Texas Family Code Sees Updates in Legislative Session Monday, August 8, 2011 FORT WORTH – (FW Business Press) -- Three significant changes to the Texas Family Code were passed by the Legislature and signed by Gov. Rick Perry during the past session, adding new rules for alimony, economic fraud and mistaken paternity.
The changes were the result of a months-long effort by the legislative committee for the Family Law Section of the State Bar of Texas, which uses feedback from lawyers and judges to identify places in family law that need updating.
“This was a very productive session for the Family Law Bar,” said Denton family lawyer Charla H. Bradshaw, a managing partner with the family law firm of KoonsFuller.
Bradshaw was a member of the legislative committee for the Family Law Bar and helped to write the new legislation. She also testified before lawmakers in Austin and lobbied for the bills’ passage.
“This was (the Texas Family Bar’s) third session to really be active in Austin and we should have been more active before,” she said. “A lot of bad laws were getting passed and we all gathered together to decide to do something about them.”
Alimony
Bradshaw said the most important change for divorcing spouses is the expansion of the statute authorizing alimony, formerly called spousal maintenance.
In 1995, Texas was the last state in the union to pass a law providing for spousal support – one of the most restrictive such laws in the nation. It has remained on the books virtually unchanged for more than 15 years.
“We are so far behind the eight-ball with other states as far as having any kind of compensation after the divorce,” she said. “The judges were all thinking that if they gave anybody more than half of the property in a divorce, then they automatically shouldn’t or couldn’t or wouldn’t give the spousal maintenance.”
The statute has effectively been restructured so that such support can now be awarded in certain circumstances.
Under the new law, the amount of monthly alimony is increased from $2,500 to $5,000, or 20 percent of gross earnings, whichever is less, to provide for the spouse’s “minimum reasonable needs.” Those needs are determined by the court on a case-by-case basis.
The new rules also make alimony more readily available to a wider group and use the length of the marriage to determine the duration of support.
In the case of family violence or spouses who have been married for at least 10 years but not more than 20 years, the asking spouse may receive alimony for no more than five years. If the spouses were married for at least 20 years but not more than 30 years, the duration of alimony is no more than seven years. If the spouses were married for 30 years or more, the spouse seeking maintenance may receive it for no more than 10 years.
“It’s interesting to look at the specific additions of some fault grounds that have been added to the criteria for determining spousal maintenance,” said Katie Lackey, a family law attorney in the Fort Worth office of Cantey Hangar. “I think the additional discretion is going to benefit litigants.”
The new rules will apply to divorce cases filed on or after Sept. 1, 2011.
Economic fraud
A new law addresses a fairly common practice of one spouse hiding or undervaluing assets from the other spouse at the time of divorce.
“Unfortunately there is a lot of dishonesty and fraud in divorce cases, especially when one spouse knows all about the financial aspects of their business and the other spouse does not,” Bradshaw said.
While courts have always had the ability to provide for economic fraud in a divorce, the new statute directs the court to recalculate the estate as if the fraud had not occurred.
Once the court makes this calculation, the new recalculated estate or “reconstituted estate” is used to divide assets. The court can remedy the wronged spouse dollar for dollar when community property is divided, award the wronged spouse more money, or both.
The new law is now in effect for all cases.
Mistaken paternity or paternity fraud
Sometimes called the “Who’s Your Daddy Law,” the new statute allows a man who thought he was the father, and then learns later that he is not, to file suit to de-establish his paternity without having to bring another prospective father into the suit.
Bradshaw said she has seen several variations on this theme in divorces.
One is where the mother of the child defrauds the man, convincing him that he is the father while knowing he is not. In other cases, the woman may not know who the father is.
The new statute is supposed to take care of both of those situations. If a court determines that a man is not the biological father, any child support he is ordered to pay stops immediately, though any unpaid child support would still be due.
Those men may still be granted visitation, even if they aren’t obligated to pay child support.
Beginning Sept. 1, a man has one year to file suit from the day he becomes aware that he is not the child’s biological father.
