I. INTRODUCTION
Family Law had much needed changes in the law passed by the Texas Legislature in 2011. Some were major extensions to existing law (spousal support) and some were needed additions to family law (for example, fraud on the community and paternity fraud). There were other statutes passed that affected the family law practice including some that were not necessarily designed as a family law bill but have an impact on family law. The legislative process, including a brief history of Family Law in Texas and the vital service performed by the Texas Family Law Foundation is explained. Finally, there is a set of proposed bills to be submitted to the Legislature in January.
II. THE OLD – THE HISTORY OF FAMILY LAW IN TEXAS
The key change in Texas Family Law occurred in 1967 with the passage of the Marital Property Act of 1967. This Act, for the first time, allowed married Texas women to manage their own property and legal affairs without the consent of their husbands. Stated differently, when a single woman, even one of significant means and owner of property, became married, she became afflicted with a “coverture of disability” that mandated that her husband consent to any of her legal transactions. Like having the husband consent to sale of real property that she owned before the marriage! Or to open or close a bank account.
Louise B. Raggio, then Chair of the Family Law Section of the State Bar, assembled and led coalition the coalition of professors, preachers, law deans, lawyers, and interested citizens and groups that “sneaked” this major change in law past the Legislature and such is well documented. The story of this accomplishment is documented in KERA’s Texas Trailblazer documentary and the 8-minute video introduction to the Louise B. Raggio Endowed Lecture Series (held at SMU), which can be viewed at http://www.youtube.com/watch?v=mTW_tXQEvuE.
With this massive change of law in 1967, Texas continued to make great strides, from being a state with particularly bad laws in the area of family law, to become in 1974 the first state enacting the first unified and complete Family Code in the entire country. The Family Code of 1974 contained Title 1- The Marriage Relationship, and Title 2 – The Parent-Child Relationship. Such codification was the predecessor to the current Family Code. There have been amendments to the Family Code in every legislative session since 1974. The Code has been reorganized and renumbered several times, with the current Code having Title 1 (The Marriage Relationship), Title 2 (Child in Relation to the Family), Title 3 (Juvenile Justice Code), Title 4 (Protective Orders and Family Violence), and Title 5 (The Parent-Child Relationship and Orders Affecting the Parent-Child Relationship).
III. THE NEW – 2011 MAJOR LEGISLATIVE CHANGES
A. Spousal Maintenance (Appendix 1)
Most states had a long history of spousal maintenance, or alimony. Not Texas. For decades, alimony bills were routinely filed in the Texas legislature that literally never saw the light of day. There was even a National Enclave on Alimony sponsored by the American Bar Association Family Law Section that was held in Austin during the 1987 legislative session to bring needed information (pressure?) to bear upon legislators. (And to help Senator Hance garner support for his alimony bill). Such “pressure” came to fruition ten years later when Texas in 1997 became the last state in the country to enact a spousal maintenance statute. This first alimony law was packaged as an “anti-welfare” bill and was quite restrictive in its applicability.
After attempts in every legislative session since 1997 to modify the alimony statute, such efforts were finally successful in 2011 with the passage of HB 901.
HB 901 in summary, assuming that a spouse meets the financial requirements, expands the maximum amount of statutory alimony from $2,500 per month to $5,000 per month, and expands the maximum period of alimony from three years until up to ten years for very long-term marriages, as follows:
Max. No. of Years of Maintenance No. of Years of Married Eligibility Statute
5 years Less than 10 AND Eligible under §8.05(1)
5 years More than 10, less than 20 §8.054(1)(A)(ii)
7 years More than 20, less than 30 §8.054(1)(B)
10 years More than 30 §8.054(1)(C)
HB 901 amends the provisions relating to the duration and the amount of spousal maintenance. Section 8.051 is amended to now read that: the court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and: (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.04, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred either within two years before the date the petition was filed or while suit is pending, or (2) the spouse seeking maintenance is either unable to earn sufficient income; has been married to the spouse for 10 years or longer and lacks ability to earn sufficient income; or is the custodian of a child that requires substantial care that prevents the spouse from earning sufficient income.
Section 8.052 relates to factors in determining maintenance. The Bill amends some of the factors relating to determining maintenance. The factors are set out as follows and any changes are underlined: (1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage; (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and; the availability and feasibility of that education or training; (3) the duration of the marriage; (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; (5) the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable; (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common; (7) the contribution by one spouse to the education, training, or increased earning power of the other spouse; (8) the property brought to the marriage by either spouse; (9) the contribution of a spouse as homemaker; (10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and (11) any history or pattern of family violence, as defined by Section 71.004.
