iStock-1147846829-300x200Non-parents have limited rights in seeking Texas custody or visitation.  In some circumstances, however, stepparents actively parent their stepchildren.  In a recent case, a stepfather challenged a court order awarding custody of his stepchild to the child’s maternal grandparents after the death of the mother.

Relationship with the Mother

According to the appeals court’s opinion, the mother was pregnant when she started dating and eventually moved in with the stepfather in 2006.  The stepfather was present for the child’s birth in 2007 and acted as a father figure to the child.  The mother filed an Original Petition in Suit Affecting the Parent-Child Relationship (“SAPCR”) soon after the birth.  The stepfather was not a party to the case.

The mother married stepfather in July 2007. The stepfather treated the child as his son and was the only father figure in the child’s life.  The mother and stepfather had a biological child together in 2010.

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iStock-1287431987-300x200Parties to a Texas divorce may choose to pursue alternative dispute resolution to avoid litigation. They may resolve part or all of their disputes through mediation.  A mediated settlement agreement (“MSA”) is binging on both parties if it prominently states that it is not subject to revocation, is signed by both parties, and is signed by the party’s attorney, if present.  Tex. Fam. Code Ann. § 6.602.  In some cases, an MSA may include an arbitration provision, requiring the parties to arbitrate disputes arising from the MSA.  A wife recently appealed the divorce decree, arguing it did not comply with the parties’ MSA and that the judgment based on the arbitrator’s award should be overturned.

Mediation and Arbitration

The husband and wife entered into a mediated settlement agreement (“MSA”), agreeing to use a specific realtor to sell their properties. According to the appeals court’s opinion, the husband obtained a new realter after the wife informed him the chosen realtor “declined” to sell their properties.  That realtor found errors in the deed and recommended referred them to real estate attorneys.

The parties did not agree on which realtor to use or if they should have the documents corrected by an attorney.  Arbitration had been scheduled, with the arbitrator being the same person who had served as the parties’ mediator.  The wife obtained new counsel, who objected to the arbitrator due to concerns about impartiality.  He also expressed an intention to move for a new trial or set aside the MSA. He alleged the husband’s attorney failed to disclose a working relationship with the mediator before the mediation occurred.  However, there were emails showing the husband’s attorney had disclosed to the wife’s previous attorney that she previously had been an intern with the mediator and the wife’s attorney had no objection to the mediator.  Additionally, she disclosed the same information to the wife’s second counsel by phone, and the mediator stated before the mediation started that the husband’s attorney had been an intern, and there were no objections.

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Atlanta-Property-Division-Attorneys-2-300x198Pursuant to the Inception of Title doctrine, a property’s character is determined when the party acquires their interest in it. This means that property acquired before the marriage will generally be characterized as that spouse’s separate property in a Texas divorce.  In a recent case, however, the court determined that a house purchased solely in the name of the husband before the marriage was the separate property of both spouses.

According to the appeals court’s opinion, the parties started dating in late 1999.  The wife moved in with the husband and his grandfather in 2003 or 2004.  The husband bought a house from the wife’s parents in 2004 as “a single man,” according to the Deed of Trust and Note and both parties moved into it.  They deposited their paychecks into a joint account from which the mortgage and property taxes were paid.  They got married in July 2005 and lived together in the house until 2020.

Divorce Trial

The wife petitioned for divorce and ultimately requested reimbursement to the community estate. She asked for 50% of the community estate and 50% of the husband’s separate property. She argued the house was both parties’ separate property because they had lived together and both paid for it.  The husband argued it should be his separate property.

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iStock-178756342-300x199Under Texas family law, property acquired by a spouse during the marriage is community property, unless it meets the requirements of separate property.  Pursuant to Tex. Fam. Code § 3.001, personal injury recoveries are the separate property of the injured spouse, but recovery for lost earning capacity is community property.  Property possessed by a spouse during or on dissolution is presumed to be community property, so a spouse claiming a personal injury recovery is their separate property must prove by clear and convincing evidence what portion is separate.  A wife recently challenged the property division in her Texas divorce after the court concluded monthly payments from a personal injury settlement were the husband’s separate property.

According to the appeals court’s opinion, the wife had primarily been a homemaker during the marriage, but she sometimes worked part-time.

The husband was seriously injured at work in 2006.  He was found to be incapacitated and the wife acted as his guardian in the resulting lawsuit.  In the personal injury settlement agreement, the wife agreed, on behalf of her husband and herself, to release all claims against the defendants.  The defendants’ insurance companies agreed to immediate cash payments and monthly payments for the rest of the husband’s life.  The settlement provided that $1,150,000 of the cash payments was for the husband’s benefit and $50,000 would go to the wife. The settlement agreement also stated the monthly payments were for the husband’s benefit.  The monthly payments were secured through the purchase of an annuity pursuant to the settlement agreement. The agreement also stated that funds were “damages on account of personal physical injuries or sickness” pursuant to the Internal Revenue Code. It also provided that the husband and wife were responsible for paying their attorney’s fees, court costs and case expenses, and any medical bills and liens.

