In the biennial rite of spring, the legislative session has brought changes to Texas family law. While the legislators return to Austin for special sessions, it's time to consider some of the highlights of the regular session.
• Attorney fees in divorce cases: Although the Texas Family Code contains specific authorization for awards of attorney fees in other types of litigation, it did not provide for fees in divorce cases.
Previously, courts factored attorney fees into the overall mix as part of a just-and-right division of the marital estate. Alternatively, on some occasions, courts found attorney fees to be "necessaries," pursuant to the spouses' marital obligation to support each other.
However, in the recent decision in Tedder v. Aldrich, the Texas Supreme Court ruled that legal services provided to one spouse in a divorce proceeding are not necessaries for which the other spouse is statutorily liable to pay the attorney.
The Legislature now has addressed this subject by amending Family Code §6.708, specifically authorizing courts to award reasonable attorney fees and expenses in suits for dissolution of a marriage. Further, the court may order payment of fees, expenses and any postjudgment interest directly to the attorney, who may enforce the order in the attorney's own name by any means available for the enforcement of a judgment for debt. [See "Fast & Furious for Fees," Texas Lawyer, June 24, 2013, page 1.]
This change is effective as of Sept. 1, and it applies to suits for dissolution filed on or after that date.
• Increase in child-support cap: Pursuant to a prior amendment, Texas Family Code §154.125 authorizes the Texas Attorney General's Child Support Division to adjust the income cap for calculation of child support under statutory guidelines, to account for inflation. The AG's child support division has announced that the cap on monthly net resources will increase from $7,500 to $8,550, effective Sept. 1.
• Enforcement of child support: Previously, upon service with a petition for enforcement of child support by contempt, a child support obligor could avoid a contempt finding for nonpayment simply by paying the arrearage prior to the contempt hearing. Section 157.162 (d) and (e) prohibited the court from punishing the offender with contempt remedies, such as incarceration and fines, when the obligor paid the arrearage before the hearing began.
The Legislature now has repealed §157.162 (d) and (e). Additionally, §(b) now authorizes the court to award the petitioner court costs and reasonable attorney fees, even if the court makes a finding that the respondent is not in contempt.
• Enforcement of divorce decrees: Chapter 9 of the Family Code addresses post-decree proceedings, including enforcement of a divorce decree. Previously, however, the court's power to enforce the decree was limited to the division of property; it did not include other contractual provisions under the terms of an agreement incident to divorce or annulment.
Sections 9.001 and 9.002 now provide that the court that rendered the decree of divorce or annulment retains the power to enforce the property division and any contractual provisions under the terms of an agreement incident to divorce or annulment approved by the court.
• Possession schedule: The Legislature amended Family Code §153.316 to authorize conservators to provide written notice to each other by electronic mail or facsimile.
Additionally, §153.317 now clarifies that the conservator making the standard possession order elections under that section may select more than one of the alternatives for beginning and ending possession times. For example, the conservator may choose to have weekend periods of possession begin at the time the child's school is regularly dismissed and end at the time the child's school resumes after the weekend.
This clarification eliminates any question as to whether the conservator could elect both options. Lawmakers made similar clarifications for Thursday periods of possession, as well as Mother's Day weekend.
• Spousal maintenance: The Legislature clarified §8.059 to provide that the court may not enforce by contempt any provision of an agreed order for Chapter 8 spousal maintenance that exceeds the amount of periodic support the court could have ordered under that chapter. This addition is similar to the prior restriction regarding time periods beyond the maximum duration that the court is authorized to order spousal maintenance.
Similarly, §8.101 now provides that the court may not order withholding of income for sums that exceed the maximum amount and / or duration authorized by Chapter 8. Agreed maintenance amounts that exceed the authorized amount or duration are enforceable by contract.
• De novo hearing: Legislators shortened the deadlines for requests for de novo appeals of associate judges' recommendations. A party requesting a de novo hearing before the referring court must file the written request not later than the third working day after the date the party receives notice of the substance of the associate judge's report.
Upon such a timely filing, the opposing party now has three working days to file that party's own request for de novo hearing. The changes shorten the deadlines from seven working days.
• Notary public requirement: Clarifying Civil Practice & Remedies Code §132.001, Family Code §6.4035(c) provides that the waiver of citation must be sworn before a notary public who is not an attorney in the suit.
•Interlocutory appeal: Civil Practice & Remedies Code §51.014(b) is amended to provide that an interlocutory appeal in a suit brought under the Family Code does not stay the commencement of a trial in the trial court pending resolution of the appeal.