Texas Takes Lead in Collaborative Law Saturday, August 13, 2011 FORT WORTH -- (FW Business Press) -- September in Texas looks to bring not only the beginning months of fall, but also a new season of family law with the passage of the Uniform Collaborative Family Law Act.
On Sept. 1, the new law will go into effect in Texas, bringing new definitions for the procedures and confidentiality of the collaborative law process for the first time.
In 2002 Texas became the first state to codify collaborative law – an alternative dispute resolution process geared toward couples looking to respectfully resolve issues related to divorce and other family law disputes.
In a collaborative law case, both parties agree to hire lawyers and work to resolve disputes without going to court. If the process fails, both parties must withdraw their respective attorneys and hire new lawyers to settle things in court.
“The best thing about this legislation is that it makes the process more businesslike,” said Kevin Fuller of the Dallas family law firm KoonsFuller. Fuller is head of the collaborative law section of the State Bar of Texas and helped write the new statute. “The legal community is quite fond of rules and structure and definitions, and this statute goes a long way toward adding all of those things to collaborative practice,” he said.
Among other things, the new act will require divorce attorneys to tell new clients about the availability of collaborative law as a resource and to screen prospective clients on their appropriateness for collaborative law, including a check for any history of family violence.
“The new informed-consent requirements are really good for the public,” Fuller said. “They will help people clearly understand what they’re getting into before they begin the collaborative law process.”
The act also will give Texas attorneys unprecedented power to seek emergency orders for their clients’ protection while also making it easier for nonprofit and pro bono organizations to use the collaborative law process for family law cases.
“It’s a good act,” said Gary Nickelson, president of the Texas Family Law Foundation. Nickelson runs his own divorce and family law practice in Fort Worth. “For those people who can work together and make that happen, I think it’ll be a good thing, but it takes folks of a certain mindset who want to do it because you don’t have any way to force anybody to do anything. You have to be trusting of the other side.”
Therein lies the rub, Nickelson says: The collaborative law process is intended to be more focused on finding solutions than assessing blame, so it helps – but is not required – that the parties involved are already getting along to some degree.
“With the right kind of folks who really have the right attitude, collaborative law can work really well,” he said. “But if you have some degree of acrimony or mistrust, then it’s more difficult to make it work. I think a lot of people would like to go that way, but I also think it certainly takes the right set of folks to do it.”
Fuller said the process is not for everyone, but he added that couples don’t need to hold hands and sing ‘Kumbaya’ to make it work either. In fact, he thinks the term “collaborative law” is a misnomer.
“People think they all have to get along and be all nicey-nicey to participate in the collaborative process,” he said. “I wish they called it ‘negotiation law’ or something else, because collaborative implies this is all just some beautiful thing.
“Sometimes it can be, I guess, but this is ultimately about people with real disputes, real conflicts and real disagreements who want to figure out a way to work things out that won’t destroy the very things they are arguing about.”
Fuller said collaborative law is becoming more important in the legal structure of the state.
“Collaborative law – especially among the affluent – is a very business-friendly, family-friendly process to use when people have to go through a divorce,” he said. “The courtroom and the litigation process can be incredibly destructive to businesses and families; this process is just a lot more user-friendly in many cases.”
Because it is aimed at keeping cases out of the courts, it also helps reduce pressure on the court system by cutting the number of cases working their way through the pipeline.
Whether a lawyer prefers the collaborative law process depends on the lawyer. From a strictly financial standpoint, most family lawyers stand to make more money if a case stays in litigation, Fuller said.
“I have handled five big-league divorces that involved business people and their businesses,” he said. “I can take the fees that clients paid me from three of those litigation cases and it will exceed the fees from all 67 of my collaborative cases combined.”
The average net worth involved in those big-league cases was about $5.5 million, he said.
“I think it’s going to become more popular going forward because I think business people are simply fed up with paying these high legal fees to resolve their disputes,” Fuller said. “A lot of these disputes aren’t even worth fighting because to resolve the dispute in litigation costs more than what you might be fighting over to begin with.”
