Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Court Allows Mother to Relocate with Children to Maine

Published on: September 1, 2023 | by Kelly McClure

Generally, a parent seeking modification of a Texas custody order must show that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. The determination of whether there has been a material and substantial change of circumstances is fact specific. By way of example, a material and substantial change in circumstances may include a parent’s remarriage or, when there is a request for a change in child support, a change in income. A father recently appealed a modification order that permitted the mother to relocate with the children.

The parties’ agreed divorce decree named the parties joint managing conservators and granted the mother the right to designate the children’s primary residence. Subsequently, the mother petitioned for modification in 2022 because she wanted to move to Maine with the children. Following trial, the trial court granted the modification. Specifically the trial court ordered modified the children’s geographic restriction to include Maine, modified the father’s possession and access, and awarded the mother child support.

The father appealed, arguing that the trial court abused its discretion because there had been no substantial or material change in the parties’ or children’s circumstances, and that the move was not in the best interest of the children.

Appeals Court Reverses Denial of Motion to Compel Arbitration in Texas Custody Modification Case

Published on: August 16, 2023 | by Kelly McClure

Sometimes after agreeing to mediate or arbitrate future controversies at the time of a Texas divorce, one party may not want to follow through on that agreement when a controversy actually arises. In other cases, the parties may disagree on whether the alternative dispute resolution provision applies to a particular claim or controversy. In such circumstances, the party seeking arbitration may move to compel arbitration. That party must show that there is a valid arbitration agreement and that the dispute is within the scope of the agreement.

Arbitration Provision

In a recent case, a father appealed the trial court’s denial of his motion to compel arbitration. According to the appeals court’s opinion, the final divorce decree included an alternative dispute resolution provision. The provision provided the parties shall mediate the controversy in good faith before setting a hearing or initiating discovery in a suit to modify the terms and conditions of conservatorship, possession, or child support, except in case of an emergency. The provision specified it did not apply to enforcement actions. It required a party seeking modification to give the other party written notice of the desire to mediate. If the parties do not agree on a mediator within 10 days or the other party does not agree to or fails to attend mediation, the party seeking modification is relieved of the obligation to mediate. The provision further provides that if a controversy could not be settled by mediation, the parties agreed to submit it to binding arbitration with a specified arbitrator.

In the fall of 2021, the father started trying to negotiate custody matters. In July 2022, the mother’s attorney sent an email to the father’s attorney stating modifications did not need to be arbitrated. The father’s efforts to negotiate or mediate failed, and he sent an email demanding arbitration at the beginning of August.

Texas Appeals Court Upholds Post-Divorce Enforcement/Clarification Order

Published on: July 17, 2023 | by Kelly McClure

A Texas divorce decree that is final and unambiguous and addresses all of the marital property may not be re-litigated. The court may, however, enforce the property division or enter a clarifying order if the decree is ambiguous. The trial court may not, however, amend, modify or change the substantive property division once its plenary power has expired. A husband recently challenged an enforcement/clarification order requiring him to sign certain documents and extending the time the wife had to refinance the home.

According to the appeals court’s opinion, the parties got divorced in August 2021. Pursuant to the agreed judgment, the wife was awarded the marital home, contingent on refinancing. She was required to pay the husband $75,000 within 15 days of refinancing the note. If she failed to refinance by February 1, 2022, then the home was to be listed with a real estate broker with experience in the area and sold at a mutually agreed-upon priced. The wife would keep 52% of the net proceeds and the husband would get the other 48%.

The wife was ordered to execute a deed of trust to secure owelty of partition and a lien note. The husband was ordered to execute a warranty deed. These documents were to be signed by 5:00 p.m. on the date the trial court signed the agreed divorce decree.

Texas Appeals Court Vacates Property Division After Husband Revokes Consent to Agreed Division

Published on: June 26, 2023 | by Kelly McClure

When parties to a Texas divorce can reach an agreement on property division or other issues, they may be able to resolve their case more efficiently and with less hostility than can occur with prolonged litigation. In some cases, however, a party may learn information after initially agreeing to a division that that changes their position. When parties consent to an agreed judgment, their consent must exist when the court renders the judgment. They are able to revoke consent until the judgment is rendered. An agreed judgment cannot be rendered if a party has withdrawn consent. In a recent case, a husband appealed an “agreed” judgment, arguing he had withdrawn his consent before the court rendered the judgment.

According to the opinion of the appeals court, the parties got married in 2005. The wife filed for divorce in early August 2022. She expressed a belief the parties would reach an agreement on the property division, but asked for a just and right division if they did not do so. A couple of months later, she filed an affidavit stating she and the husband had entered an agreement for division of the debts and property. She further stated she had submitted an agreed decree that had been signed by both parties and contained the agreement. She asked the court to approve the agreement.

The husband filed a counterpetition, alleging the wife had breached her fiduciary duty and committed constructive fraud, waste, and conversion. He alleged she conveyed more than her own share of the community estate to enrich herself and defraud him. He alleged damages of about $100,000. He asked the court to set aside the transfer and award him damages.

Texas Wife Not Awarded Disproportionate Property Division Despite Allegations of Cruelty and Infidelity

Published on: June 6, 2023 | by Kelly McClure

A court’s division of property in a Texas divorce must be just and right. A just and right division does not have to be equal and may be disproportionate in some circumstances, including fault such as adultery or cruelty. A wife recently challenged a property division in which the trial court did not award her a disproportionate share of the community estate in light of her allegations of adultery and cruelty.

