iStock-1214358087-300x169The division of property in a Texas divorce does not have to be equal, but should be “just and right.” Each party is responsible for providing evidence to show the value of the property so the court can make the division.  A Texas appeals court recently considered what happens when parties do not provide information regarding the marital estate.

Conflicting Testimony Regarding Parties’ Relationship at Trial

According to the appeals court’s opinion, the husband was sixty and the wife was twenty-seven when they met and married.  According to the husband, he met the wife on an online dating site and went to Monterrey, Mexico to meet her in person in October or November 2007.  After spending time with her that night and the next day, the husband came back to the U.S. The wife denied meeting on a dating site and instead said they met at a hotel bar.  They communicated via email and the husband visited the wife in Mexico a few more times.  They married in February 2008 in Monterrey.  The husband testified they did not have sexual relations or go on a honeymoon.  He came back to Texas a few days later and the wife stayed in Mexico.

The husband obtained an attorney to get visas for the wife and her son.  The visas were denied after an immigration interview in 2008.  The husband claimed he had no further relationship or communications with the wife until late 2017 or early 2018 when she contacted him wanting to come to the U.S. He hired an attorney again.  The wife obtained a visa in March 2018 and moved to Texarkana.  There were substantial differences in the parties’ testimony regarding their relationship while they lived together and the reasons the wife moved to Dallas in 2018.

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iStock-1287431987-300x200Texas prenuptial agreements may include a provision requiring arbitration in the event of a divorce.  The Texas Family Code includes provisions making arbitration of divorce cases different from the arbitration of other types of cases.  A wife recently sought mandamus relief after the trial court ordered arbitration pursuant to a prenuptial agreement.

Parties Executed Islamic Premarital Agreement

According to the court’s opinion, the parties had executed an “Islamic Pre-Nuptial Agreement.” It included a provision requiring resolution of conflicts in accordance with Islamic law by either in a Muslim court or by a three-member Fiqh panel.

The wife denied knowing the contents of the agreement when it was executed.  She claimed she thought it was a second copy of the parties’ marriage contract.

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iStock-1175949984-300x200When the trial court appoints joint managing conservators in a Texas custody case, it must identify who has the right to determine the child’s primary residence with or without a geographic restriction.  Tex. Fam. Code Ann. § 153.134(b). The court must consider the child’s best interest.  The court may also modify the terms and conditions of the child’s conservatorship if doing so is in the child’s best interest.  Tex. Fam. Code Ann. § 156.101.

A father recently challenged a trial court’s modification order adding a geographic restriction broader than that he requested.  In the original order establishing the parent-child relationship, both parents were named joint managing conservators, with the mother having the right to determine the child’s primary residence without any geographic restriction.  Both parents lived in Kerr County at the time.

Father Seeks to Modify Prior Order

The father subsequently sought modification of the order to give him extended visitation and add a geographic restriction of Kerr County.  The trial court ultimately granted the extended visitation and added a geographic restriction of Kerr, Atascosa, and Bexar counties and counties contiguous to Kerr.

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does-adultery-affect-alimony-in-idaho-1080x600-1-300x167Property possessed by a spouse during or upon dissolution of the marriage is presumed to be community property.  Clear and convincing evidence that the property is separate is required to rebut that presumption.

Wife Asserts Gift from Parties’ Son

A husband recently appealed a divorce decree, arguing the trial court erred in finding all accounts in the wife’s name in Bangladesh banks were the wife’s separate property.  The wife claimed the money in those accounts had been gifted to her by their son.  Property acquired by gift or inheritance is generally separate property.  TEX. FAM. CODE ANN. § 3.001.

According to the appeals court’s opinion, the parties’ son testified he had sent his mother $500 a month through an automatic deposit into her bank account since 2006.  He said the money was a gift only to his mother.  The wife testified she had transferred some of those funds into her accounts in Bangladesh.

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iStock-1033856542-300x200When a mother is married at the time of her child’s birth, the husband is generally presumed to be the father under Texas family law. There are two ways to rebut the presumption: with a proceeding to adjudicate parentage or with the filing of a denial of paternity along with the filing of an acknowledgement of paternity by another person.  Suits to adjudicate parentage of a child with a presumed father generally must be brought by the child’s fourth birthday. There is an exception, however if the mother and presumed father did not live together or engage in sexual intercourse at the probable time of the child’s conception.  There is also an exception if the presumed father mistakenly believed he was the biological father based on misrepresentations. Tex. Fam. Code § 160.607.

Alleged Father Challenges Adjudication of Paternity

An alleged father recently challenged a trial court’s determination that his adjudication of parentage case was time-barred.  According to the appeals court’s unpublished opinion, the alleged father petitioned to adjudicate parentage of two children, one born in 2014 and the other in 2015.  The mother was married to another man when the children were born.

The mother moved for summary judgment, arguing the alleged father’s suit was time-barred and none of the exceptions that toll the statute of limitations for adjudication of parentage applied.  She attached her own affidavit and an affidavit from her then husband as summary judgment evidence.  Her motion was granted.

