Serving all of New Braunfels; Bulverde; Comal County; Hays County; and Guadalupe County, Texas

Fraud on the “Community Estate”:

 

A spouse commits “fraud on the community estate” when they act with misconduct and waste assets without the other spouse’s permission.  Examples of this misconduct include: draining bank accounts and going on spending sprees to deprive the other spouse of those assets, transferring funds to a secret account, gifting away large sums of money to a boyfriend or girlfriend, or transferring property into the name of a friend or family member.

A court can now split up the “reconstituted community estate” in a divorce.  A “reconstituted estate” is defined as “the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred.”    This means that instead of splitting up the assets that actually exist at the time of divorce, the court will split up the estate as it would have existed before the misconduct occurred. 

This new law gives more protection to the innocent spouse and punishes the guilty spouse by allowing the court to split up the financial assets that would have existed had the guilty spouse not squandered them away.

 

Hearsay Statements of Child Victims

 

Typically, statements made by a person not in court to testify to those statements are inadmissible.  Section 84.006 of the Family Code deals with hearings on protective orders; this new law makes out-of-court statements made by a child 12 years of age or younger that describe an act of family violence committed against the child admissible in court as testified to by a witness or otherwise.

          

Protective Orders:

 

Duration:

 

Usually, a protective order against a person cannot last for longer than two years.  Section 85.001 of the Family Code is a new law that provides that if the court finds that the person caused serious bodily injury or was the subject of two or more protective orders, the court may issue the protective order for longer than two years. It can now also have a provision protecting family pets.

 

Enforceability by Other Courts:

 

Section 81.010 now allows any court in the state of Texas to enforce a protective order.  Before, the protective order would need to formally transferred to be enforceable in another court.
           
Opportunity to be Heard:

 

Usually an initial hearing on a protective order is “ex parte,” meaning the hearing is conducted without the presence of the alleged perpetrator.  Section 83.006 now allows the court to call a recess during a hearing on an ex parte protective order in order to contact the alleged perpetrator by telephone and provide them with an opportunity to be present when the court resumes the hearing.

 

Military Deployment of a Parent

 

This bill relating to temporary orders in a family law case allows a parent to file for an order “without the necessity of showing a material and substantial change of circumstances other than the military deployment.”

 

Indigent Parents in Suits Affecting the Parent-Child Relationship

 

This bill provides that a parent who is found to indigent is presumed to remain indigent for the duration of the suit and any later 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.

 

Child Support and Mistaken Paternity

 

Section 154.006 now provides that if genetic testing shows that a child support paying parent is not the biological father of that child, any child support order as to that parent and child may terminate.  The “father” will no longer be under court order to pay child support once genetic testing has established that he is not the biological father.

Section 161.005 now allows other “fathers” to seek termination of their duty to pay child support.  A father who signed an “Acknowledgement of Paternity” form without first getting genetic testing may seek to terminate his parental rights (and therefore any duty to support the child).  A person who was found by the court in a prior proceeding to be the father of the child may also seek termination if genetic testing did not occur. 

 

Legislative Update 2011 – Family Law

New Family Suit and Divorce Laws

Spousal Maintenance (Spousal Support)

Eligibility:

 

            The Family Code now provides that the court may order spousal maintenance if the spouse needing support lacks sufficient property at the time of divorce to provide for their minimum reasonable needs and either:

 (1) the spouse from whom maintenance is sought committed family violence against the spouse or child within the past two years, or

 

(2) the spouse seeking maintenance:

a)  has been married for 10 years and does not have the ability to earn sufficient income to provide for minimum reasonable needs; or

b) is unable to work or provide for herself/himself due to a mental disability; or

c) is the caretaker of a child who has a disability, and that prevents the spouse from earning sufficient income to provide for himself/herself.

Factors to be considered by the court:

The new spousal maintenance laws change some of the factors used in determining maintenance eligibility and amount.  In addition to considering the financial resource of the spouse seeking maintenance, the court must now also consider the paying spouse’s ability to provide for the other spouse’s minimum reasonable needs, considering that spouse’s financial resources at the time of divorce.

 
This section was also amended to expand on the legislature’s definition  and consideration of “marital misconduct”.  Marital misconduct is a factor in determining spousal maintenance and the code now specifies that it includes “adultery and cruel treatment by either spouse during the marriage.”  The new law also requires the court to consider “any history or pattern of family violence.”
           
Legal presumption:
           
Section 8.053 of the Texas Family Code creates a legal presumption that a spouse is not entitled to received spousal maintenance unless that spouse can show he or she has tried to support herself/himself.  This section was amended to remove this requirement for a spouse with an incapacitating disability or a spouse who had to care for a disabled child.

 
However, this is now a rebuttable presumption, meaning the spouse contest this presumption for reasons as the court sees fit.
           
