Family Law Blog

Effective on September 1, 2021, the Texas Family Code has a new statute that requires the department (aka, "CPS") to give a preference to certain persons when making a placement decision for a child. Here it is:

Now, this isn't exactly "new". The fact that it is now in the Texas Family Code is new; however, this prioritization list is the method that CPS has been operating off of for years. CPS has their own policies that they must follow in addition the statutes in the Texas Family Code. CPS has always prioritized placements in this regard. Still, there is a bit of ambiguity here (just like ...

One of the new changes to the Texas Family Code in 2021 is that now there is a new "low-income child support guidelines" in Section 154.125. This new section only applies to lawsuits filed after September 1, 2021. The person paying child support must be earning less than $1,000 in order for the court to "presumptively apply" the new figures.

So what are the new figures? Here is a comparison of normal vs. the new low-income numbers:

As you can see, all of the numbers reduce by 5% when a wage earner is "low income". Keep in mind that the low-income threshold of $1,000 is for "net resources", which is ...

A common law marriage, also known as a marriage without formalities, is a legally recognized marriage that occurs without a formal ceremony or a marriage license. For a common law marriage to exists, three elements must exist: (1) there must be an "agreement" to be married; (2) the couple must "cohabitate" in Texas; and (3) the couple must "hold out" to others that they are married. If these three elements exist, then the Courts will recognize the marriage for all intents and purposes -- the same as if the marriage had been formalized with a ceremony and a marriage license.

If a person needs ...

Texas courts can order a spouse to make support payments to the other spouse while the divorce is pending, and thereafter, in very limited circumstances when the case is over. The Texas word for "Alimony" is "Spousal Maintenance". The Family Code provides very a series of very limited rules concerning post-divorce spousal support that require elements of proof which substantially limit eligibility for post-divorce payments of support. The law regarding these payments is complex, and the outcome will be extremely fact-dependent.

The spouse who is seeking spousal maintenance will ...

If a Premarital Agreement is not executed correctly, it may not be enforceable at the time that it is needed most. Texas property laws are complicated, and so are the laws regarding the execution and enforceability of premarital agreements.

In 1993, the Texas Legislature changed the law to say that there are now only two ways in which a party can invalidate a premarital agreement:

1. prove it ways signed "involuntarily" ; or
2. prove it was "unconscionable" when it was signed and, before signing the agreement, prove:
   • you were not provided a fair and reasonable disclosure of the property or ...

Initial Disclosures were recently enacted by the Texas Legislature and are now required with almost all lawsuits filed after January 1, 2021. For family law matters, they require certain things to be disclosed, and certain documents to be produced, within 30 days after the opposing party filed an answer or makes a general appearance. Here's the essence of what these new rules are:

Required initial disclosures in all family law matters:

(1)       The correct names of the parties to the lawsuit;

(2)       The name, address, and telephone number of any potential parties;

(3)        The legal theories and, in ...

Many spouses that are facing a divorce want to keep things as amicable as possible, and they often try to do this through using the same attorney. But having the same attorney is not an option. The Texas Disciplinary Rules of Professional Conduct prevent one attorney from representing opposing parties to the same lawsuit. At the most basic level, a divorce is a lawsuit between the two spouses.

But, there are other options. It is possible to get a divorce without any lawyers--both spouses represent themselves, commonly called a "pro se divorce". Another option is to use what is called ...

Collaborative Family Law is a process by which the decision making process in a divorce is taken away from the Court and put into the hands of a neutral third-party, the collaborative lawyer. This is a relatively new process--The Texas Legislature enacted laws that authorize this practice in 2011.

Collaborative Family Law requires many things. To start, both spouses must sign a collaborative family law participation agreement, and the agreement must have certain provisions in it. Once the agreement is filed on record with the clerk of the Court, the legal proceedings are essentially ...

Ultimately, the judge has greater authority to control a CPS lawsuit involving an allegation of abuse or neglect to a child. However, the judge's authority is limited to only address requests and evidence that are present to the Court, so many decisions get made by CPS without the judge even knowing about it.

