Overview of the Changes to the Texas Divorce Law
Historically, there have been very few times when Texas divorce law has been changed. A major change occurred in 1996 when the state of Texas adopted a "community property" model and removed most of its formerly legal separation "fault" grounds for divorce. The intent of this was to simplify the divorce process and to avoid the stigmatization of each spouse as the "guilty party." Other than in cases of action such as domestic violence, which may affect the custody of child custody, spouses seeking divorce were thus subject to the same circumstantial guidelines as any other couple, such as irreconcilable differences, mental incapacity, etc. Getting a divorce was no longer a matter of winning the "blame game" but simply the dissolution of an otherwise legal marriage.
This model continued largely unchanged until September 2019, when sweeping changes to Texas divorce law regarding the tribunal system took effect. Prior to the change, Texas judges presided over family law matters such as divorce, custody issues, abuse allegations, and the like. Under the newly revised legal system, however, these family law cases are now under the purview of specialized "Family District Courts" in 254 Texas counties and directed by increasingly stringent procedural rules. The result is that Texas is now one of the most "family-inclusive" states where divorce and post-divorce matters are adjudicated by appointed judges who are educated and experienced solely in family law .
The problem with the previous system was that "regular" judges who applied law and procedures to family law matters did not necessarily have any background or knowledge of family law other than what they had learned in law school. For example, a judge of the 258th District Court of Harris County had formerly handled civil law matters. The 258th District Court is now solely the Houston Family Law Center. It is the largest family law court in Harris County, which itself handles over half of all divorce cases filed in Texas. Full time judges in these courts will henceforth be specifically "Family District Judges," not "civil law judges." Family law judges in Harris County will also be officially designated "Associate Judges."
Under the new rules, each established Family District Court in Texas will have its own local rules of procedure. Additionally, under the new law, judges must be reappointed to their positions after four years and then every four years thereafter for as long as they serve. This would mean that those judges of the 258th District Court of Harris County are required to undergo appointment hearings in order effective on January 1, 2020.
Other new laws enacted by the State of Texas that affect divorce and divorce-related matters include the following:
New Grounds for Divorce
The New Divorce Law in Texas also brought changes to the grounds for divorce. The prior law used the term "insupportability" to describe the general ground for divorce that is common to nearly all divorces. The term basically meant the marriage has become incompatible and there is no reasonable expectation that the situation can be improved. Some divorce lawyers thought that the term insupportability was too close to the term impossibility (which is a ground for divorce in itself), leading to some unnecessary confusion. The new statute eliminates the term insupportability by referring generally to "consolidated grounds" for divorce, which must be found by the court prior to granting the divorce. The statute refers to grounds for divorce as " fault based" (i.e. adultery, conviction of a felony etc.) or "no-fault" (i.e. the catchall of insupportability). Thus, adultery and other reasons are now consolidated into the new statute. While in most high conflict divorce cases it is sufficient to simply allege that the marriage has become insupportable, it still may be desirable to file suit on fault grounds, such as adultery, as the court may then have additional powers to do things, such as disqualify a spouse from receiving spousal support.
Modifications to Property Division Guidelines
Changes made to the Texas Family Code in 2012 made significant changes in the area of asset division. Previously, in a property division, the Court was required to divide the "marital estate" which was clearly defined as all community property, except for that portion afforded to the "community estate," which portion was calculated as the "fraction of months married over months employed." In such a case, if a couple was married for 20 years (240 months) and one party worked for 15 years, the Court would determine that the community estate was 1/16th (15 divided by 240).
Under the new law, effective September 1, 2012, the Court must make a just and right division of property based on the needs of the parties and other factors.
- Through the new provisions, a 15 years employed / 20 years married scenario would be calculated differently. The Court would make a just and right division based on the needs of the parties. The previous "formula" of 1/16th would no longer apply.
- The Law now takes into account the length of unemployment, divorce age of the parties, and the health of the parties when making a division.
- In an effort to create more equality, the Law further states that in situations where the parties marry again, and divorce, the Court is commanded to consider which spouse got the benefit of the appreciation of the property prior to the marriage as well as the use of community funds to pay down a debt.
