Handout - Houston Bar Association

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Things You Probably Don’t Know
(But Really Should)
About Family Law in Texas
Houston Bar Association
February 11, 2015
Elizabeth S. Pagel
www.lanierandpagel.com
[email protected]
116 S. Avenue C
Humble, TX 77338
Tel: 281-446-1000
Fax: 281-446-1646
110-B Hilltop Square
Cleveland, TX 77327
Tel: 281-593-3100
Fax: 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.
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.
You Cannot Get Married
(formally or informally) if:
1.
2.
3.
4.
You are a minor (under age 18) (some exceptions
for a formal marriage; none for informal)
Same-sex couples
You are related
You are currently married
Separate Property
1. Anything you owned before you got married
2. Anything you acquired during the marriage as a gift or
an inheritance
3. Recovery for personal injuries, except for recovery for
loss of earning capacity
COMMUNITY PROPERTY:
EVERYTHING ELSE
Presumption of Paternity
(Man is legally presumed to be the father of a child)
1. Married to Mom when child is born
2. Used to be married to Mom, and child is born before the
301st day after the marriage ended
3. Married to Mom after the child is born, voluntarily claims
he’s daddy, AND:
a.
Files his claim with BVS, OR
b.
Voluntarily puts his name on the birth
certificate, OR
c.
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 Support
Obligee: 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 jobs
2. 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 taxes
2. 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 dues
5. 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
account
3. Cost of dental or vision coverage for the child
4. 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
“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!
1. Right to receive information from the other parent regarding the kiddo
2. Right to confer with the other parent before making decisions about the kiddo
3. Right of access to the kiddo’s medical, dental, psychological, and educational
records
4. Right to talk to the kiddo’s doctor, dentist, therapist, teachers, and other school
officials
5. Right to attend school activities
6. Right to be listed on the kiddo’s records as a person to be notified in case of
emergency
7. Right to consent to emergency medical treatment
8. Right to manage the child’s estate
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
1. 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)
“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.
PRESUMED 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
Child Support and Visitation are
COMPLETELY 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!
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.
2.
3.
4.
Community Property
Duty of Support
Presumption of Paternity
Probate Issues
(NOW WHAT?)
In 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), AND
2. In the count of filing for at least 90 days (venue)
THIS REQUIREMENT MUST BE MET PRIOR TO FILING!
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.
• 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
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
Respondent 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)
The 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)
Most Courts Require Mediation
Prior 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.”
1.REVIEW THE TRCP RULES OF
DISCOVERY!
2.CLIENTS HATE DISCOVERY
3.MAKE SURE YOU KNOW THE
LOCAL RULES
1. 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)
 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
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