In the context of a CPS lawsuit, the judge must ultimately determine what is in the "best interest" of the child. Those two words--best interest--are packed with a ton of meaning, which is further explained here. All of the parties to a lawsuit will try to convince the judge about what is ...

The right to a jury trial is not without limitations. The Texas Family Code provides limited circumstances in which a child custody battle can be decided by a jury. In suits involving children, a jury can determine the issues of: (1) appointing someone as sole managing conservator, joint managing conservator, possessory conservator; (2) determining which conservator has the right to determine the primary residence of the child; and (3) establishing a geographic restriction on a child.

In suits involving children, a jury MAY NOT: (1) determine whether or not to grant an adoption, (2 ...

Under certain circumstances, a foster parent may intervene in a CPS case before twelve months. The statutory and case law provisions that govern a foster parent’s ability to intervene in ongoing CPS litigation are complicated. There are many misconceptions about this based upon lawyers and non-lawyers alike oversimplifying the statutory provisions. 

In some circumstances, the foster parents know the child better than anyone else, and the foster parent’s intervention in the CPS case is necessary in order for the court to hear all of the facts and be able to determine what is in the ...

A CPS case has a twelve-month deadline with several important hearings and conferences along the way. There are adversarial hearings, status review hearings, permanency review hearings, family group conferences, and permanency conferences. Each hearing or conference has specific statutory requirements that must be met by CPS or the court.

Ordinarily, the child must be returned to the parents, or the CPS case must end by some other manner, by the twelve-month deadline. The court may sometimes grant a six-month extension to a CPS case under extraordinary circumstances, at which ...

A CPS court hearing has many unique people involved, including: the Department of Family and Protective Services (“CPS” or “The Department”), their attorney (“District Attorney” or “County Attorney”), the Guardian Ad Litem (“GAL”), the Attorney Ad Litem (“AAL”), the parents and their attorneys, and the foster parents.

The Department of Family and Protective Services (“CPS” or “The Department”) is the State Agency that is responsible for protecting abused and neglected children. In CPS Court, they are the “Petitioner” because they are ...

Insupportability is another name for what is commonly called a “no-fault divorce”. In Texas, you can get a divorce based simply upon not getting along with your spouse anymore. The typical language found in a divorce petition or divorce decree will state that the grounds for divorce are based on a “discord or conflict in personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”

Even if one of the spouses is at fault for the break-up of the marriage, many spouses choose to pursue a divorce based on the ...

If you and your spouse live in different counties, the county in which the divorce is filed is an important consideration. Some counties in Texas have Standing Orders that immediately become effective upon a party when they file for divorce or are served with divorce papers. Standing Orders govern the conduct of the parties while the divorce is ongoing, and typically address issues such as children, property, and communications between the parties.

Additionally, some counties have local rules that will govern some of the details of the divorce proceedings. There may also be some ...

An ICPC Home Study gets its name from the Interstate Compact on the Placement of Children (ICPC), which has been adopted by the State of Texas. The ICPC governs how, when, and why a child may be placed across state lines. An ICPC Home Study is an assessment of the home of a prospective placement for the purposes of placing a child across state lines.

In the context of a CPS suit, an ICPC Home Study typically occurs when Texas identifies a family member that lives in another state and would like to have the child placed with them. The ICPC Home Study process is designed to be quick (less than 60 days ...

A Standing Order typically governs the conduct of parties in a divorce or a Suit Affecting the Parent Child Relationship (SAPCR). Standing Orders are usually orders by county, and many counties in Texas do not have standing Orders. If the county in which the lawsuit is filed has Standing Orders, the become effective on the party as soon as the lawsuit is filed, and they become effective on the other party as soon as the citation paperwork is served on the other party to the lawsuit.

Standing Orders do not have to be requested. They automatically apply to every divorce or SAPCR filed in the ...

The Texas Family Code provides a list of twenty-seven rights and duties that a person may have to a child. Of those, most child custody disputes focus on only four of these rights:

1. The right to establish the primary residence of the child;
2. The right to consent to non-emergency medical, dental, psychiatric, psychological and surgical treatment involving invasive procedures;
3. The right to make education decisions; and
4. The right to receive, or the duty to pay, child support.

Being a parent or guardian is much more than just having possession of a child. These rights and duties will ...

