Texas Family Laws

Family law in Texas encompasses various issues, ranging from marriage to child custody and support, divorce proceedings, grandparents’ rights, name changes, powers of attorney, and more. With its vast and diverse population, Texas presents a dynamic representation of family law cases each year. In recent years, the state has witnessed:

• A lower divorce rate than the national average, with the Centers for Disease Control reporting just 1.4 divorces per 1,000 people in the state

• A record-topping $4.8 billion paid out in child support for the state fiscal year 2020

• Approximately 24.4% of children exiting foster care successfully due to emancipation

Regardless of the specific situation, successfully maneuvering through the complexities of Texas family law requires significant insight into the statutes, case law, and procedures that form the legal fabric of family relations in the state. This resource aims to provide a comprehensive understanding of Texas family laws, offering insights into the legal mechanisms at play and guiding those affected by these laws through their litigation endeavors. 

Texas Abortion Laws

On May 19, 2021, Governor Greg Abbot enacted a controversial abortion law known as Senate Bill 8 (S.B. 8). Key provisions of this law include:

Six-Week Ban

S.B. 8 prohibits abortions in Texas once a fetal heartbeat is detected, which is typically around six weeks of gestation. This is often before many people realize they are pregnant, and the law does not make exceptions for cases of rape or incest.

Private Enforcement

What makes S.B. 8 uniquely controversial is its enforcement mechanism. Instead of state officials enforcing the law, it allows private citizens to file civil lawsuits against anyone who performs or aids and abets an abortion in violation of the statute. In other words, the law allows private individuals, even those not connected to the pregnant person, to sue abortion providers and anyone who assists a woman in obtaining an abortion, including those who provide financial support or transportation.

The law prohibits state officials, including the Attorney General, from enforcing these restrictions. This was done to insulate the law from legal challenges that usually target government officials responsible for enforcing such laws.

Penalties

If a person is found liable in a lawsuit under S.B. 8, they may be required to pay damages of at least $10,000 to the person bringing the lawsuit. In addition, physicians who perform abortions may encounter felony charges – with the possibility of life in prison and fines up to $100,000.

When Can a Minor Leave Home in Texas?

In Texas, the age at which a minor can legally leave home without parental consent or be considered emancipated is 18 years old. Until a person reaches the age of 18, they are generally considered a minor and are under the legal authority and responsibility of their parents or legal guardians. 

Emancipation in Texas

Emancipation in Texas refers to the legal process by which a minor gains the rights and responsibilities of an adult before reaching the age of 18. While some states have specific laws or procedures for emancipation, Texas does not have a formal statute that outlines the process. Instead, emancipation in Texas is decided on a case-by-case basis through the court system. 

To seek emancipation, a minor aged 16 or 17 would generally need to demonstrate to a court that they are financially self-sufficient and capable of making responsible decisions for themselves. This may include evidence of stable housing, employment, and the ability to manage their affairs. Additionally, it may require the minor to explain why they believe emancipation is in their best interest. 

Emancipation is relatively uncommon in Texas, and courts consider each case carefully. The process can also be complex, and it’s advisable to consult with an attorney specializing in family law to understand your area's specific requirements and procedures. 

If a minor is facing difficult or unsafe living conditions at home, they may also consider reporting their situation to Child Protective Services (CPS) or seeking assistance from local social services agencies, which may provide alternative housing or support services for minors in need. 

Texas Child Custody and Support Laws

Child custody and support laws in Texas are designed to protect the best interests of children when parents are no longer together. These laws cover various aspects of child custody, visitation, and financial support. 

Child Custody Conservatorship in Texas

In Texas, child custody is often referred to as “conservatorship.” Texas recognizes two types of conservators:

• Sole Managing Conservator: When one parent has the exclusive right to make significant decisions for the child, such as those related to education, medical care, and religion. The other parent may have visitation rights.

• Joint Managing Conservators: When both parents share the decision-making responsibilities regarding the child. The child may primarily live with one parent, the custodial parent, while the non-custodial parent has visitation rights. 

Texas courts generally aim for joint managing conservatorship, promoting the continued involvement of both parents in the child’s life. However, the court considers multiple factors when determining conservatorship, including the child’s best interests, each parent's ability to provide a stable environment, and the child’s preference – provided the child is old enough to express them.