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iStock-182358076-300x200A court may modify a child’s conservatorship if there has been a material and substantial change in circumstances and the change is in the child’s best interest.  A mother recently challenged a court’s modification of her child’s conservatorship.

According to the appeals court’s opinion, the parents divorced following the mother’s affair with a married man.  The divorce decree named the parents joint managing conservators with neither having the exclusive right to designate the daughter’s primary residence.  The decree also incorporated an agreement for visitation, custody, and child support.  Eleven months later they both sought modification.

Changed Circumstances Since Divorce?

The mother married the man with whom she had the affair.  He had two children and a new baby with the mother. The police were twice called to the home due to arguments between the mother and stepfather. The mother and stepfather also separated twice, once for around three months and another time for a single night.

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iStock-178756342-300x199A spouse in a Texas divorce may have a reimbursement claim if they use their own separate property to fund improvements to the other spouse’s separate property.  Likewise, if community funds are used for the benefit of a spouse’s property, the spouse may be ordered to reimburse the community.  The party seeking reimbursement must plead and prove the claim, including showing that the funds used were their separate property. Courts must resolve claims for reimbursement using principles of equity.

A husband recently challenged a trial court’s denial of his reimbursement claims.  According to the appeals court’s opinion, both parties had significant separate property when they married in 2010.  The husband owned one home and the wife owned two.  They bought a new house 2014.  The husband sold his home and used $141,000 of the proceeds for the new house.  The wife sold one of her homes and used $150,000 from that sale on the new home.

Testimony Regarding Husband’s Reimbursement Claim

The husband also paid about $70,000 for a pool at the new house.  He claimed the funds were his separate property, but the wife testified she thought he had used community funds.

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iStock-172302804-195x300A trial court must effect a “just and right” division of property in a Texas divorce.  When a party pleads a fault-based divorce, the court may consider the other’s parties conduct and divide the property disproportionately.  A husband recently challenged a disproportionate division.

According to the appeals court’s opinion, the husband petitioned for divorce, and the wife alleged cruel treatment.  The trial court found cruel treatment led to the breakup and awarded the wife a disproportionate property division and the exclusive right to determine the child’s primary residence.

The husband appealed the disproportionate property division and the custody determination.

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iStock-1125625723-300x200A custody determination issued in another state or country can be registered in Texas.  To do so, the party must send a letter requesting registration to the Texas court, along with two copies of the determination, one of them certified, a sworn statement that, to the best of the requester’s knowledge and belief, the order has not been modified, and their name and address and the name and address of any parent or person acting as a parent who has been awarded custody or visitation under the order.  Tex. Fam. Code § 152.305(a). The Texas court then files the determination as a foreign judgment. The court must also give notice to the person seeking the registration and any parent or person acting as a parent who was awarded custody or visitation in the determination and provide them with an opportunity to contest the registration. If a person wants to contest the validity of the registered order, they must request a hearing within 20 days of being served the notice.  The court must confirm the registered order unless the person contesting it establishes that the issuing court did not have jurisdiction, that the determination was vacated, stayed, or modified, or that they did not receive required notice in the proceedings before the court that issued the order. Tex. Fam. Code § 152.305.

Mother’s Request for Registration of Custody Determination Denied

A mother recently challenged a court’s denial of her request for registration.  She had filed a “Registration of Child Custody Determination” to register an order from New York. The New York order provided that the parties would share joint custody of the child and that the child would live with the mother.

The father filed a timely objection to the registration. He argued there were proceedings for enforcement pending in New York.  He alleged that the New York court had recessed to let the mother get an attorney and rescheduled on the same day the wife sought to register the order in Texas.  He argued that registering the decree in Texas would make it enforceable and subject to modification in Texas, while the New York court still had and was exercising continuing jurisdiction.

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iStock-902725964-300x200Parents have a fundamental right to make decisions about their child’s care, custody, and control. There is a presumption that a fit parent acts in the child’s best interest.  A non-parent seeking visitation or custody over a parent’s objection must overcome the fit-parent presumption. They must have evidence of behavior or conduct that will probably result in the child’s health or well-being being significantly impaired.  A non-parent seeking custody or visitation must also show that they meet the requirements for standing under Texas family law.

Grandmother Files Custody Suit

A mother recently challenged a court’s judgment awarding visitation to the child’s paternal grandmother.  According to the appeals court’s opinion, the paternal grandmother petitioned to be appointed as possessory conservator of the child, but subsequently amended the petition seeking possession and access.  She alleged denial of possession and access would significantly impair the child’s health and well-being.  Her affidavit stated she was the parent of the child’s father and the child’s father had been incarcerated for more than three months.  It further stated that the child lived in her home while the father temporarily had primary care of the child because of the “mother’s instability.” She also stated the father was incarcerated because she had made a report “to protect the child.”

The mother did not file an answer or appear at the remote trial.

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