Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Upholds Requirement of Flexibility in Possession and Access to Older Child

Published on: January 8, 2023 | by Kelly McClure

5thingsdivorcecourt_header-300x163 The best interest of the child is the primary consideration in a Texas custody case. Tex. Fam. Code § 153.002. The trial court has broad discretion in determining what is in the child’s best interest. There is a presumption that a standard possession order is in the child’s best interest, but a trial court can deviate from the standard upon consideration of certain factors, including the child’s age, development, and needs, and the circumstances of the parents. Tex. Fam. Code § 153.256. The trial court may impose restrictions on possession and access, but only to the extent necessary to protect the best interest of the child. Tex. Fam. Code § 153.193. A husband recently challenged a divorce decree that required flexibility in the possession and access of his children when they reached the age of 16 and started driving.

Wife Files for Divorce

According to the appeals court’s opinion, the parties got married in 2002 and had three children. The wife petitioned for divorce in September 3, 2019, and requested temporary orders for expanded possession of the children. The husband asked for equal possession.

When the children were interviewed by Family Court Services, they all indicated they wanted equal time with each parent week-to-week. They also wanted to stay together.

Attorney’s Fees in Texas Divorce Without Community Property

Published on: January 8, 2023 | by Kelly McClure

iStock-481542709-300x179 A couple may choose to enter into a Texas pre-marital agreement to protect their respective assets in the event of a divorce. A pre-martial agreement allows the parties to agree on use, control, and transfer of property, characterization of property or income, disposition of property in a divorce, and a number of other issues. In some cases, pre-marital agreements may lead to results that the parties did not consider.

Parties Signed Premarital Agreement

In a recent case, a husband challenged an award of attorney’s fees to the wife because their pre-marital agreement provided for property to remain separate. According to the appeals court’s opinion, the parties signed the pre-marital agreement which provided that their pre-marital separate property and property acquired during the marriage would stay separate. They married in 2016 and had a child the next year.

When the wife petitioned for divorce in 2018, she requested attorney’s fees. She indicated she sought fees “[t]o effect an equitable division of the estate” and for the services she provided related to support and conservatorship of the child. The trial court entered a final divorce decree in November 2019. The husband was ordered to pay $14,900 in attorney’s fees, with $10,000 of that being paid directly to the wife’s attorney.

Subject-Matter Jurisdiction in Texas Custody Case

Published on: January 4, 2023 | by Kelly McClure

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A trial court must have subject-matter jurisdiction over a matter to hear case. Subject-matter jurisdiction in a Texas child custody case is governed by Chapter 152 of the Texas Family Code. Pursuant to Tex. Fam. Code § 152.201(a), a court only has subject-matter jurisdiction to make an initial custody determination if Texas is the child’s home state, if Texas was the child’s home state during the six months immediately before commencement of the proceeding, if another state’s courts does not have jurisdiction as a home state, or if the child’s home state court has declined jurisdiction. Subject-matter jurisdiction can be raised at any time, and the parties cannot waive it.

Mother Challenges Jurisdiction

A mother recently challenged the trial court’s jurisdiction after it issued temporary custody orders. According to the appeals court’s opinion, the father petitioned for divorce and requested a temporary custody order. The wife filed a counterpetition and asked for a custody determination. After the trial court entered temporary custody orders, however, the mother alleged it did not have jurisdiction over the custody case and asked the court to dismiss the temporary orders and pending custody suit. The parents agreed to the temporary orders at the hearing. The mother subsequently moved to dismiss the custody case, alleging the court did not have subject-matter jurisdiction over the custody matter. After the hearing, the trial court found the child had never lived in Texas and had lived in Japan for the six months before the father filed his petition. The court concluded Chapter 152 of the Texas Family Code governed the subject-matter jurisdiction of the custody matter. The court also found the child’s “home state” under Tex. Fam. Code § 152.105(a) was not Texas, but Japan. The trial court determined it did not have subject-matter jurisdiction to make an initial custody determination pursuant to Tex. Fam. Code § 152.201 and that it could not acquire it by consent of the parties.

The father appealed. He argued the Texas Family code does not invoke “true” subject-matter jurisdiction or deprive the court of jurisdiction over custody issues. The appeals court disagreed, however, noting that Tex. Fam. Code § 152.201 “invokes or relinquishes subject-matter jurisdiction in initial child custody matters. . .”

