Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Grandmother Lacked Standing for Visitation

Published on: September 14, 2022 | by Kelly McClure

iStock-902725964-300x200 Parents have a fundamental right to make decisions about their child’s care, custody, and control. There is a presumption that a fit parent acts in the child’s best interest. A non-parent seeking visitation or custody over a parent’s objection must overcome the fit-parent presumption. They must have evidence of behavior or conduct that will probably result in the child’s health or well-being being significantly impaired. A non-parent seeking custody or visitation must also show that they meet the requirements for standing under Texas family law.

Grandmother Files Custody Suit

A mother recently challenged a court’s judgment awarding visitation to the child’s paternal grandmother. According to the appeals court’s opinion, the paternal grandmother petitioned to be appointed as possessory conservator of the child, but subsequently amended the petition seeking possession and access. She alleged denial of possession and access would significantly impair the child’s health and well-being. Her affidavit stated she was the parent of the child’s father and the child’s father had been incarcerated for more than three months. It further stated that the child lived in her home while the father temporarily had primary care of the child because of the “mother’s instability.” She also stated the father was incarcerated because she had made a report “to protect the child.”

The mother did not file an answer or appear at the remote trial.

Proving Separate Property in a Texas Divorce

Published on: September 6, 2022 | by Kelly McClure

iStock-483613578-300x204 Some people may assume that property held in only one spouse’s name is that spouse’s separate property, but that is not necessarily the case. In Texas, property’s character is determined based on when and how it is acquired. Additionally, in a Texas divorce, property acquired during the marriage is presumed to be community property.

In a recent case, a husband challenged a court’s characterization of certain property held in his name as community property and awarding it to the wife.

According to the appeals court’s opinion, the parties acquired multiple pieces of real estate, some in both their names and some in only the name of the husband, while they were married. When they divorced, the three properties that were the subject of the appeal, referred to by the court as the “Three Properties,” were held by the husband, but the wife alleged they were the community property.

Property Owned by Business Entity in Texas Divorce

Published on: August 12, 2022 | by Kelly McClure

iStock-483613578-300x204 Business entities and business property can complicate the property division in a Texas divorce. Property owned by a business entity is not considered either separate or community property of the spouses, but instead belongs to the entity. In a recent case, a husband challenged the trial court’s denial of his request for reimbursement for mortgage payments he made.

Wife Enforces Property Division

The wife petitioned for enforcement of the property division several months after the final decree was signed. The husband filed a counter-petition also seeking enforcement of the property division, alleging each party owned an undivided 50% share in property identified as “The Terraces.” The husband alleged he had paid $10,000 on the property’s delinquent mortgage. He requested an accounting to determine each party’s obligation and actual payments related to the property and a money judgment for what the wife had not paid. Additionally, he sought an order requiring the wife to pay her share of future mortgage payments and costs.

The court entered an enforcement order in November 2018 that determined the husband’s claims with regard to The Terrace were not ripe because the property had not been sold. After the approved sale in January 2020, the husband filed an amended motion for reimbursement and enforcement of property division. The trial court denied his requests and the husband ultimately appealed.

Texas Spousal Maintenance After 10-Year Marriage

Published on: August 4, 2022 | by Kelly McClure

iStock-172302804-195x300 A trial court may order Texas spousal maintenance, sometimes referred to as “spousal support” or “alimony,” if certain criteria are met pursuant to Tex. Fam. Code Ann. § 8.051.. If the marriage lasted at least 10 years, a court may order spousal maintenance to a spouse who does not have sufficient property or earning ability to provide for their own minimum reasonable needs. Tex. Fam. Code Ann. § 8.051(2)(B). A court may also award spousal maintenance to a spouse who does not have sufficient property and is not able to earn sufficient income to provide for their minimum reasonable needs due to their own incapacitating disability or the disability of the parties’ child.

Husband Order to Pay Spousal Maintenance

A husband recently challenged an order requiring him to pay spousal maintenance, arguing the wife had been awarded sufficient property to meet her reasonable minimum needs. The wife petitioned for divorce after nearly thirteen years of marriage. The trial court ordered the husband to pay $2,500 in monthly spousal support for two years and he appealed.

The marriage had lasted for more than 10 years, so the wife was eligible to pursue spousal maintenance if she did not have sufficient property or the ability to earn sufficient income to provide for her minimum reasonable needs. The trial court had awarded her assets worth $830,871.60 and she estimated her expenses to be $6,791 per month.

Texas Modification of Person With the Exclusive Right to Designate Child’s Primary Residence

Published on: July 11, 2022 | by Kelly McClure

iStock-839381426-300x200 When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children. A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations. The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development. If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest. Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification. The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence. In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children. He also alleged the mother neglected the children.

