In this case, the foster parents intervened in an ongoing CPS suit pursuant to section 102.005 of the Texas Family Code. The foster parents, at the time of their intervention, had the one child in their home for 10 months and the other child for 4 months.  The trial court struck the intervention based on arguments and a Motion to Strike filed by the Department (aka CPS). On appeal, the Appellate Court reversed the ruling to strike the foster parent intervention and held that the clear statutory text permitted foster parents to file suit, or file a derivative intervention, based on the Section 102.005(3).

In the appellate decision, the Court of Appeals considered each of the arguments made by The Department, including:

(1) foster parents can’t “maintain standing under section 102.005(3) because section 102.003(a)(12) grants standing specifically to foster parents”;

(2) “102.005 does not apply because the Department, not Foster, had actual control of the child”;

(3) “the Legislature did not intend to convey standing to foster parents in section 102.005(3)” and

(4) “foster-family specific amendments to Section 102.003 and 102.004 of the Family Code demonstrate the Legislature’s intent to exclude foster parents from section 102.005(3)”.

The Court of Appeals rejected each of these arguments based upon the clear statutory text and the established rules of statutory interpretation. The Court of Appeals went on to specifically hold that the foster parents properly established standing under 102.005(3) and the trial court erred by granting the Department’s motion to strike and dismissing the petitions in intervention. The case was remanded back to the trial court to allow the foster parents to participate fully as parties to the suit. 

This case is significant for foster parents who may want to become formally involved in CPS litigation. Many participants in the child welfare system (attorneys, case workers, ad litems, foster care agencies) wrongfully believe that foster parents cannot intervene in CPS litigation until the children have been in their home for 12 months. Although there is a statute in the Texas Family Code that presents a bar to foster parent interventions prior to 12 months, that statute is not applicable in all circumstances. This case out of the Beaumont Court of Appeals is a prime example of this, and the Beaumont Court of Appeals properly applied the law.

If you are a foster parent and you are interested in formally joining ongoing CPS litigation for whatever reason, be sure that your attorney understands this case. The procedural manner in which a foster parent  intervenes is critical to whether or not the foster parent has standing to join the litigation. 

Effective on September 1, 2021, the Texas Family Code has a new statute that requires the department (aka, "CPS") to give a preference to certain persons when making a placement decision for a child. Here it is:

Now, this isn't exactly "new". The fact that it is now in the Texas Family Code is new; however, this prioritization list is the method that CPS has been operating off of for years. CPS has their own policies that they must follow in addition the statutes in the Texas Family Code. CPS has always prioritized placements in this regard. Still, there is a bit of ambiguity here (just like there always has been). What does "long-standing and significant relationship"? What if the "foster home" has had the child longer than any other "significant relationship"? What degree of blood relation is sufficient to say someone is "related to the child by blood"?

Also, it is worth noting that this placement preference is not binding on the Court. The statute says that only "the department shall give preference." Just as before, Texas Judges have the ultimate discretion to go against this prioritization based on a finding of what is in the child's "best interest."

One of the new changes to the Texas Family Code in 2021 is that now there is a new "low-income child support guidelines" in Section 154.125. This new section only applies to lawsuits filed after September 1, 2021. The person paying child support must be earning less than $1,000 in order for the court to "presumptively apply" the new figures.

So what are the new figures? Here is a comparison of normal vs. the new low-income numbers:

As you can see, all of the numbers reduce by 5% when a wage earner is "low income". Keep in mind that the low-income threshold of $1,000 is for "net resources", which is different that "gross income" or "net income".

A common law marriage, also known as a marriage without formalities, is a legally recognized marriage that occurs without a formal ceremony or a marriage license. For a common law marriage to exists, three elements must exist: (1) there must be an "agreement" to be married; (2) the couple must "cohabitate" in Texas; and (3) the couple must "hold out" to others that they are married. If these three elements exist, then the Courts will recognize the marriage for all intents and purposes -- the same as if the marriage had been formalized with a ceremony and a marriage license.

If a person needs to prove the existence of the common law marriage, for legal reasons, the legal proceeding must occur within (2) two years from the date the parties separated or ceased living together. If the person waits more than (2) two years, there becomes a "rebuttable presumption" that the couple did not have an "agreement" to be married. In essence, this "rebuttable presumption" makes it harder--but not impossible--to prove the existence of the common law marriage.

