Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Upholds Custody Order Treating Children Differently

Published on: October 6, 2024 | by Kelly McClure

Texas custody cases involving multiple children can be complex, because the children may not have the same needs. In a recent case, a father challenged a modification that gave the mother rights with regard to the youngest child that he was awarded for the older two children.

The parents got married in 2006 and divorced in 2017. They had three children. In the agreed divorce decree, both parents were named joint managing conservators with shared possession of the children. In November 2020, the father petitioned for modification, alleging a material and substantial change in circumstances related to one child’s emotional health and welfare. He subsequently amended the petition to alleged the same regarding another of the children, and ultimately filed an amended petition seeking relief for all three of the children.

The court held a bench trial and signed a partially handwritten memorandum, with a note that the mother’s attorney would draft the final order. Although the memorandum was entered in early November 2022, the parties did not receive it until April 2023.

Texas Appeals Court Reverses Default Divorce Based on Errors in Service

Published on: September 26, 2024 | by Kelly McClure

A party who does not participate in a Texas divorce hearing may have a default judgment entered against them. If they meet certain criteria, however, they may be eligible for a restricted appeal. Those criteria are: filing notice of the restricted appeal within six months of the judgment being signed; having been a party to the lawsuit; not participating in the hearing, filing any timely motions after the judgment, or requesting findings of fact and conclusions of law; and an error that is apparent on the face of the record. Pike-Grant v. Grant. In determining if there was an error on the face of the record, the appeals court may only consider the evidence that was before the trial court.

In a recent case, a former husband challenged a default divorce decree based on an error on the face of the record.

Omitted Language in the Citation

If the defendant was not served in strict compliance with the Texas Rules of Civil Procedure, rendition of a no-answer default judgment is reversible error. The husband argued that the citation did not include all of the language required by Rule 99(c). Specifically, it had omitted language stating that the party may be required to make initial disclosures within 30 days after filing a written answer and directing the party to TexasLawHelp.org for more information. An amendment to the rule added this language at the beginning of 2021. The citation was issued more than three years after the effective date of the amendment, so the language was required.

Texas Child Support Guidelines Applied to Earning Potential

Published on: September 21, 2024 | by Kelly McClure

Parents are obligated to support their minor children and cannot avoid their obligation through voluntary unemployment or underemployment. If a parent’s actual income is significantly less than what they could earn due to intentional unemployment or underemployment, the court may apply the Texas support guidelines to their earning potential. Once the obligor has provided proof of his current wages, the obligee has the burden of showing intentional unemployment or underemployment. If they do so, the burden then shifts back to the obligor for rebuttal. A father recently challenged a court’s findings that he was underemployed and that it was in the child’s best interest to apply the child support guidelines to his earning potential.

The father registered a New York child support order in Texas and moved to modify the parent-child relationship. The order required the father to pay child support of $1,437.44 and medical support of $107.03 each month. He requested a reduction to $377, retroactive to the date he petitioned to reduce his arrearages.

The mother filed a motion to enforce, seeking contempt against the father for failure to pay the support and the arrearages. The court held a hearing and confirmed $85,858.87 in child support arrearages and $8,621.66 in medical support arrearages, with offsets, resulting in a total of $89,247.93. The trial court awarded the mother attorney’s fees and costs.

Texas Appeals Court Affirms Termination of Spousal Maintenance in Lieu of Child Support

Published on: September 6, 2024 | by Kelly McClure

Texas spousal maintenance is generally intended to provide temporary rehabilitative support to spouses who are unable to support themselves. The appeals court recently reviewed a case in which spousal maintenance was ordered “in lieu of child support” for the parties’ now adult daughter, who is disabled.

The parties divorced in 1998. The trial court issued a modification order in 2014 that, “upon agreement of the parties,” the father would pay $1,096.55 per month in spousal maintenance in lieu of child support, purportedly to allow the daughter to qualify for more disability benefits. Additionally, any payments received for the benefit of the child, including from the Social Security Administration, were to be credited against the spousal maintenance.

