Like most things in the law, the laws in Texas that relate to family law matters like divorce have changed over time. Whether the law in question is one created through the legislature (Texas Family Code) or one created through judicial decisions attorneys, judges, and divorcing spouses must keep up with the changes and stay up to date amongst the ever-advancing legal landscape. This blog post from the Law Office of Bryan Fagan is designed to highlight some of these changes to provide you with perspective and information about an area of Texas law that may be of interest to you.
We would like to point out that while we hope this blog post is informative and entertaining it is not to be taken as legal advice nor should it replace meeting with an experienced family law attorney to discuss your current divorce circumstances. With so much at stake in even a “simple” divorce, you need to take seriously the responsibility in front of you to detail to an attorney what is going on in your life so that you can receive fact-based information that can guide you better. While this blog post may be a good starting point it should not be the finishing point for you when it comes to your research and preparation for a divorce.
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days per week. A consultation can be scheduled at our three Houston area locations, over the phone, or via video. We want to meet you where you are and help you to identify those areas of your life that may be impacted by family law cases. Not only divorce, but our attorneys are advocates in CPS defense, child custody, child support, and enforcement matters. Take the time to speak with one of our attorneys about your situation and we believe that you will be better off for having done so.
Recent changes in Divorce law
When we talk about changes in the Texas Family Code there are huge, sweeping changes that we can talk about in a general sense. Decades ago, divorce laws were changed around the country when "no-fault" divorce was introduced into the Family Code of Texas. A no-fault divorce allowed men and women to file for divorce from their spouse without specifying a specific reason or "fault ground." This made divorce infinitely easier to achieve and saw the beginning of the trend that we are still experiencing to this day with increasing rates of divorce.
A no-fault divorce is essentially telling the judge that you and your spouse have experienced discord or conflict in personalities that are so significant that there is no hope of a future reconciliation. The two of you can no longer get along well enough to remain married and there is no hope for a reversal of this. By telling a court that you cannot get along with your spouse sufficiently to be married you are now able to get divorced. This was seen as quite the reversal in the law at the time. It made single adults increase as a percentage of the adult population overall. Children living in households headed by single mothers are at an all-time high as I write this blog post.
It used to be a phenomenon known as “divorce tourism” to see spouses attempt to establish residency in states other than their own to obtain a no-fault divorce. California was one of the first states to allow for no-fault divorces and we saw people attempt to file for divorce from their spouse in this state to take advantage of the no-fault divorce laws. However, eventually, every state in the country (including Texas) changed course on the status of the divorce. Now you can get divorced right here in the Lone Star State without citing a fault ground for divorce.
Another important and substantial change in the divorce laws of Texas took place in 1995. That year, the Texas Legislature passed a law that allowed for spousal maintenance to be ordered in a divorce. Post-divorce spousal support (known as alimony in many places) was not a "thing" in Texas until this time. You could receive temporary spousal support during a divorce, but a judge could not order that your spouse pay you spousal maintenance/alimony after the divorce was over. With the passing of a spousal maintenance law in 1995, the Texas Legislature vaulted Texas into the same club as the 49 other states which allowed judges to bestow upon a spouse the ability to be paid support from their ex-spouse after the divorce was over with.
However, in the opinion of many the spousal maintenance laws of Texas are still conservative compared to other states. Spousal maintenance can only be awarded in situations where you and your spouse have been married for at least 10 years. Another situation would be where you are unable to work due to a disability or due to your having to care for a child who is disabled. Because you are unable to work to provide for your minimum, reasonable needs, spousal maintenance can be ordered to help you keep your head above water from a financial standpoint. Another reason why you can be paid spousal maintenance is if you have been the victim of domestic violence within the past two years before the filing of your divorce.
Updated changes to the Texas Family Code
There have been more recent changes that have been a part of the Texas Family Code, as well. As of the last legislative session we have seen several "smaller" changes occur which can also impact your divorce. While not all of these changes will get your attention immediately when you add all of them up they can have a significant impact on your case. It is best to work with an experienced family law attorney who can help guide you through the process and help you to understand how to manage these changes that are specific to the life that you and your family are leading.
When applying for Social Security benefits you can apply based on your employment history or that of an ex-spouse. If you do not remarry you can apply based on your ex-spouse's work history if that would be advantageous to you. For instance, if your spouse were a high earner while you worked part-time then you would certainly want to consider applying under their work history rather than your own. Additionally, if you had never worked before and failed to earn enough credits to qualify for retirement benefits then the ability to apply based on your spouse's work history could be crucial to your being able to retire in your 60s. These are all important considerations for you to keep in mind when you are going through a divorce-especially a Golden Years divorce as you head into your retirement years.
The length of your marriage must be printed in any Final Decree of Divorce in order so that the Social Security Administration can verify the length of your marriage regarding benefits that you may be applying for in the future. The date of your marriage must be included in the decree, as well. Many parties had already included this information in the final decree of divorce, but the last Legislature passed a law that required all divorcing spouses to include this information in final decrees of divorce as of September 1, 2021.
