportObligee: The Person Receiving Child Support

Amount of child support is based ONLY on the Obligor’s Income

• Calculated as a percentage of Obligor’s Net Resources• “Net resources” means:1. Income from all sources—wages, salary, commission, overtime pay,

tips, bonuses, self-employment income—from ALL jobs2. Also includes rental income, severance pay, retirement benefits,

pensions, annuities, child support received from other parties, BAH (if military)—ALL INCOME

Add up all the income from the last year and divide by 12. That is the monthly gross income for child support purposes.

Now, deduct:1. Social security taxes2. Federal Income tax, based on the tax rate for a single person

claiming one personal exemption and the standard deduction;3. State income tax (if, for example, the obligor works in Louisiana and

has to pay Louisiana State Income Tax)4. Union dues5. The actual cost of health insurance for the child

Whatever is left, that’s the obligor’s net resources for purposes of child

support!He does NOT get credit for:1. Contributions to his 401(k)2. Contributions to his pension or any other retirement

account3. Cost of dental or vision coverage for the child4. Any other deductions from his paycheck

(Sorry!)

So, How Much is Child Support?

Number of Children Before the Court

Number of Other children for whom the obligor has a duty of support

1 2 3 4 5 6 7

1 20.00 25.00 30.00 35.00 40.00 40.00 40.00

2 17.50 22.50 27.38 32.20 37.33 37.71 38.00

3 16.00 20.63 25.20 30.33 35.43 36.00 36.44

4 13.60 18.33 23.14 28.00 32.89 33.60 34.18

5 13.33 17.86 22.50 27.22 32.00 32.73 33.33

6 13.14 17.50 22.00 26.60 31.27 32.00 32.62

7 13.00 17.22 21.60 26.09 30.67 31.38 32.00

“I Want Sole Custody”

“Sole Custody” and “Joint Custody” are NOT legal terms in Texas!

• We have Joint Managing Conservatorship and Sole/Possessory Managing Conservatorship.

• These terms refer to the rights and duties of the parents, not the time each parent spends with the kiddos.

• It is PRESUMED that the parents will be joint managing conservators, each able to exercise the rights and duties of a parent.

• If a parent’s rights are limited, the court must make a WRITTEN FINDING that such a limitation is in the child’s best interests!

RIGHTS AND DUTIES OF A PARENT(ALL THE TIME)

1. Right to receive information from the other parent regarding the kiddo2. Right to confer with the other parent before making decisions about the kiddo3. Right of access to the kiddo’s medical, dental, psychological, and educational

records4. Right to talk to the kiddo’s doctor, dentist, therapist, teachers, and other school

officials5. Right to attend school activities6. Right to be listed on the kiddo’s records as a person to be notified in case of

emergency7. Right to consent to emergency medical treatment8. Right to manage the child’s estate

RIGHTS AND DUTIES OF A PARENT(WHEN THE KIDDO IS WITH THE PARENT)

1.Duty of care, control, protection, and reasonable discipline

2.Duty to provide the child with clothing, food, shelter, and non-invasive medical and dental care

3.Right to consent for non-invasive medical care;

4.Right to direct the kiddo’s moral and religious training

RIGHTS ALLOCATED BETWEEN PARENTS1. Right to designate the child’s primary residence, either with or without a

geographic restriction

2. Right to consent to invasive medical procedures

3. Right to consent to psychiatric and psychological treatment

4. Right to receive child support

5. Right to represent the child in legal matters

6. Right to consent to marriage and enlistment

7. Right to make educational decisions

8. Right to the services and earnings of the kiddo

9. Right to act as an agent of the child’s estate

THESE RIGHTS CAN BE ALLOCATED AS:

1. Exclusive to one parent or the other

2. Independent, meaning either parent can exercise that right (often includes a provision that the parent must consult with the other parent prior to deciding)

3. Subject to the agreement of the parents (which usually requires some sort of “tie-breaker” language in the event the parents do not agree)

WHAT IF I WANT TO MOVE?“It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.” TFC §153.251

The child’s residence will usually be restricted. Common language would be “Harris County, Texas” or “Harris County, Texas or any county contiguous thereto.”

The parent with the exclusive right to designate the child’s residence must stay within that area.

COURTS TAKE THIS VERY SERIOUSLY. A parent who leaves the designated area could be held in contempt of court, ordered to move back, ordered to pay the cost of the other parent’s visitation, or even lose the exclusive

right to designate the child’s residence. (In layman’s terms: lose custody!)

BUT, if the other parent moves out of the restricted area, then “all bets are off” and the child can be moved wherever the parent wants to go.

STANDARD POSSESSION ORDERPRESUMED to be in the Best Interests of the Child!