Enforcement and Modification Proceedings

Each of the parents remarried. The mother’s husband passed away in 2020. She petitioned for enforcement of the spousal maintenance in early 2022, alleging the father had not made payments from June to December of 2021. The father filed a counter-petition, seeking to terminate the maintenance based on his retirement and the daughter getting half his Social Security Old Age Benefits (“SSOAB”), totaling $1,466 monthly plus increases for cost-of-living.

Property Division Pursuant to Texas Premarital Agreement Turns on Interpretation of “Their”

Published on: August 28, 2024 | by Kelly McClure

Property’s characterization as either separate or community property in a Texas divorce is generally determined by its character at inception. The Texas Family Code includes a presumption that property either spouse possesses during or on dissolution is community property. Tex. Fam. Code § 3.003(a). The Code defines “community property” as the property acquired during the marriage by either spouse, except separate property. § 3.002. Personal income and income produced by separate property is generally community property. Spouses may, however, enter contracts changing their rights and obligations with regard to property. Although premarital agreements are contracts and generally interpretated according to the rules of contract interpretation, they are narrowly construed in favor of the community estate. A former husband recently appealed the property division in his divorce, argued the court had failed to apply the terms of the premarital agreement.

Premarital Agreement

The parties had signed a premarital agreement two days before their wedding. The husband drafted the agreement based on a form from the internet. The agreement was partially typed and partially handwritten. The agreement included a Separate Property Provision that provided that the separate property each party brought to the marriage would stay their separate property. It also included an Acquired Property Provision that provided, “All property acquired by each during the marriage shall be deemed [th]eir property.” The agreement also stated that the husband’s 401(k), along with “income profits, Deferred Retirement Option (D.R.O.P.) or any benefits of any kind accruing from it” would remain his separate property. The agreement further provided that the wife’s “personal income or retirement will remain her separate property.”

The dispute was over the meaning of the Acquired Property Provision, specifically related to the marital home and a vehicle. The husband bought the house four years into the marriage with funds received from the sale of a house in Hurst, Texas, he had purchased with his separate property in 2006. The parties had lived in the home in Hurst from 2006 until 2014. The wife said she paid for improvements to both.

Texas Appeals Court Affirms Order Requiring Ex-Husband to Sign Papers to Transfer Stock to Ex-Wife

Published on: August 14, 2024 | by Kelly McClure

After rendering a Texas divorce decree, the trial court retains continuing subject-matter jurisdiction to enforce its property division. Tex. Fam. Code § 9.002. The court may issue additional orders to enforce the property division. Tex. Fam. Code § 9.006. An order to enforce may help in implementing or clarify the previous order, but it may not make substantive changes to the property division. Tex. Fam. Code § 9.007. The court generally has broad discretion to enforce the property division.

In a recent case, a former husband appealed a court order requiring him to sign documents to effectuate the transfer of stocks that were awarded to the wife in the divorce.

The divorce decree awarded the wife all shares of a particular stock owned by the husband or in his name. It also ordered the husband to appear at a particular law office on or before September 15, 2022 to sign the documents to transfer the shares.

Texas Court Declines to Recognize Pakistani Divorce Due to Lack of Notice

Published on: July 31, 2024 | by Kelly McClure

Texas divorces can be complicated when other potential jurisdictions are involved. A former husband recently challenged his Texas divorce, arguing the parties had already been divorced in Pakistan.

The parties got married in 2009 in Pakistan and subsequently moved to Texas. The husband petitioned for divorce in Dallas County in May 2021 and the wife filed a counter-petition. They both alleged the had been residents of Dallas County for the preceding 90 days and domiciliaries of Texas for the preceding six months.

In January 2022, the husband filed a “Notice of Filing of Foreign Judgment” and attached a “Divorce Registration Certificate” that had been issued in Pakistan on January 1, 2022. It showed addresses in Lahore, Pakistan for both parties for dates in September 2021, December 2021, and January 2022.