Child Visitation Laws

Visitation is often referred to as “possession and access” in Texas. The Texas Standard Possession Order is a typical visitation schedule that outlines when the non-custodial parent will have the child during weekends, holidays, and summer vacations. Parents can create customized visitation schedules if the court approves them and meets the child’s best interests. 

Child Support Laws

Child support in Texas is governed by the guidelines set out in the Texas Family Code. The amount of child support is determined based on various factors, including the non-custodial parent’s income, the number of children requiring support, and other relevant financial obligations. 

The Texas Office of the Attorney General often helps establish and enforce child support orders. This office can use several methods to collect child support, such as wage garnishment, tax refund intercepts, and property liens. 

If parents cannot agree on child custody or support arrangements, they may need to go through mediation or seek resolution through the court system. It’s important to note that these arrangements can always be modified if circumstances significantly change, including a parent’s relocation, job loss, or changes in the child’s needs. 

Community Property Laws in Texas

Community property laws in Texas govern the division of assets and liabilities between spouses during a divorce or legal separation. The following laws dictate how property acquired during the marriage is classified and divided. 

Community Property

Texas is one of several community property states in the United States. In community property states, most property acquired by either spouse during the marriage is considered community property, meaning both spouses jointly own it. This includes income earned, real estate purchased, and assets acquired during the marriage. 

Separate Property

Not everything acquired during the marriage is classified as community property. Separate property includes: 

• Assets and debts owned by one spouse before the marriage. 

• Property received as a gift or inheritance during the marriage.

• Any personal injury awards received by one spouse.

Division of Community Property

Community property is typically divided equally between spouses during a divorce or legal separation. Each spouse is entitled to 50 percent of the community property’s value. The court may consider multiple factors when making this division, including the needs of each spouse and any children involved. 

Debts

Community property laws apply to assets and debts acquired during the marriage. Both spouses are usually responsible for community debts, regardless of which spouse incurred them. 

Reimbursement Claims

In certain situations, one spouse may have a claim for reimbursement from the community estate for separate property used to benefit the community estate. For example, if one spouse uses their separate funds to pay off a community debt, they may be entitled to reimbursement.

Prenuptial and Postnuptial Agreements

Couples can modify the default community property rules through prenuptial or postnuptial agreements. These legally binding agreements can specify how property and debts should be divided in the event of divorce. 

Grandparents’ Rights in Texas

In Texas, grandparents’ rights refer to the legal rights and visitation privileges that grandparents may have regarding their grandchildren. These rights can be necessary when grandparents seek to maintain a relationship with their grandchildren, especially when family circumstances have changed, such as divorce, death, or other family disputes. 

Grandparent Visitation Rights

Texas law allows grandparents to request court-ordered visitation with their grandchildren under specific circumstances. To do so, grandparents need to demonstrate that visitation would be in the best interests of the child and that at least one of the following conditions exists:

• The child’s parents are divorced.

• The child’s parent, who is the child of the grandparent, has died.

• The child’s parent, who is the child of the grandparent, has been incarcerated, found incompetent, or is deceased.

• The child has been abused or neglected by the parents. 

Custody or Managing Conservatorship

In some cases, grandparents may seek custody or conservatorship of their grandchildren if they believe it is in the child's best interests. This would involve the grandparent taking on a parental role in caring for the child, and it is usually more complex than seeking visitation rights. 

Guardianship Laws in Texas

Guardianship laws in Texas provide a legal framework for appointing a guardian to make decisions and care for individuals who cannot manage their personal or financial affairs due to incapacity. These laws are primarily designed to protect the well-being and interests of vulnerable individuals, such as minors, adults with disabilities, or older adults who are no longer able to make informed decisions on their own. 

Types of Guardianship

Texas recognizes two types of guardianship, including:

• Guardianship of the Person: Involves making decisions about the incapacitated person's personal well-being, health, and living arrangements.

• Guardianship of the Estate: Involves managing the incapacitated person's financial affairs, assets, and property.

In both of these contexts, an individual can become a guardian if they are at least 18 years old and have not been determined to be legally incapacitated. If possible, the court may consider the preferences of the person needing a guardian when appointing a guardian. 