One of the most difficult situations a parent can find themselves in is to be in front of a family court judge with their parental rights hanging in the balance. Having your parental rights terminated against your will can be a helpless and terrible experience for parents. If you have had your parental rights terminated involuntarily then a change to the law made in the prior legislative session may be exactly what you need to get another bite at the apple and have your parental rights reinstated.
In limited circumstances, you or the Texas Department of Family and Protective Services (DFPS) may ask a court to have your parental rights reinstated. Previously once your parental rights were terminated, either voluntarily or involuntarily, then you would not be able to ever go back and have them reinstated. However, a change to the law was made and now there are certain situations where you may be able to go back and move to have your parental rights reinstated. The basic requirements for filing this sort of case and the procedures involved in hearings are included in the Texas Family Code.
With sensitive subject matter like this, it is best to work with an experienced family law attorney before attempting to win back your parental rights. This doesn't mean that you shouldn't learn as much about the law and the process as possible. However, what it also means is that you need to be able to work with an experienced attorney to maximize your opportunities given the limited avenues you have available to you to file for this sort of reinstatement. An attorney can help you determine whether you have a case, to begin with, and how to best proceed when it comes to filing the lawsuit. Obtaining the evidence you need, meeting deadlines, and then making arguments in court are where an attorney can help you and your case excel.
One of the trickiest parts of being a parent is managing the schedule for your children. Not only do you need to be aware of what your parenting plan says as far as when your child should be with you and when your child should be with your co-parent, but you also need to keep up to date with the school calendar that your children follow. If you follow a standard possession order, then you should not be surprised all that often with how your visitation works out. However, if you are a parent who has a holiday following your weekend period of possession it can sometimes be confusing as to when your weekend ends. Does it end at 6:00 p.m. on Sunday or after the Monday holiday or does teacher In-service day occurs?
As of September 1, 2021, the Texas Family Code states that the standard possession order will have an ending time for Monday school holidays and teacher in-service days be 8:00 on the following Tuesday as long as you live within fifty miles of your co-parent. This should be awarded the alternative beginning and ending time for a standard possession order. This change does not impact those non-primary conservators who live more than 50 miles but less than 100 miles from their children.
One of the trickiest situations in a divorce is when one spouse moves out but still has personal property in the family home. This happens frequently in almost every divorce where the spouses had been living together before the beginning of the divorce. If you decide to move out of the family home before or at the beginning of the divorce, then you probably did your best to make sure that your belongings were removed as much as possible before you left. Your spouse may be the type of person who would allow you to come back in and retrieve your things whenever you need to. However, he or she may be barring you from the home for whatever reason. If there is something that you need inside the home, then you have limited options to choose from as far as retrieving those items.
You can call and arrange a time to come home and get the things that you need. This could involve your spouse needing to check with someone else to come in and supervise you and the retrieval of the items. That alone can be an awkward situation given that your spouse may be overseeing you like you had committed a crime and are being barred from the house as a result. If your window for retrieving items is too short, you may yet forget or neglect to get an item or two. Then your spouse may be unwilling to allow you to enter the home a second time and then you end up having to wait until the end of the case to retrieve the item- if at all. Left behind personal items tend to grow legs and walk away during a divorce if left unattended for some time- if you know what I mean.
A law passed in the 2021 legislative session allows spouses to be able to gain access to their residence or former residence to retrieve personal property. If you are denied the ability to do so by your spouse, then you can seek a court order that allows you to go inside the home and retrieve your items with a police officer offer or constable. If you need to obtain the property at the end of a divorce and the property is listed in your final decree, the decree can be used as the court order required you to get the services of a police officer to come and help you.
This may seem like a small detail to include in your divorce, but it ends up being more important than you might believe. What if you left a work computer behind at the home? You need it for work assignments and for completing tasks and objectives in the daily routine of your job. Now that your spouse has it he or she may not be willing to allow you access to the home to obtain the computer. This is a tricky situation that this new law seeks to help you avoid being caught in the middle of.
Again, these new laws may not have changed the existing laws on divorce in Texas in a dramatic way. However, when you add them up the impact on your divorce could be substantial. It is in your best interest to become aware of each change that could impact your life as well as the lives of your children. When it comes to a divorce working with an experienced family law attorney can be the difference between making several mistakes within your case and taking advantage of these laws to better your position both inside and outside the divorce.
The attorneys with the Law Office of Bryan Fagan work diligently to stay up to date on changes in the law and regarding how they can impact the lives of our clients. If you believe that you could stand to benefit from having an experienced family law attorney in your corner, then please do not hesitate to contact the Law Office of Bryan Fagan today. We can work with you to devise a comprehensive and well-thought-out plan for representation within your divorce.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.