Texas Courts have provided a significant amount of case law to help define all of the terms in parentheses above. This is complicated, and the specific facts at play in each situation will be determinative of whether or not the Court will recognize a common law marriage.

If you believe that you have been in a common law marriage, and now have a legal need to prove it, contact our law firm to discuss the details and see how we can assist you.

Texas courts can order a spouse to make support payments to the other spouse while the divorce is pending, and thereafter, in very limited circumstances when the case is over. The Texas word for "Alimony" is "Spousal Maintenance". The Family Code provides very a series of very limited rules concerning post-divorce spousal support that require elements of proof which substantially limit eligibility for post-divorce payments of support. The law regarding these payments is complex, and the outcome will be extremely fact-dependent.

The spouse who is seeking spousal maintenance will how to prove that he/she lacks sufficient property, including the spouse's separate property, to provide for his/her own minimum reasonable needs. In addition, the spouse will have to prove either: (1) a recent criminal conviction or deferred adjudication for family violence; (2) that the couple has been married for over ten years; (3) that the spouse seeking spousal maintenance is unable to earn sufficient income to provide for his/her own minimum reasonable needs because of an incapacitating physical or mental disability; or (4) that the spouse seeking maintenance is the custodian of a child, born of the marriage, that requires substantial care and personal supervision because the child has a physical or mental disability.

If the Court determines that a spouse is entitled to spousal maintenance, there are limitations on how long the spousal maintenance can be ordered to continue. Also, the court may not order spousal maintenance that is more than the lessor of: (1) $5,000 per month, or (2) 20% of the spouse's average monthly gross income.

If you are going through a divorce and believe that you or your spouse may be entitled to spousal maintenance, you need to consult a family law attorney. These cases are complicated, and you need the help of a trained professional who knows how the court will consider these issues.

If a Premarital Agreement is not executed correctly, it may not be enforceable at the time that it is needed most. Texas property laws are complicated, and so are the laws regarding the execution and enforceability of premarital agreements.

In 1993, the Texas Legislature changed the law to say that there are now only two ways in which a party can invalidate a premarital agreement:

1. prove it ways signed "involuntarily" ; or
2. prove it was "unconscionable" when it was signed and, before signing the agreement, prove:
   • you were not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
   • you did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
   • you did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Before 1993, a party could also use "common law defenses" to the enforceability of the premarital agreement such as fraud or duress, but now a party can not. However, the two terms--involuntarily and unconscionable--are packed with meaning. Several Texas appellate courts have written pages and pages on how those terms are defined and how they apply in the context of a premarital agreement.

Whether or not your Premarital Agreement is valid and enforceable will be dependent upon many critical facts. It is not enough to simply say that it exists and it was signed by the both parties. If you are thinking about executing a premarital agreement, be sure to have a competent family law attorney assist you with the drafting and execution of the document. If you are going through a divorce in which a Premarital Agreement exists, it is absolutely critical to have an attorney review the document and also discuss the facts and circumstances surrounding its execution.

Initial Disclosures were recently enacted by the Texas Legislature and are now required with almost all lawsuits filed after January 1, 2021. For family law matters, they require certain things to be disclosed, and certain documents to be produced, within 30 days after the opposing party filed an answer or makes a general appearance. Here's the essence of what these new rules are:

Required initial disclosures in all family law matters:

(1)       The correct names of the parties to the lawsuit;

(2)       The name, address, and telephone number of any potential parties;

(3)        The legal theories and, in general, the factual bases of your claims;

(4)        The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case;

(5)        a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment;

In a suit for divorce: The parties must provide the following for the last 2 years or since the date of marriage, whichever is less:

(1)         all documents pertaining to real estate;

(2)         all statements on any pension, retirement, profit-sharing, or other employee benefit plan, including the most recent account statement for any plan;

(3)         all statements on insurance policies; and

(4)         the most recent statement pertaining to any account at a financial institution.

In a suit involving child support or spousal support: You must provide:

(1)       information regarding health insurance coverage for the child or spouse;

(2)         tax returns for previous 2 years; and

(3)         two most recent payroll check stubs.

These initial disclosures are not required to child support lawsuits involving the OAG (Title IV-D cases) or lawsuits brought by Child Protective Services (CPS). Of course, these are just the "initial" disclosures, and sometimes the parties to a family law suit may need to do further discovery than what these initial disclosures require. You can read more about other discovery options here.

