Episode 145: Material and Substantial Change

Host: Holly Draper | Guest: Emily Doron | Texas Family Law Insiders Podcast

It sounds like a basic concept, but it seems like a lot of attorneys and judges don't fully understand it: material and substantial change, the gatekeeper standard for any modification case. 

In this episode, Holly is joined by Emily Doron, a senior attorney at the Draper Law Firm, to unpack what the standard actually requires, where it comes from, and why the same set of facts can get a modification granted in one court and denied in another. The Texas Family Code never defines material and substantial change, which means attorneys are left piecing it together from case law — and, in practice, from the individual judge sitting on the bench. 

The conversation walks through the challenges in presenting material and substantial changes in court including what constitutes material and substantial changes, when it is and when it isn't in the best interests of the client to pursue them in court, how the specific court and judge might impact the outcome more than the facts, and how to protect your client's appeal when the finding goes against what those facts say. 

This is a conversation from which every family attorney can take away information that they can use, and the every new and young family lawyer will definitely want to hear! 

In This Episode, You'll Discover: 

• What material and substantial change actually is 

• The two-part test clients need to understand 

• The one-year modification trap 

• Whether a promotion counts as a material and substantial change 

• How to actually prove it in court 

• Why “I don’t like this order” isn’t a legal argument

Just and right does not mean equal — and that misconception trips up more divorce clients than almost any other. In this follow-up to their conversation on fault grounds for divorce, Holly Draper is joined again by her partner at the Draper Law Firm, Carrie Tapia, to dig into disproportionate division of the marital estate: how it works, who gets it, and what it actually takes to plead and prove it.

Texas is a community property state, but that does not mean the law promises a 50/50 split. The family code calls for a “just and right” division, which really means whatever the judge on your case decides is fair under the circumstances. Holly and Carrie walk through why they set client expectations at an even split as the baseline, why courts are given broad discretion on appeal, and why the biggest swings they have personally seen have landed closer to a 55/45 or 60/40 split — with true outliers reserved for extreme facts or default judgments.

The heart of the episode is a walk through the Murff factors — the non-exclusive list of considerations from the 1981 Texas Supreme Court case Murff v. Murff that judges may weigh in deciding whether to award more than half the estate to one spouse. Holly and Carrie go factor by factor: fault in the breakup, disparity in earning capacity and education, health and age, the size of each spouse’s separate estate, the nature of the community property itself, benefits from continuation of the marriage, custody of the children, waste or fraud on the community, and disproportionate attorney’s fees. They share which factors actually move the needle with judges in their experience, and which ones sound compelling in theory but rarely tip the scales in practice.

The conversation also covers the practical side: how to plead a disproportionate division (and why it is worth including even when you are not sure you will pursue it), the different evidence needed to prove each factor — from tax returns and forensic accountants to medical records — and how to run a cost-benefit analysis with clients before spending thousands of dollars chasing a waste claim. Holly and Carrie close with the appeal side of property division: the strict 20-day deadline to request findings of fact and conclusions of law, and common reversible errors like mischaracterization of separate property and double-dipping in how assets are awarded.

In This Episode, You'll Discover:

•       Why “just and right” doesn’t mean 50/50 — how Texas community property law actually works, why courts have broad discretion, and why setting client expectations at an even split protects them from disappointment.

•       The Murff factors that guide judges — a full walk-through of the non-exhaustive list from Murff v. Murff, including earning capacity, health, age, separate property, and benefits from continuation of the marriage.

•       How to plead a disproportionate division — why it is best practice to plead for it even before you are certain, and how fault grounds, fraud, and waste each require different levels of pleading and proof.

•       What it actually takes to prove each factor — from tax returns and expert testimony on earning capacity to forensic accountants for tracing waste and fraud on the community.

•       How to weigh the cost of a waste claim — Holly and Carrie discuss running a cost-benefit analysis with clients before hiring an expensive forensic accountant to chase a claim.

