Monday, September 14, 2009

Filing Deadlines

See 9.003 of the TX Family Code

A suit to enforce the division of tangible personal property in existence at the time of the decree of divorce or annulment must be filed before the SECOND ANNIVERSARY of the date of the decree or becomes final after appeal, whichever is LATER, or the suit is barred.

How do I learn about Post Decree Proceedings?

Chapter 9 of the TX FAmily Code

My employer does not want to withhold child support

Check out Chapter 8, Subchapter E (Rights and duties of Employer) in the TX Family Code.

Employers are ORDERED to withhold child support if they receive the right paperwork from the court.

The employer may deduct a small administrative fee for doing this paperwork. 

Keeping paperwork

I encourage everyone to keep all copies of their records until the youngest child turns 22.

The OBLIGOR needs to keep all tax returns, all TX A G corrrespondence, pay stubs, copies of all child support payments, etc.

Some employers withhold child support from an employee's paycheck but they don't send the money to the TX A G office.  If you can prove that the money was withheld from your paycheck, then you are innocent and the employer can be held in contempt of court for NOT mailing the money in.

Maximum amout of child support withheld from earnings

The maximum amount of money to be withheld by an employer for an obligor's disposable earnings is 50%.

However, the obligor is obligated for 100% of the child support ordered.

Therefore, if a obligor takes a lessor paying job, the obligor needs to file a MODIFICATION to reduce the child support ordered.

If an employer does not withhold the right amount of money, the obligor is responsible.

In summary, carefully review each paystub to make sure that your child support is being withheld. 

How to terminate spousal support

Chapter 8.056

The obligation terminates on the death of either party OR on the remarriage of the obligee. 

Or, after a hearing, the court shall terminate the maintenance order if the obligee cohabits with another person in a permanent place of abode on a continuing, conjugal basis.

Alimony has come to Texas!

TX Family Code Chapter 8 -- Maintenance.
We call alimony "spousal maintenance" in Texas. 
However, spousal maintenance is limited in Texas.  With some minor exceptions, the basic requirements are that the party seeking maintenance must have been married 10 years and be unable to be self-supporting. 
The monthly payment is limited to no more than $2,500 or 20% of the payor's income, whichever is LESS.
Alimony is generally limited to no more than 3 years.  However, if the former spouse is physically or mentally disabled, payments may extend for AS LONG AS THE DISABILITY CONTINUES. 
Texas now allows a wage-withholding order to help the spouse collect their spousal maintenance.

Dividing retirement

During the marriage until the date of divorce, all retirement (401(k), pension, etc.) is usually divided 50%-50%.

In order to divide these benefits, the Judge must sign a QDRO document - Qualified Domestic Relations Order that is then sent to the employer(s) who divides the employees plan.

Anything BEFORE marriage is separate property.

In Texas, since we don't have legal separation, the community property continues to grow/decrease until the date of the divorce.

FYI:  However, some plans are NOT divisable.  The railroad has a retirement that states they will NOT divide this benefit EVEN if ordered to do so by a court.

Diving community property

The judge must determine what is "just and right" property division.

This does NOT mean a 50%-50% split. 

Award of Marital Property

See the Texas Family Code -- Chapter 7.


You need to wait 30 days before you marry -- unless:
1. you decide the spouse you just divorced or
2. the Judge signed a Waiver of 30 day Waiting Period so you can immediately marry someone else.

Free booklet for New Dads

If you just found out that you are going to be a "dad" then get a copy of "MAPS FOR NEW DAD".

Published by the Healthy Families of San Angelo, 200 S. Magdalen, San Angelo, TX 76903 or or 325-658-2771

Or go to the Texas Attorney General's website at for a copy.


I live in Harris County and cannot afford to hire an attorney. What do I do?

Houston Volunteer Lawyers Program at 713-228-0732.  Or try Lone Star Legal.  The law schools also have legal clinics -- in Houston they are:
University of Houston Law School, South Texas College of Law and Texas Southern University.

You can also check the State Bar of Texas for other pro bono (free) legal assistance.

what if I suspect child abuse?

Call the Department of Family and Protective Services at 1-800-252-5400. 

Popular Child Support Terms

CP - custodiay parent - the person who has primary care, custody and control of the child.

Obligee - the perso who receives child support

Obligor - the person who pays child support

NCP - the parent who does not have primary care, custody and control of the child.

