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A Glimpse at the Changes Ahead for Family Law in 2019

Greek Philosopher Heraclitus once astutely observed, “There is nothing permanent except change.” Texas family law has proved no exception to this sage wisdom. What will 2019 hold for the practice of family law? There are two possible major developments, one that could come on the legislative front, and another that could come from the Supreme Court of Texas and Courts of Appeal.

First, the Texas Legislature is convening again in 2019 for the 86th Regular Legislative Session, and that always spells potential changes—good and bad—for the Family Code, most of the time, the Family Law Bar seems to be fending off problematic legislation. Every session, there are plenty of well-intended bills and proposals introduced that could have a bad effect in the practice of family law. These include: removing no fault divorce/requiring proof of fault grounds, extending the waiting period to file or finalize a divorce, as well as various other noble ideas that could result in increasing the cost of litigation, increasing the pain caused in divorce, and lengthening an already stressful process to consumers of the family law system.

As we try to read the tea leaves for the next session, we should look back at 2017 and the 85th Regular Session, which mostly featured cleanup of the Family Code, some tinkering with deadlines for requesting findings after a judgment and temporary orders on appeal, much needed changes in enforcement proceedings and how courts deal with moving forward on divorce judgments, and various fixes and amendments to child custody proceedings.

There were minor revisions in the property valuation/division/characterization portion of the Family Code, as were the changes to the parent-child portion. Legislation involved tinkering with existing Family Code sections and cleanup of others. It is not anticipated there will be major changes to the Family Code this year either, but that is always subject to the legislature acting on proposals from the general public or an apparent need for something to be “fixed.” One such area could be continued reform of child protective service matters.

It might still be an interesting regular session, given some of the legislative turnover in the 2018 election. It remains to be seen if any Family Law issues will stand out to the new legislators.

Change is more likely to come from the Supreme Court of Texas and the Courts of Appeal in the form of opinions interpreting the Family Code.

This was a banner year for family law in the Supreme Court of Texas, with opinions spanning property division and child-related matters. In Bradshaw v. Bradshaw, the court dealt with the just and right division standard under Family Code section 7.001, holding that the wife should have been awarded 100 percent of the marital home because of the husband’s sexual abuse of a child in that home.

In In re H.S., the court issued an opinion holding that grandparents had a standing to pursue a suit affecting the parent-child relationship under Family Code Chapter 102 because the grandparents had actual care, control, and possession of the child for at least six months. This resulted in an arguably broader interpretation of Chapter 102 and will impact future suits by any person claiming care, control and possession of a child as grounds for standing.

The court also interpreted and affirmed a penalty clause in a premarital agreement in In re Marriage of I.C. Premarital agreements are becoming very common and are likely to draw increasingly more attention from the courts.

In Dalton v. Dalton, the court rejected the use of a wage withholding order and an order assigning retirement benefits (QDRO) to enforce an unpaid spousal support obligation.

In In re C.Y.K.S., the court addressed the payment of costs on appeal where the Office of the Attorney General was a party. The court also addressed sufficiency of evidence to support child custody interference claims and defamation claims in Bos v. Smith.

The uptick in family law opinions in general, and the Supreme Court of Texas accepting more family law cases, has resulted in an increased focus on family law. This seems to be a good development as these cases are getting the attention they deserve.

Though incumbent Texas Supreme Court Justices John Devine, Jeff Brown, and Jimmy Blacklock were re-elected comfortably, there was turnover in the Courts of Appeal. Some major turnover occurred in the Courts of Appeal in Austin, Dallas, and Houston, and approximately 27 new appellate Justices were elected in 2018, with terms beginning on Jan. 1. Though the Family Code is not terribly political, this means uncertainty in some appellate jurisdictions as to how the new justices will interpret family law matters and handle the efficiency of their dockets. Family lawyers will be closely watching the Courts of Appeal.

Though we do not know what yet—one thing is certain—we will have change in Family Law for 2019.

Brad LaMorgese is a partner in the family law boutique Orsinger, Nelson, Downing & Anderson. He regularly represents clients in trials and appeals involving high stakes family law legal disputes, including matters involving interstate jurisdiction disputes, prenuptial agreement litigation, property divisions, custody and visitation.