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iStock-531351317-300x200Texas spousal maintenance is intended to provide “temporary and rehabilitative” support for a spouse who does not have the ability or assets to support themselves or whose ability to do so has deteriorated while they were engaged in homemaking activities.  Courts may award spousal maintenance only in limited circumstances if the parties meet the requirements under the Texas Family Code.

Tex. Fam. Code § 8.053 provides there is a rebuttable presumption that maintenance is not warranted pursuant to Section 8.051(2)(B) unless the spouse exercised diligence in earning sufficient income to provide for their reasonable needs, or in developing the necessary skills to provide for their reasonable needs during separation and while the divorce case is pending.  Even if a spouse otherwise qualifies under Section 8.051(2)(B), they must either show that they exercised diligence or rebut the presumption that maintenance is not warranted.

A husband recently challenged a spousal maintenance award in favor of the wife and an order to pay a reimbursement claim to the community estate based on improvements made to his separate property.

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BSgavelx1200-768x432-1-300x169In dividing property in a Texas divorce, the court must effect a just and right division.  If the marital residence is part of the community estate and one party will keep it, the court must address the other spouse’s share of the equity.  The court may do this by placing an owelty lien on the property.  An owelty lien creates an encumbrance on the property that follows it upon a sale.  The lien must be paid before the net proceeds of the sale are distributed to the spouse. In a recent case, a mother challenged a divorce decree that did not include a payment mechanism or schedule for her owelty lien, while the father challenged the specifics of the geographic restriction imposed on the primary residence of the child.

The father asked the trial court to appoint both parents joint managing conservators of their child. He asked neither parent be given the exclusive right to determine the child’s primary residence and that the court impose a geographic restriction.  He requested the trial court to divide the estate in a just and right manner. He asked that the mother receive a lien on the marital estate for half of the net equity of the home.

The mother asked for the right to designate the child’s primary residence.  She also asked the trial court to award her half the market value of the home.

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iStock-483613578-300x204The characterization of property in a Texas divorce is generally determined by the property’s character when the spouse acquired it.  Separate property is property a spouse owned before the marriage or acquired during the marriage through gift, devise, or decent.  Improvements made to separate property are generally also separate property because they are not divisible from the land. Community property is property acquired by either spouse during the marriage that is not separate property.  In a recent case, a wife challenged a court’s characterization of the marital home as community property.

Home Built During Marriage

According to the opinion of the appeals court, the parties got married in 1995.  In 2000, the husband’s mother transferred two lots to both of the parties by a gift deed.  They built the marital home on those two lots during the marriage.  The wife moved out of the home when the parties separated in 2015.  The husband had stayed there and paid the household bills and property taxes.

The trial court ordered the home to be sold.  It awarded 75% of the net proceeds from the sale of the home to the husband and the other 25% of the net proceeds to the wife.

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iStock-170042608-300x200There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents.  Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children.  Courts generally cannot interfere with these fundamental rights of a fit parent.  The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence.  He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

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iStock-182358076-300x200When a party in a Texas custody case fails to respond or appear, the court may find they defaulted and enter a judgment in favor of the other party.  For a court to enter a post-answer default judgment against a party, however, the pleadings must give the party fair notice of the claim.  A mother recently challenged a custody modification, arguing that the father’s pleadings did not specifically request the rights awarded to him by the court.

The trial court originally appointed both parents joint managing conservators with the mother having the right to determine the child’s primary residence without a geographic restriction in 2007.  The court also granted the father visitation and ordered him to pay child support.

The Office of the Attorney General (“OAG”) filed a petition in 2020, alleging the father’s financial circumstances had changed and seeking an increase in child support.  The father requested a hearing, which was set for March 10.

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iStock-1139699594-300x200A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence.  The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence.  The court’s primary consideration is the child’s best interest.  The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs.  Lenz v. Lenz.

A mother recently appealed a trial court order naming the father as the conservator with the exclusive right to determine the children’s primary residence with no geographic restriction.  The parties got married in 2014 and had two children.  The husband was an Army officer, stationed at times in Georgia and Louisiana. He was stationed at Fort Hood in 2018 and the parties bought a home in Belton.  The wife started school for nursing in Austin in 2019.  They decided the husband would leave the Army in the fall of 2020.  The wife told the husband she wanted to separate in January 2020.  The husband petitioned for divorce the next month.

The trial court granted the divorce and appointed both parents joint managing conservators, with the husband having the exclusive right to designate the children’s primary residence.  The mother appealed.

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