Summary of Texas Family Law Updates – Effective Changes Now in Effect

The Texas Legislature made changes in 2011 that impact many in the area of Texas Family Law. All of these Texas Family Law updates are now in effect:

• Termination of parental rights by a father after DNA testing
• New “fraud on the community” statute
• Protective orders enforced anywhere in Texas without transfer
• Guidelines for ordering possession for children under three years
• Spousal maintenance orders

Voluntary termination of parental rights for men mistakenly adjudicated a child’s biological father.

Senate Bill 785, codified into §161.005 of the Texas Family Code and effective as of September 1, 2011, now enables a man who has been adjudicated by the court to be the father of a child, or who willingly executed an affidavit of paternity believing he was the father, to terminate his parental rights after learning that he is not the biological father of a child.

Note that a petition to terminate parentage under this new law must be filed within one year of the date the father becomes aware of the facts alleged in the petition indicating he is not the biological father, effective September 1, 2012; prior to that date, a father may file his petition regardless of the date he became aware of the facts indicating he is not the biological father. Fathers who learned they are not the biological father more than a year ago must file their petition to terminate parentage prior to September 1, 2012, otherwise they will not be able to terminate under this new section.

Previously, once a man had been adjudicated as the father of a child, if he found out that he was not, in fact, the child’s father, he had no recourse to terminate his financial obligation to that child. For more details about this new law, read Texas Family Law updates by the Texas Legislature in 2011.

New remedy for fraud against the community estate.

A Texas Family Law statute regarding community property now addresses fraud on the community estate. In the event of fraud against the community estate by one spouse, if the assets cannot be recovered, the court may create what the statute calls a “reconstituted estate,” which is the community estate plus the assets that were fraudulently conveyed. The court can then order a percentage division of that reconstituted estate, such as awarding the innocent spouse 60 percent of the reconstituted estate, which may, in effect, be 90 percent of the remaining assets. For more details about this new law, read Texas Family Law updates by the Texas Legislature in 2011.

Protective orders transferred across counties.

Previously, to enforce a protective order in one county that was issued in another county, Texas Family Law required the case to be transferred to the new county, a very time consuming process in situations where time is virtually always of the essence. This problem has been corrected with a new Texas Family Law statute that permits a protective order issued in any county in Texas to be enforced in any other county simply by filing a certified copy of that protective order with the proper court in the new county. For more details about this new law, read Texas Family Law updates by the Texas Legislature in 2011.

Guidelines for awarding periods of possession for children under three years old.

Regarding child custody, Texas Family law has long contained a Standard Possession Order for children over three years of age. The legislature has now provided the courts guidelines for determining what periods of possession to award for children under three. These are now set out in §153.254 of the Texas Family Code. The statute requires that the court consider a number of relevant factors, which are detailed in our Blog, Texas Family Law updates by the Texas Legislature in 2011.

Spousal maintenance (alimony) orders.

House Bill 901, effective September 1, 2011 as codified in §§8.054 and 8.055 of the Texas Family Code, instituted some of the first significant changes to the Spousal Maintenance Statute since its inception in 1997.

Summary. Below is a brief summary; for more detail on these Texas Family Law updates, please read Spousal Maintenance (Alimony) – Texas Family Law changes by the Texas Legislature in 2011.

Duration. A significant change to the Spousal Maintenance Statute was to increase the maximum duration of a spousal maintenance order. Length of the marriage is now a factor in the maximum duration.

Maximum spousal maintenance doubled. The maximum amount of maintenance available has been doubled from $2,500 to $5,000 per month.  The amount is still based on gross income (20 percent of gross income or $5,000, whichever is less), however, gross income is now defined.

Overpayment. If the receiving spouse refuses to return an overpayment, the statute now specifically provides for the paying spouse to sue and receive compensation for attorney’s fees, unless there is a showing of good cause why the overpayment was not returned.