Length of Time that Support can be Ordered

The new laws now consider whether the marriage lasted at least 10, 20, or 30 years.  Previously, the court could not order spousal maintenance for longer than 3 years unless the spouse had an incapacitating disability or had to care for a disabled child.  Now the court can order support for up to five years:

• No matter how long the marriage lasted if family violence was committed, or
• If the spouses were married for 10 to 20 years, the court may order. 

Seven years if: the spouses were married for 20 to 30 years

Ten years if:  the spouses were married for over 30 years

 

            **Section 8.055, which relates to the amount of maintenance the court may order.  Previously, the court could order up to $2,500 per month or 20% of the spouse’s average monthly gross income, whichever was less.  Now, the court may order up to $5,000 per month or 20% of the spouse’s average monthly gross income.  Any disability of the spouse or a child is always considered by the court in determining the amount and duration of the support payments.

 

Texas Bar Journal
October 2010; Vol. 73, No. 9
The Constitutional Rights of Children
By: Barbara J. Elias-Perciful

 

Article Summary

 

The United States Supreme Court has long recognized that children are protected by the Constitution.  Two important constitutional rights that often come into play in child welfare and child custody cases are the right to effective counsel and the right to sibling access.  Although the Supreme Court has yet to rule specifically on these issues, some federal district court cases have confirmed that these are important rights for children who have been removed from their homes. 

 

Kenny A. v. Perdue held that children have a fundamental liberty interest at stake in child welfare proceedings.  It is the duty of family law attorneys who represent children who have been removed from their home by Child Protective Services to vigorously represent them.  These attorneys must ensure that the decision to remove them from their homes is in their best interest.  Children have a constitutionally protected right to the effective assistance of counsel in these proceedings to help ensure that the decision to terminate the child’s parents’ rights is not erroneously made, which would be a serious deprivation of due process.   See Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).  

 

Aristotle P. v. Johnson, another federal case, held that foster children have a constitutionally protected right to maintain relationships with their siblings through reasonable contact.  See Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D. Ill. 1989).   A foster child’s attorney has the right to seek visitation for the child with their siblings.  Because the child has been removed from their home and their parents, these sibling relationships are often very strong and are central to maintaining the child’s sense of family integrity and stability. 

Can I refuse my ex-spouse visitation if he or she is behind on their child support payments?

            No, visitation cannot be contingent on the payment of child support.  Even if your ex-spouse is behind on their child support payments, it is a violation of the court order to not allow them the visitation that was granted them.  Under the Texas Family Code, there are only two defenses to the failure to comply with court ordered possession and access to a child: (1) the involuntary inability to comply with the order, and (2) the voluntary relinquishment of actual possession and control of the child by the parent who has the right to possession under the order.  To alter the current visitation schedule in place, a parent must file a motion to modify with the court.  Until the prior order is modified it is still a valid and enforceable order, and to withhold visitation for nonpayment of child support would be a violation punishable by contempt.

 

Source:

Party Talk
Texas Bar Journal
December 2010
Vol. 73, No. 11

Family Law By Jack W. Marr and Warrant Cole

 

Family Law Updates Summary

 

The Texas Legislative Session of 2009, with the help of Texas family lawyers, have made some important changes to family law. The majority of the State Bar Family Law Section’s proposed legislation passed both houses and was signed into law by Gov. Rick Perry. The most important changes are outlined below.

• Section 3.402(a)-(e) deletes any reference to economic contribution and codifies reimbursement. The measure of reimbursement expended by one estate to benefit the other estate is measured by the enhancement in value to the benefited estate. The court now has discretion to impose an equitable lien on any of the benefited estate’s property, where before it was mandatory.


• An amendment to Section 85.022 mandates that a court suspend a respondent’s license to carry a concealed handgun if a protective order is issued against respondent.


• If there has been a finding of family violence, the court may grant the divorce prior to the 60th day after filing.


• Section 153.008, which permitted a child over 12 years to sign a designation of which parent he or she chose to live with, has been repealed. The child may still express his or her preference, but it must be made by the child to the court in chambers.


• Section 153.133(c) has been repealed – there is no longer a need for one of the parents to be labeled as the one with the exclusive right to designate the child’s primary residence. The order now need only state that the child’s primary residence will be within a specified geographical area.


• Under newly enacted 153.432(c), a grandparent seeking access to a child must file a petition with an affidavit alleging that denial of access would significantly impair the child’s physical health or emotional well-being. If the facts are sufficient to support relief and petitioners have overcome the presumption that a parent acts in the child’s best interest, the court may order reasonable access and possession.


• Newly enacted Chapter 34 permits parents to unilaterally enter into agreements to delegate certain rights to a child’s grandparent, adult sibling, or adult aunt or uncle. Some of the rights that can be delegated include: consenting to medical care, obtaining health insurance, and enrolling a child in school.


• Under newly enacted Section 153.6051, the court may appoint a parent facilitator. This is in addition to the court’s ability to appoint a parent coordinator. Parent facilitators, unlike parent coordinators, are appointed in a nonconfidential capacity.