Family legal matters are often a trying and anxious time for members involved.
A family law attorney should be a wise advocate as well as a legal counselor and guide through the judicial process - whether it be divorce, custody, adoption, protective orders or juvenile delinquent proceedings.
Marilee Brown is ready to invest the time and effort it takes to make a family's involvement in the judicial system as beneficial as possible. She understands that Texas law has been created with the family's best interest as the highest priority.
An astute attorney that is aware of your needs and responsive to your troubles can help you achieve the best outcome during this hard time in life.
Texas law mandates that both parents of a child provide support for their child. The Texas Family Code provides strict guidelines as to how much support a noncustodial (or non "primary") parent should provide for his or her child. If your circumstances have changed since the last child support order, you may be entitled to a modification of the amount of support you pay or receive.
If you believe your child support should be raised or lowered, you will need the help of an attorney to request an new order from the court. Our firm offers reasonable rates for child support cases because Texas law is clear on what the proper amount of support should be. Therefore, the issues can usually be resolved by simple calculations.
Collaborative law is a process that allows couples to resolve their family law dispute completely out of court. There are many advantages to the process. Learn more
On June 26, 2015, the Supreme Court of the United States handed down the controversial decision requiring States to allow the marriage of same-sex couples and recognize those same-sex marriages conducted in other States. Two separate issues were brought before the Court: (1) whether under the Fourteenth Amendment of the United States Constitution, which grants equal protection under the law to all, requires States to license a marriage between two people of the same-sex; and (2) whether States, under the Fourteenth Amendment, have to recognize a marriage between two people of the same-sex when their marriage was lawfully licensed and performed out-of-State. The majority of the Court answered affirmatively to both, requiring States to allow couples who wish to participate in a same-sex marriage to obtain a marriage license and also mandating that States recognize marriages between two persons of the same sex from another State.
The decision was narrowly decided, 5 votes in favor and 4 votes against. The Justices finding in favor of the ruling cited to four bases for their decision, first, individual autonomy, which includes an individual's right to personal choice concerning issues like marriage, contraception, family relationships, and child rearing, which necessarily includes who one chooses to marry, here a person of the same sex. The majority remarks on how the concept of marriage and the right to choose have both been ever evolving, from when marriages were arranged, to allowing interracial couples to marry, to now, where couples of the same-sex are provided equal protection under the law, allowing them to freely marry. Second, the majority argues that one's fundamental right to marriage under the Due Process Clause of the Fourteenth Amendment does not exclude same-sex marriage. As marriage is a recognized fundamental right, certain greater protections are afforded to the right to ensure that it is not impeded in any way, including expulsion of unreasonable limitations on who one may marry. Third, the Court mentions the safeguards marriage provides to the children and families of the couple. The Court notes the inherent security marriage provides to children and the positive feeling one has being a member of a family that can be formally bonded by a marriage. And fourth, the necessity of marriage for social order, including the benefits conferred upon married couples concerning taxation, inheritance, property rights, hospital access, adoption, and medical decision making authority and the like, and how these benefits should be conferred upon all willing to bound themselves to another in a formal ceremony as marriage. The majority decision went on to highlight that same-sex couples are not trying to disrespect or diminish the sanctity of marriage, but rather have such a deep respect for the idea of marriage, that they seek to find its fulfillment for themselves.
The dissenting opinion, affirmed by four Justices, takes the stance that the issue of same-sex marriage is not up to the Supreme Court to decide. But instead, it is the majority of the court's very action that courts all over the nation are not supposed to do -- to replace the citizen's votes for their own. The dissent acknowledges that this is a major social issue, but points out that, marriage, since the creation of the Bill of Rights and the Constitution, has been an issue left to the discretion of the States and as such, is a decision for the State legislatures, not for the Courts. Justice Scalia, in his separate dissent, expresses concern for the overreaching of the Court and calls the majority opinion "profoundly incoherent," citing to the lack of authority for which the majority opinion is based.
The initial release of the opinion resulted in an uproar from all sides, for and against. But with the dust settling from the decision handed down, many questions are left unanswered, such as: What does this mean for private business owners? What does this mean for assisted reproduction laws? Insurance policy coverage? What does this mean for custody disputes involving a parent not biologically related to the child? And what does this mean for states and their citizens' First Amendment rights to freedom of religion? Is this legislating from the bench, or finally a resolution to an inevitable moral conclusion our society had to make?
