McClure Law Group, Author at Texas Divorce Attorney Blog

Biological Father Ordered to Pay Child Support to Mother’s Ex-Husband in Texas Custody Case

Published on: April 20, 2020 | by McClure Law Group

A Texas custody case can become complicated when a person learns he is the biological father of a child years after the child’s birth. Although a potential father of a child with a presumed father generally must file for adjudication of paternity prior to the child’s fourth birthday, in some cases, a delay may be excused. TEX. FAM. CODE ANN. § 160.607. In a suit adjudicating parentage, the court may order retroactive child support based on the child support guidelines if the parent has not been previously ordered to pay child support and was not party to a suit where support was ordered. TEX. FAM. CODE ANN. § 154.009.

In a recent case, a biological father challenged an order requiring him to pay retroactive child support and granting custody to the mother’s ex-husband. The mother was not sure who the father was, but married during her pregnancy. The mother and her husband also had a child together. The husband was the presumptive father and was adjudicated the father of both children when he and the mother divorced. The husband was named managing conservator with the right to establish the primary residence for both children.

The mother had told the biological father about the pregnancy when she realized she may be pregnant, and he acknowledged he was aware he could be the father from that time. He went to the hospital the day the child was born. He said the mother told him he was not the father and he did not pursue paternity at that time. The mother told him he may be the father when the child was four years old and a paternity test confirmed that he was the probable father.

Spousal Maintenance in Texas Divorce Cases

Published on: April 13, 2020 | by McClure Law Group

In a Texas divorce, a spouse who cannot support herself or himself because of an incapacitating disability and does not have sufficient property to meet their needs may be eligible for spousal maintenance. Tex. Fam. Code Ann. § 8.051. Spousal support is generally limited in time, but a court may order spousal maintenance indefinitely to a spouse who is disabled. Tex. Fam. Code Ann. § 8.054. There are statutory limits to the amount of spousal maintenance a court can award. Tex. Fam. Code Ann. § 8.055.

A husband recently challenged an award of spousal maintenance to the wife. He filed for divorce after the couple had been married for more than 18 years. The wife filed a counterpetition and sought spousal maintenance.

At trial, the wife testified she owned as separate property a house she received in a previous divorce. She expected to receive $96,000 in proceeds from its sale to put toward buying a new home. She testified she would “barely have enough to pay for [the new] house.”

Ongoing Obligation Under I-864 Affidavit of Support after Texas Divorce

Published on: April 6, 2020 | by McClure Law Group

In many cases, when a person seeks to obtain lawful permanent resident status in the United States, also known as a green card, they must have a sponsor who agrees to support them. If the person is moving to the United States as a spouse of or to marry a lawful permanent resident or a U.S. citizen, the spouse often serves as the sponsor. The sponsor must sign a Form I-864 Affidavit of Support, which is a legally enforceable contract in which the sponsor agrees to use their financial resources to support the person who intends to immigrate. After the person becomes a lawful permanent resident, the sponsor’s support obligation generally continues until one of the specified conditions is met, including the immigrant becoming a US citizen or earning 40 work quarters toward Social Security. Divorce is not one of the conditions that relieves the sponsor of his or her support obligation. Therefore, the support obligation may become an issue in a Texas divorce involving an immigrant who has not become a US citizen.

The support obligation was at issue in a recent case. The wife had moved to the United States from Mexico to be with the husband in 2014. They married in June 2016. The husband signed an I-864 affidavit of support in August 2016, agreeing to provide the wife with any support needed to keep her income level at at least 125% of the federal poverty level. The wife later became a lawful permanent resident.

The husband filed for divorce in July 2017. In her counterpetition, the wife asked the court to order the husband “to support her under his federal contractual obligation” based on the form I-864. The trial court heard evidence and granted the divorce, but took the issue of the husband’s obligation pursuant to the I-864 affidavit under advisement to review the case law submitted by the parties. The court held multiple hearings on the issue.

Can I Still Get Divorced Under Quarantine?

Published on: April 2, 2020 | by McClure Law Group

The short answer is “yes.” The Courts are still open for business and so are most family law firms, albeit remotely- to protect your health and safety.

Below are answers to the most recent frequently asked questions:

How do I conduct a consult if my spouse is in the next room?