Paternity - legal determination of fatherhood

DNA - the test done (with a mouth swab) to determine if the man is the biological father of the child.  These results are very accurate.

Default judgment - a judgment entered when a person fails to response to any legal action or fails to appear in court.

Arrearage - past due and unpaid child support that is owed by the NCP

Child support modification - a court-ordered change to a child support order

Court order -- a directive signed by the court

Acknowledgment of Paternity (AOP) - a document that both unmarried parents can voluntarily sign to establish legal paternity for their child without going to court.

Sunday, September 13, 2009

Incarcerated parents and child support

If you are in prison, your obligation to pay chld support does NOT go away. 

The amount you owe will continue to add up and you will be charged interest (6%) on any unpaid child support. 

Eventually, you will be paying interest on interest. 

If you have the ability to pay child support while in prison (savings or investments, etc.) it is in your best interest to pay your child support. 

You can request a modification to your child support due to incarceration, but the judge is not obligated to reduce your child support.

Free Texas publications on family law

Go to the Texas Attorney General's website ( for free publications for Texas residents.  Available in English and Spanish.


Centers for Disease Control: Health topics for infants and children:
type in "infants and children" in the search box for information.

Family law:  866-292-4636 or visit

What is Paternity?

Paternity means legal fatherhood.  When a baby is born to unmarried parents, the law does not recognize the biological father as the legal father.  Paternity needs to be established. 

Call the Paternity Opportunity Program (POP) at 866-255-2006 if you have any questions.

What if I want to make my child support payment in cash?

I do not recommend mailing cash to the TX C.S. Disbursement Unit in San Antonio.

You can make cash payments to grocery stores.  The store might charge a small fee for providing this service.  You should receive a receipt and I highly recommend that you keep all proof of payments until your youngest child turns 22.

To find a location go to to find a location near you.

You must fill out the retailer's payment form.  It will probably ask for your full name, the custodial parent's full name, OAG number and the account number.

TX Child Support Payments

All child support payments should be sent to:  Texas Child Support Disbursement unit, P O Box 659791, San Antonio, TX 78265-9791

On the internet you can visit the TX A G website at

24 hour payment & case status information:  800-252-8014

Thursday, September 10, 2009

I got served legal papers -- now what do I do?

File a document at the courthouse called "AN ANSWER".  It lets the judge know that you want to be involved in the lawsuit. 

If you do nothing, a default judgment can be taken against you.

I sell ANSWERS for $25.

They are free to file at the courthouse.  You need to have at least 3 copies -- the original goes to the court, you keep a copy and you send a copy to the opposing attorney (the one who served you!).

What is Collaborative Law?

Chapter 6.603 covers TX Collaborative Law.

Alternative Dispute Resolution

Chapter 6 - Subchapter G of the TX Family Code covers ADR or mediation.

Many counties will not allow a case to go to trial until the parties have attempted ADR.

Some courts require mediation BEFORE they will hear a temporary order hearing.

What are temporary orders?

Temporary orders attempt to balance the rights of the parties with respect to temporary restraining orders, temporary injunctions and other orders.

For example, wife makes $1million a year.  Husband is disabled and unable to work.  Wife controls all the money.  Wife could be ordered to support Husband during the divorce and pay his attorney fees. 

Most courts want to make sure that assets are protected and debts paid during the divorce process.  Most people's biggest asset is their home.  The courts don't want the home to go into foreclosure.  Therefore, a spouse could be ordered to make the payments during the divorce process.

The FINAL DECREE OF DIVORCE settles the property division.  The temporary orders are just "band-aid" orders.  They are not designed to "settle" disputes.  They are designed to make sure the parties do not end up homeless or unable to afford necessities such as electricity and medication.

What is a publication divorce?

Basically, you cannot locate your spouse.  You want a divorce.  You can file a request for the court to allow you to do a "publication" divorce.  It slows down the divorce process.  You must do it exactly correctly or it won't work.

Now with the internet, most courts require that you make a detailed search.  Many courts will appoint an attorney to find the spouse.  YOU get to pay for their time and costs -- start at $500 to $2,000.

It saves you much and time to locate your spouse!

What are the names of some of the pleadings in a divorce?

1.  PETITION --is filed to start the clock ticking.  It can be a very short document (2 pages) that do not include any identifying information (such as social security numbers, date of birth or TX driver's license number).

