Community property is the property acquired by other spouse during the marriage, except separate property.  Tex. Fam. Code § 3.002.  Separate property is generally that property the spouse owned or claimed prior to the marriage, property acquired by gift, devise, or descent during the marriage, and personal injury recoveries with the exception of recovery for lost earning capacity during the marriage. There is a presumption that property possessed by either spouse during or on dissolution is community property.  This presumption can only be rebutted in a Texas divorce by clear and convincing evidence. Tex. Fam. Code § 3.003. Separate property remains separate as long as the community presumption is overcome by tracing the assets back to separate property.  Mischaracterizing property and awarding a spouse’s separate property to the other spouse constitutes an abuse of discretion and reversible error by a trial court in a divorce.  A husband recently appealed the property division in his divorce, arguing the trial court had mischaracterized some of his separate property as community property.

Property Division

The parties had been married about nine years when the wife filed for divorce.  In his counterpetition, the husband asked the court to confirm certain property was his separate property. The trial was focused on the property division, included two houses and an individualized retirement account (“IRA”). The trial court awarded one house to each party and ordered that the spouse awarded each house was responsible for the balance of that house’s mortgage.  The court also ordered the IRA funds be split equally. The trial court confirmed certain home furnishings were the wife’s separate property and a sword stand and orange sofa were the husband’s separate property.

The court must divide marital property in a just and right manner in a Texas divorce.  In some cases, the parties only have tangible or clearly identifiable assets such as real estate and back accounts.  In other cases, however, there may be more abstract assets involved.  A former wife recently challenged a property division, arguing the court had not properly divided the assets in light of the husband’s sale of commercial goodwill.

The Husband’s Agreement

The parties got married in 1998.  The husband worked as a financial advisor starting in the early 2000s.  He entered into a “Non-Compete Representative Agreement” with a financial services company in late 2014.  The agreement stated he would solicit security purchases as an independent contractor of the company and be compensated on a commission basis. He earned 35% for business written after June 1, 2014, and 52% for business written before April 1, 2014.  He could increase his earning to 64% for business written before April if the “net GDC” was greater than $700,001.  The agreement also provided that the husband could only continue business with the clients listed in Exhibit B after the agreement was terminated, but no Exhibit B was generated.

The divorce decree was signed at the end of February 2023. The court found the right to receive a greater commission for business written before April 1, 2014 was not a material asset to be divided but was income earned for services and constituted the husband’s “future separate property.”  The court also found no commercial good will was transferred to the company because of the husband’s employment with the company or the agreement.

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The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs which state’s courts have jurisdiction over an initial custody determination.  Texas has codified the UCCJEA in Chapter 152 of the Texas Family Code.  A Texas court has jurisdiction if Texas is the child’s “home state” when the proceeding commences or was the child’s home state within the six months before the proceeding commences and a parent still lives in Texas.  Tex. Fam. Code § 152.201(a)(1).  “Home state” is defined as the state where the child lived with a parent or person acting as such for the six months immediately before the custody proceeding commenced.  If the child is less than six months old, the home state is where “the child lived from birth with a parent or a person acting as a parent.”  Tex. Fam. Code § 152.102(7).  The court that made the initial custody determination generally retains exclusive continuing jurisdiction over the custody determination.  Generally, once a home state is determined, no other state has jurisdiction to make an initial custody determination.

A father challenged a court’s finding that Texas was the child’s home state in the six months before suit was filed and another state was the child’s current home state.  The mother relocated with the child to Indiana when the child was about five months old.  The father petitioned to adjudicate parentage in Harris County, Texas, about five months later.

The parents reached a mediated settlement agreement (“MSA”) that neither would pay child support at the time.

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In a Texas custody case, the court must designate who will determine the child’s primary residence and establish the geographic area within which the child’s primary residence must be or specify that there is no geographic restriction.  Tex. Fam. Code § 153.134(b)(1).  The court bases its determination on the specific facts of the case.  The trial court also has discretion to impose restrictions on a parent’s possession and access to the child that are in the child’s best interest.  A father recently challenged a number of issues related to his possession and access to his children.

According to the opinion of the appeals court, the parties married in 2017 and had two children together.  The mother petitioned for divorce in 2020, requesting the father have supervised possession of the children, submit to random alcohol and drug testing, and use a Soberlink monitoring device.  A number of witnesses testified, including a custody evaluation expert and a co-parenting therapist, both of whom the court found credible.  The final divorce decree named the parties joint managing conservators but gave the mother the exclusive right to designate the children’s primary residence with a geographic restriction of Williamson and contiguous counties.  The order provided for a step-up possession schedule for the father and limited both parents’ romantic partners being around the children.

Geographic Restriction

The father appealed, challenging the geographic restriction. He argued it should be limited to Williamson County without including contiguous counties. He argued that it could be very difficult for him to attend activities and appointments if the children lived an hour away.

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Courts are required to divide marital estates in a just and right manner in a Texas divorce.  A court may divide the estate unequally, but must have a reasonable basis to do so.  Courts may consider a number of factors in making that determination, including the parties’ relative physical conditions, their relative financial conditions, disparity in their ages, the value of their separate estates, disparity in income or earning capacity, and the nature of the property.  A husband recently appealed a disproportionate division.

Divorce Proceedings

The parties were married for 27 years and their children were all adults at the time of the divorce.  The husband had been working for the Border Patrol since September 2022 and participated in the Federal Employees Retirement System (“FERS”).  He testified he was not eligible to collect the benefits yet.  He also testified he contributed to a Thrift Savings Plan, which is similar to a 401(k) for civil servants, with a balance of $135,734.73.  His net earnings, not including overtime, were $4,500.34 per month.  Tax records showed he earned $114,626.75 from his job as a border patrol agent in 2017 and $120,674.96 in 2018.  He also testified he prepared taxes as a side job and earned an extra $24,800 in 2019.