Texas Divorce Court May Award Damages to Wife Where Husband Improperly Withdrew Retirement Funds During Divorce

Published on: March 30, 2020 | by McClure Law Group

Under Texas family law, if a party in a divorce case fails to comply with the divorce decree and delivery of the awarded property would no longer be an adequate remedy, the court may render a money judgment for the damages. Tex. Fam. Code Ann. § 9.010. A husband recently challenged an enforcement order awarding the wife damages after the husband withdrew and spent all the funds from two retirement accounts while the divorce was pending.

The inventories submitted by the husband in the divorce proceedings included two retirement accounts in his name, but did not specify an amount. Both parties were ordered to preserve assets until the divorce was concluded, but the husband closed the accounts and transferred the funds to his personal account. The trial court awarded 50% of each account to the wife in the final divorce decree.

The wife sued to enforce the property division in the divorce decree, also alleging fraud on the community. The husband testified he had withdrawn about $75,000 from the accounts and admitted he had done so without notifying the wife or the court. He testified he spent the funds on living expenses because he was unemployed.

How Will COVID-19 Affect my Possession Schedule?

Published on: March 16, 2020 | by McClure Law Group

As COVID-19 (Coronavirus) becomes more and more ingrained as a daily part of our news cycle, its ability to affect our day-to-day lives continues. As of Monday, March 16, a total of 48 public school districts plus several religious academies across North Texas have elected to extend spring breaks until March 26 or longer. For many parents this begs the question, what do these school closures mean for my possession schedule?

According to the judges in Dallas County, Collin County, Denton County, and Tarrant County, the Standard Possession Schedule should follow the originally published school calendars, meaning there will be no extensions of time periods for parents who have the Spring Vacation possession due solely to recent changes.

As the situation and precautions surrounding this global pandemic continue to evolve, more questions regarding possession schedules and the potential need for additional childcare if schools remain closed will inevitably arise. Disagreements regarding the custody or possession of a child can be stressful and emotionally charged. We recommend consulting with your attorney regarding any questions concerning selecting substitute pick-up or drop-off locations or establishing alternative schedules before making any decisions with your co-parent or ex-spouse.

Texas Appeals Court Upholds Custody Modification Following Alleged Domestic Violence Incident

Published on: March 16, 2020 | by McClure Law Group

Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order. The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing. Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence. The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence. The mother petitioned to modify the order, alleging a material and substantial change in circumstances. She alleged there had been a recent family violence incident involving the father and his fiancée. She also alleged he had a history or pattern of family violence. She asked that he be excluded from possession of their daughter. Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule. The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am. They required the mother to reside either at her parents’ home or her own home. Finally, they ordered that neither parent would provide support to the other.

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Published on: February 26, 2020 | by McClure Law Group

Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children. In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent. In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage. The mother moved to another town and filed for divorce. The decree required the father to use a Soberlink alcohol monitoring device before and during visitation. The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits. She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity. She also alleged the father failed one of his alcohol tests.

Texas Court Can’t Deny Petition for Modification of Conservatorship for No Material Change without Evidentiary Hearing

Published on: January 29, 2020 | by McClure Law Group

A court may modify a Texas custody order only in certain circumstances. One of the most common reasons to modify an order is that there has been a material and substantial change in circumstances since the previous order and a modification is in the child’s best interest. Whether a material and substantial change has occurred is a question of fact. The party seeking modification has the burden of proving a material and substantial change has occurred.

In a recent case, a father challenged denial of his petition for modification because he had not been allowed to present evidence to support it. A 2010 order named the parents joint managing conservators, with the mother having the exclusive right to designate the child’s primary residence.

The child moved in with his father, his paternal grandmother and his step-grandfather following his mother’s death in 2015. The grandparents filed a petition to modify the 2010 custody order based on the mother’s death, as well as the father’s behaviors they claimed significantly impaired the child’s safety and well-being. The grandparents asked to be named temporary joint managing conservators with the right to designate the child’s primary residence. They also asked the father be denied access to the child, or alternatively, that his access to the child be supervised.

Texas Appeals Court Upholds Custody Modification Based on Family Violence

Published on: January 1, 2020 | by McClure Law Group

Generally, a Texas child custody order can be modified only if the modification is in the child’s best interest, and there has been a material and substantial change in circumstances. Family violence may constitute a change in circumstances warranting a modification.

In a recent case, a mother challenged a modification, alleging that there was insufficient evidence of family violence to support a finding of a change in circumstances. When the child was an infant, the parents entered into an agreed order, appointing both of them as joint managing conservators, with the mother having the exclusive right to designate the primary residence.

The mother was subsequently charged with assaulting the father’s girlfriend. In December 2016, the mother took the child to California to live with her mother and other children.