It is no secret that the law has enormous effects on many aspects of our lives. Nowhere are these effects more pronounced, perhaps, than in the family law context. The Texas Legislature has created laws that govern the creation and termination of marriages, regulate the rights and obligations of family members, and has provided guidelines for how marriages may be terminated. However, the laws in Texas are not necessarily the same as in other states. But for a few narrow exceptions, the regulation of family matters is a strictly the prerogative of state governments. This has resulted in a patchwork of approaches to common family law matters. Continue reading below as we compare some of those different approaches to common family matters.
Common Law Marriage
A common law marriage is a legally recognized marriage between two people who have not obtained a valid marriage license or formalized the marriage through an approved ceremony.
Texas remains an outlier in this regard, with the state being comparatively accepting of “informal,” or common law marriages. Texas courts are required to presume that every purported marriage is valid. (Tex.Fam.Code § 1.101). Evidence of an informal marriage may include: (1) a signed declaration affirming that the couple is married, (2) cohabitation of the couple, or (3) representations to others that the couple is married. (Tex.Fam.Code § 2.402). Kansas also permits common law marriages, with some exceptions. (Kan. Stat. § 23-2502).
Invalid, but Recognized if Valid in Other State
A majority of states do not allow residents to enter common law marriages, but will recognize any marriage legally entered into in another state. Arkansas, for example, does not permit its residents to marry without procuring a marriage license (Ark. Code § 9-11-201), however, the state does recognize legal common law marriages of other states. (Ark. Code § 9-11-107). Colorado follows a similar approach. (Colo. Rev. Stat. § 14-2-110).
Invalid at All Times
Some states prohibit recognition of any common law marriages outright. For example, Florida abolished common law marriages in 1968 (Fla. Stat. § 741.211), and Illinois banned the practice in 1905 (750 Ill. Comp. Stat. 5/214).
Revocation of Professional Licenses for Non-Payment of Child Support
At one time, an unacceptable number of children were living at or below the poverty line due to non-payment of child support. To reduce the burden on the government to support those children, the Social Security Act ordered the states to provide mechanisms for the suspension of licenses to compel compliance with outstanding child support orders.
Texas: Three Months of Arrears
Texas law permits the revocation or suspension of any occupational, professional, or recreational license after the holder has accumulated three months of arrears. (Tex.Fam.Code § 232.003). Several other states, such as Oklahoma, have instituted a similar 90-day limit. (Okla. Stat. tit. 43, § 139.1).
Suspension at Any Time
Some states, such as Mississippi, have opted to permit license suspension at any time of child support noncompliance. (Miss. Code. § 93-11-157). Massachusetts has adopted a similarly strict approach. (Mass. Gen. Laws ch. 119A, § 16).
Suspension at Specific Amounts
Other states allow the suspension of licenses once arrearages have passed a specific dollar amount. For example, South Dakota permits license suspension once the holder is $1,000 in arrears. (S.D. Codified Laws § 25-7A-56). And South Carolina requires an arrearage of only $500. (S.C. Code § 63-17-1020).
Special Child Support Rules for High-Income Parents
Every state utilizes some type of formula or other guideline to calculate a parent’s child support obligation. And some states have gone further to create special criteria for parents who have very high incomes.
Texas: Special Rules for High Earners
Texas utilizes a set of guidelines to determine parents’ child support obligations, which starts at 20% of a parent’s net income for one child. (Tex.Fam.Code § 154.125). For parents who earn in excess of $7,500 per month, however, the guidelines apply to the first $7,500 earned with courts having discretion to determine additional amounts “as appropriate.” (Tex.Fam.Code § 154.126).
Higher Standards for Very High Earners
Virginia requires that courts add percentage increases for each additional child when a parent earns over $35,000 per month. (Va. Code § 20-108.2).
The Case-By-Case Approach
Still, other states provide courts discretion to adjust child support obligations on a case-by-case basis. Ohio (Ohio Rev. Code § 3119.04), and South Carolina (S.C. Code § 63-17-470) both follow this approach.
Spousal Maintenance and Premarital Agreements
Maintenance (Alimony/Spousal Support) is money paid to a former spouse in the form of periodic payments, generally calculated from the other spouse’s future income. All states have statutes governing the calculation and provision of spousal maintenance. Where many of the differences arise, though, is whether the right to spousal maintenance can be modified by parties though a premarital agreement (prenup). For an in-depth overview on premarital agreements, please consult our eBook.
Texas: No Restrictions
Freedom of contract has enjoyed strong support in Texas law for many years. In the context of family law, this principle has manifested itself in the state’s broad premarital agreement laws. In Texas, couples are permitted to modify, or even eliminate, all spousal maintenance obligations. (Tex.Fam.Code § 4.003). This approach is supported by many states, including California (Cal. Fam. Code § 1500) and Louisiana (La. Civ. Code art. 2328).
Iowa charts its own path by being the only state to prohibit the modification of spousal maintenance through premarital agreements. (Iowa Code § 596.5).
Modification Permitted with Some Restrictions
Some states choose to permit parties to modify maintenance obligations, but only to a certain degree. Each state employs a different standard which is developed through their respective court system. New York, for example, permits such modifications, but only on terms that are “fair and reasonable.” (N.Y. Dom. Rel. Law § 236). And Colorado limits maintenance modifications to terms that are not “unconscionable.” (Colo. Rev. Stat. § 14-2-309).
Among Texans, mediation has grown in popularity over the last few decades. This rise has not been confined to Texas, either. Across the country, states, counties and local authorities have instituted mediation requirements for family law disputes. The reason for this shift is apparent given the higher satisfaction rates of those who engage in this alternative dispute resolution method.
Texas: No State-Imposed Mediation Obligation
Though state law does define, permit, and prescribe requirements for mediation (Tex.Fam.Code § 6.602), the Texas Legislature does not require family matters to engage in mediation at any time. However, counties are permitted to require some parties to attempt mediation before traditional litigation begins. Travis County has promulgated such a requirement through its local rules. Though shared with a few other states, such as Oklahoma (Okla. Stat. tit. 12, § 1823), this approach is actually the minority position among the states.
Mediation Required for Some Matters
Beginning in 2020, all child custody and visitation matters in California are required to attempt mediation before moving to traditional litigation. (Cal. Fam. Code § 3170). Colorado goes even further by requiring mediation for any case involving “parenting time.” (Colo. Rev. Stat. § 14-10-129.5)
Court May Refer Parties to Mediation Sua Sponte
Other states permit courts to, sua sponte (on their own initiative), require the parties to engage in mediation. For example, courts in Iowa are permitted to refer any domestic relations case to mediation. (Iowa Code § 598.7).
The above are just a few of the ways in which Texas family law differs from, or shares similarities with, family law in other states. It is important to understand Texas family law, particularly if you have a family law case in Texas: people often see things on TV or in the news (for example, on a show about divorce or celebrity gossip about a custody battle) and assume that similar laws will apply to their Texas case – and this is not necessarily so, as evidenced by the above!