Mr. Granata’s paper for his September 2009 Speaking Engagement for the Dallas Area Paralegals Association, Family Law Section
September 9, 2009 Posted in Events Share
2009 FAMILY LAW LEGISLATIVE UPDATE
This paper summarizes pertinent bills that became law effective September 1st, 2009. A lot of the work done to create, draft, and pass these bills was handled by the Texas Family Law Foundation. If you have not heard of the Texas Family Law Foundation then I encourage you to visit their website and become a member. http://www.texasfamilylawfoundation.com/TFL/
The Foundation is a political entity that drafts, promotes and seeks support for family law related bills. They are actively engaged in the democratic bill writing process in Austin.
I have not included an exhaustive list of every update passed this last session but have focused on bills that would be frequently encountered by the lawyer and paralegal alike. For a list of every amendment to the Family Code review the bills online at Texas Legislature Online.
Title I – The Marriage Relationship
Chapter 2. The Marriage Relationship
From the practitioner’s stand point nothing really ground breaking in this area. Here is a quick run down:
1. Amendments to TX. Fam Code § 2.005 (HB
3666) This statute amends Texas Family Code § 2.005 by adding a list of the precise identification required for marriage applicants to obtain issuance of a marriage license. This list is long.
2. Amendments to TX. Fam Code § 2.202(a) (SB
935) This bill amends subsection (a) § 2.202 of the
Family Code to allow Municipal Judges to perform
marriage ceremonies. Believe it or not, this was a
hotly contested issue for the last several sessions but common sense finally prevailed.
3. Amendments to TX Fam Code § 2.209 (HB 3666) This bill increases the requirements for an absent applicant to obtain a marriage license adding even
larger hurdles for absent applicants who are under 18, who now must be represented in the application
process by a parent or other person with legal authority to provide consent to marriage. This bill also adds a section that allows parties to correct errors in their marriage license.
4. Amendment to TX. Fam Code § 2.404 (HB 3666) This bill amends § 2.404 of the Family Code by adding a provision providing for the preparation of a Certificate of Informal Marriage by the County Clerk.
Chapter 3, Marital Property Rights and Liabilities
1. Amendments to TX. Fam Code § 3.007(a) and § 3.007(b). These subsections were deleted. Basically most of the statute was problematic because the calculation used to determine spouses separate property interest in a defined benefit plan didn’t total 100% of the benefit under the statute and thus left attorney’s and Courts disagreeing what is and what is not separate property. In this attorney’s opinion, the statute prior to September 1st 2009 severely reduced a spouses separate property interest in a defined benefit plan based on the simple fact that if part of a defined benefit plan is neither separate nor community under the statute then it’s presumptively community property under Family Code 3.003(a). Since they deleted these two subsections entirely, then presumably we are back under the calculation and valuation methods under Berry and Taggart. Taggart v. Taggart, 552 S.W.2d 422 Tex. 1977. Berry v. Berry, 647 S.W.2d 945 (Tex.1983)
2. Amendments to TX. Fam Code § 3.007(d). These deletions and additions corrects an inconsistency for stock option calculations. The amendment corrects the method for determining the numerator used in determining separate property interests in stock options which were granted prior to or during marriage but which vest after dissolution. This statute also eliminates 3.007(f) which required a recalculation of the community property interest if vesting occurred earlier than the date used in the initial calculation.
3. Amendments to TX. Fam Code § 3.402, 3.404(b), 3.406(a)-(b) and 7.007. Economic Contribution is Gone. The statute retains statutory claims for reimbursement, which are expanded to convert some of the former economic contribution claims to equitable reimbursement requests. It also
eliminates the right to request an offset to a reimbursement claim against a spouse’s separate property homestead based on use and enjoyment of the house.
4. Amendment to TX. Fam Code § 6.702 – Trial and Appeal (HB 72). For suits filed After June 19th, 2009 this is the current law. The 60 day waiting period required before a court may grant a divorce is waived if the court finds that the Respondent
1) has been finally convicted of or received deferred adjudication for an offense involving family violence against the Petitioner or a member of Petitioner’s household or;
2) the Petitioner has an active Protective Order under Title IV or an active magistrate’s order for emergency protection under Article 17.292 Code of Criminal Procedure against the Respondent as a result of family violence committed during the marriage.
5. Amendment to TX. Fam Code § 9.014, 9.205, and 9.106 – Attorneys Fees (SB 866) This statute simply states that attorneys fees may be ordered in post decree enforcement proceedings and proceedings to divide previously undivided property. TX. Fam Code Section 9.106 provides for an award of fees in the post-decree rendered of Qualified Domestic Relations Orders, but only between the parties to the divorce. There were previous disagreements that costs didn’t include attorney’s fees. This statute should also encourage lawyers to draft QDRO’s that conform to the award since attorney’s fees are now awardable by the Court.
