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5thingsdivorcecourt_headerA court should consider a number of factors in deciding a Texas custody case.  Even when the court determines the parents should be joint managing conservators, the court does not have to award equal periods of possession and access to the child to each parent. Tex. Fam. Code § 153.135.  Under Texas law, there is a rebuttable presumption that the standard possession order serves the child’s best interests.  Tex. Fam. Code § 153.252.  A father recently challenged the divorce decree giving the mother the right to designate the child’s primary residence and awarding him the standard possession order.

Trial Court Initially Awards Father Primary Custody

According to the appeals court’s opinion, the parties’ child was born about three months after they married in 2014.  The parties separated in 2016 and the mother petitioned for divorce in March 2017. The court signed temporary order giving the father the exclusive right to designate the child’s primary residence in Travis County.

At the custody hearing, there was evidence the mother had sustained a serious brain injury the previous year.  There was significant testimony about her mental health before and after the separation and about how her injury affected her ability to take care of the child.

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iStock-543681178Under federal law, a court may not treat military disability benefits as community property for purposes of property distribution in a Texas divorce case. A husband recently challenged the property distribution in his divorce decree, arguing the court had improperly divided a portion of his military disability benefits.

Trial Court Divides Husband’s Military Retirement Benefits

The wife petitioned for divorce and sought a majority of the community assets.  The court granted the divorce on grounds of insupportability and adultery.  The decree gave the wife 55% of the husband’s disposable military retired pay, attorney’s fees, and conditional appellate attorney’s fees. The husband appealed.

The husband contended the 55% of his disposable military retired pay awarded to the wife erroneously included disability payments. The wife, however, argued the award did not include disability benefits and the decree had specifically awarded him his “VA Disability and Social Security Disability benefits” as separate property.

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iStock-483613578In a Texas divorce, a jury may decide issues regarding the characterization and valuation of property, but the judge is responsible for actually dividing the community property in a just and right manner.  The court may consider a number of factors, including fault, education, ages and physical conditions, financial conditions, and the amount of separate property.  Generally, the court must hold an evidentiary hearing or trial, unless the parties agree on the property division.

Wife Argues Trial Court Did Not Hear Property Issues

In a recent case, a wife appealed a property division, arguing the court failed to hold a hearing on the property division.

The parties married in 2003 and the husband filed for divorce in 2017. The jury did not hear the property division issues, which were reserved for the trial court.  The court stated that it would try those issues during the jury deliberations if there was time or would otherwise schedule a date after the verdict on the issues related to the children.

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iStock-1163040189A Texas custody order may only be modified in certain circumstances.  The parents may agree to change the order.  The court may order modification if the child is at least twelve years old and wants to change which parent has primary custody. Otherwise, the parent seeking the modification must generally show that there has been a material and substantial change in the circumstances of the child or a parent since the current order was rendered.  The court must consider the facts and circumstances of the specific case to determine if there has been a material and substantial change in circumstances.  Common situations that may lead to a material and substantial change in circumstances include marriage, a change in employment, or relocation of a parent’s primary residence.  Courts have also recognized changes related to the relationship between the parent and child, including abuse, mistreatment, or “poisoning the child’s mind.”  In all cases, the modification must be in the child’s best interest.

Mother and Father Agree to Custody Modification

In a recent case, a father challenged a modification sought by the mother. According to the appeals court’s opinion, the parents divorced in 2012 and entered into an agreed order to modify custody in 2016.  Pursuant to the 2016 modification, the mother was given the right to determine the children’s residence within a specified geographic restriction.  The father was awarded custody beyond the standard order.  The agreed order did not require either parent to pay child support.

After one of the children broke an arm, the mother moved to modify that order and the court entered the modification in 2018.  The new order required the father to pay child support and changed his custody schedule.  He appealed.

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BSgavelx1200-768x432-1The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires.  Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power.

In a recent case, a mother challenged the court’s authority to reform the judgment.  According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child.  Both the mother and the alleged father sought an order adjudicating him to be the child’s father.

The parties reached a partial agreement and went to trial on the remaining issues.

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retireRetirement benefits can be a complex and contentious issue in a Texas divorce case.  Generally, any income earned during marriage is considered community property unless proven to be separate property, including funds contributed to a retirement account or earned as pension benefits.  In a recent case, a husband challenged a court’s order awarding a portion of his military retirement benefits to his ex-wife.

According to the appeals court’s opinion, the wife petitioned for enforcement of property division by contempt, alleging the husband had not paid her the retirement benefits awarded to her in their divorce decree.  The husband argued the military benefits had either been awarded to him or had not been divided at the time of the divorce.

The wife filed an amended motion to clarify, asking the court to enter a clarifying order if it found any part of the previous order was not specific enough for enforcement through contempt.  She specifically asked the court to clarify the order to reflect the length of the marriage and the husband’s dates of military service.  She also asked the court to sign a Military Qualified Domestic Relations Order.

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iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

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imagesIn a Texas divorce case, property acquired during the marriage is presumed to be community property. A spouse claiming property is their separate property must show that it is separate by clear and convincing evidence.  Separate property is generally property that is owned before the marriage, property that the spouse acquired as a gift or inheritance, or property recovered as damages in a personal injury case.  Community property is generally property acquired after the marriage that is not characterized as separate property.

In a recent case, a wife challenged the court’s characterization of certain property as the husband’s separate property.  The wife filed for divorce. The parties agreed they had married in India in 1976, but disagreed on the date they stopped living together as husband and wife.

Husband and Wife Enter into Settlement – But Leave One Issue for Trial

The case went to trial, but, before trial, the parties entered into a Mediated Settlement Agreement (“MSA”).  In the MSA, the parties agreed their community property located in India would be divided by Indian courts.  The parties agreed to the characterization and division of everything except two pieces of land in India, referred to as the “Fifteen-Cent” property and the “One-and-a-half-Acres” property. The MSA stated they would “defer to characterization and confirmation of separate property” of those two parcels to the trial court.

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Premarital agreement

Some Texas premarital agreements may include a binding arbitration clause. A party may compel arbitration when the claims at issue are within the scope of a valid and enforceable agreement to arbitrate.  If the claim falls within the agreement’s scope and there is no defense to enforcing it, the court must compel arbitration. Fraud may be a defense against compelled arbitration, but the party must show that the fraud was specifically related to the arbitration provision.

A husband recently appealed a denial of his motion for arbitration in his divorce proceeding.  The parties signed a premarital agreement that included an arbitration clause. The wife filed a petition for divorce in July 2014.  In 2016, she filed an amended petition.  Neither petition mentioned the premarital agreement.  The husband filed an answer in 2016, but did not mention the premarital agreement either.

In a second amended petition, the wife stated there was a premarital agreement and requested it be set aside and vacated.  She alleged she entered into it involuntarily and that it was unconscionable.

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does-adultery-affect-alimony-in-idaho-1080x600-1In a Texas divorce, the court must divide the property in a just and right manner.  The requirement is that the division be equitable, but not necessarily equal. The Texas Supreme Court identified several factors courts should consider in Murff v. Murff. These factors include the parties’ physical conditions, education, financial condition, abilities, and ages.   A husband recently challenged a trial court’s division of the marital property following a mediated settlement agreement between the parties.

The parties married in 1999 and the wife initiated divorce proceedings in 2017.  Pursuant to a temporary order, the marital home was sold and about $500,000 in sales proceeds were put into an escrow account.  The court signed an agreed order allowing disbursement of an equal portion of the proceeds to pay each party’s divorce attorneys.  The rest of the proceeds was left in the escrow account.

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