Divorcing a spouse who lives outside of Texas

What do you do when you are still living in Texas but your spouse moves away?  Where do you file for divorce if your spouse lives out of state?  Texas Family Code 6.305 Provides that if the petitioner is a domiciliary of this state, i.e., has lived in Texas for at least 6 months and in the County they’re filing for at least 90 days, then the Court can exercise personal jurisdiction over a nonresident if: (1) this state is the last marital residence of the parties and two years has not elapsed since that marital residence ended; and (2) there is any basis consisted with the Constitution of this state and the United States for the exercise of personal jurisdiction [over respondent].

This means that, if you and your spouse are living in Texas and that’s the last place you’ve lived together as Husband and Wife, then you can still file here in Texas.  As long as you both lived here for the requisite 6 months, then you can file here.  If it’s been more than 2 years since you two lived together as Husband and Wife then you might have to file in the state where the other spouse lives.  An attorney should be able to discuss the details of your case and be able to determine whether you can file here in Texas or not.

New Texas Rules of Civil Procedure affects family law filings

The Texas Supreme Court has issued new rules changing the Texas Rules of Civil Procedure, specifically, Rule 21c dealing with privacy protection for filed documents.  The most recent version of these rules was signed in December, 2013, and can be found by clicking here or on the Texas Supreme Court website.  Make sure you are looking at the most recent version as the Tex. Sup. Ct. released another different version of these changes over the Summer.
These changes require, among other things, that any drivers license numbers, social security numbers, birthdays, home addresses of minors, bank account information, credit card information, or other financial account information be removed from a public document unless it’s required to be in the document by another specific rule.  You can leave this information in the document but it must have a stamp on the upper left side of the front page that says specifically “Notice: This Document Contains Sensitive Data.”  I have already been chastised by the good clerks of Travis County for not following this in my recent filings.  Learn from my mistake and realize that yes, they are checking and following the new rules!
I have found that an inserted Word Art box with the necessary notice language on the top left of the first page usually solves the issue.  Until the e-filing services create an easy check box for e-filers to otherwise notify the clerk of the sensitive nature of the filed document, this will have to do for the time being.


Jason Partney receives Prestigious Top 10 Under 40 Attorney Award for the State of Texas

We are SO EXCITED to announce that Jason has been selected to receive this year’s prestigious Top 10 under 40 Attorney Award for the state of Texas by the National Academy of Family Law Attorneys!  NAFLA’s primary goal is to discover and recognize the top 10 under 40 family law attorneys in each state for their hard work.  The attorneys who make the NAFLA Top 10 Under 40 list must first be nominated by a licensed attorney and then the research staff verifies that they meet the minimum requirements of membership.  Fifty of the nominated attorneys are chosen to advance to the final selection stage by our Selection Committee, and then our Board of Governors officially selects the TOP 10 in each state.

Drug Testing

When drug use is an issue in a case, many Judges will order a drug test as a condition to visitation.  Once a clean drug test is produced, then visitation can progress.  The most common testing facility used by Judges in Travis and Williamson Counties is Austin Mobile Drug Testing.  They offer hair and nail testing as well as the more standard tests and substance abuse assessments.  The easiest and quickest way to get a test done is to contact them before arriving at their Round Rock location: 512-507-5983, 402 West Palm Valley Blvd, Ste. H, Round Rock, TX 78664.  If you know drug use will be an issue in your case I have always found it better to come to court with your recent test results in-hand and ready to show the Judge.