Disability Can Be Established Through Lay Testimony in Texas Spousal Maintenance Case

Published on: December 27, 2022 | by Kelly McClure

iStock-545456068-300x184 A Texas court may award spousal maintenance in certain circumstances, including when a spouse lacks sufficient property to provide for their reasonable minimum needs and is unable to earn enough income to provide for those minimum reasonable needs due to an incapacitating disability. Tex. Fam. Code § 8.051. Spousal support is generally limited based on the length of the marriage, but may be indefinite while the spouse is unable to support himself or herself because of a disability. Tex. Fam. Code § 8.054(b).

A husband recently challenged a spousal maintenance award. According to the appeals court’s opinion, the parties had been married for about eight years and had a child together when the husband filed for divorce. The wife requested spousal maintenance.

Evidence Presented at Trial Regarding Spousal-Maintenance Request

The wife, the husband, and the husband’s mother all testified at trial. The wife testified about her work history, educational background, and health issues. She testified that she received daily dialysis, which required her to be connected to a machine for as much as 10 hours. She could, however, do the dialysis at home where she could move around the house and care for the child.

Texas Child Support Based on Mother’s Evidence When Father Failed to Appear

Published on: December 19, 2022 | by Kelly McClure

iStock-952098878-300x200 When a party fails to participate in a Texas custody and child support proceeding, they do not have an opportunity to contest the evidence presented by the other side. The court may render judgment on the evidence presented by the other party. In a recent case, a mother appealed a child support award that varied from the guidelines based on the evidence of the father’s income and resources she presented after he failed to appear in a modification proceeding.

According to the opinion of the appeals court, an agreed order entered in June 2017 named both parents joint managing conservators of the two minor children and required the father to pay $620 in child support each month. The father petitioned or modification of conservatorship and termination of the child support in early 2020. In her counterpetition, the mother asked for a recalculation of child support, confirmation of child support arrearages, and modification of conservatorship.

Default Judgment Entered Against Father

The father failed to appear at trial in April 2021. The court denied all modifications to conservatorship, possession, and parental rights and duties, but did confirm $24,082.48 in arrearages and increased child support to $1,700 per month.

Texas Appeals Court Finds Insufficient Evidence for Spousal Support

Published on: December 11, 2022 | by Kelly McClure

iStock-483611874-300x200 Texas spousal maintenance is allowed only in limited circumstances, including when the spouse pursuing maintenance is not able to earn sufficient income to provide for their own minimum reasonable needs due to a disability, is not able to earn sufficient income to provide for their minimum reasonable needs after at least ten years marriage, or is unable to earn sufficient income to provide for their minimum reasonable needs because they are the custodian to the parties’ child who has a disability. The court may also award maintenance in certain situations involving domestic violence. TEX. FAM. CODE ANN. § 8.051.

Husband Ordered to Pay Spousal Maintenance

In a recent case, a husband appealed an order awarding spousal maintenance to the wife, arguing there was insufficient evidence supporting it. The parties had been married nearly 13 years when the wife petitioned for divorce. She sought spousal maintenance for a reasonable period after the divorce and the court awarded support for three years. The husband appealed.

According to the appeals court, the trial court had ordered the husband to pay $1,458.24 in monthly child support plus all the child’s insurance. She testified she earned $1,700-$1,800 per two-week pay period working about 32 hours per week. She said she previously earned $35 to $36 per hour at other jobs. She said her employer was only open four days per week so she was not able to increase her hours.

Court Must Decide Validity and Enforceability of Arbitration Agreement in Divorce Cases

Published on: November 3, 2022 | by Kelly McClure

iStock-1287431987-300x200 Texas 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.

Gifts and Separate Property in Texas Divorce

Published on: October 27, 2022 | by Kelly McClure

does-adultery-affect-alimony-in-idaho-1080x600-1-300x167 Property 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.

Texas Appeals Court Denies Mother’s Challenges to Custody Modification

Published on: October 13, 2022 | by Kelly McClure

iStock-182358076-300x200 A 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.

Texas Wife Awarded Disproportionate Property Division Due to Cruel Treatment

Published on: October 5, 2022 | by Kelly McClure

iStock-172302804-195x300 A 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.