The Guardianship Process

Pursuing guardianship in Texas involves a multi-step process. 

1. Petition: To establish guardianship, the interested party, often a family member or friend, must petition the appropriate Texas court.

2. Capacity Evaluation: The court may order a capacity evaluation to assess the individual’s mental and physical capacity to make decisions. 

3. Notice: The guardianship proceedings must be notified to all interested parties, including the person subject to the guardianship. 

4. Hearing: A hearing is held to determine if guardianship is appropriate. If so, the court will appoint a guardian and specify the scope of their authority. 

Upon appointment, the person's guardian can make decisions related to healthcare, living arrangements, and personal matters. A guardian of the estate manages the individual’s financial affairs, assets, and property. Guardians are typically required to file regular reports with the court to provide updates on the person’s welfare and finances. 

Termination of Guardianship

In Texas, guardianship can be terminated when the court determines that it is no longer necessary or in the best interest of the incapacitated individual. 

One common reason for terminating guardianship is if the incapacitated person regains the capacity to make informed decisions about their personal and financial affairs. This often involves a medical or psychological evaluation demonstrating the person’s ability to manage their affairs independently.

Then, the court that initially established the guardianship has the authority to evaluate whether it should be terminated. They typically consider the following factors when making this determination:

• The current mental and physical condition of the individual. 

• The person’s ability to communicate and make decisions.

• The individual’s wishes and preferences regarding the termination of the guardianship. 

• The recommendations of medical or psychological experts.

• The submissions of the guardian or other interested parties.

Petition for Termination

In some cases, interested parties, including the incapacitated person, their guardian, or family members, may file a petition with the court requesting the termination of guardianship. This petition should provide reasons and evidence supporting the termination. 

Termination of Parental Rights in Texas

Termination of parental rights in Texas is a legal process by which a parent’s legal rights and responsibilities regarding their child are permanently severed. Termination of parental rights effectively ends the parent-child relationship, and the parent loses all rights to custody, visitation, and decision-making for the child. 

Grounds for Termination

Texas law provides specific grounds upon which parental rights can be terminated. Common grounds for termination include:

• Severe abuse or neglect of the child by the parent.

• Sexual abuse or sexual assault of the child.

• Parental abandonment or failure to provide support for the child.

• Parental incarceration, especially if it’s expected to be a lengthy period. 

• Substance abuse or addiction issues that endanger the child’s welfare.

• Failure to complete court-ordered services or programs to reunify with the child.

• Endangerment of the child’s physical or emotional well-being.

Types of Termination

There are two primary types of termination in Texas: voluntary and involuntary. Understanding the distinctions between these two types of termination is crucial, as they involve different legal processes and considerations.

• Voluntary Termination: Sometimes, a parent may voluntarily agree to terminate their parental rights. Often, this occurs when the parent believes it is in the child’s best interest or when a stepparent or relative is willing to adopt the child.

• Involuntary Termination: Involuntary termination occurs when a state agency, such as Child Protective Services (CPS), or a private party initiates the termination proceedings against a parent without their consent. The court will consider the evidence and assess whether the grounds for termination are met.

Termination of Parental Rights Court Process

Termination of parental rights involves court proceedings. The process typically includes the following steps:

1. Filing a petition: The party seeking termination files a petition in court outlining the grounds and reasons for termination. 

2. Legal notice: The parent targeted for termination is provided with legal notice of the proceedings. 

3. Court hearings: The case proceeds to court hearings where evidence is presented, witnesses may testify, and the judge determines whether termination is justified.

It’s important to remember that the court always considers the best interests of the child when deciding whether to terminate parental rights. If rights are terminated, the child may become eligible for adoption by another family member or a willing adoptive family. Termination is often a prerequisite for adoption. 

Marriage in Texas

Texas family laws regarding marriage cover several aspects of the marital relationship, including requirements for marriage, marriage licenses, ceremonies, and divorce. 

Marriage License

Before getting married in Texas, couples must obtain a marriage license from the county clerk’s office in any Texas county. Both parties must appear in person to apply for the license.