De Novo Appeal – Rehearing from Associate Judges

The 2013 Texas Legislative Changes to Texas Family Code sec. 201.015 & 201.1042 & 201.2042 now shorten the amount of time a party has to request a rehearing from an Associate Judge’s rulings.  Associate Judges are typically employed for Child Support and Child Custody cases where the County and District Judges have hired a judge to sit and handle just those types of cases, thus freeing the District and County Judge’s dockets for other matters.  However, if you have your case decided by an Associate Judge then Texas allows you to request a rehearing, in essence a “do over,” with the actual District or County Judge where your case is assigned.  
The time period between the date of the hearing/order and the date you could request a hearing was the seventh working day after the associate judge makes the order and/or signs the written Order.  On September 1, 2013, all cases heard and decided by the Associate Judge from that day forward will only have three working days from the date of the signed Order.
Moral of the story; file your notice of de novo appeal as quickly as possible if you want a rehearing and don’t forget to specify specifically what issues you are contesting on the appeal.  Conversely, if you want an associate judge’s ruling to stick without hope of a rehearing, then you can always ask that the everyone waive the right to de novo appeal, which would completely cut off this option.  Pro Se litigants out there, be wary of agreeing to such a request to “waive do novo.”



Child Support, Increase in “cap” Upper Limits

In the past, the upper limit of a parent’s income for child support purposes was limited to a monthly gross of $10,340 GROSS for employed persons and $11,074 GROSS for self-employed persons.  Under the older Texas child support guidelines, that worked out to $7,500 NET monthly income.  That meant that anyone making above that amount per month would not have it “count” for purposes of figuring your child support percentage.  One child allows 20% of your NET monthly income, two children allows 25% of the NET, and so forth.  For example, the usual “cap” for someone with one child under the old $7,500 per month is 20% of $7,500, or $1,500 in monthly child support.  To go above these artificial “caps” you would need a very good reason why the child support should be set higher, i.e., continuing private school expense, medical needs of the child, etc.  
Starting September 1, 2013, for all cases in front of a Judge on that day and going forward regardless of actual filing date of the case, the new “cap” limit is $8,550 NET per month.  That works out to about $11,800 GROSS per month for employed individuals and $12,550 GROSS for self-employed individuals.  Using the same above example, someone with one child would pay 20% of $8,550 or $1,710 per month in child support under these new “cap” guidelines.
This change is due to a new calculation from the Attorney General of the consumer price index and it’s application to other child care cost data, which was all changed and recommended at the last Texas Legislative Session.  You can run a child support calculation using the Travis County Child Support Payment Calculator to check how much child support should be paid based on your income and other deductions such as health insurance and other children in your life.  The Texas Attorney General’s Child Support website is also informative, if not as interactive as the Travis County website.  I also recommend that a parent paying or receiving child support should speak to a family law attorney in order to know how to make a child support calculation in your case and whether your situation might be at risk of going above this “cap” limit.



Mediation is an informal settlement option that is available and appropriate in most divorce cases.  Mediation is highly encouraged in all Texas Courts as a necessary intermediate step before a final hearing can be held in a divorce case, especially one with complex custody and/or property issues.  Mediation is where both parties meet, usually at the mediator’s office, usually in separate rooms, to try to reach an agreement on some or all issues in their case.  This saves the costs and stress of a big final contested hearing, where the outcome is unknown.  A good mediator is usually one who is also an attorney in the divorce/family law area, or also sit as a judge in primarily civil cases.  Mediators range in price from $200 to over $2,000 per party for an all-day mediation.  The average price for mediators in the Austin area for an excellent mediator is between $500 to $800 per party for an all day mediation.  Preparation is key for mediation, so be sure to coordinate your agenda with your attorney before you attend mediation.  Make sure to define your bottom range for any “deal” in mediation so you know when a mediation is not being productive and you are getting away from your goals in your case.  
A good mediator will listen to your concerns and goals for your case, discuss probable options, and meet with each party independently to work through each party’s goals and concerns.  A good mediator can take a very contested case and work with the parties to find a creative solution to their case that works with the specific needs of each party.  A good mediator can save both sides major litigation costs as well as the physical and emotional toll of a contested final hearing.  I always recommend mediation and include my attendance at mediation as a no-cost addition to all my divorces cases.  To all parties trying to find the “out” in a divorce/custody case that has spun out of control with fees and emotions, I highly recommend discussing the mediation option with your attorney.


