Texas Law
Texas Family Law
- Family Law
Family Law
Family law touches most people at least once in their lives. When getting married or dissolving a marriage, reaching adulthood or having children, people need to be aware of how their legal status changes. Most family law is state law; there is very little federal regulation of families. Because each state has the authority to regulate families within its borders, this chapter is specific to Texas. For information on adoption, see the Adoption Law Chapter in this Guide.
Reaching the Age of Majority
In Texas, a person legally becomes an adult at age 18. Anyone under the age of 18 who never has been married is considered a minor. With a person's 18th birthday, or with marriage, comes most of the rights, privileges, responsibilities, and obligations of adulthood. These rights include the right to vote, the right to make contracts, the right to marry without permission from parents or guardians, and the right to serve on a jury.
Marriage
In order to be entitled to spousal rights and to be bound by spousal obligations in Texas, people must be legally married. Legal marriage generally requires obtaining a marriage license and exchanging vows before an official authorized to formalize the vows. Officials authorized to conduct weddings include judges, magistrates, and licensed religious officials. The exchange of vows must be witnessed.
In Texas, unlike most states, common law marriage is permitted and recognized as legal marriage. People are considered parties to a common law marriage if they:
- Agreed to be married
- Held themselves out as husband and wife, such as by filing joint tax returns or by introducing the other as "my husband" or "my wife"
- Lived together in Texas as husband and wife
Common law spouses also must meet all other marriage requirements.
Who May Marry
In Texas, an unmarried man and an unmarried woman, both competent, capable of consent, and at least 18 years old, may marry without permission of others. Young men and women between the ages of 14 and 18 years may marry if they are capable of consent and have parental consent or a judicial order. Permission from a judge is obtained by filing a petition in the district court for the county in which a parent resides. Texas law prohibits marriages of people who are already married, as well as marriages between an ancestor and descendant, brother and sister, aunt and nephew, and uncle and niece, whether the relations are by blood, half blood, or adoption. Texas recognizes a valid marriage granted in any other state.
License Requirements
Marriage licenses may be obtained through the county clerk in any county in Texas. The applicants must provide:
- Name (including maiden name), address, and social security number
- Date and place of birth
- Proof of identity and age
- A statement whether either applicant has been divorced within the last 30 days
- A statement that neither applicant is presently married
- A statement that the parties are not related by blood or adoption
If relevant, the application must show proof of parental consent and documentation regarding the dissolution of any prior marriage. Both parties must sign the application under oath. When the county clerk accepts the marriage license application, he or she gives the couple printed materials from the Texas Department of Health with information about HIV and AIDS. The application is valid after 72 hours and for up to 30 days.
After the marriage is solemnized, the person officiating at the marriage ceremony must sign the license and endorse it with a statement of the fact of the marriage, the date it took place, and the county in which it occurred. The endorsed license must be returned to the county clerk for recording.
Premarital Agreements
A premarital agreement is an agreement between parties made before they are married regarding their rights when the marriage ends. The issues covered by a premarital agreement usually include the rights and obligations of the parties in property and the disposition of property upon death, separation, or dissolution of the marriage. Premarital agreements made in Texas are governed by the Uniform Premarital Agreement Act. These contracts are valid and enforceable in Texas if they are made voluntarily, are fair and reasonable, use precise words, are in writing, and are signed by both parties.
Rights Within Marriage
Spouses have the right to affection, assistance, comfort, consortium, and society in the marriage. They have a mutual duty to support one another and their children. Necessities such as food, clothing, and shelter are the responsibility of both spouses. Married individuals have the right to sue and be sued (including the right to sue each other), to make contracts, to act as the other's trustee or agent, and to exercise the power of appointment. However, a married person is liable for his or her own torts. When one spouse dies, the surviving spouse typically has the right to receive property from the deceased spouse. It is difficult, though not impossible, to disinherit a partner to a valid marriage.
People who have a common law marriage are legally married with all the rights and privileges--including property rights--of any other marriage. A common law marriage, like other legal marriages, is terminated only by death, divorce, or annulment.
Termination of Marriage
Divorce is the legal termination of a marriage. A marriage is dissolved by a divorce decree issued by a Texas county court. Some divorces are called agreed divorces, if the parties reach agreement on all issues. The court simply approves the parties' agreement. If the parties cannot agree on custody, visitation, child support, alimony, and division of property, the court will decide these issues also.