2.  A WAIVER OF SERVICE - everyone has the right to know that they are being sued.  In order for this to be done, a person approved by the court to "serve" papers on the opposing party must hand the papers to the person then file a notarized affidavit with the court.'

In lieu of service, the party can file a WAIVER OF SERVICE that basically states they know of the pending lawsuit (aka divorce) and they don't want to be served with legal papers.

3.  FINAL DECREE OF DIVORCE - At the end of the case, a legal document is prepared for the judge to sign.  It states how things will be divided by the parties.

4.  In Texas a form known as a BVS FORM needs to be completed and submitted at the same time the FINAL DECREE is submitted to the Court.
The court sends it to Austin, Texas.  Before Texas started doing this, it was difficult to determine if people were divorced.  They would need to search county by county.  Now they just have to file some paperwork and pay a small fee to see if they are divorced.

Do I have to go to court to get a divorce?

Yes.  Even if everything is agreed, one of the parties MUST appear before the court and under oath swear to a series of statements such as state your full legal name, this decree is just and fair, and judge please sign this decree.

There are ways to do this if the person is stationed overseas in the military.
Then you do a notarized statement that is read into the court record.

IF AN ATTORNEY SAYS YOU NEVER NEED TO GO TO COURT, in the State of Texas, this is untrue.

If you don't appear and "prove up the divorce" eventually the Court will dismiss your pending lawsuit (aka divorce) and you will still be married!

Residency requirments to divorce in Texas

In order for a TX court to grant a divorce either the petitioner or respondent must have lived in Texas for the preceding 6 months AND been a resident of the county where the suit is filed for at least 90 days.

So, once you file for divorce, you can move. 

I've had people take jobs out of state and come back after the 60 day waiting period and appear in front of the judge under oath and ask for a divorce.

Grounds for Annulment

Grounds for annulment are limited in Texas.

See Chapter 6 - Subchapter B - Grounds for Annulment in the TX Family Code.

Here are some of the reasons: a.  underage marriage -- but that goes away the moment the underage person turns 18!!; b.  under the influence of alcohol or narcotics -- so you did not mean to get married -- the famous "Las Vegas" marriages.  But if you stay then this option goes away & you just need a divorce; c. Impotency; d. mental incapacity; e. fraud, duress or force; f. concealed divorce; g. marriage occurred less than 72 hours after issuance of license.

Sometimes it's just easier to file for divorce.

So if you were sober and married 80 hours after the marriage license was issued and you went on your honeymoon and discovered that your spouse was a "jerk", annulment won't work.  Being "stupid" is not enough to get an annulment. 

In practicing law for over 18 years, I've done 3 annulments! 

If I leave our home am I "abandoning" all my rights?


You are not required to stay in a place that is dangerous. 

I once had a man that wanted me to make his wife come home so that he "discipline" (aka -- beat her up!) one more time.  FYI:  She did not go back.

Grounds for divorce in Texas

Some grounds for divorce are:
cruelty, adultery, convication of a felony, abandonment, living a part, and confinement in mental hospital.

No fault divorce in Texas

No fault divorce in Texas is also known as "insupportability"

Ending a Marriage in Texas

Under Subitlte C. Dissolution of Marriage

Chapter 6 - Suit for Dissolution of Marriage
Chapter 7 - Award of Marital Property
Chapter 8 - Maintenance
Chapter 9 - Post-Decree Proceedings

Homestead Rights

See Chapter 5 of the TX Family Code.

Premarital & Marital Property Agreements

TX Family Code Chapter 4


The Act is in effective in 27 jurisdictions (aka "states") in the US -- includes District of Columiba, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, N. Carolina, N. Dakota, Oregon, Rhode Island, S. Dakota, Texas, Utah, Virginia & Wisconsin.

Claims for Economic Contribution & Reimbursement are changed

See Chapter 3 - Subchapter E of the TX Fam Code.  Many changes made in 2009. 

The new name is "Claims for Reimbursement".

Employee Benefits

In 2009, the TX Legislature repealed some sections dealing with "defined benefit retirement plans". 

Presumption of Community Property

TX Fam Code 3.003 -- it is presumed that all property owned by one or both spouses is community property.  The burden of proof to make an item separate property is by "CLEAR AND CONVINCING EVIDNECE".

So if you inherit $50,000.  Put it in a separate bank account.  If you put it into the joint bank account, for even one day, it co-mingles the property.

What is "separate property"?