These are questions that will undoubtedly be addressed in the years to come on a regular basis. Our society should expect to be hearing a lot about the collateral effects of this decision, and the natural progression of practical matters involving martial property, child-rearing, and moral or religious conflation with what is now legal mandate.
Inevitably, same-sex couples who now have the right to get married, also have the right to get divorced and split their community property in the same matter as heterosexual couples. The issue of child custody may not be as simple, but certainly, hiring a good divorce attorney would help.
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Hazel Brown & Miller, PLLC
Texas Raises the Child Support Cap
Guidelines are used in Texas to help courts determine what a parent's child support obligation will be. There may be reasons for varying from the guidelines, but most family cases end up using these guidelines to establish the child-support paying parent's (also known as the "obligor") monthly obligation. For one child, the obligation is 20% of the obligor's net monthly resources. For each additional child (up to 5 children), the percentage is raised by 5%.
This percentage is applied to the obligor's net monthly resources up to a certain point. There is a point at which the percentage will not apply; that's called the cap. Previously in Texas, the guideline percentage was applied to the obligor's first $7,500.00 of net monthly resources per month. Beginning September 1, 2013, the cap will be raised to $8,550.00 per month. This could open the door for many modifications in child support cases. If you are involved in a case where the obligor's net monthly resources exceed $7,500.00 you may want to talk to an attorney regarding a potential modification in your case.
Fraud on the "Community Estate":
A spouse commits "fraud on the community estate" when they act with misconduct and waste assets without the other spouse's permission. Examples of this misconduct include: draining bank accounts and going on spending sprees to deprive the other spouse of those assets, transferring funds to a secret account, gifting away large sums of money to a boyfriend or girlfriend, or transferring property into the name of a friend or family member.
A court can now split up the "reconstituted community estate" in a divorce. A "reconstituted estate" is defined as "the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred." This means that instead of splitting up the assets that actually exist at the time of divorce, the court will split up the estate as it would have existed before the misconduct occurred.
This new law gives more protection to the innocent spouse and punishes the guilty spouse by allowing the court to split up the financial assets that would have existed had the guilty spouse not squandered them away.
Hearsay Statements of Child Victims
Typically, statements made by a person not in court to testify to those statements are inadmissible. Section 84.006 of the Family Code deals with hearings on protective orders; this new law makes out-of-court statements made by a child 12 years of age or younger that describe an act of family violence committed against the child admissible in court as testified to by a witness or otherwise.
Usually, a protective order against a person cannot last for longer than two years. Section 85.001 of the Family Code is a new law that provides that if the court finds that the person caused serious bodily injury or was the subject of two or more protective orders, the court may issue the protective order for longer than two years. It can now also have a provision protecting family pets.
Enforceability by Other Courts:
Section 81.010 now allows any court in the state of Texas to enforce a protective order. Before, the protective order would need to formally transferred to be enforceable in another court. Opportunity to be Heard:
Usually an initial hearing on a protective order is "ex parte," meaning the hearing is conducted without the presence of the alleged perpetrator. Section 83.006 now allows the court to call a recess during a hearing on an ex parte protective order in order to contact the alleged perpetrator by telephone and provide them with an opportunity to be present when the court resumes the hearing.
Military Deployment of a Parent
This bill relating to temporary orders in a family law case allows a parent to file for an order "without the necessity of showing a material and substantial change of circumstances other than the military deployment."
Indigent Parents in Suits Affecting the Parent-Child Relationship
This bill provides that a parent who is found to indigent is presumed to remain indigent for the duration of the suit and any later appeal unless the court determines that the parent is no longer indigent due to a material and substantial change in that parent's financial circumstances.
Child Support and Mistaken Paternity
Section 154.006 now provides that if genetic testing shows that a child support paying parent is not the biological father of that child, any child support order as to that parent and child may terminate. The "father" will no longer be under court order to pay child support once genetic testing has established that he is not the biological father.
Section 161.005 now allows other "fathers" to seek termination of their duty to pay child support. A father who signed an "Acknowledgement of Paternity" form without first getting genetic testing may seek to terminate his parental rights (and therefore any duty to support the child). A person who was found by the court in a prior proceeding to be the father of the child may also seek termination if genetic testing did not occur.
