Texas Family Law Legislation: The New, The Old, The Future

1. Texas Family Law Legislation: The New, The Old, The Future Texas advanced Paralegal Seminar Addison, Texas October 3, 2012

2. Presented by: Kenneth G. Raggio Raggio Family Law Dallas Article Co-Written by: Jeffrey T. Raggio Raggio Family Law Dallas

3. overview • The Old The History of Family Law In Texas • The New 2011 Major Legislative Changes • The Future The Texas State Bar The Texas Bar Foundation The 2013 Legislative Session

4. The old Texas had particularly bad laws • How the Marital Property Act of 1967 came into existence • The Emerging Birth of the Family Code

5. The Marital Property Act of 1967 • Will be explained via the video used to introduce the Louise B. Raggio Endowed Lecture at SMU Dedman School at Law. • The YouTube version (link on homepage of www.raggiolaw.com) has more of the 1960’s legislative process

6. 2011 Legislative Changes: the big 3 • Spousal Maintenance – HB 901 • Fraud on the Community – HB 908 • Paternity Fraud – SB 785

7. Spousal Maintenance • History of no Alimony • Prior Texas Statute: 3 years, $2,500 per month maximum • 2011 Legislative Action

8. Eligibility requirements

9. HB 901 • HB 901 amends the provisions relating to the duration and the amount of spousal maintenance. Section 8.051 is amended to now read that: the court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and…[family violence provisions], or • (2) the spouse seeking maintenance is either unable to earn sufficient income; has been married to the spouse for 10 years or longer and lacks ability to earn sufficient income; or is the custodian of a child that requires substantial care that prevents the spouse from earning sufficient income.

10. HB 901 • Section 8.052 relates to factors in determining maintenance. The factors are set out as follows and any changes are underlined: • each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage; • (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and; the availability and feasibility of that education or training; • (3) the duration of the marriage; • (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; • (5) the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;

11. HB 901 • (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common; • (7) the contribution by one spouse to the education, training, or increased earning power of the other spouse; • (8) the property brought to the marriage by either spouse; • (9) the contribution of a spouse as homemaker • ; (10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and • (11) any history or pattern of family violence, as defined by Section 71.004.

12. HB 901 • Section 8.053(a) is amended to provide that it is a rebuttable presumption that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in • earning sufficient income to provide for the spouse’s minimum reasonable needs or • (2) developing the necessary skills to provide for the spouse’s minimum reasonable needs.

13. Fraud on the community • The Problem • The 2011 Solution

14. HB 908 • HB 908 adds Section 7.009, Fraud on the Community; Division and Disposition of Reconstituted Estate. • The Bill defines “reconstituted estate” to mean the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred. The bill further provides that if the trier of fact determines a spouse has committed actual or constructive fraud on the community, the court shall • calculate the value by which the community estate was depleted and • (2) divide the value of the reconstituted estate between the parties in a just and right manner.

15. HB 908 • To accomplish a just and right division, the court may award a wronged spouse • an appropriate share of the remaining community estate after the actual or constructive fraud; • a money judgment; or • 3) award both a money judgment and an appropriate share of the community estate. • ____ • This bill is directed at the Texas Supreme Court case, Schlueter v. Schlueter, 975 S.W.3d 854 (Tex. 1998), which limits the ability of an innocent spouse to be made “whole” when the community estate was dissipated by fraudulent acts of the other spouse.

16. Paternity Fraud (or, Mistaken Paternity) • Previous Bar to mistaken paternity was res judicata • Unfairness • Judge Hanschen’s actions in Dallas

17. SB 785 • SB 785This Bill relates to the termination of the parent-child relationship and the duty to pay child support in circumstances involving mistaken paternity. • Subsection (a), Section 154.006 of the Family Code is amended to include that a child support order terminates on: • . . . (5) the issuance under Section 161.005(h) of an order terminating the parent-child relationship between the obligor and the child based on the results of genetic testing that exclude the obligor as the child’s genetic father. • Additionally, the Bill amends Section 161.005 of the Family Code by amending Subsection (a) and adding Subsections (c), (d), (e), (e-1), and (f) through (o). Essentially, a final order does not affect an obligor’s obligation for support of a child incurred before that date [final order date] or to pay interest that accrues after that date on the basis of child support arrearages existing after that date. A termination suit may be brought by a man who signed an acknowledgment of paternity without first obtaining genetic testing. Additionally, an adjudicated father in a prior proceeding under Title 5 of the Family Code where genetic testing did not occur, may also bring a suit for termination. • A termination suit must be verified and allege facts that 1) he is not the child’s genetic father; and 2) signed the acknowledgment of paternity or failed to contest parentage because of the mistaken belief that he was the child's genetic father based on misrepresentations that led him to that conclusion.