Texas Court Cannot Stop Divorce Trial Without Allowing Parties to Present Their Cases

Published on: July 6, 2022 | by Kelly McClure

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225 While videoconferencing technology allowed certain court proceedings to occur and cases to move forward during the pandemic when in-person proceedings were not available, the technology is not without its problems in a court setting. Some individuals, especially those living in rural areas, may not have access to a strong internet connection. Others may not have appropriate devices or know how to use the technology. Another serious issue can be control of the courtroom, including technical issues, distractions, and disruptions by parties or non-parties. In a recent case, a wife challenged a divorce decree because judgment was rendered after the trial was stopped during the presentation of her case.

Divorce Trial Held Over Zoom – and Stopped Abruptly

The divorce case was held over Zoom without a jury. The wife was the first witness, and the husband kept interrupting, often accusing the wife of lying. The trial judge was unable to stop him and ultimately stopped the trial before the wife had finished presenting her case. The trial judge stated she would grant the divorce and divide the property.

The final divorce decree was signed on January 29, 2021. The decree granted the divorce and the wife’s name change. It also divided the assets and liabilities. The wife moved for a new trial, arguing the trial had been stopped early. The husband died less than two months after the decree was signed. The wife subsequently appealed.

Challenging a Texas Acknowledgment of Paternity

Published on: June 20, 2022 | by Kelly McClure

iStock-1033856542-300x200 A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated. Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however. Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.” He did not, however, make specific allegations. The mother argued the petition was time-barred.

Only William testified at the trial. The mother did not appear or participate. The trial court found the petition was untimely and denied it.

Decision-Making Rights in Texas Joint Managing Conservatorship

Published on: June 10, 2022 | by Kelly McClure

iStock-1163040189-300x200 When parents cannot cooperate to make decisions regarding the children in a Texas custody case, the court may give one parent certain decision-making rights, even if the parents are joint managing conservators. In a recent case, a father challenged a court order requiring him to cooperate in the children’s activities and to pay for half of the children’s tutoring expenses.

The parents were named joint managing conservators of the children in the divorce decree with a modified standard possession order. The mother was granted the exclusive right to designate their primary residence and the father ordered to pay child support. Each parent was responsible for half of any extracurricular activity the parents agreed upon.

Mother Files Modification Suit

The mother petitioned for modification in 2018, seeking the right to make certain decisions after consulting with the father, continuation of certain extracurricular activities, and therapy for the children. In a counterpetition, the father asked the court to give him the right to designate the primary residence and receive child support. He also asked that the mother be required to schedule extracurricular activities only while she had the children.

Sibling Standing in Texas Custody Case

Published on: May 26, 2022 | by Kelly McClure

iStock-1271310078-300x200 Under Texas family law, certain close relatives of a child may seek managing conservatorship if they can sufficiently show the child’s current circumstances would significantly impair the child physically or emotionally. Tex. Fam. Code Ann. § 102.004(a)(1). A sister recently sought custody of her siblings, asserting standing under § 102.004(a)(1).

Children’s Sister Seeks Custody After Mother’s Death

According to the appeals court’s opinion, the adult sister filed suit seeking to be named the sole managing conservator of her minor siblings a few weeks after her mother’s death. She claimed she had standing to bring the suit because she was their sister and had “a close and substantial relationship with the children.”

The father asked the court to dismiss the case for lack of standing. The sister amended her suit to claim standing pursuant to Tex. Fam. Code § 102.004(a)(1). The sister attached to her brief a copy of her mother’s will, which named the sister and her husband as the children’s guardians. The father attached a letter to his own brief which showed the Texas Department of Family and Protective Services (“Department”) had ruled out allegations of abuse against him.

Life Insurance and Texas Divorce

Published on: May 8, 2022 | by Kelly McClure

2018_10_agreement-300x165 People commonly obtain life-insurance policies and name their spouse as the beneficiary. They do not always remember to update the beneficiary designation when they get divorced. Under Texas law, designation of a spouse as beneficiary before a divorce will only remain effective after the divorce in certain circumstances. Generally, either the court or the insured must designate the former spouse as beneficiary, or the former spouse must be designated to receive the proceeds in trust for a child or dependent’s benefit. In a recent case, an ex-wife challenged a court awarding a life-insurance policy on the ex-husband to the ex-husband many years after the original divorce.

Insurance Policy Not Divided in Divorce

During the marriage, the parties obtained a life insurance policy on the husband with the wife named as beneficiary. The policy was not addressed in the divorce decree in 2009. The husband subsequently filed a bill of review, and the parties agreed to be co-owners of the policy. They agreed the wife would receive half of the proceeds and the rest would go into a trust for their children. The court ordered the parties to split the policy into two, but the insurance company was unable to do so.

The husband then filed for declaratory judgment, seeking to be named the sole owner of the policy. He also asked for a temporary restraining order against both the wife and the insurer. Alternatively, he sought to divide undivided property. The wife’s counter-petition also sought a declaratory judgment that the policy was her separate property and to divide undivided assets.