Texas law provides several fault-based grounds for granting a divorce. This means that one of the spouses is directly at fault for the break-up of the marriage. These include: cruelty, adultery, conviction of a felony, abandonment, living apart, and confinement in a mental hospital. Cruelty and adultery are the most commonly used fault-based grounds for divorce.

Pursuing a divorce based upon fault-based grounds has many strategic benefits; however, it is not the best thing to do in every case. Often times, a fault-based divorce may become more contested, drawn-out, and costly ...

No. The Texas Family Code explicitly provides that a few things cannot become a reimbursable claims upon divorce. Student loans are one of those items.

This is a matter of "public policy" that the Texas Legislature simply believes should not be something that spouses argue over upon divorce. If you paid off your spouses students loans, that is money that you can never get back. No matter how big the loan, or what the source of funds were that you used to pay off the loan, that money cannot be reimbursed to you during a divorce proceeding.

Texas Law requires that one of the spouses must be a resident of the State of Texas for six months in order to get divorced in Texas. Additionally, Texas Law requires that you be a resident of the county that you are filing the divorce in for at least ninety days before filing for divorce.

Both spouses do not have to live in Texas in order to get a divorce in Texas. However, other factors such as the location of children and real estate may make this decision more complicated. If you are facing a divorce in which you and your spouse do not live in the same state or county, you can contact us to discuss ...

It is possible for one spouse to have a claim for reimbursement for separate property that was invested into the community estate. Typically, this takes the form of one spouse using their inheritance or pre-marriage assets to purchase a home during marriage. It also often occurs where one spouses uses their inheritance or pre-marriage assets to remodel or add improvements to a home.

Texas law provides a presumption that all property on hand at the time of divorce is community property. To prove otherwise, the spouse who is claiming a separate property interest must prove it by "clear and ...

Texas is a community property state. This means that all property acquired during marriage and on hand at the time of divorce is community property belonging to both spouses equally. This is true for retirement, 401k, and pension plans too.

Federal law and Texas law combine to provide a non-employed spouse with certain protections of their interest in their spouses retirement plan. During a divorce, it is critical that these dates and values of the retirement plans be properly considered by the parties. Additionally, dividing retirement accounts will require special documents or ...

Trust asset may or may not be affected by a divorce. Trusts take on many different forms, with different provisions regarding the purpose of the trust and they type of distributions to the trust beneficiaries that the trustee may, or must, make. The words in the trust document will be critical in determining how the trust will be affected by a divorce process.

It is essential that you have an attorney who understand how the trust, and the distributions from it, are implicated by the community property laws of the State of Texas. If you or your spouse are going through a divorce with a trust ...

Characterizing property as “community” or “separate” can be one of the most critical aspects of the divorce process. Texas law defines separate property as property that was acquired before marriage, property that was acquired by gift or inheritance, or property that was required for personal injuries sustained by one spouse during the marriage. All other property that is acquired by either spouse during marriage is community property.

Community property belongs equally and entirely to both spouses; however, separate property belongs to only one of the spouses. This ...

Texas uses the term "conservator" to broadly include anyone with a court-ordered relationship with a child. You may hear the term "joint managing conservator", "sole managing conservator", "possessory conservator", or "non-parent conservator" - or any combination of these terms (e.g., "non-parent sole managing conservator"). A conservator may be a parent, a relative, a family friend, or even the State of Texas (CPS).

Generally speaking, a "possessory conservator" is someone who has the right of access/visitation with the children, but little else. Conversely, a "managing ...

Intervening in CPS lawsuits is complicated. There are many scenarios and situations in which a relative or a foster parent may intervene in a CPS lawsuit—regardless of whether or not you have possession of the child.

Interventions are extremely dependent upon the facts and circumstances of a particular case. This is because of the complex nature of determining what is in the “best interest” of a child. Often times, the relatives or foster parents know the child better than anyone else, including the biological parents. Other times, the other parties in the courtroom do not have ...

Discovery is the formal process by which documents or other evidence can be obtained from the other party in a lawsuit. The most common forms of discovery are:

Interrogatories - a set of questions direct to the other party about any matter that is relevant to your case.

