The 79^th Texas Legislature enacted a large number of changes in the area of Family Law.  This article addresses some of the more interesting and/or important changes in that area of the law.  You can review any of the statutes mentioned here by following this link:  http://www.capitol.state.tx.us/

CHANGES TO FAMILY LAW

1.         Beware!  You can’t marry your 14 year-old cousin in Texas anymore!! (You’ll have to go to Arkansas to get that done!)  There is a rumor going around that a “renegade polygamist cult” has moved into Texas, and in response to that rumor, the Texas legislature made drastic changes to Texas’ marriage rules.  (This “renegade polygamist cult” is supposed to be operating in far West Texas, in a relatively unpopulated area.  You might want to change your vacation plans if you were considering a trip to the Big Bend, just to be safe!)  Among the many changes enacted in 2005 are:

            C           The minimum age for parental consent to marriage has been raised from 14 to 16 years.  (Can you BELIEVE that it was 14??)

            C           You can no longer marry your first cousin.  (First cousins once removed and second cousins are presumably fair game.  Happy hunting!)

2.                              Collaborative Law Cases are Now Confidential.  H.B. 260 amends §§6.603 and 153.0072, extending the provisions for confidentiality of alternative dispute resolution procedures provided in Chapter 154 of the Civil Practices and Remedies Code to collaborative law procedures.

3.                              Disability and Workers’ Comp. Benefits.  H.B. 410 §3.008 provides that if a person becomes disabled or is injured, disability insurance payments or workers’ compensation payments are community property to the extent that they are intended to replace earnings lost while the disabled or injured person is married.  To the extent that the income is intended to replace earnings while the individual is not married, the recovery is the separate property of the disabled or injured person.  This probably makes the AAFLAC duck’s head spin!

4.                  Employee benefits examined.  House Bill (“H.B.”) 410 adds two new sections to refine marital property rights.  Section 3.007 says that separate property interest of a spouse in a defined-contribution retirement plan may be traced using the tracing and characterization principles that apply to a non-retirement asset.  Proportional allocation is to be used for a spouse in an employer-provided stock option or restricted stock plan.

5.                  Child Support Arrearage.  H.B. 260 amends Family Code §157.005 so that the court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support if a motion for enforcement requesting a money judgment is file not later than the 10^th anniversary after the date (1.) the child becomes an adult, or (2) on which the child support obligation terminates under the child support order or by operation of law.  And, H.B. 678 amends §157.265 to resolve a conflict between appellate courts by once again setting the future interest rate on child support arrears at six percent (6%).

6.                  Disability and Workers’ Comp. Benefits.  H.B. 410 §3.008 provides that if a person becomes disabled or is injured, disability insurance payments or workers’ compensation payments are community property to the extent that they are intended to replace earnings lost while the disabled or injured person is married.  To the extent that the income is intended to replace earnings while the individual is not married, the recovery is the separate property of the disabled or injured person.  This probably makes the AAFLAC duck’s head spin!

7.                  Tax Consequences of Dividing Marital Property.  H.B. 203 added §7.008, which states that a court, in ordering the division of marital property, may consider whether a specific asset will be subject to taxation and, if the asset will be subject to taxation, when the tax will be required to be paid.  Appellate caselaw did not support consideration of potential tax consequences, which sometimes resulted in significantly different outcomes than the trial court intended or understood.

8.                  Duties and Roles of Ad Litems and Amicus Attorneys and CASA/GALs Changed.  Senate Bill (“S.B.”) 6 and H.B. 307 made extensive amendments and additions to Chapter 107, Special Appointments and Social Studies.  Most of the changes are technical in nature, but a few are substantive.  The Legislature continued its efforts to mandate good legal practices for attorneys ad litem representing the child in §§107.004-.0045 (e.g., special CLE and notice of possible discipline).  Amended §107.008 answers the question of what an attorney ad litem is to do in circumstances of disagreement with the guardian at litem about best interest; the law now clarifies that both positions need to be presented to the court.  Attorneys ad litem for indigent parents are to be appointed in every case involving the state (§107.013).  Section 107.021 limits “one attorney to a customer”.  Finally §107.023 provides that fees for an attorney appointed on behalf of the child or a guardian ad litem are necessaries.

9.                  Grandparents’ Access.  In 2000, the United States Supreme Court stuck down an overbroad state third-party visitation statute on the grounds that parents have a fundamental right to have and raise children without interference from the state except in extraordinary circumstances, such as mandatory schooling, mandatory immunization, and abuse and neglect of a child.  (Troxel v. Granville, 530 U.S. 57 (2000).)  The implications of the Troxel decision generated nationwide controversy, including many citations in Texas appellate cases.  This in turn elicited Attorney General Opinion GA-0260 (2004), which in turn triggered H.B. 261.  The new statute accepts the principles enunciated in caselaw and the attorney general’s opinion with one exception:  the issue of parental unfitness is deemed to be best dealt with in a context other than a suit seeking grandparental possession of, or access to, a grandchild.

10.              Associate Judges’ Power Increases.  The authority of associate judges to provide full judicial services, including the power to make final decisions absent de novo appeal, continues to grow.  H.B. 1179 added the authority of Associate Judges to make temporary orders.

11.              BINDING Informal Settlements Are Now Allowed.  H.B. 202 adds a new §6.604 to the Family Code, making a written agreement reached at an informal settlement conference binding on the parties to a suit for dissolution of marriage, unless the court finds that the terms of the written agreement “are not just and right.”  In that event, however, the court may request that the parties submit a revised agreement, or set the case for a contested hearing.  Amended §153.007 also authorizes binding informal settlement agreements unless the court finds the agreement is not in the best interests of the child.  H.B. 260 provides a similar “escape-hatch” for the court if a party to a mediated settlement agreement was a “victim of family violence” and the agreement is not in the child’s best interest.