As we enter the full swing of the 2009 holiday season, Strickland & Associates would like to wish you and everyone happy holidays.

The the document titled “Affidavit of the Voluntary Termination of Parental Rights” is somewhat misleading.  Some believe that by signing this document and doing nothing more, a person’s parental rights are terminated.  No!!!

The Affidavit is just an Affidavit.    The affidavit is used in several contexts.  One context is where a parent wishes to give his/her child up for adoption at birth.  Another, and the area where I have seen it the most, is when the biological parent wishes to allow the step-parent to adopt their child.

The Affidavit allows the parent who wishes to voluntarily terminate his parental rights to express those wishes.  It does not, in of itself, terminate parental rights.  A court must terminate the parental rights.   The Affidavit can have language which would waive all future notice of adoption proceedings, etc. which simplifies the process but a court must terminate the parental rights.

Section 154.006 of the Texas Family Code specifically spells out the circumstances for ending support.  The first place to look regarding Child Support Obligation is the Final Decree of Divorce and the Martial Settlement Agreement.  Your Agreement or Final Divorce Decree should spell out the duration of the support obligation.

It is possible for your support obligation to last beyond the high school graduation in certain circumstances; however, if it does last beyond your child’s graduation you probably already know when the support ends.  You and the other parent of the child can agree on a specific date on when the support ends.  In this case, the support would last until that agreed time frame.  (“Unless otherwise agreed in writing..”  See Section 154.006 of the Texas Family Code.)

If your child is disabled, then child support can last for an indefinite period of time.

Further, if the parent you have been paying child-support is still the conservator (e.g. the child has not been taken into state custody, grandparents do not have legal custody, etc.) and you marry or remarry the parent, the the support obligation terminates.

Sec. 154.001.  SUPPORT OF CHILD.  (a)  The court may order either or both parents to support a child in the manner specified by the order:

(1)  until the child is 18 years of age or until graduation from high school, whichever occurs later;

(2)  until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;

(3)  until the death of the child; or

(4)  if the child is disabled as defined in this chapter, for an indefinite period.

(a-1)  The court may order each person who is financially able and whose parental rights have been terminated with respect to a child in substitute care for whom the department has been appointed managing conservator to support the child in the manner specified by the order:

(1)  until the earliest of:

(A)  the child’s adoption;

(B)  the child’s 18th birthday or graduation from  high school, whichever occurs later;

(C)  removal of the child’s disabilities of minority by court order, marriage, or other operation of law; or

(D)  the child’s death; or

(2)  if the child is disabled as defined in this chapter, for an indefinite period.

(b)  The court may order either or both parents to make periodic payments for the support of a child in a proceeding in which the Department of Protective and Regulatory Services is named temporary managing conservator. In a proceeding in which the Department of Protective and Regulatory Services is named permanent managing conservator of a child whose parents’ rights have not been terminated, the court shall order each parent that is financially able to make periodic payments for the support of the child.

(c)  In a Title IV-D case, if neither parent has physical possession or conservatorship of the child, the court may render an order providing that a nonparent or agency having physical possession may receive, hold, or disburse child support payments for the benefit of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 39, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 556, Sec. 8, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch. 268, Sec. 1.08(a), eff. September 1, 2005.

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

Sec. 154.006.  TERMINATION OF DUTY OF SUPPORT.  (a)  Unless otherwise agreed in writing or expressly provided in the order or as provided by Subsection (b), the child support order terminates on:

(1)  the marriage of the child;

(2)  the removal of the child’s disabilities for general purposes;

(3)  the death of  the child;

(4)  a finding by a court that the child:

(A)  is 18 years of age or older; and

(B)  has failed to comply with the enrollment or attendance requirements described by Section 154.002(a); or

(5)  if the child enlists in the armed forces of the United States, the date on which the child begins active service as defined by 10 U.S.C. Section 101.

(b)  Unless a nonparent or agency has been appointed conservator of the child under Chapter 153, the order for current child support, and any provision relating to conservatorship, possession, or access terminates on the marriage or remarriage of the obligor and obligee to each other.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 556, Sec. 9, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 38, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 972, Sec. 9(a), eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1404, Sec. 1, eff. September 1, 2007.

