Sec. 154.002.  CHILD SUPPORT THROUGH HIGH SCHOOL GRADUATION.  (a)  The court may render an original support order, or modify an existing order, providing child support past the 18th birthday of the child to be paid only if the child is:

(1)  enrolled:

(A)  under Chapter 25, Education Code, in an accredited secondary school in a program leading toward a high school diploma;

(B)  under Section 130.008, Education Code, in courses for joint high school and junior college credit; or

(C)  on a full-time basis in a private secondary school in a program leading toward a high school diploma; and

(2)  complying with:

(A)  the minimum attendance requirements of Subchapter C, Chapter 25, Education Code; or

(B)  the minimum attendance requirements imposed by the school in which the child is enrolled, if the child is enrolled in a private secondary school.

(b)  The request for a support order through high school graduation may be filed before or after the child’s 18th birthday.

(c)  The order for periodic support may provide that payments continue through the end of the month in which the child graduates.

Texas Family Code Section 154.002

So how does one determine the character of property?  As a starting point, understand this blog post does not attempt to answer every question related to determining the character of property.  There are numerous factors that determine whether property is classified as community property or separate property.  This discussion is intended to provide the “guidepost” or the starting point.

Let us start out with a few definitions:

Community Property:

Community property consists of the property, other than separate property, acquired by either spouse during marriage. Texas Statutes Family Code Section 3.002

Separate Property

Sec. 3.001.  SEPARATE PROPERTY.  A spouse’s separate property consists of:

(1)  the property owned or claimed by the spouse before marriage;

(2)  the property acquired by the spouse during marriage by gift, devise, or descent; and

(3)  the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.  Texas Statutes Family Code Section 3.001

Ok, that gets us to a starting point.  There is one other rule that needs to be stated — it is the “Rule of Inception.” (1)  The Rule of Inception basically states the character of property is determined at the time the property is acquired.  For example, if a person acquires property when they are single but then a year later marries, the character of the property would be considered “separate property.”  This is because the property was acquired acquired prior to his marriage.  The marriage did not affect the character of the property.  The Rule of Inception is the first place to start in determining the character of property.

Now consider the same scenario where a husband acquires property, say a home, prior to getting married.  He later marries.  The couple then expends community assets to fixing and reparing the home.  Does this change the character of the property from “separate property” to “community property”?  No.  Look back at the Rule of Inception.  The Rule of Inception determines the character of the property.  The husband purchased the home when he was single.  Therefore, the property is considered separate property.  If the couple later divorces, it is possible for the wife to make a claim of economic contribution; however, that does not change the character of the property.   Texas law provides a forumla on how to determine the amount of economic contribution. (2)  This calulation is beyond the scope of this post.

There is a presumption that property acquired during the marriage is community property.  (3)  Which means that the default rule is that property acquired during the marriage is community.  It is only the default rule though.  This default rule can be overcome by showing by clear and convincing evidence that the property is their separate property.  One common way to show this is specifically stating on the transfer document that it is being acquired as his/her separate property.

What about a husband who inherits property from his deceased mother?  He is married at the time he acquired the property.  This is the husband’s separate property.  The property was a devise/descent from his mother.  Property acquired by a spouse during marriage by gift, devise, or descent is his/her separate property.

Recap:  Property acquired prior to marriage is considered separate property.  Property acquired during a marriage is presumed to be community property unless it is acquired by gift, devise, descent, or recovery for personal injuries sustained during the marriage (except loss of earnings capacity).

It is important to characterize property because the law treats the character of the property differently.  In divorce, community property is subject to just and right division.  At death, the law of descent  and distribution or intestate laws  (e.g. the laws governng the disposition of property when there is no will) treat community property and separate property differently.

Think back to the time you and your now ex-spouse went to the family lawyer.  The two of you decided to give each other everything in case one of you died.  Now the two of you have divorced.  If you pass away without changing your will, does the divorce impact the provisions in the will?  Well, the Texas Legislature has made a default rule for you.  If after making a will you get divorced and pass away, the Texas courts will treat your ex-spouse as if she had predeceased you.  In other words, your ex-spouse will not take under the will.  In 2007 the Texas Legislature amended the statute to also include relatives of the ex-spouse who are not related to the testator (the person who wrote the will and died).

Take note:  This is the Texas rule.  There have been exceptions made and should be considered.  One clear exception is in certain Federal ERISA plans.  Since it falls under federal laws, the federal laws apply and the divorce does not ‘nullify’ the beneficiary.  In other words, if your ex-spouse is the name on that beneficiary card he/she may take those benefits despite your divorce.

Why leave all these questions up in the air?  There is an easy solution — change your beneficiaries and update your will when major changes occur in  your life.  And yes, a divorce would qualify as a major change in your life.