Legislative Update 2011 - Family Law
New Family Suit and Divorce Laws
Spousal Maintenance (Spousal Support)
The Family Code now provides that the court may order spousal maintenance if the spouse needing support lacks sufficient property at the time of divorce to provide for their minimum reasonable needs and either:
(1) the spouse from whom maintenance is sought committed family violence against the spouse or child within the past two years, or
(2) the spouse seeking maintenance:
a) has been married for 10 years and does not have the ability to earn sufficient income to provide for minimum reasonable needs; or
b) is unable to work or provide for herself/himself due to a mental disability; or
c) is the caretaker of a child who has a disability, and that prevents the spouse from earning sufficient income to provide for himself/herself.
Factors to be considered by the court:
The new spousal maintenance laws change some of the factors used in determining maintenance eligibility and amount. In addition to considering the financial resource of the spouse seeking maintenance, the court must now also consider the paying spouse's ability to provide for the other spouse's minimum reasonable needs, considering that spouse's financial resources at the time of divorce.
This section was also amended to expand on the legislature's definition and consideration of "marital misconduct". Marital misconduct is a factor in determining spousal maintenance and the code now specifies that it includes "adultery and cruel treatment by either spouse during the marriage." The new law also requires the court to consider "any history or pattern of family violence."
Section 8.053 of the Texas Family Code creates a legal presumption that a spouse is not entitled to received spousal maintenance unless that spouse can show he or she has tried to support herself/himself. This section was amended to remove this requirement for a spouse with an incapacitating disability or a spouse who had to care for a disabled child.
However, this is now a rebuttable presumption, meaning the spouse contest this presumption for reasons as the court sees fit.
Length of Time that Support can be Ordered
The new laws now consider whether the marriage lasted at least 10, 20, or 30 years. Previously, the court could not order spousal maintenance for longer than 3 years unless the spouse had an incapacitating disability or had to care for a disabled child. Now the court can order support for up to five years:
Seven years if: the spouses were married for 20 to 30 years
Ten years if: the spouses were married for over 30 years
**Section 8.055, which relates to the amount of maintenance the court may order. Previously, the court could order up to $2,500 per month or 20% of the spouse's average monthly gross income, whichever was less.; Now, the court may order up to $5,000 per month or 20% of the spouse's average monthly gross income. Any disability of the spouse or a child is always considered by the court in determining the amount and duration of the support payments.
Texas Bar Journal
October 2010; Vol. 73, No. 9
The Constitutional Rights of Children
By: Barbara J. Elias-Perciful
The United States Supreme Court has long recognized that children are protected by the Constitution. Two important constitutional rights that often come into play in child welfare and child custody cases are the right to effective counsel and the right to sibling access. Although the Supreme Court has yet to rule specifically on these issues, some federal district court cases have confirmed that these are important rights for children who have been removed from their homes.
Kenny A. v. Perdue held that children have a fundamental liberty interest at stake in child welfare proceedings. It is the duty of family law attorneys who represent children who have been removed from their home by Child Protective Services to vigorously represent them. These attorneys must ensure that the decision to remove them from their homes is in their best interest. Children have a constitutionally protected right to the effective assistance of counsel in these proceedings to help ensure that the decision to terminate the child's parents' rights is not erroneously made, which would be a serious deprivation of due process. See Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).
Aristotle P. v. Johnson, another federal case, held that foster children have a constitutionally protected right to maintain relationships with their siblings through reasonable contact. See Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D. Ill. 1989) A foster child's attorney has the right to seek visitation for the child with their siblings. Because the child has been removed from their home and their parents, these sibling relationships are often very strong and are central to maintaining the child's sense of family integrity and stability.
Can I refuse my ex-spouse visitation if he or she is behind on their child support payments?
No, visitation cannot be contingent on the payment of child support. Even if your ex-spouse is behind on their child support payments, it is a violation of the court order to not allow them the visitation that was granted them. Under the Texas Family Code, there are only two defenses to the failure to comply with court ordered possession and access to a child: (1) the involuntary inability to comply with the order, and (2) the voluntary relinquishment of actual possession and control of the child by the parent who has the right to possession under the order. To alter the current visitation schedule in place, a parent must file a motion to modify with the court. Until the prior order is modified it is still a valid and enforceable order, and to withhold visitation for nonpayment of child support would be a violation punishable by contempt.
Texas Bar Journal
Vol. 73, No. 11
Family Law By Jack W. Marr and Warrant Cole
Family Law Updates Summary
The Texas Legislative Session of 2009, with the help of Texas family lawyers, have made some important changes to family law. The majority of the State Bar Family Law Section's proposed legislation passed both houses and was signed into law by Gov. Rick Perry. The most important changes are outlined below.
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