- The new Law also requires that in a situation where the debt is paid primarily from the community estate then the benefits of the property and the burden of the debt are considered in making the "just and right" division.
As with many laws, the interpretation of the intent of the legislature is left to the courts through appellate decisions. However, at least the Court now has guidelines as to how to make a division.
Effects on Conservatorship and Child Support Obligations
The new law also brought about notable changes to child custody arrangements. Now, if both parents have a preserved right to designate the primary residence of the child and if the parents live in the same county or in a county adjacent to the county in which the initial child custody order was rendered, then the court may modify the prior order only if the modification would be a positive improvement for the child’s best interest. Additionally, if the child no longer has a significant connection to the geographical area of the current controlling order and that modification would further the best interest of the child, the court may modify without deference to the jurisdictional requirements of the law. Further, the new law allows the court to set up a "trigger mechanism" to modify the order in the future without having to meet all of the requirements of the modification statute (as described above).
Under the new law, the parties may now submit their information regarding tax dependency exemptions for the child to the judge to decide as opposed to them just being what they are in the previous order. While this provides a bit more certainty, you and your ex still need to make a big effort each year to have them filled out correctly and in the appropriate time frame after the court enters a new divorce decree.
Child support has also been reformed under the new law. In an order where the obligor is the higher earner, the obligor can be ordered to pay the child to attend private school where the superior income of the obligor makes a regular public school attendance less beneficial for the child. It does appear that the court would need some basis to award private schooling for elementary and secondary schools, but upon entrance of a divorce order, the court may award future contributions from the higher income earner so that the child has access to such schools. There is also a provision that the parties may agree to share the expense of the cost of post-secondary education if the cost of such education would not otherwise be divided, but there are no firm rules regarding how such arrangements are to be made.
Revisions to Spousal Maintenance Requirements
Previously, eligibility for spousal support under Texas law had a few different requirements, and a court’s ability to make an award at all was also dependent on whether the parties had a signed written agreement permitting support to be awarded. The new provision instead limits awards of spousal support to those instances in which the spouse in need has both a physical or mental disability that precludes gainful employment, or some other situation that is considered similar to a disability. These other situations include the obligor having engaged in family violence within two years of the date of filing for divorce or the obligor being the primary caretaker of a child with a physical or mental disability. To receive an award, the spouse requesting support must make a showing that their ability to provide for their needs will not be met by the obligor spouse, and because the law no longer refers to a spouse that "lacks sufficient property" to provide for spouse’s needs, while it will still be possible to obtain an award without a showing that there is a "disparity in income," a showing of a disparity in income is required to be eligible for a duration-based award.
Generally speaking, the purpose of spousal support in Texas is to help a spouse who will have difficulty meeting his or her own needs for a reasonable period of time after divorce. The statute presumes that the duration of support, if approved, will be for some specified period of years depending on the length of the marriage, but the law also allows the court to extend the duration under certain circumstances. For duration-based support , the total amount the obligee could receive is limited under the new law to either 20% of the obligor spouse’s average adjusted monthly income or $5,000, whichever is less. In no case may the total monthly amount awarded exceed $5,000. Spousal support is phased out with age (spousal support terminates at age 65), and these ages are set out in the statute.
A spouse may also ask the court to assess a monthly amount for a period of not more than two years for the shorter of the following periods: The amount specified in the order is fixed, unless the court finds that circumstances have materially and substantially changed since the prior order was entered. Any order for a specific period cannot be renewed or extended from the termination date of the earlier order.
Either party may request that the court award to the spouse seeking support an initial lump sum of spousal support or that the total amount be paid in monthly installments. If payments are made in monthly installments, the court may require that the payments be secured by property or a cash deposit.
It is important to remember that, though so much of the old "wife support" law has been overturned in favor of a more gender-neutral and realistic statutory framework for the expense, the new law is only about a year old, and case law is in its infancy. The law is going to continue to be defined and interpreted by the courts in the coming months and years, and it is therefore important to consult with a qualified attorney in order to understand how the new law will be applied in your case.