Texas Probate Code Section 69

Sec. 69.  WILL PROVISIONS MADE BEFORE DISSOLUTION OF MARRIAGE.  (a)  In this section, “relative” means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, respectively.

(b)  If, after making a will, the testator’s marriage is dissolved, whether by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise.

(c)  A person whose marriage to the decedent has been dissolved, whether by divorce, annulment, or a declaration that the marriage is void, is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death and the subsequent marriage is not declared void under Section 47A of this code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 12, eff. Aug. 27, 1979; Acts 1995, 74th Leg., ch. 642, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1302, Sec. 5, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 4.02, eff. September 1, 2007.

Texas State Statutes, Probate Section 69

There are several options to terminate a person’s parental rights – both involuntarily and voluntarily.  One way for a parent to begin the process of voluntarily relinquishing his/her rights is by having an Affidavit of Voluntary Relinquishment of Parental Rights (“Affidavit”) signed by the parent relinquishing his/her rights.   A singed Affidavit of Voluntary Relinquishment of Parental Rights gives grounds for the termination of the parental rights.  The parental rights are not terminated until a court of competent jurisdiction enters an order terminating a person’s parental rights.

The Affidavit must conform to Texas Family Code Section 161.103.  The code section is provided below.

Sec. 161.103.  AFFIDAVIT OF VOLUNTARY RELINQUISHMENT OF PARENTAL RIGHTS.  (a)  An affidavit for voluntary relinquishment of parental rights must be:

(1)  signed after the birth of the child, but not before 48 hours after the birth of the child, by the parent, whether or not a minor, whose parental rights are to be relinquished;

(2)  witnessed by two credible persons; and

(3)  verified before a person authorized to take oaths.

(b)  The affidavit must contain:

(1)  the name, county of residence, and age of the parent whose parental rights are being relinquished;

(2)  the name, age, and birth date of the child;

(3)  the names and addresses of the guardians of the person and estate of the child, if any;

(4)  a statement that the affiant is or is not presently obligated by court order to make payments for the support of the child;

(5)  a full description and statement of value of all property owned or possessed by the child;

(6)  an allegation that termination of the parent-child relationship is in the best interest of the child;

(7)  one of the following, as applicable:

(A)  the name and county of residence of the other parent;

(B)  a statement that the parental rights of the other parent have been terminated by death or court order;  or

(C)  a statement that the child has no presumed father;

(8)  a statement that the parent has been informed of parental rights and duties;

(9)  a statement that the relinquishment is revocable, that the relinquishment is irrevocable, or that the relinquishment is irrevocable for a stated period of time;

(10)  if the relinquishment is revocable, a statement in boldfaced type concerning the right of the parent signing the affidavit to revoke the relinquishment only if the revocation is made before the 11th day after the date the affidavit is executed;

(11)  if the relinquishment is revocable, the name and address of a person to whom the revocation is to be delivered;  and

(12)  the designation of a prospective adoptive parent, the Department of Family and Protective Services, if the department has consented in writing to the designation, or a licensed child-placing agency to serve as managing conservator of the child and the address of the person or agency.

(c)  The affidavit may contain:

(1)  a waiver of process in a suit to terminate the parent-child relationship filed under this chapter or in a suit to terminate joined with a petition for adoption; and

(2)  a consent to the placement of the child for adoption by the Department of Protective and Regulatory Services or by a licensed child-placing agency.

(d)  A copy of the affidavit shall be provided to the parent at the time the parent signs the affidavit.

(e)  The relinquishment in an affidavit that designates the Department of Protective and Regulatory Services or a licensed child-placing agency to serve as the managing conservator is irrevocable. A relinquishment in any other affidavit of relinquishment is revocable unless it expressly provides that it is irrevocable for a stated period of time not to exceed 60 days after the date of its execution.

(f)  A relinquishment in an affidavit of relinquishment of parental rights that fails to state that the relinquishment is irrevocable for a stated time is revocable as provided by Section 161.1035.

(g)  To revoke a relinquishment under Subsection (e) the parent must sign a statement witnessed by two credible persons and verified before a person authorized to take oaths. A copy of the revocation shall be delivered to the person designated in the affidavit. If a parent attempting to revoke a relinquishment under this subsection has knowledge that a suit for termination of the parent-child relationship has been filed based on the parent’s affidavit of relinquishment of parental rights, the parent shall file a copy of the revocation with the clerk of the court.

(h)  The affidavit may not contain terms for limited post-termination contact between the child and the parent whose parental rights are to be relinquished as a condition of the relinquishment of parental rights.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 69, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 561, Sec. 9, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 561, Sec. 3, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1283, Sec. 5, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1412, Sec. 1, eff. September 1, 2007.

Texas Constitution and Statutes Website