There is a waiting period of 72 hours after issuance before the marriage ceremony can take place. However, this waiting period can be waived under specific circumstances, such as active military service or a judicial waiver. 

The marriage license is valid for 90 days from the date of issuance.

Marriage Ceremony

While Texas law does not require a specific type of ceremony or officiant for a marriage to be legally valid, it does require that two witnesses, at least 18 years of age, be present and sign the marriage license during the ceremony.

Couples can choose to have a religious or civil ceremony, and various individuals, including judges, justices of the peace, ministers, and religious leaders, can officiate weddings.

Age Requirements for Marriage

In Texas, the legal age for marriage without parental consent is 18. Those who are 16 or 17 years old may marry with the permission of their parents or legal guardians. Marriages involving minors under the age of 16 are not allowed unless a court order grants permission to marry.

Common-Law Marriage

Texas recognizes common-law marriage, also known as informal marriage. Couples must meet the following criteria to establish a common-law marriage:

• Living together as spouses

• Representing themselves to others as married 

• Intending to enter into a marital relationship

A common-law marriage is legally recognized in Texas and grants the same rights and responsibilities as a formal marriage. 

Divorce

Texas allows for both fault and no-fault divorces. Grounds for a fault divorce in Texas can include adultery, cruelty, abandonment, felony conviction, or living apart for at least three years. If a no-fault divorce is pursued, the couple simply has to cite insupportability as the reason for the divorce. 

Provided there aren’t exceptional circumstances at play, such as cases involving domestic violence, the state enforces a mandatory waiting period of 60 days from the date the divorce is filed before it can be officially granted.

Property division, child custody, and support are essential considerations in divorce cases, and Texas follows community property laws for the division of marital assets.

Name Changes in Texas

Changing your name in Texas involves a legal process that allows you to assume a different name for various personal or professional reasons. Some common reasons for name changes include the following:

• Marriage 

• Divorce

• Personal preference

• Gender transition

• Adoption

Name Change Process

In Texas, you must file a petition for a name change in the county's district court. Since there are varying requirements depending on your situation, there are a myriad of reasons why you might be requesting a name change. 

For example, if you are an adult seeking a name change, you must provide a sworn statement that you are not changing your name for fraudulent purposes. Alternatively, if you are changing a child's name, both parents or the legal guardian must consent to the name change.

After filing the petition, you may have to attend a court hearing where a judge will review your request and the reasons for the name change. If the judge approves the name change, they will issue a court order granting it. The court order serves as legal documentation of the name change, and you can use it to update your identification — such as your driver’s license, Social Security card, and passport.

Exceptions to the Name Change Process

Two notable exceptions to the name change process do not require a court order. These exceptions involve situations related to marriage and correcting birth certificate errors.

Marriage Name Change

One of the most common exceptions to the formal name change process in Texas is when a person wishes to change their last name after marriage. When a person marries in Texas and chooses to adopt their spouse’s last name, they can usually do so without filing a separate name change petition in court. 

After the marriage, the individual can use their marriage certificate as legal documentation to change their name on various identification documents, including their driver’s license, Social Security card, and bank accounts. 

Birth Certificate Errors

If a person’s birth certificate contains errors, such as a misspelled name, incorrect date of birth, or other inaccuracies, they can request corrections without going through the formal name change process. 

You’ll need to contact the Texas Vital Statistics Unit responsible for maintaining birth records to correct these errors. The VSU will provide guidance on the necessary steps to correct the inaccuracies on the birth certificate.

Wills and Directives in Texas

In Texas, as in other states, laws regarding wills and directives ensure that a person’s wishes regarding their estate and medical care are respected after they can no longer make decisions. 

Wills in Texas

Legal Requirements for Wills

The person making the will, often referred to as the testator, must be at least 18 years old, married, or a member of the armed forces. They must also be of sound mind, meaning they understand the nature of the will, their property, and their relations to the people who might naturally inherit. 

The will must be in writing, although handwritten wills can be accepted, provided they are entirely in the testator's handwriting and signed. A typed or printed will generally needs to be signed by the testator and two credible witnesses who are at least 14 years old. Witnesses should not be beneficiaries of the will. 