•       The 20-day deadline that can sink a property division appeal — why requesting findings of fact and conclusions of law on time is critical, and the reversible errors — like mischaracterization and double-dipping — to watch for.

Every divorce filed in Texas has to state grounds for the divorce, but should it be a fault ground or the standard no-fault option? In this episode, Holly Draper is joined by her partner at the Draper Law Firm, Carrie Tapia, to break down the grounds for divorce available under the Texas Family Code and the strategy behind choosing which one to plead.

Holly and Carrie start with the default: insupportability, the no-fault ground that allows most Texas divorces to proceed without airing out every grievance in the marriage. The conversation then works through each of the fault grounds available in Texas along with the evidentiary bar for each, the practical reasons attorneys rarely plead some of them, and the property division and custody consequences that can follow.

Holly and Carrie share candid war stories about how judges really react to adultery, when a disproportionate share of the estate becomes realistic, and the hidden risks (like exposure to lifetime spousal maintenance or the need for a guardian) that come with rarely-used grounds, as well as practical guidance for practitioners: when and how to amend a petition to add fault grounds before trial, why waiting until the last minute can backfire under the Texas Rules of Civil Procedure, and how to counsel clients on the risk versus reward of pursuing a fault-based case.

In this episode you'll discover:
• Why insupportability is the default
• How fault grounds can function as leverage
• What it actually takes to prove fault grounds
• The truth about adultery in the eyes of the court
• The unique circumstances for lesser-used fault grounds
• Timing rules for amending a petition

Episode 142: Texas Family Law Insiders Podcast- Five Years of Advice from the Best in the Business

Five years. 140+ episodes. One question asked of every single guest: "What is one piece of advice you would give to young family lawyers?" 

In this milestone episode, host Holly Draper does something different. Instead of sitting down with a new guest, she opens up the archive and pulls the best answers from five years of conversations with attorneys, judges, financial experts, mental health professionals, and mediators from across the Texas family law world — and beyond. 

What you'll get is some of the best advice, from some of the very best professionals in and around family law — covering everything from what to wear to court, to how to protect your reputation, to when you should say yes to a scary opportunity. You'll get a deeper dive into the most commonly recurring pieces of advice given over the years, with additional wisdom shared by colleagues from all over Texas. 

Whether you're brand new to family law, a seasoned practitioner, or just someone fascinated by this world, there's something in this episode that will stay with you. 

In this episode you'll discover:

• Why what you wear matters more than you think 

• The moment that almost didn't happen 

• The war bell you didn't mean to ring 

• Why your reputation is the only thing that outlasts you 

• The five recurring themes of advice from the past five years 

• What lawyers in the trenches are saying right now

Episode 141: Updates in Parent Versus Non-Parent Custody Litigation

When sweeping changes to Texas family law took effect on September 1, 2025, family law practitioners across the state began encountering real-world consequences that no statute could fully anticipate. In this solo episode, Holly Draper shares what Texas family lawyers are actually seeing in courtrooms — and what those on-the-ground experiences reveal about the gaps, ambiguities, and unintended consequences embedded in the new parent versus non-parent custody framework.

From sua sponte dismissals before respondents are even served, to courts treating the new affidavit requirement as a threshold jurisdictional gate, to grandparents facing near-impossible burdens in modification proceedings — Holly breaks down what practitioners are seeing and offers her own clear-eyed analysis of where the legislation got it right, where it fell short, and what advocates should do in the meantime.

Whether you represent parents or non-parents, this episode is packed with urgent, practical guidance you cannot afford to miss. Holly also issues a call to action: if you’re seeing these issues play out in court, she wants to hear from you — because the feedback loop between practitioners and lawmakers may be what ultimately fixes this legislation.