See TX Family Code Section 3.001 --


1.  anything you owned before marriage

2.  anything you acquired during the marriage through inheritance or gift;

3.  the recovery for personal injuries sustained by the spouse during the marriage, except for recovery of loss earning capacity during the marriage.

Informal Marriage

You can go to your local court house and sign a form that states that you have an "informal marriage".

Many people do this.  If this is done, then you need to file for divorce.

How to end a common law marriage?

2 ways:

1.  File for divorce -- or

2.  It is evidentiary presumption of no marriage if a suit for proof of marriage is NOT filed within two (2) years of the parties having "separated and ceased living together".  In other words, this presumption that there was no "marriage" can be fought and depending on the evidence produced for the judge's review, the presumption that there was never a marriage can be overcome.

TX has common law marriage

Just living together is NOT enough to have a common law marriage.  See Chapter 2.401 of the TX Fam Code for everything you need to do.

It's a 3 prong est -- agree to be married, cohabitate in Texas and tell others that you are married.

If you put your "spouse" on your health insurance and list the person is a "spouse", congratulations you are married!

If you put your "spouse" on your car insurance as "spouse", congratulations you are married.

If you file your US Federal tax returns are "married", congratulations you are married!

How young can a person marry in Texas?

Chapter 2 covers this.

You must be older than 16 to marry.  Under 18 you must have parental consent or judicial consent.

Same sex marriage

Chapter 2 of the TX Family Code states that a license may NOT be issued for the marriage of perons of the same sex.

TX used to allow "kissing" cousins to marry!

Chapter 2 of T F C spells out who and who cannot marry in Texas.

In 2005, TX added that you cannot marry a first cousin, stepparent or stepchild. 

(So Woody Allen would not be able to marry his current wife in TX!)

Application for Marriage License

Interesting trivia --

Section 2.004 of the TX Family Code includes that you will fill out a statement before a marriage license is issued.

One of the questions is "I am not delinquent in the payemtn of court-ordered child support."

Popular Question -- If I'm under 18, can I get married without parental permission?

TX Family Code Chapter - the Marriage Relationship

Subsection 2.101-2.103 covers UNDERAGE APPLICANTS

Popular Question - when can a child decide if he wants to visit his other parent?

Simple, the moment he/she turns 18.

If you don't force the child to visit the other parent, you can be held in contempt of court.  As your final order states, you can be fined ($$) or jailed for violating a court order.

If there is a reason the child should not visit the other parent, then MODIFY the visitation order.

For example, Mom is doing drugs and is homeless.  Then go to court and ask the court to modify the visitation order. 

Withholding Orders - New duties of employers

Section 158 now requires any employer with 250 or more employees to remit the withheld child support payments by electronic funds transfeerr by the second business day after pay day. Employers with less than 250 employees can -- but are NOT required to remit electronically.

Medical Support

TX Family Code 154 -- defines terms such as accessibility and reasonable costs as they relate to the child's health insurance coverage. There is now a new section for children involved in IV-D cases aka Texas Attorney General cases.

Child Support Outside Guidelines

If a court allows child support to be outside of TX guidelines, the Court is now required to make and enter findings within 15 days after a request for finding is made. Again, this is more work for the Courts.

Parent Facilitators

The TX Legislature has added a new position. It's called PARENT FACILITATOR. Facilitators are appointed ina nonconfidential capacity. Section 153. -- to read about when and why they may be appointed, their duties and responsibilities, qualifications needed to such, etc.

Rights of Grandparents, Aunt and Uncles

As I tell grandparents that call me, if you want to see your grandchildren be nice to the parent(s) where the child(ren) live! Under Section 153 now the grandparent seeking access MUST include in the Original Petition to the Court an affidavit alleging that denial of possession and access would SIGNIFICANTLY IMPAIR THE CHILD'S PHYSICAL HEALTH OR EMOTIONAL WELL-BEING. The court shall DENY the petition if the facts stated int he affidavit are INSUFFICINET to support the relief requested. If the facts clear this hurdle, the Court is NOT mandated to grant access, but may order easonable access and possession. Example, the child is 1 year old. The grandparent NOT have access to the child is NOT going to significantly impair the chid's emotional well-being. If the Court agrees to allow the petitioner to see the kid, the order MUST specially state, among other things, that the petitioners have overcome the presumption that a parent acts in the child's best interest and that denial of the relief would SIGNIFICANTLY IMPAIR the child's physical health or emotional well-being. This a hard burden to overcome. Grandparents are not going to like this change. The burden to overcome the presumption that a parent acts in the child's best interest is VERY HARD TO OVERCOME. Basically, you are asking the court to say that the parent is unfit or a harm to the child. If the parent is so bad, then why is CPS not involved?