Each of the these methods of obtaining “personal” service have a certain procedure to be followed.  This post today is focused on how a defendant can waive that service.

Why would a defendant waive service?  I can think of numerous reasons and will name a couple here.  If the defendant does not contest venue/jurisdiction of the court, the defendant may just decide to move on to the next step of litigation so the he/she can defend the lawsuit.   In uncontested divorces cases, it is common for the defendant to waive service.  Often time, in an uncontested divorce, the parties are wanting to get the process over with.  By waiving service, the defendant allows the plaintiff to move forward.  If the defendant is concerned with the Plaintiff’s cost of litigation, by waiving service, it reduces the cost somewhat.

What is a waiver of service?  As the name implies, it is a waiver by the defendant to the requirements of service.  Specifically, it is a document signed by the defendant, an authorized agent or attorney of the defendant, and notarized.  The document should state the defendant waives service and received a copy of the pleadings.  In a divorce action, the defendant’s mailing address should also be included.

By waiving service, the defendant is accepting the lawsuit and the waiver has the same force as if citation had been issued by the clerk and served according to law.

RULE 119. ACCEPTANCE OF SERVICE
The defendant may accept service of process, or waive the issuance or service thereof by a written
memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn
to before a proper officer other than an attorney in the case, and filed among the papers of the cause,
and such waiver or acceptance shall have the same force and effect as if the citation had been issued
and served as provided by law. The party signing such memorandum shall be delivered a copy of
plaintiff’s petition, and the receipt of the same shall be acknowledged in such memorandum. In every
divorce action such memorandum shall also include the defendant’s mailing address.

Texas Civil Procedure Rules

On several occasions this weekend, I had the pleasure to speak to others about wills and estate planning.  One common reason that all the individuals I spoke to did not already have a will was that “I don’t have anything but debt.”  One gentleman jokingly stated that he would be dead and so it did not really matter at that point.  Perhaps he wasn’t joking, who knows.  I often hear “I don’t have anything” as the reason a person has not spoken to an attorney about estate planning or preparation of a will.  I suspect if a poll was conducted, it would probably be in the top 10 reasons, if not the top 5 reasons, individuals do not take the time to prepare a will and other necessary estate planning documents.

It also illustrates a fundamental misunderstanding at the importance of having a will and other estate planning documents prepared.  I suppose there is a good percentage of people who do not care what happens to their belongings or who is fighting over who gets what.  I also suspect there is a good percentage of people who DO care who will make decisions for them or their children if they were to become incapcitated.  Few people “plan” on becoming incapcitated but it happens often.  Estate planning documents generally will include a will, durable power of attorney, medical power of attorneys, mental health power of attorneys, declaration of guardianship, declaration of guardianship for a minor child, HIPPA releases, and other relevant documents.  These documents allow you to make your wishes known to others and allows others to make decisions for you on your behalf.  Questions like — Do you want to remain on life support indefinately?  Who do you want to take care of the son/daughter if you become incapcitated or if you die?

Attested Wills

The “attested” will is the type of will that everyone thinks of when someone mentions they have a will.  It is a writing and is signed by the testator (the person making the will) or by a person he/she directs to sign in the presence of the testator.  It is attested by two or more credible witnesses above the age of 14 who shall sign their names in their own handwriting in the presence of the testator.

It is common to have a “self-proving” affidavit also signed by the witnesses.  The affidavit essentially states the witnesses witnessed that the Testator declared he/she was signing his/her Last Will and Testatment, the testator was over the age of 18, of sound mind, and each witness was over the age of 14.  The self-proving affidavit makes it possible to admit the will without having to prove it was executed correctly.

If there is no self-proving affidavit, the will is not invalid.  It only requires that in order to probate the will, witnesses(es) will be required to appear in order to prove the will was properly executed and in accordance with the statute.

Holographic Wills (handwritten wills)

Texas does recognize handwriten wills.  A hand written will must be wholey in the handwriting of the testator.  Witnesses are not required to sign the handwritten will; however, in order to admit the handwritten will, two witnesses are required to prove it is the testator’s handwriting.

Oral Wills (Nuncupative Wills)

Texas used to recongize oral wills in limited circumstanes.  In 2007, the Texas legislature replealed the statutes allowing for Nuncupative Wills.

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