At the time of filing the petition for divorce, at least one of the parties must have been a resident of Texas for six months and a resident of the county where the action is filed for 90 days. Once one spouse files the divorce papers, the petition for divorce and the summons to appear in court must be served on the other spouse. After the papers are served, the parties must wait 60 days until the hearing at which the marriage is terminated legally.
Grounds for Divorce
In Texas, a divorce may be granted on any one of seven grounds. Usually divorces are granted under the no-fault divorce law. Under this law, the parties only must show that the marriage is insupportable because there is discord or conflict, and there is no reasonable expectation that the parties will reconcile. This means that the spouses cannot work out their problems, even with counseling. Because divorce is no-fault, a court cannot consider either spouse's fault in causing the divorce when making its determinations of custody, visitation, or other issues.
Other grounds for divorce under Texas law are:
- Abandonment
- Adultery
- Confinement in a mental institution
- Conviction for a felony
- Cruelty
- Imprisonment
Effects of a Dissolving of Marriage
People who are going through a divorce may agree with one another how to handle many of the issues that arise. Matters on which the parties disagree, however, must be decided by a court. Court-ordered guidelines generally include instructions on child custody, visitation rights, child support, alimony, and division of marital property.
Child Custody
Child custody is determined by a court based on the best interests of the children. There are two different types of child custody: sole custody and joint custody. Sole custody gives one parent primary responsibility for raising the children. Under a sole custody arrangement, the person with custody is called the "managing conservator" and the parent who does not have custody but has visitation rights is called the "possessory conservator." In joint custody, both parents share the parental responsibilities. If the parents have joint legal custody the children reside mostly with one parent who is responsible for the routine decisions affecting the children, but both parents share the responsibility for making important decisions regarding the children. If they have joint physical custody, both parents are involved even in the day-to-day decisions affecting their children, and the children spend time with both parents, although not necessarily an equal amount of time with each.
Visitation
Typically, the possessory conservator, or non-custodial parent, is granted visitation rights unless the court feels that such visits would be detrimental to the children. Parents may make child visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation, or it orders that the possessory conservator be allowed reasonable visitation. Although the visitation schedule depends on the circumstances of the children and the parents, a typical schedule may include alternating weekends, alternating holidays, and a portion of the children's summer vacation months. Certain other people who have close relationships with the children, such as grandparents, also may be allowed some form of visitation.
Child Support
Child support is financial assistance provided by the possessory conservator to help support the children. Factors affecting the amount of child support a court orders include the needs and income levels of the parents, the children's needs, and the number of children. Child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation. A recently enacted federal law requires employers to withhold wages from employees who are under a court order to provide child support after January 1, 1994. Texas courts also are authorized to garnish wages to collect child support payments. Some courts have ordered the employer of a parent who is required to pay child support to take the child support amount out of the employee's salary, if the child support has gone unpaid for one month.
Alimony
Alimony is financial support provided by one ex-spouse to the other. Either spouse may seek alimony. Factors that a court evaluates in setting alimony include the standard of living enjoyed during the marriage, the relative incomes or earning potentials of the parties, and the needs of each party. Alimony may be either temporary or permanent. If the parties do not need alimony at the time the marriage is dissolved, they will not have the opportunity to request it later, unless the parties both agree to an alimony arrangement. After they are divorced, the court no longer has authority to award alimony payments.
Division of Property
Courts attempt to divide marital property on a fair, although not always equal, basis. Most property acquired by either spouse during the marriage is community property, including real estate, furniture, appliances, vehicles, cash, life insurance policies, retirement accounts, stocks, and businesses, as well as debts. One-half of all community property is owned by each spouse. At the time of dissolution, this property is divided equally, unless both parties agree in writing to divide it unequally. In the case of a business or another kind of property that cannot be split, the court will award the property to one spouse and order that party to pay the other for the lost interest in the property. Community debts must be divided equally between the parties as well. Property belonging solely to one spouse prior to the marriage, or a gift or an inheritance given to only one spouse during marriage, is separate property. Separate property stays with the party who had it originally and is not included in the division of marital assets.
Annulment
An annulment is a court decree that a couple's marriage never legally existed. An annulment may be granted only if the marriage is voidable. A marriage is considered voidable if one of the parties:
- Was a minor and proper consent for the marriage was not obtained
- Was under the influence of alcohol at the time of the marriage, so proper consent was not obtained, and the parties did not cohabitate after the effects of the alcohol passed
- Was mentally incompetent
- Was permanently impotent at the time of the marriage, and the parties have not cohabitated
- Obtained the marriage by fraud, force, or duress
- Concealed that he or she obtained a divorce within the 30-day period prior to the marriage
Under certain conditions, a marriage is considered void from the start. If there is bigamy, polygamy, or incest, a court will annul the marriage by a judgment that it was void.
