The forms in this manual were prepared by members of a committee of the Council of the Family Law Section of the State Bar of Texas, and great care has gone into their preparation. The forms represent the best thinking of the practicing lawyers and judges on the committee. Perfection, however, is hard to achieve, and each lawyer using these materials must depend on his or her own expertise and knowledge of the law. The alternative situations that occur most often are covered in the forms. There is, however, no substitute in a particular case for the legal mind, and there is no end to the variations of human problems. Thus, care should be taken to ensure that any form used fits the case and treats the problems of that case.
A substantial debt of gratitude is owed to the more than one hundred members of the family bar who have given thousands of hours of their volunteer time over the years—fifty and counting—to maintain the manual as the most up-to-date, comprehensive, and user-friendly publication of its kind available anywhere.
§ 1Digital Versions
The Texas Family Law Practice Manual is available in two digital versions: online and downloadable. The online version, available by subscription, is accessible on a variety of platforms including PC, mobile phones, and tablets. The downloadable version contains the entire text of the manual as two Adobe Acrobat PDF files (practice notes and forms).
Features of both versions include downloadable State Bar of Texas-copyrighted forms from the manual as editable Word files (and, in some cases, as PDF files) as well as printable or downloadable PDF files of forms available from various state and federal agencies. In both versions, applicable Texas and federal case and statute citations in the practice notes and forms instructions are linked to case reports and main code sections cited via Fastcase online. Both versions are searchable and hyperlinked to allow for easy, rapid navigation to topics of interest.
For more information about the online version, visit www.texasbarpractice.com/texas-bar-books-online/. For more information about the digital download including usage notes, see the material at the end of this introduction titled “How to Download This Manual.”
§ 2Format and Content
1. Marginal notes and numbers
Longer forms contain marginal notes, which are provided to facilitate the use of the forms and to help in finding the applicable code section, statute, or rule to make the proper legal decision.
Family Code section numbers are used extensively in the petitions and occasionally in other forms; if no other identification accompanies a section number in a marginal note, it refers to a section in the Family Code. Citations to other sources employ the following abbreviations:
CFR = C.F.R.
TCPRC = Tex. Civ. Prac. & Rem. Code
TGC = Tex. Gov’t Code
TIC = Tex. Ins. Code
TPenC = Tex. Penal Code
TRCP = Tex. R. Civ. P.
USC = U.S.C.
The numbers and letters above each marginal note provide a rough outline of the contents of the form, often including alternative paragraphs.
2. Optional content
Within major sections of the text of forms, optional paragraphs or items are usually identified by boxed instructions. Further, however, entire major sections of form language may be inappropriate in a particular case (for example, orders pertaining to children in a case in which no child is involved, or orders pertaining to court-ordered spousal maintenance in a case in which no maintenance is ordered). These major sections are not specifically identified as optional. Because the manual can cover only relatively common situations confronted in family law cases, language needed to address an atypical issue in a particular case may not appear in the form. The user must take care to ensure both that language appearing in the form that is not appropriate for the particular case is eliminated and that any language needed for the particular case that does not appear in the form is added.
3. Typeface conventions
Two typefaces are used in the forms. Material in Times Roman (like most of this page) is appropriate for inclusion in a finished form. In contrast, Arial type is used for marginal notes and for instructions. When the Arial type is used within the form itself (rather than in a marginal note or instruction box), it appears in boldface for emphasis.
4. Bracketed material
Several types of bracketed material appear in the forms.
Choice of terms. In a bracketed statement such as “[Petitioner/Respondent],” the user must choose between the terms or phrases within the brackets. The choices are separated by forward slash marks. Alternative letters or phrases may also be indicated by the use of brackets. The most frequent example that appears in the forms is “child[ren],” indicating a choice between the words “child” and “children.”
Optional words. In a phrase such as “[no] termination,” the user must determine whether to include the word “no.”
Substitution of terms. In a bracketed statement such as “[name of former spouse],” the user is to substitute the name of the spouse rather than typing the bracketed material verbatim.
Instructions for use. Material such as “[include if applicable: . . . ]” and “[describe portion of order being appealed from]” provides instructions for completing the finished form and should not be typed verbatim in the document. Bracketed instructions at the beginning of almost all the forms refer the user to section 3 of this introduction for instructions about composing the caption of the form.