Section 8.053(a) is amended to provide that it is a rebuttable presumption that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in (1) earning sufficient income to provide for the spouse’s minimum reasonable needs or (2) developing the necessary skills to provide for the spouse’s minimum reasonable needs.
However, the major modifications to the Bill include amendment to Section 8.054 of the Family Code relating to the duration of maintenance which now depends on whether a marriage lasted at least 10, 20, or 30 years and amendment to Section 8.055 relating to an increase in the limit of spousal maintenance which increased from $2,500.00 to $5,000.00 [and includes clarifying “gross” income].
Additionally, Section 8.056 of the Family Code is amended to provide that the court shall order the termination of the maintenance obligation if the court finds that the obligee cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.
Also, Section 8.057(c) is also amended to provide that the court may modify a maintenance obligation on a proper showing of a material and substantial change including circumstances reflected in the factors specified in Section 8.052.
Section 8.059(a), (b), and (d) of the Family Code are amended to provide that the court may enforce maintenance by contempt if the maintenance was agreed to by the parties and provides the court may not enforce by contempt any provision of an agreed order for maintenance for any period of maintenance beyond the period of maintenance the court could have ordered under this chapter.
B. Fraud on the Community (Appendix 2)
HB 908 amends Chapter 7 of the Family Code to add Section 7.009, Fraud on the Community; Division and Disposition of Reconstituted Estate. The Bill defines “reconstituted estate” to mean the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred. The bill further provides that if the trier of fact determines a spouse has committed actual or constructive fraud on the community, the court shall (1) calculate the value by which the community estate was depleted and (2) divide the value of the reconstituted estate between the parties in a just and right manner.
To accomplish a just and right division, the court may award a wronged spouse 1) an appropriate share of the remaining community estate after the actual or constructive fraud; 2) a money judgment; or 3) award both a money judgment and an appropriate share of the community estate.
This bill is directed at the Texas Supreme Court case, Schlueter v. Schlueter, 975 S.W.3d 854 (Tex. 1998), which limits the ability of an innocent spouse to be made “whole” when the community estate was dissipated by fraudulent acts of the other spouse.
C. Paternity Fraud
1. Background.
Texas in the old days, did not have laws that would hold a father of a child born out of wedlock responsible for what is now commonly referred to as paternity. Texas was punitive by differentiating between payments that could be made for legitimate children and for illegitimate children. The State of Texas was sued for such discrimination and the U.S. Supreme Court in the case of Gomez v. Perez in 1972 that Texas had to have a law that held fathers of illegitimate children responsible for supporting their children just as Texas law held divorced fathers responsible for payments. In other words, Texas must pass a paternity statute or else. Despite this “directive” from the U.S. Supreme Court, the concept of responsibility sometimes is not easily accepted, at least by certain senators in a public hearing on a paternity statutes. Senator C from west Texas commented in the hearing on the paternity bill, even under the “gun” of the Supreme Court ruling, words to the effect “you mean that if I went out partying with the dancehall girl and she got pregnant I could be held responsible? That ain’t right!” Despite misgiving about the science in determination of actual paternity at that time, a paternity statute was enacted in 1973.
Over the years, building on the paternity laws and as paternity tests became more accurate, the state, through the Attorney General, regularly got involved in determinations of paternity, and promulgated through the legislature simple forms where a man could admit paternity of a child by signing a form at the hospital when a child is born or other places or at a convenient time without any legal proceeding or parentage testing being performed.
These routine actions also led to the situation where once the paternity was determined by such a declaration, the mother could say to the adjudicated father “I fooled you. It is not your child. But you are obligated to pay me child support forever. And I’m moving in with the father of the child. Bug off.”
However, the applicable law absolutely prevented the father from challenging his now legal paternity despite the clear fraud stated above. The issue started coming to a head when then 254th District Court Judge David Hanschen started in 2007 granting hearings and overturning the prior adjudications of paternity when it was clear that the adjudicated father was not the biological father of the child. He was swiftly and unmercifully rebuked by the appellate courts. But his actions were a significant impetus to the progression of thought that led to the passage of Senate Bill 785 called the Mistaken Paternity bill.
2. SB 785 – Mistaken Paternity (Appendix 3)
SB 785 This Bill relates to the termination of the parent-child relationship and the duty to pay child support in circumstances involving mistaken paternity.