It is important to note that a legal annulment is different from an annulment granted by a church. A religious annulment is spiritual, rather than legal, in nature, and does not impact the legal status of the marriage. Likewise, a legal annulment may not satisfy the requirements for a religious annulment.
Paternity
Paternity is the condition of being the father of a child. While the identity of a child's mother is obvious from birth, the identity of the father may be unclear. Decisions regarding child custody, visitation, and child support frequently turn on whether a man has established his paternity of a child.
Under Texas parentage law, a man is presumed the father of a child if:
- He and the child's mother were married to each other at the time the child was born or the child was born within 300 days after the marriage was terminated
- He and the child's mother attempted to marry before the child was born, but the marriage was void or voidable, and the child was born during the attempted marriage or within 300 days after the attempted marriage terminated
- He and the child's mother married or attempted to marry after the child was born and: (1) he filed a written acknowledgment of paternity, (2) he was named on the birth certificate with his consent, or (3) he became obligated to support the child by court order or his written promise
- While the child was a minor, he openly held out the child as his natural child and received the child into his home
- He consented to being named as the father on the child's birth certificate
Some of these presumptions may be overturned by an action to declare the existence or nonexistence of the father and child relationship. A suit to contest the presumption that a man is the father of a child must be filed while the child is a minor.
Abuse
Abuse is not easily definable. The legal definition of abuse is evolving and changing in response to society's changing understanding of the problem. More members of society are becoming responsible for reporting and preventing abuse. For example, under Texas law, all citizens are obligated to report actual or suspected child abuse. Abuse of family members is against the law, but different rules and standards apply to different categories of abuse.
Domestic Violence
Domestic violence--also called family violence--is violence or the threat of violence against a current or former spouse or member of the household, or against anyone related by blood or affinity, such as unmarried biological parents of a child. There are several options available to a victim of domestic violence. A victim may file criminal charges, file a civil suit seeking damages, or seek a protective order against the abuser. Usually, the first step is to seek a protective order from a judge through the county or district attorney.
Protective Orders
A protective order is a court order. It is enforceable throughout the state of Texas by any law enforcement officer who is shown a copy of the order.
Requirements
Protective orders can be obtained from a judge at the superior courthouse in the county where the victim lives. The first step is to contact the county or district attorney, who will assist the victim (the petitioner) in filling out an application and help the victim substantiate his or her claim against an abuser (the respondent). It is important that the application be made soon after the abuse occurs.
For a court order to be granted, an application must be supported with evidence of the abuse, so the abused person must fill out an affidavit describing the events surrounding the abuse and the need for protection. When completing the paperwork, it is helpful if the abused person has medical records, police reports, information on witnesses, and a picture or description of the offender, along with his or her work and home addresses. A prepared statement of all incidents of abuse, past and present, including dates and notes, helps to document for the judge the applicant's need for protection.
If necessary, the abused person may request a temporary protective order. A temporary protective order is granted when there is clear and immediate danger of family violence. It lasts for only 14 to 21 days.
Issuing the Order
A judge issues a standard protective order by holding a hearing with both parties present. The purpose of the hearing is for the abused person and the person accused of abuse to be able to tell the judge of the events surrounding the alleged abuse. In order to notify the person accused of the abuse of the hearing, a law enforcement officer serves the papers on the accused.
At the hearing, the person alleging abuse presents medical records, police reports, and any other evidence of the abuse, including testimony. The respondent also has an opportunity to testify. The judge then rules on the matter by granting the protective order or dismissing the matter. In order to grant the petition, the judge must believe that the petitioner needs protection for his or her safety. Even if the respondent does not appear at the hearing, the judge still may issue a protective order if there is enough evidence of abuse. The protective order may be effective for up to one year. The judge dismisses the matter if he or she does not believe that the request for protection is supported by the evidence.