Subtitles. The titles of some forms are followed by a bracketed subtitle that is not to be typed as part of the form title. In the title “Respondent’s Original Answer [to Petition to Annul Marriage],” for example, the bracketed words simply distinguish the form from another similarly titled form in the same chapter for ease of reference.
5. Blank lines
Signature lines appear as blank lines. Spaces for dates, times, and amounts that would be filled in after the document is prepared also appear as blank lines. (If an actual date, time, or amount should be inserted in the form when it is prepared, “[date],” “[time],” or “$[amount]” appears instead.)
6. Language in boxes
Language in boxes is not to be typed in the finished document but constitutes instructions, usually either telling the user whether to use the form language following the box, describing what information should be included at that point in the finished document or attached to it, or providing cautionary reminders about use of the form language.
7. Paragraph numbers
To conform to the requirements of the Texas Rules of Civil Procedure, form petitions have arabic paragraph numbers. In some instances, the pleading will not require any language of a numbered paragraph in the form, and in such cases the user must take care to renumber the paragraphs appropriately.
8. Requests for relief
The requests for relief in the forms do not include any request for relief for the other party. The petitioner for divorce, for instance, when requesting to be appointed sole managing conservator, does not also request that the other party be made possessory conservator. It was felt that one party’s pleading probably would not support any relief granted to the other party, and so the relief should not be requested.
9. Form numbers
Forms are numbered in sequence within each chapter. All forms begin with the number of the chapter, which is followed by a hyphen and the number of the form within the chapter. This system is used to permit future expansion of any chapter without requiring the rearrangement of the entire manual.
10. Captions
An example of the caption that should precede the form title is not reprinted in most forms. Typical case styles are discussed in section 3 below.
11. Temporary restraining orders and temporary injunctions
Sometimes it is advisable to request a temporary injunction that includes more than a previously granted temporary restraining order or that has not been preceded by a temporary restraining order. There are situations in which sufficient facts are not available to support a temporary restraining order without a hearing, and facts may develop at the hearing on the temporary injunction that will support the injunction. The forms for relevant petitions and temporary orders are devised to accommodate such situations. The alternatives are such that the petitioner may request, and the court may grant, any of these alternatives:
a. A temporary restraining order to be continued as a temporary injunction.
b. A temporary restraining order to be continued as a temporary injunction and a temporary injunction on other matters.
c. A temporary injunction without a temporary restraining order.
12. Marriage equality
Wording of the forms is designed to accommodate same-sex, as well as opposite-sex, marriage and conservatorship, reflecting the ruling of the Supreme Court of the United States in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), and other recent case law.
1. In a title 1 suit
Pleadings in a divorce or annulment suit shall be entitled, “In the Matter of the Marriage of _________ and _________.” Tex. Fam. Code § 6.401(a). Pleadings in a suit to declare marriage void shall be styled, “A Suit to Declare Void the Marriage of _________ and _________.” Tex. Fam. Code § 6.401(b).
Many suits under title 1 also include a suit affecting the parent-child relationship. In those cases, the caption should read “In the Matter of the Marriage of _________ and _________ and In the Interest of _________, a Child,” as explained below.
While there is no rule addressing the issue, a suit brought to enforce a divorce decree or annulment order brought under chapter 8 (Maintenance) or subchapter A (Suit to Enforce Decree) of chapter 9 should have the same caption as the original suit.
Similarly, a suit brought under subchapter C (Post-Decree Division of Property) of chapter 9 should be styled like an ordinary civil lawsuit, “_________ v. _________,” with the plaintiff’s name appearing first and the defendant’s name appearing second.
2. In a suit to change name
There is no rule addressing how a suit under Family Code chapter 45 should be captioned. If the petition to change name is brought as part of a larger suit, such as a paternity suit, the suit should have the caption appropriate for the other actions brought.
3. In a title 5 suit
With two exceptions, the petition and all other documents in a proceeding filed under title 5 shall be entitled “In the Interest of __________, a Child.” Tex. Fam. Code § 102.008(a). If more than one child is involved, list the name of each child as follows: “In the Interest of _________, _________, and _________, Children.”