Subsection (a), Section 154.006 of the Family Code is amended to include that a child support order terminates on: . . . (5) the issuance under Section 161.005(h) of an order terminating the parent-child relationship between the obligor and the child based on the results of genetic testing that exclude the obligor as the child’s genetic father.
Additionally, the Bill amends Section 161.005 of the Family Code by amending Subsection (a) and adding Subsections (c), (d), (e), (e-1), and (f) through (o). Essentially, a final order does not affect an obligor’s obligation for support of a child incurred before that date [final order date] or to pay interest that accrues after that date on the basis of child support arrearages existing after that date. A termination suit may be brought by a man who signed an acknowledgment of paternity without first obtaining genetic testing. Additionally, an adjudicated father in a prior proceeding under Title 5 of the Family Code where genetic testing did not occur, may also bring a suit for termination.
A termination suit must be verified and allege facts that 1) he is not the child’s genetic father; and 2) signed the acknowledgment of paternity or failed to contest parentage because of the mistaken belief that he was the child’s genetic father based on misrepresentations that led him to that conclusion.
There are specific time frames that should be read if you end up with a mistaken paternity case. Generally, under new Subsection (e), a petition must be filed not later than the first anniversary of the date on which the petitioner becomes aware he is not the child’s genetic father. Also, new Subsection (e-1) provides that Subsection (e) applies beginning September 1, 2012. Before that, a petition may be filed regardless of the date on which the petitioner became aware that he was not the child’s genetic father AND this subsection expires September 1, 2013. In other words, the old claims were barred on September 1, 2012, and new claims now have a one-year statute.
I personally testified before the Senate Judiciary Committee on SB 785 on behalf of the Texas Family Law Foundation. More about that process in The Future section below.
D. Other Important Family Law Legislation
HB 905 amends Chapter 84 of the Family Code relating to hearsay statements of a child victim of family violence by adding Section 84.006 to read as follows: In a hearing on an application for a protective order, a statement made by a child 12 years of age or younger that describes alleged family violence against the child is admissible as evidence in the same manner that a child’s statement regarding alleged abuse against the child is admissible under Section 104.006 in a suit affecting the parent-child relationship. (Appendix 4)
SB 789 relates to the duration of a protective order against family violence. Section 85.001 of the Family Code is amended by adding Subsection (d) to read “If the court renders a protective order for a period of more than two years, the court must include in the order a finding described by Section 85.025(a-1).” Also, Section 85.025 is amended to include the (a-1) which provides that the court may render a protective order that exceeds two years if the person who is subject to a protective order caused serious bodily injury or was the subject of two or more protective orders.
The bill also proposes to amend Section 85.025(b) to place the burden on a person seeking to shorten the duration of a protective order to show there is no need for continuing the protective order and evidence of the subject’s compliance with a protective order does not by itself support a finding by the court that there is no continuing need for a protective order. (Appendix 5)
SB 819 also relates to family violence and protective orders. Chapter 81 of the Family Code is amended by adding Section 81.010 to provide that a court of this state with jurisdiction of proceedings arising under this title may enforce a protective order rendered by another court in the same manner that the court that rendered the order could enforce the order, regardless of whether the order is transferred under Subchapter D, Chapter 85. This Bill also provides that the new section includes the authority to enforce a protective order through contempt.
Additionally, Section 82.009 of the Family Code is amended to provide that a statement signed under oath by a child is valid if the statement otherwise complies with this chapter.
Finally, Section 83.006 of the Family Code is amended by adding Subsection (c) to provide that the court may recess a hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day.
Section 85.26 is amended to provide for punishment of a violation of the order to be as much as $4,000.00 or by confinement in jail for as long as one year, or both. An act that results in family violence may be prosecuted as a separate misdemeanor or felony offense. If the act is prosecuted as a separate felony offense, it is punishable by confinement in prison for at least two years. (Appendix 5)
HB 1404 is a clean-up Bill relating to certain temporary orders in SAPCRs during a parent’s military deployment. The Bill amends Sections 153.702(a) and (c) of the Family Code by providing that if a conservator is ordered to military deployment, mobilization, or temporary military duty requiring moving, then either conservator may file for an order without the necessity of showing a material and substantial change of circumstances other than the military deployment. Section 153.703(b) is amended to provide that the court may not require a nonparent to pay child support.