Many spouses that are facing a divorce want to keep things as amicable as possible, and they often try to do this through using the same attorney. But having the same attorney is not an option. The Texas Disciplinary Rules of Professional Conduct prevent one attorney from representing opposing parties to the same lawsuit. At the most basic level, a divorce is a lawsuit between the two spouses.

But, there are other options. It is possible to get a divorce without any lawyers--both spouses represent themselves, commonly called a "pro se divorce". Another option is to use what is called Collaborative Family Law. In Collaborative Family Law, the divorce process is accomplished through voluntary settlement procedure rather than Court action. Although this option sounds attractive, it has many conditions and rules that make impractical for most divorces (and worthy of an entirely separate blog post on this issue here).

It is also possible for one spouse to have an attorney but the other spouse not to have an attorney; thus, the divorce is accomplished with only one attorney involved. If you are in this situation, you have to understand the nature of the attorney-client relationship. The attorney has a duty of confidentiality to only one of the spouses. Likewise, the attorney only has a duty to advocate for, and provide legal advice to, only one of the spouses. That puts the unrepresented spouse into a precarious position of possibly being taken advantage of by the spouse who has a legal advocate on their side.

A divorce is one of the largest, and often most painful, events of a persons life. Because of that, it is almost never advisable to go through a divorce without an attorney on your side who can help you understand your legal rights and the implications of all of the decisions that have to be made to finalize the divorce.

Collaborative Family Law is a process by which the decision making process in a divorce is taken away from the Court and put into the hands of a neutral third-party, the collaborative lawyer. This is a relatively new process--The Texas Legislature enacted laws that authorize this practice in 2011.

Collaborative Family Law requires many things. To start, both spouses must sign a collaborative family law participation agreement, and the agreement must have certain provisions in it. Once the agreement is filed on record with the clerk of the Court, the legal proceedings are essentially on "pause" so that the parties can divorce can be settled amicably.

Collaborative Family Law is completely voluntary and either spouse can end it when they want. This leads to one of the primary reasons why Collaborative Family Law often does not work for spouses: the spouses do not get along and cannot agree. The very same personality conflicts, faults, and other issues between the spouses during marriage are still present during the divorce process.

Another large issue with Collaborative Family Law is that any attorney involved in the process will be disqualified from further representation if the Collaborative Family Law process does not work. Then, the parties are left to pursue a typical divorce through Court process and they will have to obtain new attorneys who were not involved in the Collaborative Family Law attempt.

Ultimately, the judge has greater authority to control a CPS lawsuit involving an allegation of abuse or neglect to a child. However, the judge's authority is limited to only address requests and evidence that are present to the Court, so many decisions get made by CPS without the judge even knowing about it.

In the context of a CPS lawsuit, the judge must ultimately determine what is in the "best interest" of the child. Those two words--best interest--are packed with a ton of meaning, which is further explained here. All of the parties to a lawsuit will try to convince the judge about what is in the "best interest" of the child. When the parties agree, the judge's decision is simple. When the parties disagree, the judge gets to ultimately decide, and the judge is not bound by what CPS wants.

But CPS must routinely make decisions without having to resort to obtaining a judge's order. This interplay between CPS and the judge's decision making authority can be complicated, and may be best understand with an example:

Lets say that a child has been removed from the parent's home due to allegations of abuse and neglect. The child was placed in foster care, but the maternal grandparents later come forward and tell CPS that they want to care for the child. CPS has some work to do. CPS has to ask some questions, run some background checks, take a look at the grandparent's home, and follow the other procedures that CPS has for making a placement change. Then, a decision has to be made. At this point in the lawsuit, the children's parents will typically have attorneys and the child will have an attorney ad litem and may also have a guardian ad litem. There may also be parties that have intervened in the CPS suit and now have a "seat at the table" (e.g., the maternal grandparents or the foster parents). If all of the parties agree that the placement change is in the best interest of the child, then CPS will often make the placement change without the judge knowing about it or having to order it. If the parties disagree, or CPS has unmitigated concerns about the child or the grandparents, then the issue of a placement change will likely go in front of the judge and the judge will have to determine whether or not the placement change is in the child's best interest.