Parents in the Military

Military parents (Chapter 153) rights have been rewritten. Now others can be designated to exercise the rights and possession of the deployed and non-deployed parent, temporary modification of boht child support and possession; make up periods for visitations when the deployed parent returns home; and expedited hearings in the event of deployment. Again, the courts are overwhelmed with family law cases. How are they going to handle expedited hearings quickly? I've been finding that in order to get a hearing, I have to be prepared to wait 2-3 weeks to get in front of a judge. This is going to put more pressure on the Judges. I am interested to see how the courts handle these "expedited" hearings.

Standard Possession Order

No major changes in this area. However, there has been some "cleaning up" of this section of the Family Code.

Primary residence of the child is changed

Wow! The TX Legislature has made some big changes this time! Now if the parties agree, there is no need for one of the parents to be designed as "the parent with the exclusive right to designate the child's primary residence". Now the legal documents only need to include what the geographical area will be for the minor child. Again, as attorneys wrestle with this new change, it is going to be interesting. Many parents agree that the children will live within Harris County and any county contiguous to Harris County (such as Galveston, Brazoria, Montgomery, etc.) So there are several school districts involved. One possible solution will be to restrict the child's residence to certain school districts. In theory, this is a very positive solution. However, I'm curious to see how people that have not been getting along are going to "cooperate". What will school districts do? It's unknown. Can Dad sign the kid up in Ft. Bend School District and Mom sign up the kid to attend HISD?

Statement of 12 yr. old & older says where he/she wants to live is gone!

After making changes to this section (Look up Section 153) over the years, such as lowered the age to 10 then the next Legislative session raising it back to 12, now the statement that allowed a child 12 years or older to state which parent he/she would like to live with is GONE! Now the child can meet with the judge in chambers and talk to the judge. With the courts being overwhelmed by pending family law cases, this change is probably going to slow down the process even more. Now the judge must make time in his/her schedule to meet with children. And someone must bring the children to the courthouse. I doubt that any judge will be pleased if a child misses school for this private interview. The judges in Harris County do NOT want kids to miss school. Since schools end at 3pm, then the judge will have perhaps from 4-5 pm Monday - Friday to interview children privately in their chambers. Say you need to go the Harris County and you live close to the Woodlands, it can easily take an hour to drive from that part of town to Downtown Houston. Some Harris County judges have refused to interview minor children in the past. I am interested to see how the Harris County judges handle this change!

No waiting period for a divorce in certain cases where there was family violence

There is a traditional 60-day waiting period (cooling off period) on all divorces. However, for the first time, if a respondent has been convicted, received deferred adjudication or is under an amergency protective order as a result of a court finding family violence, the court may grant a divorce prior to the normal 60 day waiting period. People that want a quick divorce will now be encouraged to allege some sort of family violence occurred in order to eliminate the traditional 60 day waiting period.

Handgun Licenses Suspended if there is a Protective Order

Family Code Section 85.022 now MANDATES that a court must suspend a respondent's license to carry a concealed handgun, if a protective order is issued against that person. Respondents will certainly now be even more motivated to fight a pending protective order.

Non-Parent Relative Authorization Agreements

Chapter 34 of the TX Family Code authorizes a parent to allow a grandparent, adult sibling or adult aunt or uncle to make certain decisions. Some of the rights that can be delegated to the non-parent relative include consenting to medical care for the minor child, obtaining health insurance, enrolling the child in school, consenting to extra-cirricular activities and allowing the child to obtain a learner's driving permit. This statue became effective 6/19/09. It allows one parent to do this without consulting with the other parent. However, is there is a pending Suit Affecting the Parent-Child Relationship (aka SAPCR) or a previous SAPCR order in effect, the agreement must be authorized by the court. This change should keep attorneys busy. I predict that a parent will sign the document to a relative and when the other parent finds out, they will be running to an attorney's office to limit a non-parent making parental decisions.

TX 81st Legislative Session has made changes in our TX Family Law Code

As I've done in previous years, I will add to this blog many of the new changes to the TX Family Code. Most went into effect on 9/1/09. You can access the TX Family Code by going to any major search engine and "googling" TX Family Code. I believe one link is...