In this episode you’ll discover:

•       Why courts are dismissing non-parent suits sua sponte — and why the new affidavit requirement under §102.0031 is being treated as a jurisdictional threshold that can be triggered without any motion, hearing, or respondent appearance

•       What the affidavit actually has to say to survive — including the Fort Worth Court of Appeals’ ruling in In re SH, which found a conclusory affidavit insufficient and applied the requirement retroactively to all pending cases

•       Holly’s strong stance on agreed orders — why she firmly believes parents and non-parents can still enter agreed custody arrangements without requiring an affidavit or statutory findings of significant impairment in the order, and why requiring them would harm families

•       The modification trap facing long-term non-parent caregivers — how the new statutory framework flips the burden in modification cases, potentially requiring a grandparent who has raised a child for a decade to prove a now-fit parent is unfit just to maintain custody

•       The unresolved res judicata problem — what happens to evidence of a parent’s prior conduct when the last order was agreed, and why this gap in the legislation could produce deeply unjust outcomes for children

•       Practical takeaways for both sides of the docket — from filing affidavits immediately and challenging insufficiency specifically, to pulling existing non-parent orders, preserving appellate issues, and knowing when to call Holly about a potential mandamus or appeal

When a marriage ends, the family home is often the most valuable — and most complicated — asset on the table. But what happens after the ink dries on the divorce decree? In this episode, Holly Draper sits down with Harvard Law graduate and real estate attorney Carey Worrell of Simple Law Texas to unpack the critical real estate concepts that can make or break your clients' financial futures long after a divorce is final.

Whether you're a family lawyer looking to sharpen your drafting skills, or someone navigating a divorce and wondering what all this property paperwork actually means, this conversation is packed with practical wisdom you won't want to miss.

In this episode you'll discover:

• Why the type of deed matters — the key differences between general warranty deeds, special warranty deeds, deeds without warranty, and quitclaim deeds, and which one actually protects your client in a divorce
• What a deed of trust to secure assumption really does — and the critical distinction between protecting yourself against your spouse versus remaining on the hook with the lender
• The refinance requirement trap — why failing to include a refinance obligation (with a backup forced-sale provision) in a divorce decree can leave your client financially stuck for years
• Legal descriptions vs. street addresses — why using the wrong property description can make a deed unenforceable against third parties, and where to find the correct legal description
• The "muniment of title" clause — a simple piece of boilerplate language that can save the day if a spouse dies or disappears before executing a required deed

Common drafting mistakes family lawyers make — including mixing up the grantor and grantee on a deed of trust, relying on appraisal district descriptions, and what to do if a past quitclaim deed is causing title insurance problems years later

In this episode, Holly Draper sits down with Denise Capurso, a licensed clinical social worker with nearly 30 years of experience helping women heal from narcissistic abuse, coercive control, and complex relational trauma. Denise, who is based in Frisco, Texas and sees clients statewide, brings an essential clinical perspective to issues that family law attorneys encounter in their practices every day.

The conversation covers critical ground for attorneys navigating high-conflict divorce and custody cases. Denise explains the distinction between narcissistic personality disorder and narcissistic traits, clarifies what narcissistic abuse and coercive control actually look like in practice, and unpacks the DARVO pattern — Deny, Attack, Reverse Victim and Offender — that abusers routinely deploy in courtrooms, mediation, and legal filings. She addresses why survivors of long-term abuse often appear dysregulated, scattered, or non-credible in legal settings, and why their failure to call police or press charges is rarely evidence that abuse did not occur.

Denise also offers practical guidance for attorneys: how to recognize litigation abuse as a form of ongoing coercive control, why faster resolution generally better serves the survivor, what to look for when clients report stalking or monitoring, and how to help traumatized clients prepare for court appearances. This episode is an essential listen for any family law attorney whose clients may be navigating the aftermath of emotional, psychological, or coercive abuse.

