Legislative Update

Family Law

By Kristal G. Thomson

Overall, the 88th Texas Legislature was a good one for the Texas Family Code, or TFC. The following summaries highlight the most important changes. For a thorough and complete analysis, the TexasBarCLE Webcast “Legislative Update 2023: Family Law” is highly recommended.

HB 4183 allows an associate judge to sign a waiver of the 72-hour waiting period after a marriage license is issued. This change in law applies only to a marriage ceremony for which a marriage license application is filed on or after September 1, 2023.

HB 1547 is the most extensive change to Title I of the TFC in over a decade. The statutory claim for reimbursement is amended to conform with the true intent of the equitable principle and the caselaw that has interpreted reimbursement claims for over 100 years.

TFC section 3.401 now includes definitions of “benefited estate” and “conferring estate.” Accordingly, the word “contributing” is replaced with “conferring” throughout the statute.

TFC section 3.402(a) clearly defines a claim for reimbursement. “A claim for reimbursement exists when one or both spouses use property of one marital estate to confer on the property of another marital estate a benefit, which, if not repaid, would result in unjust enrichment to the benefited estate.” This definition is consistent with reimbursement caselaw, including the most prominent Supreme Court of Texas opinion on reimbursement, Penick v. Penick.¹

TFC section 3.402(b) contains the elements that must be proved for a successful reimbursement claim. The spouse seeking a reimbursement claim must prove: (1) that one marital estate conferred a benefit to another marital estate; (2) the value of that benefit; and (3) that an unjust enrichment will occur if the benefited estate does not reimburse the conferring estate.

TFC section 3.402(c) lists the three types of statutory reimbursement claims. The first is when property from the conferring estate (i.e., money) is used to pay a debt, liability, or expense that should have been paid by the benefited estate. The second is when property from the conferring estate is used to make improvements on the benefited estate and which results in an enhancement in value of the benefited property. The third type is what is commonly referred to as a “Jensen Claim.” A Jensen Claim happens when a spouse uses time, toil, talent, or effort to enhance the value of their separate property and the community estate did not receive adequate compensation for that expended time, toil, talent, or effort.

TFC section 3.402(d) requires the value of the reimbursement claim to be determined at the time the trial commences. This section also identifies the method of valuing each type of claim. If the reimbursement claim is for a payment of a debt, liability, or expense, then the value of the claim is measured by the dollar amount of the claim or “dollar for dollar.” If the claim is an improvement to property, then the value of the benefit is measured by the enhancement in value of the benefited property. If a party pleads a Jensen claim, the claim’s value is measured by the value of the effort that was used beyond that which was reasonably necessary to manage and preserve the spouse’s separate property.

TFC section 3.402(e) preserves the court’s right to determine whether the reimbursement claim should be granted and used as part of the division of the estate.

TFC section 3.402(g) outlines the offsets that may be plead against the reimbursement claim. The list includes: (1) the value of the use and enjoyment of the property by the conferring estate; (2) income received by the conferring estate; or (3) any reduction in the amount of an income tax obligation of the conferring estate. It is important to note that this is not an exclusive list. An offset may be any related benefit received by the conferring estate.

TFC section 3.411 reflects the equitable nature of a reimbursement claim by clearly stating that this subchapter is not the exclusive remedy for a reimbursement claim. All common law equitable remedies remain available to litigants.

These changes apply to claims for reimbursement pending in a trial court or filed on or after September 1, 2023.

HB 2715 adds a new section to TFC 6.501(a). Now a party can request the court to restrain one or both parties from “tracking or monitoring personal property or a motor vehicle in the possession of a party, without that party’s effective consent.” This includes using a tracking application (i.e., Find My, child tracking apps, etc.) and physically following a party or causing another to physically follow a party. It is unknown whether the later restriction would apply to a private investigator hired for a limited purpose in a divorce or custody action. This language is also included in the list of acts the court can prohibit under Chapter 80 of the Family Code. This change is effective on September 1, 2023.

HB 2715 also includes a corollary criminal violation for the acts described above. The Penal Code now includes an offense if a person has a protective order, bond, etc., issued against them and they knowingly or intentionally track or monitor the personal property or motor vehicle of another person without that person’s effective consent. As with the TFC change, this includes using tracking apps or following a person. Unlike the TFC provision, the criminal statute defines effective consent—or rather, what is not effective consent. For the purposes of the criminal statute, it is presumed that a person did not give effective consent to the actor’s conduct if: (1) an application for a protective order has been filed or a protective order has been issued against the actor; or (2) the person is married to the actor and a petition for dissolution of marriage has been filed, or the person was previously married to the actor and the marriage has been dissolved.

HB 2671 adds TFC sections 6.502(a-1) and 105.001(a-1). The new sections prohibit a court from postponing a temporary hearing for more than 30 days when that court has ordered the parties to mediation. This section applies to a suit pending on or filed after September 1, 2023.

SB 2070 clarifies the procedures for continuing spousal maintenance under TFC 8.054(a)(2)(A) and 8.054(a)(2)(C) (related to physical or mental disability or some other compelling impediment).

“The change in law made by this act applies to a motion to continue spousal maintenance under Subchapter B, Chapter 8, that is made on or after September 1, 2023, regardless of whether the original spousal maintenance order was rendered before, on, or after that date.”²

HB 1432 significantly alters the issuance of protective orders. Prior to the passage of this bill, a court could order a protective order on a finding that family violence had occurred and was likely to occur in the future. The second finding is usually the hardest one to prove when the victim has removed themselves from the environment or vicinity of the respondent. HB 1432 removes the second prong throughout Title 4, Subtitle B of the Family Code. This statute is effective on September 1, 2023.

SB 869 amends TFC 102.0091(b) to allow a party executing a waiver to use a digitized signature. This statute is effective on September 1, 2023.

HB 891 adds TFC 104.008(a-1) to clarify that an expert witness can offer an opinion regarding the qualifications of, reliability of the methodology used by, or relevance of the information obtained by a person who has conducted a child custody evaluation. The expert may not testify as to conservatorship or possession and access unless that expert has also completed the requirements of a child custody evaluation under TFC Subchapter D, Chapter 107. The new statute supersedes the Austin Court of Appeals memorandum opinion in In re Gopalan.³ This change applies only to a suit affecting the parent-child relationship filed on or after September 1, 2023.

HB 4062 requires a child custody evaluator to create an audiovisual recording of each interview the evaluator conducts with a child who is the subject of the suit affecting the parent-child relationship. This applies to an interview conducted on or after September 1, 2023.

HB 2850, effective September 1, 2023, adds a brand-new title to the Family Code, “Title 6. Civil Procedure.” This title will govern discovery in family law cases. The bill prohibits the Supreme Court of Texas from adopting any rules that would modify or repeal the effect of the new title. The new title utilizes the old form of disclosures, including requiring that a party request disclosures (rather than the automatic trigger in the current rules). The title also contains rules regarding production, depositions, and expert witnesses. Note: As of the writing of this article, the Supreme Court had not amended the current Texas Rules of Civil Procedure to exclude family law cases from the discovery rules therein.

KRISTAL C. THOMSON is a partner in the family law practice group of the firm Langley & Banack in San Antonio. She is certified in family law by the Texas Board of Legal Specialization and is a fellow in the American Academy of Matrimonial Lawyers. She currently serves as the president-elect of the Texas Academy of Family Law Specialists and is a past chair of the State Bar of Texas Family Law Section.