NEWS – Family Law and the Law Office of Susan E. Duesler

NEW DISCLOSURE REQUIREMENT IN ALL CASES INVOLVING CHILDREN

Posted January 29, 2016

“Why is this written in my orders now?  Is this really necessary?”

Texas Family Lawyers are hearing this more and more, especially as new laws went into effect last September.  Texas Family Code section 153.076 was amended to expand certain disclosures and information that parents must provide to each other. 

Why?  The short answer:  Yes, it is necessary because the Texas Family Code requires it to be in there. Beginning September 1, 2015, the additional disclosure must be provided.    Section 153.076 includes two new provisions:

(b-1)  The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator:

  1. establishes a residence with a person who the conservator knows is the subject of a final protective order sought by an individual other than the conservator that is in effect on the date the residence with the person is established;
  2. resides with, or allows unsupervised access to a child by, a person who is the subject of a final protective order sought by the conservator after the expiration of the 60-day period following the date the final protective order is issued; or
  3. is the subject of a final protective order issued after the date of the order establishing conservatorship.

(c-1)  The notice required to be made under Subsection (b-1) must be made as soon as practicable but not later than:

  1. the 30th day after the date the conservator establishes residence with the person who is the subject of the final protective order, if the notice is required by Subsection (b-1)(1);
  2. the 90th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(2); or
  3. the 30th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(3).

(d)  A conservator commits an offense if the conservator fails to provide notice in the manner required by Subsections (b) and (c), or Subsections (b-1) and (c-1), as applicable.  An offense under this subsection is a Class C misdemeanor.

You may have seen this before, or think it looks familiar. This is similar other provisions in the same subsection:

(b)  The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator resides with for at least 30 days, marries, or intends to marry a person who the conservator knows:

  1. is registered as a sex offender under Chapter 62, Code of Criminal Procedure;  or
  2. is currently charged with an offense for which on conviction the person would be required to register under that chapter.

(c)  The notice required to be made under Subsection (b) must be made as soon as practicable but not later than the 40th day after the date the conservator of the child begins to reside with the person or the 10th day after the date the marriage occurs, as appropriate.  The notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.

(d)  A conservator commits an offense if the conservator fails to provide notice in the manner required by Subsections (b) and (c), or Subsections (b-1) and (c-1), as applicable.  An offense under this subsection is a Class C misdemeanor.

These provisions apply in every divorce with children and every suit involving a child. It does not matter how likely these issues are to come into play, or if they are not likely to happen at all; these Texas Family Code sections apply to everyone.

There may be other laws that affect communications between parents, conservatorship, and parental rights and duties. It is imperative that you contact a family law attorney who is familiar with all the laws.

NEWS – Family Law and the Law Office of Susan E. Duesler

Mistaken Paternity

Posted September 11, 2011

In cases involving mistaken paternity, Texas law now provides provisions regarding the duty to pay child support and termination of the parent-child relationship.

A child support order terminates on the issuance 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. However, a final order does not affect an obligor’s obligation for support of a child incurred before that the final order date, or to pay interest that accrues after that date on the basis of child support arrearages existing after that date. Also, a termination suit may be brought by a man who signed an acknowledgement 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.

In the termination suit, the father must attest, under oath, that {1) he is not the child’s genetic father; and (2) he 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.

A mistaken father must act quickly, however. Beginning September 1, 2012, generally, a petition must be filed not later than the first anniversary of the date on which the mistaken father becomes aware he is not the child’s genetic father.

There may be other laws that affect a mistaken paternity case. It is imperative that you contact a family law attorney who is familiar with all the laws.

NEWS – Family Law and the Law Office of Susan E. Duesler

Spousal Maintenance Law Changed September 1, 2011

Posted July 31, 2011

The Texas Legislature and Governor Perry recently enacted several changes to the Texas Family Code. One of these changes, profiled recently in the news, is how much spousal maintenance can be awarded in a divorce. The information below will help clarify the new laws, and is intended for informational purposes only.

Big change – Who is eligible to receive spousal maintenance?
A spouse seeking maintenance must lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and either: (1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, committed during the marriage against the other spouse or the other spouse’s child and the offense occurred either within two years before the date the petition was filed or while suit is pending, 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. There is no longer an absolute requirement that the marriage last 10 years, as long as the spouse seeking spousal maintenance can meet one of the other conditions.

How much can a spouse receive?
On a temporary basis, it is not uncommon for the amount to be set at twenty percent (20%) of the paying spouse’s gross monthly income. The Court may also provide that certain expenses are to be paid as spousal maintenance. In the final decree, it depends on how long the spouses have been married, as well as several factors that the Court will consider – both of which are discussed below.

The spouse seeking maintenance has to show a few things, before it can be awarded on a permanent basis.
There is a rebuttable presumption that spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in (1) 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. However, there are several factors that can come into play here, and so it is best to discuss options and actions with a family law attorney.

Big change – how long it can last
The maximum time depends on the length of the marriage. The duration of spousal support is now extended from (the limit prior to September 1, 2011) a maximum of 3 years to a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.

Big change – maximum amount to be paid
Texas Family Code Section 8.055 was amended to change the limit of spousal maintenance. For cases filed before September 1, 2011, the limit was $2500.00 per month or 20% of the paying spouse’s gross monthly income. For cases filed on or after September 1, 2011, the limit is $5000.00 per month or 20% of the paying spouse’s gross monthly income.

Cohabitation can end a spouse’s receipt of spousal maintenance.
Section 8.056 of the Family Code now provides that the Court shall order the termination of the maintenance obligation if the Court finds that the person receiving maintenance cohabitates with another person with whom the he/she has a dating or romantic relationship in a permanent place of abode on a continuing basis.

What factors does the Court consider in determining a spousal maintenance issue?
(1) 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; (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.

There are a few other changes made to spousal maintenance law. It is imperative that you contact a family law attorney who is familiar with all of the changes.