Title II – Child in Relation to the Family
Chapter 34 (NEW) – Authorization Agreement for Non-Parent Relative (SB 1598)
In this lawyer’s opinion this Chapter doesn’t seem particularly well thought out. This chapter basically allows for parties to reach an agreement authorizing a non-parent relative of a child to make certain decisions on behalf of the child. The non-parent relative must be a grandparent, adult sibling, or adult aunt or uncle of the child. The revocable agreement, may authorize the relative:
to obtain medical treatment, dental, psychological;
or surgical treatment or immunization of the child, obtain insurance coverage for the child;
enroll the child in a day-care program; extracurricular activities, obtain a learner’s permit; and
other things including enroll the child in school in the district where the “authorized relative” resides. I think the reader can already see problems related to school district shopping by parents.
Title V – The Parent-Child Relationship and SAPCR
1. Amendment to Section § 102.011(b) – Acquiring
Jurisdiction over Nonresident (SB 865) This statute amends 102.011(b) to allow jurisdiction over a nonresident if the person: (a) registered with the paternity registry maintained by the bureau of vital statistics or (b) signed an acknowledgment of paternity of a child born in this state.
2. Amendments to TX. Fam Code § 153.008 and
156.101 – Child’s Preference of Person to Designate Residence (HB 1012)
The Child’s Written Preference of Person to Designate Residence is gone. Presumably, the remaining method is an in chambers interview between the Court and the child. The new language reads “the child is at least 12 years of age and has expressed to the court in chambers as provided in § 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child”. What this author finds not as clear is what mechanism the litigator uses to establish the right to a temporary order. As a practical matter, it seems that the children’s preference is not always at issue. Sometimes both parties testify and agree upon the child’s stated preference. The disagreement usually relates to if a change in primary conservatorship is in the child’s best interests. Of course if the preference is at issue, then the interview is appropriate.
3. Amendment to TX. Fam Code § 153.133;
Designation of Primary Residence (HB 1012)
The need to designate primary residence in a parenting plan has been removed. The plan is of course still subject to Court approval.
To provide clarity in the Standard Possession Order over “expanded” possession times as well as what exactly a school holiday is the following definitions have been altered:
a. Definition of School – 153.3101 “school” to be “the primary or secondary school in which the child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child resides.”
b. Amendments to Sections 153.312 and 153.313 in
Visitation for Parents Who Reside 100 Miles or
These two statutes remove all references to the “elections” to be made by the Possessory Conservator to new Code Section 153.317. These statutes also amend provisions of sections 153.312 and 153.313 to provide a 6:00 P.M. start time for spring break, 6:00 P.M. beginning and ending times for periods of summer possession for all parties, and 6:00 P.M. beginning and ending times for exclusive periods of possession by a party.
c. Amendments to Section 153.315 – Weekend
Possession Extended by Holiday
This section was modified to include a student holiday or teacher in-service day as a holiday and to change the term “holiday” to “student holiday”.
d. Amendments to Section 153.317 – Alternative
This section was completely re-written to place all
of the Possessory Conservator’s “elections” regarding clarify exactly when these elections must be made.
The following elections must be made in writing or by oral statement in open court at or before rendition of the order:
1.) Weekends – beginning when school is dismissed and/or ending when school resumes.
2.) Thursdays – beginning when school is dismissed and/or ending when school resumes on Friday.
3.) Spring Break, Christmas, and Thanksgiving – beginning when school is dismissed.
4.) Father’s Day Weekend – ending at 8:00 A.M.
the following Monday.
5.) Mother’s Day Weekend – beginning when school is dismissed and/or ending when school resumes.
6.) Weekends extended by “student holiday or
teacher in-service day” that falls on a Friday, starting when school is dismissed on Thursday.
4. Amendments to TX. Fam Code § 153.502 –
Abduction Risk Factors (HB 1012)
This Code section amends subsections (a) and (a-
1) which set out certain criteria to aid the court in determining whether there is a risk of the international abduction of a child by a parent. Both of these statutory amendments allow considerations regarding actions of parents taken to flee from family violence directed at the parent or the child in determining abduction risk.
5. Amendments to TX. Fam Code § 153.551(b);
Amends section 153.551 to allow sibling standing to file a lawsuit seeking access in suits filed by DFPS.
6. Amendments Concerning Parenting Coordinator
and the Addition of the Parenting Facilitator –
153.601, 153.605, 153.6051 (added), and 153.606
A new term of art in the Texas Family Code: Parenting Facilitator. The main difference between a Parenting Facilitator (PF) and a Parenting Coordinator (PC) is that a PF can file with the court a report that may include issues regarding each parties compliance with parenting facilitation, with the exception that the report may not weigh in on recommendations concerning conservatorship or possession or access to the child the subject of this suit. However the PF’s report may include a recommendation, to implement or clarify provisions of an existing order. These recommendations are confined to suggestions to implement or clarify provisions of an existing court order that are consistent with the substantive intent of the court order and in the best interest of the child.
