Kelly McClure, Author at Texas Divorce Attorney Blog

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.

Adult Daughter Entitled to Child-Support Arrearages from Father after Mother’s Death

Published on: April 28, 2022 | by Kelly McClure

iStock-952098878-300x200 When child support goes unpaid, Texas child-support cases can sometimes go on for years after the obligation would otherwise have terminated. A Texas appeals court recently considered what happens when one parent dies before the past-due child support has been paid.

The parents had a daughter together during their marriage and divorced in 1976. The father failed to pay child support as ordered at times. The trial court found him in contempt in 1987 and ordered him to pay $200 per month in support with additional amounts for a specified time going toward the arrearages.

Adult Daughter Files Child-Support Suit After Mother’s Death

In 2010, the adult daughter filed a petition regarding the unpaid support after her mother’s death. She asked the court to render judgment for the past due child support and to make her the obligee for the arrearages.

Condition Precedent to Receiving Contractual Support Payments in Texas Divorce Agreement

Published on: April 24, 2022 | by Kelly McClure

iStock-1125625723-300x200 When parties to a Texas divorce reach an agreement, the agreement may place conditions on certain obligations. A “condition precedent” is something that must occur before a party has a right to performance of an obligation by the other party. In a recent case, a mother challenged a trial court’s finding she had not met the condition precedent to receive certain payments from the father.

In the final divorce decree, the trial court approved and incorporated the parties’ Agreement Incident to Divorce (“AID”). The parties agreed the father would pay $11,500 in monthly Contract Support Payments to the mother to provide her and the two children an “alternative lifestyle.” They would travel and live abroad so the children could learn other languages and cultures. The mother agreed to maintain this lifestyle and spend the Contract Support Payments to support it as a condition precedent to receiving the payments. The AID also included a provision that the father could send a notice if the mother failed to comply with a material term or condition. If she failed to cure the breach within 30 days, the Contract Support Payments would be abated until she complied.

Father Grows Concerned About Children’s Upbringing

The mother and children traveled within the U.S. and several countries abroad until July 2018. The father grew concerned about the children’s lack of structured education and their health and hygiene by the summer of 2018.

Texas Final Divorce Decree Constituted Consent Judgment after Revocation of MSA

Published on: April 3, 2022 | by Kelly McClure

“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas Mediated Settlement Agreement (“MSA”) must generally include language that it is not subject to revocation, be signed by each party, and be signed by the party’s attorney who is present at the time of execution. Tex. Fam. Code § 6.602(b). If the MSA meets these requirements, it is binding and the court must render a divorce decree adopting it. The judgment must be compliant with the agreement and must not substantively alter it. The parties may revise or repudiate the agreement before the divorce is rendered, unless the agreement is otherwise binding under another law. Tex. Fam. Code § 7.006.

In a recent case, a former wife appealed a divorce decree, arguing the court erred in rendering judgment on a settlement after she revoked her consent. The parties had reached an agreement at mediation and signed an MSA, but only the husband’s attorney’s signature was on the document.

Wife Revokes Consent to MSA

The wife filed a revocation of consent and an objection to the entry of a final divorce decree. She argued the agreement was not valid without her counsel’s signature and was therefore revocable.

Texas Divorce Abated Upon Husband’s Death

Published on: March 20, 2022 | by Kelly McClure

iStock-1270267953-300x200 When a party in a Texas civil lawsuit dies, the case may proceed if the cause of action survives the death of the party. Tex.R.Civ.P. 150. Generally, when the defendant in Texas civil lawsuit dies, the plaintiff may petition for a “scire facias” to require the administrator, executor, or heir to defend the lawsuit. Tex. R. Civ. P. 152. Pursuant to case law, however, Texas divorce cases are not subject to this rule because they are personal actions that do not survive the death of a party if judgment has not yet been rendered. Generally, heirs do not take over a divorce case prior to final judgment. Instead the divorce case abates when a party dies. This means the court will dismiss the case.

Husband Dies During Divorce Suit

A wife recently challenged a trial court’s determination that her divorce petition abated upon her husband’s death. The parties had married for about seven years when they divorced in 2000. In 2018, they got married again. The parties did not have any children together, but the husband had children from a previous marriage. The wife petitioned for divorce in May of 2020. The husband filed an answer, but passed away the following January. The wife sought to have the husband’s children defend the divorce on the husband’s behalf as his heirs.

The trial court found it did not have subject-matter jurisdiction to proceed, because a divorce petition, as a personal action, abates upon the death of either party. A judgment rendered by a court without subject-matter jurisdiction is void.

Texas Appeals Court Denies Grandmother Standing in Custody Case

Published on: March 13, 2022 | by Kelly McClure

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225 A fit parent generally has the right to determine who has access to the child. In some cases, however, people other than the parents may seek visitation or even custody of the child. When someone other than a parent seeks rights in a Texas case, they must meet certain conditions. In a recent case, a mother challenged a court’s orders granting possession and access to the child’s paternal grandmother.

According to the appeals court’s opinion, the trial court appointed the parents joint managing conservators and gave the father the exclusive right to determine the child’s primary residence. The teenage parents and child lived with the paternal grandmother for about two years. Several months after the father went to prison, the mother and child moved out.

Mother Files Suit; Grandmother Intervenes

The mother petitioned for modification, seeking sole managing conservatorship. The grandmother filed a petition in intervention, asking to be named joint managing conservator with the right to determine the child’s primary residence or possession and access in the alternative.

Credibility and Evidence in Texas Child-Support Modification Proceeding

Published on: February 27, 2022 | by Kelly McClure

iStock-483611874-300x200 A modification of Texas child support requires the parent seeking the modification to show there has been a material and substantial change in circumstances since the current order was rendered. Tex. Fam. Code § 156.401. A change in income may be a material and substantial change. A court’s primary consideration should be the child’s best interest.

A father recently appealed the denial of his petition for modification of child support.

The parties divorced in 2018. The father agreed to pay $2,000 in monthly child support, to provide health insurance, to make monthly payments for a credit card balance that had been used for his business, and to pay the mother $50,000 in $1,500 monthly payments for her community interest in the business.