Data on collaborative law are hard to find. At the moment the state does not keep statistics on how many divorce cases are collaborative versus otherwise.
Fuller said he would be surprised if the number of divorce cases in Texas handled through the collaborative process exceeded 10 percent.
Still, he maintains that the practice has been a growing part of many firms’ family law practices. Fuller himself has handled almost 70 divorces through the collaborative process since 2007.
“The litigation process tends to put people in a much more divisive, adversarial relationship because that is just the nature of the game – us versus them and finding who’s at fault for things,” he said. “That kind of battlefield environment isn’t always going to solve the problems.”
Thank (or blame) Denton divorce attorney as true alimony comes to Texas Sunday, August 28, 2011 DENTON – (The Dallas Morning News) -- Football legend and broadcaster Terry Bradshaw used to grouse good-naturedly on late-night TV about how difficult it is to get a divorce when your wife is a divorce lawyer. His ex and the mother of his two children, Charla Bradshaw, isn’t just any divorce attorney.
On Thursday, when Texas becomes a full-fledged alimony state, you can thank or blame her. The 49-year-old managing partner of the Denton office of KoonsFuller PC was the driving force behind legislation that makes alimony available to many more warring spouses.
“This brings us up to speed with other states,” Bradshaw says. “Some states leave it up to the discretion of the judge. I’m sure the recipients would love for our statutes to become broader. And that could happen. But I’m happy with how far we’ve come from where we were.”
There’s a mistaken belief that Texas doesn’t have alimony. But 16 years ago, the Lone Star State became the last in the union to adopt any form of alimony. It’s called “spousal maintenance,” and it’s among the most restrictive in the nation. As a result, it’s rarely used.
During the last session of the Texas Legislature, Bradshaw was a member of the legislative committee for the family law section of the State Bar of Texas. She helped write the alimony legislation, testified before lawmakers and lobbied for the bill’s passage.
“Alimony’s been the red herring, the white elephant, the 600-pound gorilla that no one wanted to bring up,” says Bradshaw, who in her 18 years as a divorce attorney has seen way too many wives get the short end of the stick when it comes to income after the divorce. “I just jumped out there and did it.”
Bradshaw says the next few days are critical for people considering divorce.
“If somebody walks into my office right now, and I think they’re a candidate for the new alimony, I’m going to tell them that we’re going to file after Sept. 1, and vice versa if it’s the other way.”
Without Bradshaw’s leadership, Texas might have continued to languish in the backwaters of spousal support, says fellow committee member in Kathy Kinser, principal of Kinser & Bates LLP in Dallas. “We had one of the worst alimony statutes in the country. To say that Charla was passionate about changing that is putting it mildly. She, pretty much on her own, researched all 50 states’ alimony statutes, did a complete overview for the committee and made suggested changes that were not overwhelmingly accepted by all of the committee members.”
And that’s putting committee opposition mildly.
Rallying support
The new legislation probably would have died in committee if Bradshaw hadn’t lobbied other leading family lawyers for their support. The changes were included in the family law package and were passed into law with surprisingly little legislative debate.
One theory is that the Texas Legislature was so distracted by other issues that it failed to take notice that one of the state’s most historically contentious issues was being overhauled.
Since its passage, there’s been almost no publicity about this or two other big family law changes effective this week. One gives judges more discretion in dealing with spouses who lie and cheat about assets and the other gives relief to men who’ve been nailed for child support for kids who turn out not to be theirs.
Bradshaw was keen on all three, but it was the alimony statute that pushed her buttons. She’s a longtime advocate for giving women a greater opportunity for getting alimony.
Texas is a community property state where the division of assets starts out at 50-50. This doesn’t change with the new legislation.
Nor does the law that presumes that there’s no alimony due unless proven otherwise.
But there are two critical modifications. One increases the maximum amount of spousal support from $2,500 a month to $5,000 a month, or 20 percent of gross earnings, whichever is lower. The second considers how long the marriage lasted to determine the duration of the alimony.
“There are plenty of hoops in the statute that they’ve got to go through to get alimony,” she says.