The wife testified she was earning a monthly net income of $1,807.64, totaling $21,691.68 per year.  She testified she had $2,229.97 in monthly expenses.  The husband disagreed with her net monthly earnings, but agreed it was insufficient to cover her monthly expenses. The wife also testified her retirement account was worth $6,168.78.

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To modify a Texas custody order, the court must find that there has been a material and substantial change in circumstances and that the modification would be in the children’s best interest.  In a recent case, a mother challenged the court’s finding that it was in the children’s best interest for the father to be the sole managing conservator following involvement by the Department of Family and Protective Services.


When the parents divorced, they were named joint managing conservators and the mother was awarded the right to designate the children’s primary residence.

The mother testified that the father did not regularly visit the children or telephone them.  She said she “moved a lot” with the children and did not communicate with them.  She was homeless for a week or two. The children stayed in with their father’s mother while the mother stayed in her car.

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It can be difficult to modify a child support order to decrease the child support obligation.  A father recently appealed the denial of his request for a decrease in his above-guideline child support obligation without step-downs.  Generally, a child support order for multiple children will provide for a decrease in the child support obligation as support ends for each child. In this case, however, the parties signed an agreement for additional child support.

Original Order

The children were 17, 15, and 12 when the parents divorced in 2019.  The parents were named joint managing conservators.  The father’s gross yearly income was about $500,000. Pursuant to the decree, he was required to pay the mother $4,000 per month until all of the children graduated high school or were emancipated.  He was also required to pay all of their uninsured medical, vision, and dental expenses until they reached the applicable deductible, and half after the deductible was met.  The parties signed a separate “Agreement Regarding Additional Agreed-Upon Child Support” that required the father to pay an additional $2,000 per month if his gross income was more than $500,000 in a calendar year.  Neither the decree nor the agreement had any provisions for step-downs.

The father testified he agreed to the extra provisions so the children and mother could stay in the area and in their current schools.  The mother claimed she would not be able to stay in central Austin without the above-guideline support and the children would be required to go to different schools.

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When a party does not file an answer or participate in a Texas divorce proceeding, the court may issue a default judgment against them.  A mother recently challenged the default divorce decree entered against her through a petition for bill of review.

A bill of review is brought when a party seeks to set aside a judgment that cannot be challenged by appeal or a motion for a new trial. A party seeking a bill of review generally must show that they have meritorious claim or defense they could not make due to an official mistake or the other party’s fraud, accident, or a wrongful act, with no fault or negligence by the petitioner.  Unless the petitioner claims they were not served, they must first present prima facie proof of a meritorious defense before trial. If the petitioner meets this burden, the court then conducts a trial on the merits. A petitioner shows they have a meritorious defense if the defense is not barred by law and they would be entitled to judgment if there is not contradictory evidence offered on retrial. Any factual dispute is resolved in favor of the petitioner.

The parties got married in 2012 and had two children together.  They separated in 2021.  The father petitioned for divorce in February 2022.  According to the appeals court’s opinion, the mother was service with process, but did not file an answer or otherwise participate.  The mother alleged that they “communicated openly” about child support and possession while the case was pending.  The mother contacted the court’s office in March regarding final hearing dates and was told nothing had been set, but a default divorce decree was entered on April 4.

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The Seventh District Court of Appeals recently considered a case involving significant issues of custody and child support. The trial court had appointed the father sole managing conservator and ordered him to pay child support to the mother. Both parents appealed.

Sole Managing Conservator

The mother argued the trial court erred in finding an incident in June 2021 prevented it from appointing both parents joint managing conservators.  According to the appeals court, the mother pleaded guilty to misdemeanor assault on the father as a result of the referenced incident.  The trial court found a history of abuse by the mother against the father and that the mother pleaded guilty to misdemeanor assault on the father regarding an incident on or about June 13, 2021. The court named the father sole managing conservator and the mother possessory conservator.  The court stated in its conclusions of law that “[b]ecause Petitioner pleaded guilty to misdemeanor assault of Respondent, the Court cannot appoint the parties joint managing conservators.” The mother argued, based on this statement, that the trial court had concluded it was required to find a history of abuse based only on the guilty plea.

Tex. Fam. Code § 153.004(b), prohibits a court from appointing joint managing conservators there is credible evidence “of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . .” The statute does not define the meaning of “history.”  The appeals court noted that it had not held that a single instance of physical abuse against the other parent necessarily constitutes a history of abuse, but had ruled that the trial court has the discretion to conclude that a single incident can constitute a history.  The appeals court therefore concluded that the trial court could have found the mother’s guilty plea to a misdemeanor assault charge sufficient to prove the existence of a history of abuse against the child’s father.

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Texas family law matters are often complex.  A father recently challenged a modification order changing his child support obligation after a lengthy and somewhat complicated litigation involving the child.

The mother petitioned for enforcement of child support and medical support in September 2022, asking the father be held in contempt and ordered to pay arrearages for child support and medical support, as well as attorney’s fees.

Enforcement and Modification Hearing

According to the appeals court, the parties and court treated the matter as a modification action as well as an enforcement action during the bench trial. The father had previously been ordered to pay $592 in child support and $92 in medical support monthly. It was established at trial that the mother had been receiving $834 in monthly Veterans Administration payments on behalf of the child since January 2021 because the father was a veteran.  The mother also testified the father received social security disability benefits and income from business ventures.  The father was not present, but was represented by counsel at trial.

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