This article is written by Ronika Tater from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the new amending Texas rule of civil procedure and its relation with the Texas family law, 2021. And also provides a comparison with the family law of India.
Table of Contents
Introduction
In August 2020, the Supreme Court of Texas accepted the amendments to Rules under the Texas Rules of Civil Procedure which impacts divorce and family law cases in the state. These amendments came into effect on January 1, 2021, and thereafter apply to all the cases filed after the effective date. This article provides a detailed explanation of the new amendments concerning the Texas family law, 2021.
What is the amending Texas rule of civil procedure
The Supreme Court accepts the following amendments to Rules 47, 169, 190, 192, 193, 194 and 195 of the Texas Rules of Civil Procedure and the changes are below-mentioned:
Rule 47 – claims for relief
As per this rule, an original pleading is set for a claim for relief such as counterclaim, cross-claim, or third party claim and it shall contain the following:
- A short statement of the cause of action to give fair notice of the claim involved.
- A statement that damages sought is within the jurisdictional limits, except in the suits governed by the family code.Â
Discovery, in Texas family law, means the procedure where the two opposing sides of a suit exchange information concerning the evidence, witnesses and documentation to be produced before the court during an upcoming trial. This information can be used by both parties while preparing for the case.
Rule 169 – expedited actions
This rule was amended to implement Section 22. 004 (h-1) of the Texas Government Code which states rules to promote the prompt, efficient and cost-effective resolution of civil actions in the case where the amount in suit does not exceed $250,000.
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Rule 190 – discovery limitation
The changes in Texas law apply to the matter of initial disclosure under the Family Code. It states that “in a suit for divorce or annulment, a party must without awaiting a discovery request,” provide certain documents of disclosure to the other party. This rule has been amended to promote the prompt, efficient, and cost-effective resolution of civil actions filed in court in which the amount is not exceeding $250,000 to balance the need for lowering discovery costs against the complexity of discovery actions. While pleadings must plead a discovery level or there’s no discovery until a level is pleaded.
Level 1
Level 1 of discovery limitation now applies to a broader subset of civil actions.
- Applies to action where all the claimants plead for monetary relief of $250,000 or less.
- Applies to any divorce without children with the marital estate of more than $0 but less than $250,000.
- Removes the exclusion for cases under the family code.
- The discovery period begins when the initial disclosures are due and continues until 180 days after the date the initial disclosures are due.
- Trial limitation to eight hours per side for jury selection, opening, evidence and closing. The time limit should not include objection, bench conferences, bills of exception, or challenges for cause.
- In the case of mediation, the cost should not exceed double the cost of filing fees.
- Filing an amended pleading outside level 1 will lead to reopening of the discovery period and adjusts the level.
Level 2
- Applies to divorce with kids and estate over $250,000.
- The discovery period ends 30 days before the trial.
Level 3
- No changes are made at this level.
Required disclosures
There are three types of required disclosures i.e., initial disclosure, expert disclosures, and pre-trial disclosure. It is required without having to request and they also have no longer request for disclosure.
Rule 194 – required disclosures
This rule is amended referring to the Federal Rule of Civil Procedure 26(a) which states that to require disclosure of basic discovery automatically without waiting for a discovery request. In this case, a party is not excused from making its disclosures as it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
Initial disclosures
In this case, both the parties must file a response to initial disclosure, not later than thirty days after the answer is filed or general appearance. It cannot serve other discoveries until the initial disclosures are due.
General initial disclosures
As per this disclosure, it must list the following:
- The correct names of the parties involved in the suit.
- The name, address and telephone number of any potential parties to the suit.
- The legal theories and the factual bases of the responding party’s claims or defences.
- The amount and calculation of economic damages.
- The name, address, telephone number of persons consisting of knowledge of relevant facts of the case and also a brief statement of each identified person concerning the case.
- In a suit for physical or mental injury and damages for the same, all the medical records and bills related to the injuries or damages should be informed with authorization of permitting the disclosure of such medical records and bills.
- In a suit for physical or mental injury and damages for the same, all the medical records and bills received by the responding party through the authorization furnished by the requesting party.
- The name, address, telephone number of any person who may be responsible as a third party should state its identification and involvement with the suit.
Family law initial disclosure
In a suit for divorce, the parties must provide for the last two years or since the date of marriage all the following documents:
- All deed and lien information on real property owned or leased.
- All statements on retirement type plans.
- All statements on insurance policies and all bank statements.