Bradshaw gets paid $425 an hour. So why did she give up countless billable hours in this pursuit?
“In any profession, you need to give back to it, but also because I felt it needed to be changed. I’m so tired of telling someone who’s been married 50 years, ‘I’m sorry, you’re going to have to take half of your husband’s retirement income, and that’s it.’”
She's been there
Bradshaw has been divorced twice. Her second marriage, to divorce attorney and mediator Coye Conner, ended earlier this year. “If people say, ‘You don’t understand’ or ‘You don’t know what I’m going through,’ I can say, ‘Well, yes I do.’”
Bradshaw, who grew up in Denton, earned her undergraduate degree from Texas Woman’s University and completed all of the coursework (but not the thesis) for a master’s in marriage and family therapy.
She had been accepted to law school at Southern Methodist University and wanted to get started on a career she’d been thinking about since working as a paralegal temp at a family law firm in Houston.
“I try to help people understand what’s happening to them. I guess this is where that therapist part of me comes out,” she says. “I like to take a chaotic situation and help people move forward. It’s just as much planning about what life is going to be like after divorce as it is about getting the case over.”
Bradshaw admits to playing up her looks as sucker punch to people who think that blonde equates with dumb. “It works a lot better with lawyers who don’t know me,” she says.
She had her own practice until 2008, when she merged her practice into KoonsFuller.
Ike Vanden Eykel, principal of KoonsFuller, says there’s none better when it comes to combining presence and acumen. “I took note of her very early in her career as someone who is insightful and deals with people at a very high level. She combines intelligence and brut tenacity in a courtroom. She’s just amazing.”
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AT A GLANCE: Charla Bradshaw
Age: 49
Resides: Westlake
Born: Post, Texas
Title: Managing partner Denton office of KoonsFuller PC
Education: Graduated from Denton High School, 1980; bachelor of science, summa cum laude, Texas Woman’s University; juris doctor from the Dedman School of Law at Southern Methodist University, 1993
Personal: Married and divorced twice; two grown daughters
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TEXAS DIVORCE LAW CHANGES START THURSDAY
On Thursday, the terrain of Texas’ divorce landscape is in for major changes.
Alimony will become available to more people. Judges will have more power to punish those who lie and cheat about their assets during a divorce. And men who are wrongfully paying child support can file suit to get out of it.
Denton family law attorney Charla Bradshaw, who served on the legislative committee for the State Bar of Texas and lobbied for the changes, explains:
Alimony, a.k.a.
The maximum amount of “spousal maintenance” was increased from $2,500 a month to $5,000 a month, or 20 percent of gross earnings (whichever is less), to provide for a spouse’s “minimum reasonable needs.” Those needs, which aren’t defined by law, will be determined by the court on a case-by-case basis.
When a spouse or child is a victim of family violence, the spouse is eligible for maintenance support for up to five years if he or she lacks sufficient property and earning ability to provide for minimum reasonable needs.
A spouse who is not a victim of family violence but has been married for at least 10 years and lacks sufficient property and earning ability can also seek alimony. The length of the marriage determines the duration of support.
If a couple has been married for at least 10 years but not more than 20 years, the spouse asking for maintenance support may receive it for up to five years.
If the couple was married for at least 20 years but not more than 30 years, the duration of maintenance is no more than seven years.
If the couple was married for 30 years or more, the spouse seeking maintenance may receive it for up to 10 years.
Economic fraud
This law addresses a fairly common practice of one spouse hiding or undervaluing assets during the divorce. It directs the court to recalculate the estate as if the fraud had not occurred and then divide the reconstituted estate as community property. The court can also award the wronged spouse a money judgment.
Mistaken paternity
Under this legislation, sometimes called the “Who’s Your Daddy Law,” a man who’s been paying child support but finds out he’s not the biological father has one year from the time of his discovery to file suit to stop the court-ordered payments.
If the court determines that he is not the biological father, his obligation stops immediately, except for unpaid child support that is still due.
A judge may grant visitation rights to a man who seeks it, even if he is not the biological father, if his absence will cause mental harm to the child.
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