Request for Production of Documents - a set of questions inquiring as to the existence, description, condition, location, and contents of documents or other tangible things.

Deposition - informal testimony taken outside of a trial, under oath, and subject to cross-examination by opposing counsel. This testimony may be ...

Business interests will likely be affected, in one way or another, by a divorce. Texas’ community property laws are complicated, and it is not always clear whether a business interest should be classified as the separate property of one spouse, or the community property of both spouses. If the business is part of the community property that needs to be divided in the divorce process, the value of the business must be obtained prior to determining which of the several options is best for the business.

Business interests can be addressed in several way, and it is essential that you have a ...

No, the previous parents cannot get a child back after an adoption is complete. Adoption is a legal process by which the parent-child relationship is permanently formed. Before a child is eligible to be adopted, the parental rights of the former parent must be terminated, or the former parent must be deceased.

The adoptive parent takes on all of the rights and duties of being the parent. So, once the adoption is complete, the adoptive parent can even have his/her name added to the child's birth certificate. This cannot be undone, and the former parents can not get the child back.

The Standard Possession Order "SPO" is outlined in the Texas Family Code as the terms of possession and access between conservators and their children that are presumed to be in the best interest of the children. A court will typically order the SPO unless: (1) the conservators agree to something different; (2) the SPO is inappropriate or unworkable because of a work schedule or other special circumstances; or (3) the age, developmental status, circumstances, needs or other relevant factors.

In general, the SPO provides that the non-primary parent or conservator will have ...

If you are going through a divorce or custody dispute in Texas, you will hear the term "best interest". These two words have a lot of meaning. The Texas Family Code states that "the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."

In 1976, the Texas Supreme Court defined "best interest" in a well known case called Holley v. Adams. The Court made a non-exhaustive list of factors that trial courts should consider when determining what is in a child's best interest. they are:

A divorce cannot be finalized any sooner than 60 days from the date the divorce petition is filed. This is because Texas law requires parties to have a “cooling off” period between when a divorce is filed and when a divorce is finalized. Typically, these 60 days are needed for the parties to come to an agreement about the terms of the divorce.

If the divorce is complicated or contested, it may take much longer than 60 days. It is not uncommon for a divorce involving children, retirement accounts, or businesses to take 6-9 months to finalize. Sometimes, a divorce takes more than a year.

A divorce can be finalized in two ways: (1) by agreement between the parties; or (2) by a judge deciding on the terms of the divorce decree. When parties agree on all of the terms of the divorce, the judge just needs to sign the decree in order to finalize the divorce. One of the two parties will still need to go to court in order to obtain the judge’s signature. This process is typically called a “prove-up”.

When parties cannot agree on all of the terms of the divorce, the parties will have to go to Court, present evidence to the judge, and allow the judge to make a ruling on what the terms of the ...

In family law matters, the court may make temporary orders for the safety and welfare of a child, for the protection or preservation of property, or to govern the conduct of a party. Typically, temporary orders are given at the beginning of a divorce suit or a Suit Affecting the Parent-Child Relationship. These are not automatic; they must be requested by one of the parties to the suit.

Temporary orders only last as long as the lawsuit lasts. The court has broad power to issue temporary orders on: possession and access of the children, child support, conduct of the parties, geographic ...

Texas is a community property state; however, property that is obtained as an inheritance is separate property. Upon divorce, a court can only divide the community property and the court has no authority to divide separate property. So, an inheritance belongs to the spouse that received it and the other spouse can not take any part of it during the divorce.

Unfortunately, it is not always that simple. The spouse who claims that a certain property was received as an inheritance has a burden to prove this to the court by clear & convincing evidence. This can be hard, or impossible, to do in ...

In Texas, one parent typically is the “primary” caregiver, and the other parent is the secondary, or non-possessory parent. This is true even though both parents usually have the title of “joint managing conservator”. The non-possessory parent is usually obligated to pay child support to the primary caregiver.

Texas Law provides for a standard, “guideline”, amount of child support. The guideline amount of child support depends upon the number of children and the amount of income that the non-possessory parent has. The guideline amount is 20% for 1 child, 25% for 2 ...