HB 906 relates to appointments made in and the appeal of certain suits affecting the parent-child relationship. This Bill amends Section 107.013 to add a subsection (e). Essentially, a parent determined to be indigent is presumed to remain indigent for the duration of a suit and any subsequent appeal unless the court determines that the parent is no longer indigent due to a material and substantial change in that parent’s financial circumstances.
Section 107.016 of the Family Code is amended to provide that either a parent, the attorney ad litem for the parent, or the attorney representing the governmental entity may file a motion requesting the Court to make such a determination. The Bill also provides that an attorney ad litem continues to serve in that capacity until the earliest of: A) the date the SAPCR is dismissed; B) the date all appeals are exhausted or waived; or C) the date the attorney is relieved of the attorney’s duties or replaced by another attorney.
SB 820 relates to a court order for the possession of or access to a child under three years of age. Section 153.254 of the Family Code is amended to read that in rendering a possession or access order, the court shall consider evidence of all relevant factors, including 13 factors as set out as:
The Bill also provides that the court shall make findings in support of the possession or access order if a party so requests within 10 days after the date of the hearing.
E. Other Bills (Appendix 7)
A listing of other bills is attached as Appendix 7 that deal with many important issues such as: including pets or other companion animals in protective orders (we now have pet custody in the jurisprudence of Texas!)
F. Unsworn Declarations.
The legislature, in its wisdom, expanded unsworn declarations to now affect every area of the law compared to the previous applicability only in prison inmates cases by amending Civil Practices and Remedies Code 132.001 (Appendix 8). The bill (HB3674) allows documents such as Waivers of Citation, Sworn Inventories and Appraisements, Deeds, and other documents previously required to be sworn, to now be presented in unsworn form so long as the proper jurat or statement of facts is included above with the signature. This can be of potential use in cases where there is a deadline for pleadings, answers to interrogatories, or other items, and the client cannot get it notarized. But the unsworn Waiver is ripe for abuse and fraud. I am sure that there may be discussions of this statute in the real estate materials in this course as it is a dramatic change in existing law. Also see the listing of potential 2013 bills below.
IV. THE FUTURE
Since the watershed year of 1967 when Louise Raggio spearheaded the passage of the Martial Property Act, the legislative process has become much more refined and sophisticated.
Appendix 9 containing slides from Gary Nickelson’s (past Chair of the State Bar of Texas Family Law Section, and past Chair of the Texas Family Law Foundation) legislative presentation to the 2011 Advanced Family Law Course is attached. It explains in detail how proposed changes to the law may become the new law. The following is both an overview of the process and a plea for participation.
A. State Bar’s Power to Lobby and, conversely, Inability to Lobby
Lawyers individually are interested in having good law passed or at least maintained, or correcting defects, flaws, or oversights in existing law. The State Bar of Texas and each of its constituent sections, such as the Family Law Section, have a vested interest in the development of “good” law. The procedure for Family Law has generally become that the Family Law Section will promulgate suggested bills dealing with suggested corrections to or expansions of existing law. When those suggested bills are approved by the Family Law Council, they are then submitted to the State Bar of Texas. If approved, the Family Law bills become part of the State Bar of Texas “legislative package.” This imprimatur usually gives bills a much higher chance of getting a hearing and thus usually helps their eventual passage. Many factors obviously affect that dynamic, but the State Bar of Texas or its constituent sections, cannot lobby against any bill.
This has set up the dynamic in past sessions where members of the Family Law Section have been testifying about a State Bar-sponsored bill and a truly silly or detrimental bill was being considered by a committee at the same hearing attended by the Bar lawyers. Frustrated section representatives were not authorized to opine about the clear flaws in that other bill.
B. The Texas Bar Foundation
Any legislator can file a bill affecting Family Law, and many bills are filed. Many bills are bad. This inability to call out bad legislation directly led to the formation of the Texas Family Law Foundation. The Foundation is an independent entity. Informed family law attorneys from all parts of the state, including those in leadership positions in the Family Law Section, support and advocate the Foundation’s positions. The Texas Bar Foundation has hired lobbyists, led by Steve Bresnen, to guide the Foundation’s volunteer attorney advocates through the legislative process. The professional lobbyists also make suggested modifications or advise and assist in mounting opposition to what, after an extensive vetting process, the Foundation believes is bad legislation.