In a suit in which adoption of a child is requested, the style shall be “In the Interest of a Child.” Tex. Fam. Code § 102.008(a). In a suit for adoption of an adult, the petition shall be entitled “In the Interest of __________, an Adult.” Tex. Fam. Code § 162.503(a).
4. Suggested format of first page of all pleadings and orders
Many practitioners have experienced the frustration of having the district clerk’s file stamp superimposed on the printing of the first page of a pleading or order, making it difficult to read the clerk’s file stamp. A block in the upper right hand corner of the first page of all pleadings and orders may avoid this problem. The space within this block would be reserved for the clerk to file-mark the document.
§ 4E-Filing
Generally, all documents must be e-filed, except wills. Tex. R. Civ. P. 21(f)(4). The clerk may designate an electronically filed document as the official court record and is generally not required to keep both paper and electronic versions. Tex. R. Civ. P. 21(f)(13).
E-filed documents may be signed with either (1) an electronic or scanned digital image of the signature or (2) “/s/” and name typed in the space where the signature would otherwise appear. Tex. R. Civ. P. 21(f)(7).
Some documents must still be signed by hand. Even if e-filing, “/s/” and a typed name do not suffice for notarized or sworn documents. Tex. R. Civ. P. 21(f)(7)(A).
Documents e-filed before midnight in the court’s time zone are considered filed that day, except, if transmitted on a Saturday, Sunday, or legal holiday, the document is deemed filed on the next business day. Tex. R. Civ. P. 21(f)(5).
E-filed documents must be in PDF format, text searchable, and, if possible, printed to PDF rather than scanned. Tex. R. Civ. P. 21(f)(8).
See section 6 of this Introduction concerning the treatment of sensitive data when e-filing.
The Civil Practice and Remedies Code provides that in many instances an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or rule. See Tex. Civ. Prac. & Rem. Code § 132.001. (Note that this provision does not apply to a waiver of the issuance or service of citation in a suit for dissolution of marriage, for change of name of a child, or in a suit affecting the parent-child relationship; these waivers must be sworn before a notary public who is not an attorney in the suit unless the party executing the waiver is incarcerated. (Tex. Fam. Code §§ 6.4035(c), 45.0031, 102.0091). This provision also does not apply in certain other circumstances specified in Tex. Civ. Prac. & Rem. Code § 132.001(b) or to acknowledgments.)
If a form, or a portion of a form, in this manual calling for signature before a notary is converted to an unsworn declaration, rewording of the text will often be necessary. For example, in form
3-2, the petitioner’s supporting affidavit in a divorce case, the first paragraph (referring to the petitioner’s appearance before the notary) should be omitted, the quotation marks on the remaining paragraphs should be omitted, and the word “affidavit” should be changed to “declaration.”
Except for an inmate or a government employee in the performance of the employee’s job duties, the following should be used to replace the notary’s jurat:
My name is [name], my date of birth is [date], and my address is [address, city, state, zip code, country]. I declare under penalty of perjury that the foregoing is true and correct.
Executed in [county] County, [state], on___________________.
_____________________________
[Name], Declarant
For an inmate, the following should be used to replace the notary’s jurat:
My name is [name], my date of birth is [date], and my inmate identifying number, if any, is [number]. I am presently incarcerated in [name of corrections unit] in [city, county, state, zip code]. I declare under penalty of perjury that the foregoing is true and correct.
Executed on___________________.
_____________________________
[Name], Declarant
For an employee of a state agency or a political subdivision in the performance of the employee’s job duties, the following should be used to replace the notary’s jurat:
My name is [name], and I am an employee of the following governmental agency: [name of agency]. I am executing this declaration as part of my assigned duties and responsibilities. I declare under penalty of perjury that the foregoing is true and correct.
Executed in [county] County, [state], on___________________.
_____________________________
[Name], Declarant
These jurats are also found in Word in form 8-27.
§ 6 Sensitive Data in Filed Documents
The Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure, as amended effective January 1, 2014, provide privacy protection for sensitive data in filed documents. The comments below cite Tex. R. Civ. P. 21c, but similar provisions for appellate proceedings are found in Tex. R. App. P. 9.9.