Contents of a Protective Order
Usually a protective order forbids the offender to contact the victim, including visiting the victim's school or workplace when the victim is present. A protective order also may:
- Prohibit the abuser from communicating with the victim
- Order the abuser to stay away from members of the victim's household
- Require the abuser to attend a batterer's treatment program
- Order the abuser to pay child support
- Govern child visitation arrangements
- Prohibit the abuser from removing the victim's child from the jurisdiction or hiding the child
- Forbid the abuser to sell or transfer property co-owned with the victim
- Grant the victim exclusive use of the residence, even if the abuser lived there
The primary purpose of a protective order is to prohibit the abuser from continuing the abuse against the victim or against other members of the household.
Violation of the Protective Order
When a protective order is granted, law enforcement agencies receive a copy and are required by law to record the information in the order into a database. Generally, it is recommended that the victim carry a certified copy of the order with him or her at all times. If the offender attempts to violate the order, the police should be contacted through the 911 emergency system and should be notified that there is a protective order in existence. They should be able to access information about the protective order through the law enforcement system. Police officers must respond immediately, and they have a duty to do everything possible to prevent further abuse. The county or district attorney also should be contacted. A person who commits family violence, threatens family violence, or contacts the victim when there is a protective order in place commits a crime. Police officers may remove and arrest the abuser.
Child Abuse
Child abuse is a serious problem that may take many forms, including mental or emotional injury, neglect, physical abuse, and sexual abuse. Abuse also includes failure to prevent abuse or neglect. The Texas Family Code provides the definitions, rules, and responsibilities regarding child abuse.
Neglect is the failure of a person responsible for a child to supply a child with necessary food, clothing, or shelter, when that person is able to do so, or the failure to protect the child from imminent and serious danger to his or her physical or mental health. It includes placing or leaving a child in, or failing to remove a child from, a situation in which he or she is exposed to a substantial risk of harm or that requires judgment or action beyond the child's capabilities. Failure to provide medical care that results in a risk of death, disfigurement, or bodily injury, or that impairs a child's growth or development, also is included in the definition of neglect.
Abuse is any emotional, mental, or physical injury inflicted upon a child resulting in impairment to the child's growth or development. Failure to prevent another person from abusing a child is unlawful abuse under Texas law. The definition of abuse also includes sexual abuse, as well as the failure to prevent sexual abuse. Sexual abuse of a child includes any sexual conduct, contact, intercourse, penetration with a foreign object, or assault, as well as sodomy, incest, and any sexual practice in the presence of a child that is intended to sexually arouse or gratify a person. Sexual abuse also includes involving a child in prostitution or pornography.
Reporting Child Abuse
Neglect and abuse are leading causes of death in children. Under Texas law, any person having cause to believe that a child has been or may be abused has a duty to report the suspicions to the authorities. This includes certain members of society who, by virtue of their professions and positions, have frequent contact with children, such as health care professionals, child protective agency employees, and child care custodians, such as teachers or camp administrators. However, all Texas residents have the duty to report child abuse.
Reporters are obligated to immediately report any abuse or neglect to a law enforcement agency and to the Texas Department of Protective and Regulatory Services. Any person who suspects that a child has been abused or neglected, and who knowingly fails to report, commits a Class B misdemeanor, punishable by a fine of up to $2000 and/or confinement in jail for up to 180 days.
Persons who report abuse or neglect in good faith are immune from civil or criminal liability. This means that if an investigation shows that there was no abuse, the reporter cannot be sued as long as he or she reported the alleged abuse with an honest belief and without knowledge of any facts or events contradicting the abuse or neglect.
Contents of a Report of Child Abuse or Neglect
Reporters should immediately contact a law enforcement agency or the Texas Department of Protective and Regulatory Services by telephone to report known or suspected child abuse. Within five days of making the report, the reporter also must file a written report. Although it is confidential and may not be disclosed except under limited circumstances, the reporter should give his or her name. The report may be made on a form prepared by the Department. The report includes the name and address of the child and the person responsible for the child's care, as well as any other information regarding the child or family that might be helpful and relevant to the investigation.
Investigation of a Report of Child Abuse or Neglect
The Department of Protective and Regulatory Services or other child protective agency has investigators who are charged with prompt investigation of a report once it is filed. Department workers interview and examine the child and visit the child's home. They make an immediate initial determination of whether the child should be removed from the home for protection from further abuse or neglect. If this determination is made, the Department petitions the court for an order granting temporary custody.
Once the investigation is complete, a report and recommendations are made to the district court, district attorney's office, and the appropriate law enforcement agency. There may be sufficient grounds to issue a protective order prohibiting anyone from disturbing the child, to have the child permanently removed from the home, or to sever the parent-child relationship. The investigators also may recommend that criminal charges be brought against the abuser for injury to a child, abandonment of a child, sexual assault, or another crime.
