iStock-1139699594When a court considers Texas child custody and visitation, the child’s best interest is the primary concern.  The court considers certain factors, including what the child wants, the child’s current and future needs, any danger to the child, the parents’ respective abilities, programs available, the parents’ plans for the child, stability, any acts or omissions indicating the relationship between the parent and child is not proper, and any excuse for those acts or omissions.

A father recently appealed a denial of his petition for modification and grant of the mother’s counterpetition.  At the time of the divorce, the trial court ordered the parties not to move from a specific area without a modification order or written agreement filed with the court.  Neither parent was given the exclusive right to designate the child’s primary residence.  Nonetheless, both parents moved outside of the geographical boundary after the divorce.

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iStock-545456068-scaledA court must base its decisions regarding custody and visitation primarily on the child’s best interest.  In a recent Texas case, a father challenged a court’s modification of his prior possession order, restricting him to supervised visitation with his daughter.

The mother petitioned to be named the child’s sole managing conservator and asked the court to either deny visitation with the father or, in the alternative, to require it to be supervised.  She alleged the child had reported being spanked, being physically punished by her stepmother and her step-grandmother, being forced to stand in a corner, being underfed sometimes, being subjected to verbal abuse and threats of physical violence, and being required to stay in her room watching television for hours while she was in her father’s custody.  The mother also alleged the child’s foot had been injured by her step-grandmother and not given medical attention.  She further alleged the child’s stepmother repeatedly tried to put makeup on the child when she was allergic to it.

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A Texas Mediated Settlement Agreement (“MSA”) that meets the statutory formalities is binding and the parties are entitled to a judgment upon it (i.e., the divorce decree must adopt it).  In a recent case, a husband challenged an order issued after the divorce decree that was intended to conform the decree with the terms of the MSA.

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parties executed an MSA. A couple of weeks after the court entered the final divorce decree, the wife moved for clarification of the MSA.  She alleged the final decree did not reflect the MSA, because it failed to confirm certain items as her separate property.  The trial court entered an order confirming those items as her separate property after a hearing.

The husband appealed.

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iStock-483611874If a parent in a Texas child-support case is intentionally unemployed or underemployed resulting in an income significantly less than what they could earn, the court may calculate child support based on their earning potential. Tex. Fam. Code § 154.066(a).  The other parent has the burden of showing that the parent is intentionally unemployed or underemployed.

A father recently challenged a trial court’s finding that he was intentionally unemployed or underemployed and the child-support obligation based upon that finding.

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iStock-1215119911A Texas premarital agreement can help protect each party’s assets in the event a marriage ends in divorce. Premarital agreements may also include other provisions, including a requirement to submit certain issues to binding arbitration instead of for determination before a judge or jury. In a recent case, a husband attempted to vacate an arbitrator’s decision, arguing he had exceeded his authority.

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iStock-1175949984Courts often keep siblings together; however, in some Texas child custody cases, it is in the children’s best interest for them to be split up. When one or more children live with one parent and one or more children live with the other parent, each parent may be obligated to pay child support to the other.  A father recently challenged how the court calculated the child support the mother would have to pay him after he received custody of one of their four children. In issuing its ruling, the appellate court’s opinion turned on the definition of “multiple households” under the Texas Family Code.

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Fault in Divorce

iStock-1163040189Divorces may be granted without fault, but Texas still allows divorce to be granted on fault-based grounds in certain situations.  For example, a Texas divorce may be granted in one spouse’s favor if the other committed “cruel treatment” that makes the parties continuing to live together “insupportable.” Tex. Fam. Code Ann. § 6.002.  Physical abuse can constitute cruel treatment, but physical abuse is not required for a Texas divorce court to find cruel treatment.  When the court finds fault-based grounds for divorce, such as cruel treatment, the court may consider the fault in dividing the property. Specifically, the court can award a disproportionate share of the community estate to the spouse who is not at fault. A husband recently challenged such a disproportionate property division in his divorce.

The wife said the husband stopped paying attention to her after his business partnership went sour.  She also said he had called her names and accused her of cheating, in addition to being violent against her around four or five times.

The wife alleged that, during one incident, the husband had closed a door on her arm after he had filed for divorce.  She called the police, and the husband agreed to leave.  The husband, however, claimed that he had simply closed the door after the wife left the room, but she forced it back open.  He claimed the door hit him, then whipped back toward her and hit her elbow.  He said he agreed to leave for a few hours after the police arrived, but ultimately decided to leave permanently so their child would not see them argue.

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Texas, unlike many states, still recognizes common law marriage (also known as an “informal” marriage). Unlike with formal marriages, a common law spouse often has to prove that the marriage even existed before getting a divorce.  A party may prove that an informal marriage exists by showing that the parties agreed to be married, then lived together as spouses in Texas, and represented themselves to others as married.  TEX. FAM. CODE ANN. § 2.401(a)(2).

In a recent case, a woman challenged a determination that she and her former romantic partner had not established the existence of an informal marriage.  After they broke up, the man filed for a declaratory judgment that there was no informal marriage, but the woman counter-petitioned for divorce, alleging that they were informally married.  The woman argued they had an informal marriage starting in August 2014, but the man argued they had only been “boyfriend/girlfriend” or domestic partners.

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In an ideal situation, child custody may be resolved by agreement, potentially following mediation.  In some cases, however, Texas child custody cases become long protracted affairs with disputes that last for years.

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Unfortunately, former spouses do not always comply with all of their obligations under a Texas divorce decree.  When that happens, the other party may need to take action to enforce those obligations.  A father recently challenged a court order charging his interest in certain business organizations with judgments the mother obtained following the divorce.

After the mother was unable to collect on two judgments against the father related to his obligations under the divorce decree, she filed an Application for Charging Order.  She alleged the he had “a position of authority” in five business entities.  She alleged he received distributions from one or more of the entities, through funds disbursed to him and funds paid by the entities for his personal living expenses.

In his response, the father acknowledged holding an ownership interest in one of the organizations, but denied having an interest in any of the other named organizations.

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