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Legislative Update 2011 – Family Law (October)

by | Oct 1, 2011 | Family Law |

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:


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.