Procedural and Legal Process Changes
The legal process for divorces will also undergo some procedural changes in 2016. For starters, the new law will affect the first step – filing. Currently, in a court without a local rules provision to the contrary, a party filing for divorce can file with either the district or county court. In 2016, parties may only file with a district court. Additionally, a party who files under Chapter 6 of the Texas Family Code must include one of two items with their Initial Pleading: (1) Certificate of Last Known Address – this is necessary for a contested case. Any respondent served in a contested case must, before the 15th day after the date of service, file a certificate of their last known address and any other address at which they may be served to withhold entry of a protective order or temporary order, or (2) Affidavit of Military Status – if the parties have been married less than ten years or there are no children of the marriage, the pleader must include an affidavit of military service.
If a party is responding to a divorce action, that party must file a Certificate of Last Known Address with its answer within 15 days of service. This replaces the requirement to file a Military Status Affidavit – and it is very important to file no later than the 15th day after service of process. If not filed as stated, the right to file an answer will be terminated and the Court will appoint an attorney ad litem to represent the interests of the Respondent.
Legal Guidance on How to Proceed Under the New Law
For individuals considering divorce in Texas, it is important to stay well informed about the new regulations and how these changes may impact legal processes. Consulting a legal professional is essential for navigating the complexities of the new law. When faced with the decision to divorce, reaching out to a qualified professional as soon as possible can help ensure that individuals understand their rights, responsibilities, and the potential limitations they may encounter. For divorcing parents, for example, the new child possession and access guidelines mean that understanding the exact nature of this arrangement is critically important before embarking on a final determination about the future disposition of their case. In some situations, these final determinations may not even be possible until there is a final order implemented and the child begins school. The new laws that govern when children enter kindergarten now impact when or if a parent may receive the relief they seek by filing a motion with the court to change the status of a child’s primary residence. There are many areas in which the new laws may impact how to resolve an underlying lawsuit, and sometimes, the type of relief sought must be modified or changed. Families with a solid understanding of this case law will be best suited to deal with a case in which a change of law effects its outcome. There are benefits to being prepared prior to a lawsuit as well as during the pendency of a lawsuit that is active in the family courts. Understanding the law and how these changes impact your family’s needs is essential for a successful outcome. Finding proper legal counsel can be accomplished through a variety of methods. Speaking with trusted friends and family members for a referral may be a good place to start, as is searching online for qualified service providers. The State Bar of Texas maintains a searchable list of family law attorneys by region, and the Texas Family Law Section includes a directory of state family law organizations that may help you find a qualified family law attorney for your proceedings. Having adequate legal representation throughout the divorce process will help the litigant best achieve their overall goals within the family law system.
Wrap Up: What to Expect Under the New Divorce Law
In summary, the new Texas divorce law requires some rewiring of your prior expectations and plans. Gone are the days of agreeing to a divorce pact via a handwritten note on a cocktail napkin that states you will never marry again if the divorce is finalized within 60 days. Your spouse can now opt to stay married forever, and you have no legal recourse. If you let that deadline pass without doing anything, you’re at the mercy of your spouse forever. The second change is that if a spouse hired an attorney in the past, you had two years to review the agreement and decide if it was acceptable. Again, this lapse of time may be the end of the inquiry, and you will be forever bound by this agreement. The final aspect of the new divorce law is that the old law did not require you to provide your former spouse with financial records. Now, however, they are required to be part of the marital assets to be divided . The new law limits the time frame of when they can request these records, so it is crucial to obtain them within one month of separation or being served with divorce papers. Even more importantly, if your spouse requests these records, you only have 30 days to turn them over, or you can be in violation of the court’s order and be subject to a contempt of court charge. Remember, when a court issues an order, it is the law. Even if you don’t like the law, it doesn’t give you the right to disobey. Always get advice regarding the length of time you have to respond to another party’s request for financial information or risk a fine. If you are considering divorce, this new information could affect your future divorce if you allow it to. Be informed and get good legal advice. Do not be afraid that your attorney will paint a picture of a dark and scary road ahead. A reputable attorney will simply advise you to be aware and try to mitigate any risk to yourself.