Probate Process

After death, the will usually goes through probate, a legal process where the court recognizes the will and authorizes the distribution of the estate. If someone dies without a will, often referred to as intestate, Texas laws on intestate succession determine how the estate is divided.

Directives in Texas

An advance directive, also known as a living will, is a legal document that outlines a person’s wishes regarding their medical treatment if they become incapacitated and cannot communicate these wishes themselves. It’s important to note that the directives do not deal with financial matters or the distribution of assets.

Directives become effective when the person is alive but incapacitated and may include:

• Medical Power of Attorney: This allows a person to designate someone else to make medical decisions on their behalf if they cannot do so.

• Directive to Physicians and Family or Surrogates: This document allows individuals to state their wishes about medical treatment when diagnosed with a terminal or irreversible condition.

• Out-of-Hospital Do-Not-Resuscitate (OOH-DNR) Order: This order allows a person to refuse certain life-sustaining treatments outside of a hospital setting.

• Declaration for Mental Health Treatment: Specific to mental health treatment preferences, including medications, electroconvulsive therapy, and preferences regarding hospitalization for mental health issues. 

Powers of Attorney in Texas

In Texas, Powers of Attorney (POA) laws are outlined primarily in the Texas Estates Code. These laws define how a POA can be created, the powers it can grant, and the agent's responsibilities. 

Types of Powers of Attorney in Texas

Texas recognizes five types of Power of Attorney, as listed below:

1. Durable Power of Attorney: This type of POA remains in effect even if the person who made it, also known as the principal, becomes incapacitated. It is often used for financial affairs and property management. 

2. Medical Power of Attorney: This document allows an agent to make healthcare decisions on the principal's behalf if they cannot do so.

3. General Power of Attorney: This type of POA grants broad powers to the agent but becomes void if the principal becomes incapacitated. 

4. Limited or Special Power of Attorney: This document grants limited or specific powers to the agent for particular tasks or for a limited time.

5. Springing Power of Attorney: This power becomes effective only under certain predefined conditions, typically when the principal becomes incapacitated or unable to manage their affairs. 

Legal Requirements for a Power of Attorney

For a Power of Attorney to be legally effective, it must meet the following requirements:

• Capacity: The principal must be a competent adult, understanding the nature and scope of the powers granted.

• Written Document: The POA must be in writing and clearly state the powers granted to the agent.

• Signing and Witnesses: A Durable POA must be signed by the principal and either notarized or signed by two credible witnesses who are not named as agents in the document. Meanwhile, two competent adult witnesses must sign a Medical POA or be acknowledged before a notary public. 

Revocation and Termination

A principal can revoke a POA at any time, assuming the principal remains competent. The death of a principal or whenever the principal becomes incapacitated (unless it’s a Durable POA) terminates the POA by operation of law. A Medical POA is an exception, as it is specifically meant for periods of incapacity. 

Are Family Law Cases Public Record in Texas?

Family law cases, just like other court cases, generally constitute a part of the public record in the state of Texas. This means that documents and information filed regarding a family law case are available to the public. However, there are important exceptions and considerations:

• Sensitive Information: Personally identifiable information like Social Security numbers, financial account numbers, and information about children is usually redacted or restricted from public access to ensure privacy and increase security.

• Juvenile Records: Matters involving juveniles, particularly in custody or adoption cases involving minors, may have additional protections and might not be fully accessible to the public. 

• Sealed Records: In some circumstances, the court may order that a record be sealed. When the record is sealed, it is not accessible to the public. This might happen in cases involving sensitive issues like child custody or domestic abuse, where privacy concerns outweigh the public’s right to access. 

To access family law records, you typically need to request them from the court clerk where the case was filed. 

How To Find a Good Family Lawyer in Texas

Finding the right family lawyer in Texas can be crucial in navigating the complexities of family law matters, whether it involves divorce, guardianship, powers of attorney, child custody, or other sensitive issues. 

To make sure you’re making the best decision for your situation, consider using our family lawyer directory and concierge service. Browse top-rated family lawyers in your area at your leisure via the directory, or call our concierge service for direct assistance in selecting the right attorney by matching your needs with a lawyer with the appropriate skills and experience. These services simplify the search process, saving you time and helping you connect with a well-equipped lawyer to handle your case.