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Initial Disclosures effective September 1, 2023

Beginning September 1, 2023, significant changes were made to the Texas Family Code. The biggest change was the creation of Title 6 of the Texas Family Code – Civil Procedure and Discovery Procedures.

In the 2023 legislative session, the Texas Family Code was given its own set of rules related to discovery and certain filing deadlines for family law cases. These new rules apply to all family law cases under the Texas Family Code. This means if you have a divorce, suit affecting the parent-child relationship, modification, adoption, termination, or enforcement, these new rules apply to your case.

Be careful though - if the lawsuit included a tort action this Title of the Texas Family Code does not apply. A tort action in a family law case could arise in many different circumstances. The most common tort actions associated with family law cases are intentional infliction of emotional distress, assault, tortious interference with business relations, conversion, and transmitting sexual diseases.

A Refresher on the Old Mandatory Initial Disclosures

Beginning September 1, 2021, the Texas Rules of Civil Procedure created Mandatory Initial Disclosures. These Mandatory Initial Disclosures applied to all cases filed after September 1, 2021. In family law cases, each party had to provide information and documentation described by Texas Rule of Civil Procedure 194.4. A Party did not have a choice to provide the information or documentation contained in the rule – it was mandatory and required.

If a case was filed before September 1, 2023, these “old” disclosures still apply. You will want to make sure you are compliant with the Mandatory Initial Disclosures if your case falls in this category. To learn more about the Mandatory Initial Disclosures, contact one of our knowledgeable attorneys.

The New Request for Initial Disclosures

Now, in all cases filed on or after September 1, 2023, Initial Disclosures are not mandatory. To obtain the Other Party’s Initial Disclosures, a request must be made. A Party may request Initial Disclosures no later than 30 days before the close of the Discovery Period by serving a request.

The Difference in the Old and New

There are some changes between the Old Mandatory Initial Disclosures and the New Request for Initial Disclosures. The biggest difference is the production of financial information. The Old Mandatory Initial Disclosures required two years’ worth of financial statements, two years’ worth of retirement statements, real property deeds, health insurance information, last three paystubs, and the last two years of tax returns to be produced within thirty days from the date the Respondent filed an Answer or made an appearance in a case. This is no longer the case with the New Request for Initial Disclosures.

Another large difference is that under the Old Mandatory Initial Disclosures, a Party had to provide all documents they would or may use at trial. This is no longer a requirement anymore.

The New Request for Initial Disclosures also requires a Party to provide information related to testifying experts. Under the Old Mandatory Initial Disclosures, Texas Rule of Civil Procedure 195 required a Party to provide information related to experts. This is not a big deviation in the disclosures, just a rearrangement of where the Expert Disclosure rule lives.

New vs Old Initial Disclosures in Texas

How Do I Request Disclosures?

When a trial date has been set, the discovery period closes thirty days before the trial date. A Party can serve a request for Initial Disclosures anytime during the discovery period, however, a request for Initial Disclosures must be made thirty days before the Discovery Period closes. The reason for this is so that a Party cannot serve a Request for Disclosures while the litigants are preparing for the upcoming trial. If you are serving a request for Initial Disclosures, you will want to first calendar the close of the discovery period and second, ensure that your request is timely.

To request disclosures, a Party must send the Other Party the following notice:

Under Subchapter B, Chapter 301, Family Code, you are requested to disclose, not later than the 30th day after the date of service of this request, the information or material described by Section 301.052.

A best practice to request Initial Disclosures will be to formally serve the Other Party through the e-filing system, in accordance with Rule 21a, with a Request for Initial Disclosures.

What Information Can I Request in Initial Disclosures?

A Party can request all or any of the following information for Initial Disclosures:

  1. The correct names of the parties;
  2. The names, addresses, and phone numbers of potential parties;
  3. The legal theories and factual bases of the responding party’s claims or defenses;
  4. The amount and any method of calculating economic damages;
  5. The name, address, and number of any person having knowledge of relevant facts and a brief statement of each identified person’s connection with the case.
  6. Information related to a testifying expert under Texas Family Code § 310.052(a)(6)t;
  7. Any discoverable settlement agreement described in Rule 192.3(g);
  8. Any discoverable witness settlement described by Rule 192.3(h);
  9. For actions involving physical or mental injury and damages: medical records and bills related to the injury or authorizations permitting disclosure
  10. For actions involving physical or mental injury and damages: medical records and bills obtained by the responding party; and
  11. The name, address, and phone number of persons who may be a third party.

I Was Served With a Request for Disclosures, How Long Do I Have to Respond to This Request?

The answer to this question will depend on when a Party was served with the request.

If a Party is served with the Request for Disclosures before the date their Answer to the litigation is due, they have 50 days to respond from the date they were served. This scenario happens if the Petitioner, the party who starts the lawsuit, includes their Original Petition for Divorce Request for Initial Disclosures.

In all other circumstances, a response to the Request for Initial Disclosures is due within 30 days from the date of the request.