In this episode you will discover:

•       The difference between narcissistic personality disorder and narcissistic traits

•       What coercive control really is and how it works 

•       How the DARVO (Deny, Attack, Reverse Victim and Offender) pattern works

•       Why survivors of narcissistic abuse appear dysregulated or non-credible in legal settings

•       What attorneys and judges should understand about the neuroscience of these kinds of relational traumas

•       Why stalking and digital monitoring within relationships is the number one predictor of escalation to physical violence

•       Actionable advice for attorneys working with abuse survivors

Connect with Denise Capurso

Website: dccounseling.org

Instagram: @Denise_supportcoach  |  @CharminglyToxic

Podcast: Charmingly Toxic

Location: Frisco, Texas (serves clients statewide; offers attorney consultations)

Texas Family Law Insiders: Episode 138

Guest: Rachael Kelly, Founder of Hive Enterprises

In this episode, host Holly Draper sits down with Rachael Kelly to explore the intersection of mental health, trauma, and family law. Rachael shares her journey from corporate executive to founding Hive Enterprises, a platform that supports individuals and organizations through high-stakes life transitions. The conversation focuses on how family lawyers can better serve clients who have experienced trauma and domestic violence by adopting a trauma-informed approach.

Clients who have experienced, or are experiencing trauma, in their relationships may or may not be aware of the psychological damage that has been done, and as an attorney, you can better serve your clients by helping them connect with the appropriate kind of support they need to be able to begin their recovery, enabling you to focus on getting them a desirable legal outcome.

In this episode you'll discover:

• Red flag behaviors that might indicate trauma
• The "oxygen mask" rule for attorneys
• Why clients in survival mode might struggle to support their own litigation efforts 
• Techniques for client co-regulation
• The need for scaffolded support for your clients who have experienced trauma
  
  

Divorce clients often arrive overwhelmed, reactive, and unsure of what they actually want their post-divorce life to look like. In this episode of the Texas Family Law Insiders Podcast, host Carrie Tapia speaks with Bryann Owen, founder of Rebuild with Bryann, about the growing role of divorce coaching and how it can support both clients and their attorneys during high-conflict or emotionally charged cases.

Bryann explains how divorce coaching bridges the gap between legal strategy and emotional readiness—helping clients clarify their goals, regulate reactions, and make decisions aligned with the life they want after the case is over. For family lawyers, that can translate into more focused clients, more productive conversations, and better litigation outcomes.

If you’ve ever had a client who couldn’t articulate their goals, struggled to manage the emotional toll of divorce, or needed support beyond legal advice, this conversation explores how divorce coaching can complement the work family lawyers already do.

In this episode, you'll discover:

●      What divorce coaching actually is

●      How emotionally overwhelmed clients can unintentionally derail litigation strategy

●      How family lawyers and divorce coaches can work together effectively 

●      Ways divorce coaching can reduce conflict and improve outcomes

●      Key considerations around confidentiality and privilege 

What you do—or fail to do—during trial can determine whether your client has any meaningful right to appeal. In this solo episode of the Texas Family Law Insiders Podcast, family law appellate attorney Holly Draper shares practical guidance for trial lawyers on one of the most commonly misunderstood areas of litigation: preserving error for appeal.

Drawing on years of reviewing trial transcripts in family law appeals—including cases that reached the Texas Supreme Court—Holly highlights the procedural mistakes trial lawyers frequently make that can completely eliminate appellate arguments. From objections to offers of proof to evidentiary gaps, this episode provides a clear roadmap for protecting the appellate record while still effectively advocating in the courtroom.

For family lawyers who rarely handle appeals but want to protect their clients—and themselves—this episode offers essential, courtroom-ready guidance on how to make sure critical issues remain reviewable if a case goes up on appeal.

In this episode, you'll discover:

●      Why failing to properly preserve the record can completely eliminate appellate options

●      How and when to make objections during trial”

●      The importance of obtaining explicit rulings on objections

●      How offers of proof protect excluded evidence for appeal

●      Why many attorneys lose appellate issues by failing to present evidence supporting their claims