18. SB 785 – Time limits • There are specific time frames that should be read if you end up with a mistaken paternity case. Generally, under new Subsection (e), a petition must be filed not later than the first anniversary of the date on which the petitioner becomes aware he is not the child’s genetic father. Also, new Subsection (e-1) provides that Subsection (e) applies beginning September 1, 2012. Before that, a petition may be filed regardless of the date on which the petitioner became aware that he was not the child’s genetic father AND this subsection expires September 1, 2013. In other words, the old claims were barred on September 1, 2012, and new claims now have a one-year statute

19. OTHER NEW FAMILY LEGISLATION • Hearsay statements of Children-Family Violence • Protective Order Duration standards • Factors for Custody of Child under 3 • Unsworn Declarations

20. SB 820 13 point checklist • Section 153.254: • 1. The caregiving provided to the child before and during the current suit; • 2. The effect on the child that may result from separation from either party; • 3. The availability of the parties as caregivers and the willingness of the parties to personally care for the child; • 4. The physical, medical, behavioral, and developmental needs of the child; • 5. The physical, medical, emotional, economic, and social conditions of the parties; • 6. The impact and influence of individuals, other than the parties, who will be present during periods of possession;

21. SB 820 • 7. The presence of siblings during periods of possession; • 8. The child’s need to develop healthy attachments to both parents; • 9. The child’s need for continuity of routine; • 10. The location and proximity of the residence of the parties; • 11. The need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on: (A) the age of the child; or (B) minimal or inconsistent contact with the child by a party; • 12. The ability of the parties to share in the responsibilities, rights, and duties of parenting; and • 13. Any other evidence of the best interest of the child.

22. Unsworn Delcarations

23. The future • How the Legislative Process Works • The State Bar’s Ability TO Lobby • The State Bar’s Inability to Lobby AGAINST • The Texas Family Law Foundation

24. During the session • Bills are submitted • The State Bar package is submitted • Family Law Bills are reviewed by the Texas Family Law Foundation • Public hearings are held on bills

25. Hearings/meetings • In public hearings, testimony “for” or “against” bills • Amendments to bills • Meet with legislators • Measures to encourage passage • Measures to discourage passage

26. 2013 package • The Family Law Section’s package has BEEN APPROVED by the State Bar • Appendices 10-14 • Nothing like the “Big Three” of 2011

27. Spousal maintenance • Amend Section 8.051 to allow AGREEMENTS for payment of spousal support to be enforced by contempt, just like Court ordered maintenance (or child support)

28. Waiver of citation • AMEND Section 6.4035 to require that Waivers of citation (again) be Sworn Documents • Can really help in preventing abuse/fraud in the waiver area: • “Just sign this—everything will be all right” • “Trust me”

29. Child custody evaluations • New proposed Section 107.061 stating… • 1. Who Can Be (and Cannot Be) an Evaluator. • 2. What an Evaluator May Do in Evaluating • home visits; interviews; police reports; interview of children; psychological testing. • 3. Limitation of Expert Opinions • has to have seen all to make a recommendation. • 4. Conflicts of Interest • previous knowledge; pet of a lawyer; family member

30. 5. Evaluator Must Have Specialized Knowledge • 19 specific “and” considerations including 40 hours; psychological developmental needs of children; family dynamics; effects of divorce/family violence; interviewing skills; weighing factors and information. • 6. Minimum Qualifications • Masters degree plus 2 years • Except: 107.0607 - if no one in county and the parties agree to someone else. • 7. Delivery of Evaluation Report • 7 days after preparation or 30 days prior to trial

31. Other proposals… • Appeal of AJ’s report back to 3 days • Child Possession transition tweaks • Interlocutory Appeal to include family law • Surrogacy contracts • Appendices 10-16

32. Texas Family Law Legislation: The New, The Old, The Future Texas advanced Paralegal Seminar Addison, Texas October 3, 2012