Jail Release for Child Support

If someone has been arrested in Travis County due to failure to pay child support, you need to find out who asked for the person to be put in jail.  You can review the paperwork that was signed by the Judge when that person was committed to find this out.  It is usually called a Commitment Order or something similar.  You can get that in the district clerk’s office at the Travis County Courthouse, First floor, 1000 Guadalupe, Austin, TX 78701.  You need to find out whether the Travis County Domestic Relations Office or the Texas Attorney General Child Support Division is the one who put him in jail.  Whichever it is, you need to contact that office and they can tell you how much the bond is to get him released and when he is likely to be released or have his next court date.  See this link to the Travis County Domestic Relations Office to get more information including phone numbers to call.  Keep in mind that when going to make a payment for their release they only accept money orders and cashier’s checks, not cash or personal checks.  
Many people want to hire an attorney to handle this process, which is fine and useful if you cannot get off work to handle it or get overwhelmed by the bureaucracy.  However, many people would be better served in taking any money they would use to hire an attorney and putting that towards the bond and any back-owed child support.  In the end, it’s money they want and it’s money they shall get.  It would be better to try to catch up than hire someone to tell you what you already know; you’re far behind in payments and need to catchup.  
Barring any mistake in payment credits, disability payments, agreements from the custodial parent to waive some arrears in exchange for a large payment now, it’s usually best to make the payments and try to put yourself back in the Court’s good graces.  To determine whether you or your loved one qualifies for any reductions in child support, it is best to contact an attorney and at least discuss your options before deciding on a course of action.


Change of Name in Divorce Suit
A party wanting to change their name back to a maiden name can do so in a Final Decree of Divorce.  They must specifically mention a name change in their Original Petition of Divorce and must include the new name in their Final Decree of Divorce that is signed by the Judge.  Texas Family Code 45.106 is the law that allows you to combine a name change with your Divorce. If you do not include a name change with your divorce, for instance if you change your mind later and want a name change a few months or years after the divorce, then you will have to file a new change of name suit, pay around $275 in filing fees, and take time out of your day to schedule another hearing with the Court to ask permission to change your name. This is an expense,and hassle that is best avoided the first time around by including it in your Divorce.


Best Interests of the Children

Texas Family Code 153.002 and 153.003 show that when a Judge is making a decision as to custody (Conservatorship, Possession, & Access) they look to these sections of the Family Code to instruct them on whom to award custody of the child(ren). In fact, the best interests of the child(ren) is usually the primary consideration of the court in determining the issues of conservatorship and possession of and access to the children.  The Court cannot consider a party’s marital status (or lack of marital status) or their gender in determining who would be the “better” parent.  The old saying that Courts favor the mothers is not the case, under Texas law.
Whenever you are framing your case and your arguments, it is usually best to keep this “best interests of the child(ren)” in mind.  The Judge surely will.  Show the Court how you are the better choice and tread lightly on only showing how the other parent is the wrong choice.  Focusing only on the other side’s negatives and not enough on your positives will be wasted efforts in the long run.  Make the focus your education, training certificates, workplace achievements, awards, community involvement, and support of children’s activities.  If you do not have these when your case first starts, then there is no time like the present to start building yourself up in these areas.  Better late than never.


Board of Nursing Violations

The Texas Board of Nursing handles the licensing and practice standards for all Registered Nurses (RNs) and Licensed Vocational Nurses (LVNs) actively working in Texas.  If you are a licensed nurse and you receive a Notice of Disciplinary Action letter from the Texas Nursing Board you know you need serious assistance to protect you, your license, and your family’s income through your job.  The Board’s Disciplinary Action page on their website has some guidance, but it is to your advantage to speak with someone familiar with the disciplinary process.  Many nurses respond to the Board’s letter without speaking to anyone and unfortunately dig themselves into deeper trouble.  The right response can change the trajectory of your situation and propel you into a lesser offense category if not dispel the action altogether.  Review the Disciplinary Matrix and this handy flowchart of the disciplinary process.  Knowledge is key to understanding your situation and your options.  Partney Law is standing by to guide you through this very difficult and trying time.