Texas Father Did Not Voluntarily Relinquish Child to Grandmother Before Parental Adjudication

Published on: July 21, 2024 | by Kelly McClure

Parents generally have a fundamental right to make decisions regarding their children. In Texas, there is presumption that being raised by the parents is in the child’s best interest. This presumption can be rebutted if the court finds appointment of a nonparent is in the child’s best interest and the parent “voluntarily relinquished actual care, control, and possession of the child to a nonparent . . .” for at least a year, with part of that time being within 90 days before the date suit was filed. Tex. Fam. Code 153.373. A grandmother recently appealed a directed verdict in favor of the child’s father in a Texas custody case, arguing he had voluntarily relinquished care, control, and possession of the child to her.

According to the opinion of the appeals court, the child lived with his maternal grandmother after the mother’s death in 2019. The father initially petitioned to adjudicate parentage in April 2021, requesting genetic testing and to be named the child’s sole managing conservator. The grandmother asked for both parties to be joint managing conservators, with her having the exclusive right to designate the child’s primary residence.

The parties signed a Mediated Settlement Agreement for temporary orders (“MSA”) that provided the father was adjudicated the child’s father based on genetic testing and the father would have possession of the child on mutual agreement of the parties, or set periods if the parties did not agree. The court signed the agreed temporary orders.

Texas Appeals Court Husband Did Not Overcome Community Presumption in Divorce

Published on: July 14, 2024 | by Kelly McClure

Community property is the property acquired by other spouse during the marriage, except separate property. Tex. Fam. Code § 3.002. Separate property is generally that property the spouse owned or claimed prior to the marriage, property acquired by gift, devise, or descent during the marriage, and personal injury recoveries with the exception of recovery for lost earning capacity during the marriage. There is a presumption that property possessed by either spouse during or on dissolution is community property. This presumption can only be rebutted in a Texas divorce by clear and convincing evidence. Tex. Fam. Code § 3.003. Separate property remains separate as long as the community presumption is overcome by tracing the assets back to separate property. Mischaracterizing property and awarding a spouse’s separate property to the other spouse constitutes an abuse of discretion and reversible error by a trial court in a divorce. A husband recently appealed the property division in his divorce, arguing the trial court had mischaracterized some of his separate property as community property.

Property Division

The parties had been married about nine years when the wife filed for divorce. In his counterpetition, the husband asked the court to confirm certain property was his separate property. The trial was focused on the property division, included two houses and an individualized retirement account (“IRA”). The trial court awarded one house to each party and ordered that the spouse awarded each house was responsible for the balance of that house’s mortgage. The court also ordered the IRA funds be split equally. The trial court confirmed certain home furnishings were the wife’s separate property and a sword stand and orange sofa were the husband’s separate property.

Texas Appeals Court Concludes Child Can Only Have One Home State in Child Support Case

Published on: June 30, 2024 | by Kelly McClure

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs which state’s courts have jurisdiction over an initial custody determination. Texas has codified the UCCJEA in Chapter 152 of the Texas Family Code. A Texas court has jurisdiction if Texas is the child’s “home state” when the proceeding commences or was the child’s home state within the six months before the proceeding commences and a parent still lives in Texas. Tex. Fam. Code § 152.201(a)(1). “Home state” is defined as the state where the child lived with a parent or person acting as such for the six months immediately before the custody proceeding commenced. If the child is less than six months old, the home state is where “the child lived from birth with a parent or a person acting as a parent.” Tex. Fam. Code § 152.102(7). The court that made the initial custody determination generally retains exclusive continuing jurisdiction over the custody determination. Generally, once a home state is determined, no other state has jurisdiction to make an initial custody determination.

A father challenged a court’s finding that Texas was the child’s home state in the six months before suit was filed and another state was the child’s current home state. The mother relocated with the child to Indiana when the child was about five months old. The father petitioned to adjudicate parentage in Harris County, Texas, about five months later.

The parents reached a mediated settlement agreement (“MSA”) that neither would pay child support at the time.