The ability to oppose legislation, as well as speak favorably on legislation, has been well received by lawmakers in past sessions. This is partially attributable to the unique position of the Family Law Bar being a “unified” bar. This means that family law attorneys in their practices routinely are (but not in the same case!) on both sides of an issue. That ability to represent the “have” in one case, represent the “have-not” in another case, represent the person requesting an increase of child support in one case, represent the person trying to decrease child support in another case, and so on, leads to balance in evaluating proposed legislation.
The Foundation will have to earn its credibility again in the upcoming session, as there will be a significant number of new members, new committee chairs, and perhaps even a change in the general political climate. Unfortunately, much family law legislation is proposed by a specific legislator to anecdotally address a bad result in a particular situation or perceived as a priority to an important constituent and without significant thought to the unintended consequences of such a law. The Family Law Foundation’s volunteer attorneys vet each of the several hundred bills that affect family law that are filed out of over 8000 total bills filed each session. All attorneys who volunteer to lobby or to review bills do so at their own expense. The Foundation’s major expense is the professional lobbyist team led by the aforementioned Steve Bresnen. Such pays dividends in massively increasing the Foundation’s effectiveness.
C. Request for Action.
Please join the Texas Family Law Foundation. Please ask your attorney to join the Texas Bar Foundation.
D. Some Proposed 2013 Legislation
The bills attached as Appendices 10 through 14 are ones that are promulgated by the Family Law Section of the State Bar. As of press time, the bills had not been approved by the State Bar of Texas to become part of the Texas Bar package, but by the time of the presentation, such approval should be finalized.
In quick summary, the Section 8.051 (spousal maintenance) bill clarifies the law so that agreements for spousal maintenance may be enforced just as court-ordered spousal maintenance. (Appendix 10)
The Section 9.001 bill clarifies the post-judgment enforcement provisions of the code to include an Agreement Incident to Divorce and other contractual provisions. (Appendix 11)
The Section 6.4035 bill proposes to require (again) waivers of citation to be sworn documents notwithstanding the provisions of the aforementioned Civil Practice and Remedies Code Section 132.001. (Appendix 12)
The Section 107.061bill would create a new Code section that deals with child custody evaluation standards and is an important extension of the law due to the lack of statutory guidance on what a child custody evaluation and evaluator should be and do. (Appendix 13)
The Section 153.316 and 153.317 bill clarifies the alternative beginning and ending possession times and specifies electronic mail and facsimile being used as notice. (Appendix 14)
The Section 201.015(a) bill reduces the time for appeal of an associate judge’s ruling to three days from seven days. (Appendix 15) ( It was 3 days until increased to 7 by recent legislation)
The Section 160.102(9) bill would clarify gestational and surrogate contracts and surrounding situations. The Civil Remedies and Practice Code would be amended to state that an interlocutory appeal will stay a family law case also. (Appendix 16)
We will know next summer which of these is now the law, and what other changes were made. Until then…
Technically, SB 785 amends the Texas Family Code Sections 154.006 and 161.005.
Senate Bill 785 was sponsored by Senator Chris Harris from Arlington, and was a bill endorsed by the Family Law Section of the State Bar of Texas and by the Texas Family Law Foundation.
The text of SB 785 is here.
The remarks of Ken Raggio to the Senate Judiciary Committee are here that explain more about the working of SB785.
Senate Bill 785 recognizes that technological changes required a serious reconsideration of public policy in paternity situations.
The new law provides a limited remedy for a man whose paternity regarding a child has been previously established, but who later discovers a reason to doubt the truth of his paternity, to raise a challenge in court. A man in that situation will have one-year after he discovers the doubts as to paternity to file the challenge in the court that determined the paternity. After filing his challenge, he can request DNA testing be conducted. If the DNA test results exclude him as the father, the court must terminate his rights to the child as well as any obligation to pay child support. The law does not allow the man to challenge the payment of child support while he thought he was the father — what’s done is done, according to the new law.
For fathers who had a long term reasonable doubt as to their paternity, the law allowed one year from the effective date of the law, May 12, 2011, to raise a challenge. The law now gives a one year date from the date of discovery of the mistaken paternity to file the challenge.
Sec. 84.006. HEARSAY STATEMENT OF CHILD VICTIM OF FAMILY VIOLENCE. In a hearing on an application for a protective order, a statement made by a child 12 years of age or younger that describes alleged family violence against the child is admissible as evidence in the same manner that a child’s statement regarding alleged abuse against the child is admissible under Section 104.006 in a suit affecting the parent-child relationship.