In a suit involving child support or spousal support, the parties must provide information of health insurance coverage for the child or spouse:
- Tax return for the previous two years.
Pretrial disclosure
The due date is 30 days for this trial and the following list of documents should be submitted:
- The name, address, and telephone number of each witness and those who may be expected to be present.
- Identification of each document including the summaries of the evidence from those parties who may be expected to be present.
Further, having both sides provide and receive the above documentation without the requirement of a formal request through the discovery process should support the streamline of these kinds of family lawsuits through the courts. It is seen that streamlining the process results in a highly cost-effective, efficient, and speedy process of the disposal of the cases.
Rule 195 – discovery regarding testifying expert witnesses
Expert disclosure
In this rule, the due date of the affirmative experts is 90 days before the end of the discovery and for the defensive experts, it is 60 days before the end of the discovery period. Information to include about the experts is below-mentioned:
- The name, address, and telephone number of the experts.
- The subject matter on which the expert will testify.
- The general substance of mental impressions, opinions, summary.
- Expert resume and qualification consisting of a list of publications written in the previous 10 years.
Expert communications protected
- As per Rule 195.5(d), communication between the attorney and testifying expert are protected from discovery except the situations relating to compensation.
- Facts or data stated to the expert and the expert considered in forming opinions; or
- The assumption by the attorneys provided the expert relief on forming opinions.
Other rules
- No assertion of work product to disclosure.
- A party cannot serve discovery until after the initial disclosure is due.
- Physical custody or control refers to physical possession or right to possession which is equal to the person with physical possession.
- Response based on information should contain the documents or state a reasonable time and place for production.
- Failure to respond to the requirement of disclosure would result in exclusion.
Regulatory framework of family law in India
India is a secular country with a wide range of religions that are freely practised. The family law differs from one religion to another, which are codified by statute in most cases. In the case of marriage, people solemnise their marriage as per their religious rituals and ceremonies. The major religions practised include Hinduism, Islam and Christianity and their family law is codified.
- Hindu Marriage Act, 1955 states the personal laws of Hindus.
- Muslim marriage is a contract under Muslim law.
- Indian Christian Marriage Act, 1872 and the Divorce Act, 1869 state the personal laws of Christian.
- Parsi Marriage and Divorce Act, 1936 states the personal laws of Parsi.
- Special Marriage Act, 1954 which applies to all people of all religions, castes or communities in India. A divorce is also governed by the same act.Â
In the case of the welfare of children, it is governed under personal laws to ensure the welfare of children born in wedlock. However, the Guardian and Wards Act, 1890 is a general law that applies to all the religions, caste and communities in India. The act applies to minor children of any caste or creed and its aim is to protect the minor child’s person and property. It also states the rights and duties of the guardians and wards, but while considering the guardian for the minor, the court considers the minor’s personal law
Court system
The Family Court Act, 1984 states for the establishment of Family Courts to promote conciliation and to secure speedy redressal of disputes about marriage and family affairs and matters in connection with them. The Family Courts take the matters relating to marital matters, divorce, and the welfare of children. It follows the Civil Procedure Code.Â
Necessary amendments required in the family law of India
The following are not recognised in the family law of India, however, it is necessary to amend or include these in the law to protect the right of every citizen in the country:
- Same-sex marriages and civil partnerships are not legally recognised in India.
- There is no concept of matrimonial property In India. A woman can claim the right to reside in her matrimonial home under the Protection of Women from Domestic Violence Act, 2005 but not a right over the property or house in which she resides.
- There is an urgent requirement to criminalise marital rape. Rape is defined under Section 375 of the Indian Penal Code, 1806 which excludes sexual intercourse by a man with a minor girl above the age of fifteen in the case if she happens to be his wife. Hence, laws must be amended to protect married girls between the ages of 15-18, from forced sexual acts by their spouses.
- As per Hindu law, irretrievable breakdown of marriage is not considered as a valid ground for divorce. It has been recommended in the law commission reports in the past to amend it soon. It is believed that marriage is the union of two people and if the marriage has broken down and the two parties cannot live as husband and wife, they have the right to bring closure.
Conclusion
The new amendments in the Texas family law to promote the speedy, efficient and cost-effective resolution of civil action is seen as a positive change and other legal systems should also consider the same. With the social progress in developed countries, the legislature in India must keep pace and promote constitutional rights of equality. There is a need for speedy and timely disposal of cases in the family courts. Thus a uniform civil code that focuses on rights and gender justice will resolve the discrimination, patriarchal biases and some old customs that still exist.Â
References
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