Family Law in Texas

Overview

The Texas Family Code is the body of state law that governs matters of marriage, adoption, foster care, divorce, and child support.

Texas district courts, or sometimes specialty courts, are responsible for adjudicating legal disputes concerning these matters.

Family law disputes are sometimes also settled through mediation. Mediation is a confidential settlement process involving a neutral person, or mediator, who is often (but not always) an attorney. Mediation is required in certain family law matters before a trial. Mediation agreements can be legally enforceable if they are submitted to a judge in the form of an agreed order.

The Texas Family Code also governs the juvenile justice system.

Marriage Law in Texas

In Texas, marriage is a voluntary (consensual) civil contract in which each party owes a fiduciary duty to the other. The formation of a marriage results in certain shared property rights and shared rights and responsibilities to children.

Texas issues marriage licenses that can be obtained in a two-step process. First, the couple applies for a marriage license from a county clerk. Second, the couple must participate in a marriage ceremony of some kind within 90 days of issuance of the license, or else it expires.

Any of the following persons may conduct a marriage ceremony:

1. a licensed or ordained Christian minister or priest;
2. a Jewish rabbi;
3. a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony;
4. judges and justices of the peace; and
5. retired judges or federal magistrates.

There is a required waiting period of 72 hours between the issuance of the marriage license by the county clerk and the performance of the marriage ceremony by the officiant.

Texans are ineligible to marry before the age of 18, except by court order.

Common-Law Marriage

Texas is one of several states that also recognizes common-law marriages, which are marriages made without a formal ceremony or marriage license.

A common-law marriage may be proved by evidence that the couple:

• “agreed to be married”; and
• “after the agreement they lived together in this state as husband and wife”; and they
• “represented to others that they were married.”

For inheritance purposes, a surviving spouse may legally establish that he or she was in a common-law marriage within two years of the death of the partner.

Divorce in Texas

Texas family law recognizes seven reasons as legitimate grounds for dissolution of a marriage, also called divorce: cruelty, adultery, imprisonment, abandonment, insupportability, living apart for at least three years, and confinement in a mental hospital for at least three years.

Divorces can only be granted by a judge.

If a couple is granted a decree of divorce, they divide their belongings according to a ‘community property’ system, which means that each spouse is entitled to equal ownership of property held in common during the marriage, regardless of the economic contribution made by each spouse.

Texas is one of about a dozen states to use such a system, which was inherited from Spanish law and differs with the English common law system used in most states.

Rights of Children

Texas law grants a variety of rights and protections to children to ensure that children aren’t abused or neglected.

In the event of abuse or neglect, the state may take custody of a child through the Department of Family and Protective Services (DFPS).

Texas law also governs who takes responsibility for children in cases of divorce, including such matters as shared custody or exclusive custody.

Adoption in Texas

Adoption law governs addresses situations where a parent either cannot or will not care for a child. Voluntary adoptions occur when a parent signs an affidavit relinquishing parental rights and gives the child into the custody of DFPS or an adoption agency.

Involuntary adoptions occur after the state takes custody of a child and a court terminates the parental rights of the parents. In certain circumstances, a step-parent may adopt a spouse’s child from a previous relationship, if the other parent’s rights have been terminated.

In Texas, either single people or married people may adopt a child. In the case of a married couple, each partner must consent to the adoption.

The final step in the adoption process is a court decision granting an adoption petition. Before that, the child must have lived with the adoptive parents for at least six months. The parents must also have met other requirements, including a background check.

DFPS maintains a list of child-placing agencies that can connect prospective parents with children eligible for adoption.

Family Violence

Texas law provides special protections for victims of domestic assault, and special punishments in the Penal Code that can be imposed on perpetrators. 

Protective orders are intended to protect a victim of domestic violence from an abuser. Such an order is issued by a judge upon request and can require the offender out of the home, prohibit an abuser from threatening or harassing the victim or her children, require the abuser to stay away from the family’s home, school, and workplace, and set other conditions. 

If an abuser violates a protective order, he can be arrested and charged with a crime. 

Physical violence against a family member is prosecuted in the same way as simple assault or aggravated assault against any another person. However, the penalties for assault against a family member, a girlfriend or boyfriend, or a roommate or housemate may be enhanced.

A pattern of violence can result in the charge of continuous violence against family, if the offenses occurred within the same 12-month period. This charge is a third-degree felony, which is more serious than the typical domestic assault charge, a Class A misdemeanor.

Inheritance in Texas

Inheritance in Texas is governed by the laws of the Estates Code. Generally, if a person dies without a will, his or her community property will be inherited by a surviving spouse. 

However, if the deceased had children by another partner, the children would inherit the community property rather than the surviving spouse.

In cases of dispute over inheritance matters, such as the validity of a will or its enforcement, Texas has dedicated probate courts or county courts that can adjudicate the dispute.

Foster Care System in Texas

The Texas Department of Family and Protective Services (DFPS) oversees the foster care system, which provides temporary homes for children removed from their families due to abuse, neglect, or abandonment. Foster parents must undergo background checks, training, and home studies before being approved to care for a child.

Children in foster care remain under the legal custody of the state while efforts are made to reunite them with their biological families. When reunification is not possible, children may become eligible for adoption. Some foster families choose to adopt, providing children with long-term stability.

Foster parents have rights and responsibilities, including the right to receive financial assistance for the child’s needs and the duty to provide a safe and supportive environment. The state offers resources to foster families, including counseling and healthcare services, to help ensure children’s well-being.

Legal Separation vs. Divorce

Texas does not recognize legal separation in the way some other states do. Couples who wish to live apart without divorcing may enter into a separation agreement, which outlines financial support, property division, and child custody arrangements. However, such agreements are not formally recognized by Texas courts in the same way as a divorce decree.

Because Texas is a community property state, any assets or debts acquired during a separation are still considered jointly owned unless otherwise agreed upon in writing. Spouses who wish to protect their financial interests while remaining married may use postnuptial agreements or court orders for temporary spousal support and custody arrangements.

Name Changes in Family Law

In Texas, individuals can legally change their names after marriage, divorce, or adoption. When marrying, a person can take their spouse’s last name by simply using it on their marriage certificate. After a divorce, a spouse may request a name change as part of the divorce decree, which allows them to revert to a previous name without filing a separate petition.

For adults seeking a name change outside of marriage or divorce, a court order is required. The petitioner must file a request with the court, provide a reason for the change, and undergo a background check. The court will approve the request if the name change is not intended for fraudulent purposes, such as avoiding debt or criminal charges.

Children’s name changes typically require the consent of both parents or a court order. If one parent objects, the court will decide based on the child’s best interests. Name changes for adopted children are usually included in the final adoption decree, allowing the adoptive parents to select a new name for the child.