Elder Abuse
As with child abuse, Texas law is broad in its recognition of and response to the problem of elder abuse. Elder abuse includes physical abuse, neglect, and sexual abuse. Neglect includes failure to provide food or shelter, failure to provide clothing or keep clothing clean, abandonment, failure to provide necessary personal hygiene, and failure to provide medical or dental care. Physical or sexual abuse may be evidenced by burns, bruises, or other bodily injuries, fear of being alone with caretakers, physical manifestation of a sexually transmitted disease, or inexplicable difficulty sitting or walking. Typically, the abuser is a member of the victim's family or an institutional caretaker.
Under Texas law, any person who suspects abuse or neglect of an elderly person has a responsibility to report the suspicion. Required reporters of elder abuse include, but are not limited to, owners or employees of nursing care institutions, law enforcement officers, and health care practitioners.
A person who suspects elder abuse must report the information to the Texas Department of Human Services, Long Term Care Regulatory office. Reports of abuse may be made by telephone or in writing. The name and address of the victim and the abuser, the nature of the elderly person's condition, and any other relevant information should be included in the report. Reporters are immune from civil and criminal liability if they report abuse or suspected abuse in good faith. Failure to report is a Class A misdemeanor.
Other Remedies for Abuse
People who have been abused by family members may seek protective orders. In addition, the abuse of some victims must be reported to agencies designated to address the abuse. There are other remedies for victims of abuse. Abusers are subject to arrest for the crimes they commit. Victims may wish to work with prosecutors to have offenders tried on criminal charges for assault, harassment, injury to a child, injury to an elderly person, sexual assault, or stalking. It also is possible under some circumstances to file a civil lawsuit against offenders for damages. These crimes are described in the Criminal Law: Felonies & White Collar Crime Chapter of this Guide. Criminal hearings and civil lawsuits are discussed further in the Process of a Lawsuit Chapter.
People with any questions about abuse, or about other aspects of family law, such as marriage, divorce, or adoption, should contact the agency or organization that deals with their concerns, or seek the advice of an attorney.
Resources
The following organizations offer information on family violence:
- Family Violence Prevention Fund, 383 Rhode Island Street #304, San Francisco, CA 94103-5133, (415) 252-8900.
- National Clearinghouse on Marital and Date Rape, 2325 Oak Street, Berkeley, CA 94708, (510) 524-1582.
- National Council on Child Abuse and Family Violence, 1155 Connecticut Avenue N.W. #400, Washington, DC 20036, (202) 429-6695.
- Texas Council on Family Violence, 8701 Mopac Expressway North #450, Austin, TX 78759, (512) 794-1133. The Council crisis line is (800) 252-5400.
- Women's Advocacy Project, (512) 326-5656 or (800) 374-4673.
The National Center on Women and Family Law, Inc., 275 Seventh Avenue #1206, New York, NY 10001, (212) 741-9480, publishes information on family law issues, including Child Support and You ($5), Mediation and You ($8), and Pensions ($3).
The Office of the Attorney General, P.O. Box 12548, Austin, TX 78711-2548, (512) 936-1300, publishes free pamphlets on family violence issues, including What You Can Do About Abuse of the Elderly, When You Suspect a Child Has Been Neglected or Abused, and Protective Orders.
For free publications by the Texas bar association, contact the State Bar of Texas, P.O. Box 12487, Austin, TX 78711-2487, (512) 463-1463 or (800) 204-2222 ext. 2610. Publications include Child Abuse and the Law (1994), Common Law Marriage/Divorce (1995), Family Law: Divorce (1994), Now You Are 18, and Protective Orders from Family Violence (1994).
For advice and referrals, contact the Texas Aging Department, P.O. Box 12786, Austin, TX 78711, (512) 444-2727 or (800) 622-2520.
For birth, death, divorce, and marriage records, contact the Texas Department of Health, Bureau of Vital Statistics, 1100 49th Street West, Austin, TX 78756, (512) 458-7111.
To report elder abuse, call the Texas Department of Human Services, Long Term Care Regulatory office, at (800) 4580-9858.
To report child abuse, contact the Texas Protective and Regulatory Services Agency, P.O. Box 149030, Austin, TX 78714, (800) 252-5400, (512) 438-4478.