The issue of qualifications was further clarified as well. See TFC 153.610
Section 153.6082 is interesting to note. If the PF or PC has been ordered to settle parenting issues with the assistance of the PF/PC then the PF/PC is required to submit a written report describing the parties joint proposal or statement of the parties. I think it’s a good practice note to state in the Order appointing the PC/PF whether it is the intent of the Court to help facilitate a settlement or merely to conduct parental conflict resolution.
7. Enactment of Subchapter L Military Duty –
Sections 153.701 – 153.709 (SB 279)
This statute enacts new sections 153.701 through
153.709 to the Code. It gives nice relief from a litigator’s perspective for servicemembers who are being deployed. See Note b. and d.
a. Section 153.701 sets out specific definitions applicable to this section of the Code.
b. Section 153.702 provides for Temporary Orders if a conservator is ordered to military deployment, military mobilization or temporary military duties that involve moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise his or her rights and duties in relation to the child. This section provides that either conservator may file for Temporary Orders under this chapter. It also provides that after the conservator’s military deployment has ended and the conservator returns to his or her usual residence, these Temporary Orders terminate. Temporary Orders may be sought to appoint a designated person to exercise the right of a conservator who has the right to designate the primary residence of the child (with first preference given to the other parent) or the right to exercise the visitation of the conservator, whether or not the conservator has the right to designate primary residence.
c. This statute also provides in Section 153.707 for
expedited hearings for service members being deployed when at all possible.
d. Section 153.708 provides that Temporary Orders rendered under this subchapter may be enforced by the “designated person” to the same extent as it would be enforceable by the conservator who has been deployed.
e. The statue also allows make-up visitation for a conservator who was deployed, provided that the conservator who was deployed requests these Temporary Orders not later than the 90th day after he or she concludes their military deployment. It is important to note that this new section specifically provides that the court is not required to award additional periods of possession that equal the periods of possession missed by the military member.
8. Amendments to Sections 153.432 and 153.433,
Suit for Possession or Access by Grandparent (HB
a. Amendments to Section 153.432 This bill requires grandparents to execute an affidavit setting out the facts that support the burden which they must meet in order to be entitled to possession or access i.e. “the allegation that denial of possession of or access to the child by the Petitioner would significantly impair the child’s physical health or emotional well being”. The affidavit must be attached to the first pleading. The court shall deny the relief sought and dismiss the suit unless the court finds that the facts as stated in the affidavit, if true, would entitle the grandparents to the relief sought.
b. Amendments to Section 153.433
This amendment does nothing but require the court to state in the order granting possession or access the findings required by the Code to grant a grandparent possession or access. These were considered small concessions in order to preserve the current grandparents rights which already requires dire circumstances before they can obtain possession or access.
9. Amendment to Section 154.181, Medical Support
for Child (SB 865)
This section of the Family Code was amended to provide that the “reasonable cost” for health insurance coverage for an Obligor who has more than one child is defined as “the total cost of health insurance for all children for which the Obligor is responsible under a medical support order that does not exceed 9% of the Obligor’s annual resources as described by §154.062(b) i.e. the same as the maximum percentage for the coverage of one child.
10. Amendments to Family Code Chapter 157, Child Support Lien, Subchapter G, adding § 157.3171 (SB 1661)
This statute adding a new section 157.3717 which allows an Obligor who believes a child support lien has attached to the Obligor’s homestead to file an affidavit to release the lien in the same manner a judgment debtor may file an affidavit under Section 52.0012 of the Property Code. The statute also establishes procedures for a child support lien claimant to dispute the Obligor’s affidavit. The dispute is resolved by the district court of the county in which the real estate is located. This statute also amends Section 157.381(a) and adds Family Code § 157.318(d), which provides that a child support lien is effective as to real property for 10 years and may be renewed for subsequent 10 year periods. (SB 1661)
11. Amendment to Section 157, Adds New Section
157.009 Credit for Payment of Disability Benefits
This statute which adds new section 157.009, provides for credit against a child support arrearage and interest for a lump sum payment to the child as a result of the Obligor’s disability. (SB 1514)
12. Amendments to Section 161.001(T)(i)(ii)(iii) – New Grounds for Termination (SB 1838)
This statute which amends Section 161.001 relates to involuntary termination of parental rights based upon attempted murder or solicitation of murder of the child’s other parent. Amendments to § 161.001 include, as grounds for involuntary termination, criminal attempt as defined by § 15.01 of the Penal Code (or similar sister state, foreign or military law) and criminal solicitation under Penal Code § 15.03 (or similar sister state, foreign or military law).