Alleged Cruelty and Infidelity

The wife testified the husband had multiple affairs during the marriage, according to the appeals court’s opinion. She also testified he had physically abused her. She said he had beaten her after she had surgery, resulting in her stitches breaking open. She further testified that he started hitting her again when she came home from the doctor and she got a kitchen knife to defend herself. She said she held the knife in front of her and “just the point of the knife” cut the husband when he got in her face, but she did not deliberately stab him. She testified the injury only needed a bandage, but the husband went to the doctor so he could later use it against her.

She testified she did not have any documentation of the husband’s alleged affairs. She also did not offer any documentation of her alleged injuries.

Texas Grandmother Awarded Custody

Published on: May 30, 2023 | by Kelly McClure

Texas family law only allows non-parents to seek custody of children if they meet certain statutory requirements. For example, a grandparent or certain other relatives may petition for managing conservatorship if doing so is necessary because the child’s present circumstances at the time suit was filed would significantly impair their health or emotional development. Tex. Fam. Code Ann. § 102.004(a)(1).

The parents had an on-and-off relationship for several years, according to the appeals court’s opinion. Both parents and the maternal grandmother had lived in Colorado. The mother, who was pregnant with their second child, moved to Texas in late 2017 with the older child. The grandmother followed in 2018. The father remained in Colorado.

The mother was killed in a car accident in May 2019. The father filed a petition for writ of habeas corpus, alleging the grandmother was illegally holding them. His petition was denied.

Texas Court Characterizes Property Conveyed by Husband’s Parents as Community Property

Published on: May 28, 2023 | by Kelly McClure

In a Texas divorce, there is a presumption that property possessed by either party during or on dissolution is community property. Tex. Fam. Code Ann. § 3.003(a). Property’s characterization is determined by inception of its title. In a recent case, a husband challenged a trial court’s characterization of property conveyed by his parents.

Conveyance of the Property

According to the appeals court’s opinion, the husband acquired the property from his parents during the marriage. The deed was labeled a warranty deed. It identified the parents as the grantors and the husband, “A MARRIED PERSON,” as the grantee. It stated consideration of $10 and “other good and valuable consideration.” It also stated the grantor “grants, sells, and conveys to Grantee the property.” A corrected deed was filed in 2015 changing the legal description.

The wife testified the husband’s parents were paid $1,750 for the property from a joint bank account. The husband and his father each testified that just $10 was paid as consideration for the property. Both spouses were listed on the construction loan application for building the home on the property. That application indicated the title would be held “Jointly with Spouse.”

Texas Stepfather Has Standing to Seek Custody after Mother’s Death

Published on: May 25, 2023 | by Kelly McClure

iStock-1147846829-300x200 Non-parents have limited rights in seeking Texas custody or visitation. In some circumstances, however, stepparents actively parent their stepchildren. In a recent case, a stepfather challenged a court order awarding custody of his stepchild to the child’s maternal grandparents after the death of the mother.

Relationship with the Mother

According to the appeals court’s opinion, the mother was pregnant when she started dating and eventually moved in with the stepfather in 2006. The stepfather was present for the child’s birth in 2007 and acted as a father figure to the child. The mother filed an Original Petition in Suit Affecting the Parent-Child Relationship (“SAPCR”) soon after the birth. The stepfather was not a party to the case.

The mother married stepfather in July 2007. The stepfather treated the child as his son and was the only father figure in the child’s life. The mother and stepfather had a biological child together in 2010.

House Bought Before Marriage Declared Both Parties’ Separate Property in Texas Divorce

Published on: May 21, 2023 | by Kelly McClure

Atlanta-Property-Division-Attorneys-2-300x198 Pursuant to the Inception of Title doctrine, a property’s character is determined when the party acquires their interest in it. This means that property acquired before the marriage will generally be characterized as that spouse’s separate property in a Texas divorce. In a recent case, however, the court determined that a house purchased solely in the name of the husband before the marriage was the separate property of both spouses.

According to the appeals court’s opinion, the parties started dating in late 1999. The wife moved in with the husband and his grandfather in 2003 or 2004. The husband bought a house from the wife’s parents in 2004 as “a single man,” according to the Deed of Trust and Note and both parties moved into it. They deposited their paychecks into a joint account from which the mortgage and property taxes were paid. They got married in July 2005 and lived together in the house until 2020.

Divorce Trial

The wife petitioned for divorce and ultimately requested reimbursement to the community estate. She asked for 50% of the community estate and 50% of the husband’s separate property. She argued the house was both parties’ separate property because they had lived together and both paid for it. The husband argued it should be his separate property.

Texas Appeals Court Upholds Spousal Maintenance and Reimbursement

Published on: May 17, 2023 | by Kelly McClure

iStock-531351317-300x200 Texas spousal maintenance is intended to provide “temporary and rehabilitative” support for a spouse who does not have the ability or assets to support themselves or whose ability to do so has deteriorated while they were engaged in homemaking activities. Courts may award spousal maintenance only in limited circumstances if the parties meet the requirements under the Texas Family Code.

Tex. Fam. Code § 8.053 provides there is a rebuttable presumption that maintenance is not warranted pursuant to Section 8.051(2)(B) unless the spouse exercised diligence in earning sufficient income to provide for their reasonable needs, or in developing the necessary skills to provide for their reasonable needs during separation and while the divorce case is pending. Even if a spouse otherwise qualifies under Section 8.051(2)(B), they must either show that they exercised diligence or rebut the presumption that maintenance is not warranted.

A husband recently challenged a spousal maintenance award in favor of the wife and an order to pay a reimbursement claim to the community estate based on improvements made to his separate property.