Any deviation must be pled and proved

1. First, third, and fifth Friday of every month, from 6:00 p.m. Friday until 6:00 p.m. the following Sunday

2. Thursday’s during the school year from 6-8 p.m.

3. Every other spring break

4. 30 days in the summer

5. Every other Thanksgiving

6. Half of every Christmas vacation, alternating between the first half and second half each year

ENFORCEMENTS

Child Support and Visitation areCOMPLETELY SEPARATE ISSUES

If Mom is not paying court-ordered child support, she still has the right to exercise her visitation.

If Dad is refusing to let Mom see the child, the child support still has to be paid

Anyone who wants to enforce either child support or visitation needs to go into court with absolutely clean hands!

THERE IS NO SUCH THINGAS LEGAL SEPARATION

In Texas, you are either Married or You’re Not

If spouses live separately from one another, no matter how long they have been separated, they

are still subject to all the laws that apply to married people.

THIS INCLUDES:

1. Community Property2. Duty of Support3. Presumption of Paternity4. Probate Issues

I WANT A DIVORCE!

(NOW WHAT?)

JURISDICTION/VENUEIn order to request a divorce from a Texas court, one of the parties (either Petitioner or Respondent) must have resided:1. In Texas for at least six months (jurisdiction), AND2. In the count of filing for at least 90 days (venue)

THIS REQUIREMENT MUST BE MET PRIOR TO FILING!

ORIGINAL PETITION FOR DIVORCE

1. Styled, “In the Matter of the Marriage of [Petitioner] and [Respondent], and in the Interest of [kiddo’s names], Minor Children”

2. Discovery Level: if there are kids, it is ALWAYS level 2 or 3. Level 1 is only for community estates worth $50k or less and no kids

3. Identity of Parties (i.e., Petitioner is Wilma Sample; Respondent is Harold Sample)

4. Statement of Jurisdiction

5. Service requirements

6. Protective Order Statement (is there a PO in place? If not, is one pending? Does your client need one?)

7. Dates of marriage and separation

8. Grounds for Divorce

9. Children of the Marriage—remember, H is the presumed father of any children born to wife during the marriage, even if they are not his biologically!

10. Identification of what relief your client is seeking—division of property, reimbursement claims, name change, attorney fees, etc.

11. Prayer

12. IF THERE ARE CHILDREN, you must attached a Statement of Health Insurance Availability, identifying whether the kids are covered on private health insurance or a government entity, who is providing it, etc.

Temporary Restraining Orders• Granted ex parte• Does not refer to Domestic Violence in any way—

laundry list of injunctions binding on both parties pending court order

• Requires Personal Service to be binding• Expires by operation of law in 14 days; may be

extended once if necessary

Notice of Hearing forTemporary Orders

Temporary Orders are meant to stabilize the situation while the case is pending.

• Often entered by agreement• Will provide for:

use and possession of property (house, cars, etc.) Payment of obligations (rent, utilities, debts) Conservatorship of the children Possession Schedule for children Child support Anything else the court deems necessary to protect the children and

the community estate

NoticeRespondent must be provided with legally

sufficient notice that the case has been filed

• Citation and personal service• Waiver of Service• Alternate service (TRCP 106(a) or 109)

Responsive PleadingsThe Respondent must file a responsive pleading “by 10:00 a.m. on Monday next following the expiration of twenty days after service.” (TRCP 15)

General Denial Counterpetition

(Note that if Respondent has Waived service, that waiver constitutes an appearance)

MEDIATION!!!

Most Courts Require MediationPrior to Any Contested Hearing,

both Temporary and Final!A mediated settlement agreement is BINDING AND IRREVOCABLE. Make sure your client understands what s/he is agreeing to before signing. No one gets everything they want in mediation, but your client should be satisfied that s/he is getting what is “fair.”

Discovery

1.REVIEW THE TRCP RULES OF DISCOVERY!

2.CLIENTS HATE DISCOVERY

3.MAKE SURE YOU KNOW THE LOCAL RULES

Financial Information Statement

Sworn Inventory and Appraisement

Finalizing the Case1. A divorce cannot be finalized until it has been on file for at least 60 days

(absent domestic violence)

2. Final disposition will be achieved through: Informal Negotiation Formal Negotiation (such as mediation) Trial Some combination of the above

(Approximately 85% of family law cases settle without trial)

Required Final Documents Proposed Final Decree of Divorce (which must include the grounds for divorce,

language regarding the children (rights and duties of parents, possession and access, child support, health care coverage) and division of property

Information on Suit Affecting the Family Relationship

Wage Withholding Order (for child support or spousal maintenance)

Child Support Information Form

QDRO’s, if required

ARE YOU FAMILIAR WITH THE

TEXAS LAWYERS’ CREED???