“Sensitive data” consists of a government-issued personal identification number, a financial account number, a birth date, a home address, and the name of any person who was a minor when the underlying suit was filed. See Tex. R. Civ. P. 21c(a). Any part of such an identification or account number is considered sensitive data.
Unless the inclusion of sensitive data is specifically required by a statute, court rule, or administrative regulation, a document containing sensitive data may not be filed with a court unless the sensitive data is redacted. Tex. R. Civ. P. 21c(b). Redaction must be by using the letter “X” in place of each omitted digit or character or removing the data in a manner indicating that it has been redacted. The filing party must retain an unredacted version of the filed document during pendency of the case and any related appellate proceedings filed within six months after the judgment is signed. Tex. R. Civ. P. 21c(c).
If a document must contain sensitive data, the clerk must be notified of that fact. A document that is not electronically filed must contain, on the upper left-hand side of the first page, the phrase “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d). If the document is electronically filed, it must be designated as containing sensitive data when it is filed. Practitioners have reported difficulties in designating these e-filed documents in such a way that court clerks actually become aware of the designation. For this reason it is recommended that the notice be placed on the first page of the document even if it is e-filed. Although the clerk may not refuse to file a document containing sensitive data in violation of rule 21c, the clerk may identify the error and state a deadline for the party to resubmit a redacted document. Tex. R. Civ. P. 21c(e). Documents containing sensitive data in violation of rule 21c must not be posted on the Internet. Tex. R. Civ. P. 21c(f).
Most instances of sensitive data in the forms in this manual are required by statute. For example, the Civil Practice and Remedies Code requires each party to include in its initial pleading the last three numbers of the party’s driver’s license number and of the party’s Social Security number, if those numbers have been assigned. See Tex. Civ. Prac. & Rem. Code § 30.014. The Family Code requires the names and birth dates of children in the petition in a suit affecting the parent-child relationship, and it requires parties’ driver’s license and Social Security numbers and residence addresses in final orders in such suits. See Tex. Fam. Code §§ 102.008, 105.006. Take care to identify and redact sensitive data that is not required by statute, court rule, or administrative regulation. Remember that, even if sensitive data is required to be included, the clerk must be notified that the document contains such sensitive data.
§ 7Digitized Signatures
A digitized signature on an original petition or any other pleading or order in a proceeding under title 1, 2, 4, or 5 of the Family Code satisfies the requirements for and imposes the duties of signatories to pleadings, motions, and other papers identified under rule 13 of the Texas Rules of Civil Procedure. A digitized signature may be applied only by, and must remain under the sole control of, the person whose signature is represented. Tex. Fam. Code §§ 1.109, 47.001, 81.011, 102.014. “Digitized signature” means a graphic image of a handwritten signature having the same legal force and effect for all purposes as a handwritten signature. Tex. Fam. Code § 101.0096.
A party may not use a digitized signature to sign a waiver of the issuance or service of citation in a suit for dissolution of marriage, for change of name of a child, or in a suit affecting the parent-child relationship. Tex. Fam. Code §§ 6.4035(e), 45.0031(b), 102.0091(b).
§ 8Recital of Appearances in Orders
If a party, attorney, or court-appointed advocate appears at a hearing, consider stating for each whether the appearance was in person, by videoconference, or by teleconference. While traditionally parties have made in-person court appearances, appearances by videoconference (e.g., Zoom) or by teleconference have become more common, particularly with the Texas Supreme Court emergency orders regarding the COVID-19 State of Disaster, the first of which the court issued on March 13, 2020. Those emergency orders permitted courts to consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means. Some courts prefer the orders submitted to them accurately reflect how the parties and attorneys actually appeared. The information may be helpful for the parties and the trial court during the suit or in future suits involving the parties.
§ 9 Corrections and Updates
In drafting the manual, the members of the committee devoted a great deal of effort to making it error free, but it undoubtedly contains some errors. We would appreciate your pointing out to us any errors you find in the manual, as well as any revisions you believe are advisable. Please mail any corrections or suggestions to the following address:
Director, Texas Bar Books
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711-2487
books@texasbar.com
Periodic updating of the manual is planned to reflect changes in the law. It is also expected that, over time, additional topics will be covered and the scope of coverage of existing topics will be expanded. We welcome your suggestions about new topics that you would find helpful. Please send your suggestions to the address shown above.