Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Child Support Guidelines and Child Support Modification

Published on: July 8, 2021 | by Kelly McClure

iStock-483611874 The trial court has some discretion in determining the modified amount of child support when it has determined that a Texas child support order should be modified. Tex. Fam. Code § 154.125 provides a schedule of percentages that are presumptively applied when the parent’s net monthly resources do not exceed a specified amount. The trial court, however, may consider the listed factors or “any other reason” to determine the application of those amounts is not in the best interest of the child. Tex. Fam. Code § 154.123. There must be evidence of the child’s “proven needs” in the record for the court to deviate upwards from the guidelines. Tex. Fam. Code § 154.126.

A father recently challenged a modification to his child support obligation, arguing the trial court improperly deviated from the presumptive amount. According to the appeals court’s opinion, the parties’ 2017 divorce decree obligated the father to pay $1,710 in child support each month for one child (i.e., max child support at the time). In 2018, he petitioned to modify the amount of child support, claiming his income had decreased.

Father Seeks Reduction in Child Support

The father lived in California and worked as a vice president, selling software testing. His base salary was $80,000, but he also earned commissions and a significant bonus (up to 50% of his base salary). The mother had been a homemaker, but had just begun providing catering services at the time of the hearing. She had earned approximately $1,400 for the one event she had catered at the time of trial.

Texas Appeals Court Finds Wife Did Not Commit Fraud by Nondisclosure

Published on: June 22, 2021 | by Kelly McClure

divorce-property-fraud In some cases, a party to a Texas divorce may agree to a settlement that seemingly has less-than-favorable terms. For example, a party may agree to their spouse receiving property with a higher monetary value to ensure they receive property that has personal value to them. In a recent case, a husband alleged the wife committed “fraud by nondisclosure” by entering into a Mediated Settlement Agreement (“MSA”) without disclosing that the FBI had possession of certain items that were to be awarded to him under that MSA.

Husband is Awarded Certain Items He Believes are in Wife’s Possession

The parties agreed to the MSA, which gave the wife the personal property in her possession with certain exceptions, including a laptop and cell phone. These items were explicitly given to the husband in the MSA. When the husband learned that the wife did not actually have possession of these items, he moved to set aside the MSA. The husband testified that the wife having those items was “a key factor” in his agreement to the MSA and the wife receiving so much joint property and custody of their child. He said the contents on those devices could have a negative effect on his military career. He had initially believed they were in the wife’s possession, because he had left them at the home and she had pictures and videos from the devices. He had previously petitioned for those items to be returned to him, and the wife had subsequently asked to keep all of the possessions in the marital home.

Husband Moves to Set Aside MSA – But is Denied

After he signed the MSA, the husband learned the FBI had both devices. He moved to set aside the MSA in May, arguing the wife committed fraud when she failed to disclose that she did not have the devices. The trial court denied the motion, and the husband appealed.

Military Disability Cannot Be Divided by Texas Divorce Court

Published on: May 31, 2021 | by Kelly McClure

iStock-543681178 Under federal law, a court may not treat military disability benefits as community property for purposes of property distribution in a Texas divorce case. A husband recently challenged the property distribution in his divorce decree, arguing the court had improperly divided a portion of his military disability benefits.

Trial Court Divides Husband’s Military Retirement Benefits

The wife petitioned for divorce and sought a majority of the community assets. The court granted the divorce on grounds of insupportability and adultery. The decree gave the wife 55% of the husband’s disposable military retired pay, attorney’s fees, and conditional appellate attorney’s fees. The husband appealed.

The husband contended the 55% of his disposable military retired pay awarded to the wife erroneously included disability payments. The wife, however, argued the award did not include disability benefits and the decree had specifically awarded him his “VA Disability and Social Security Disability benefits” as separate property.

Successor Judge Had Authority to Reform Judgment in Texas Parental Adjudication Case

Published on: May 9, 2021 | by Kelly McClure

BSgavelx1200-768x432-1 The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires. Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power.

In a recent case, a mother challenged the court’s authority to reform the judgment. According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child. Both the mother and the alleged father sought an order adjudicating him to be the child’s father.

The parties reached a partial agreement and went to trial on the remaining issues.

Texas Appeals Court Finds Property Was Separate Despite Use of Community Funds

Published on: April 25, 2021 | by Kelly McClure

images In a Texas divorce case, property acquired during the marriage is presumed to be community property. A spouse claiming property is their separate property must show that it is separate by clear and convincing evidence. Separate property is generally property that is owned before the marriage, property that the spouse acquired as a gift or inheritance, or property recovered as damages in a personal injury case. Community property is generally property acquired after the marriage that is not characterized as separate property.

In a recent case, a wife challenged the court’s characterization of certain property as the husband’s separate property. The wife filed for divorce. The parties agreed they had married in India in 1976, but disagreed on the date they stopped living together as husband and wife.

Husband and Wife Enter into Settlement – But Leave One Issue for Trial

The case went to trial, but, before trial, the parties entered into a Mediated Settlement Agreement (“MSA”). In the MSA, the parties agreed their community property located in India would be divided by Indian courts. The parties agreed to the characterization and division of everything except two pieces of land in India, referred to as the “Fifteen-Cent” property and the “One-and-a-half-Acres” property. The MSA stated they would “defer to characterization and confirmation of separate property” of those two parcels to the trial court.

Texas Custody Modification Upheld Despite Conflicting Evidence

Published on: March 28, 2021 | by Kelly McClure

iStock-1139699594 When a court considers Texas child custody and visitation, the child’s best interest is the primary concern. The court considers certain factors, including what the child wants, the child’s current and future needs, any danger to the child, the parents’ respective abilities, programs available, the parents’ plans for the child, stability, any acts or omissions indicating the relationship between the parent and child is not proper, and any excuse for those acts or omissions.

A father recently appealed a denial of his petition for modification and grant of the mother’s counterpetition. At the time of the divorce, the trial court ordered the parties not to move from a specific area without a modification order or written agreement filed with the court. Neither parent was given the exclusive right to designate the child’s primary residence. Nonetheless, both parents moved outside of the geographical boundary after the divorce.

Texas Supervised Visitation

Published on: March 16, 2021 | by Kelly McClure

iStock-545456068-scaled A court must base its decisions regarding custody and visitation primarily on the child’s best interest. In a recent Texas case, a father challenged a court’s modification of his prior possession order, restricting him to supervised visitation with his daughter.

The mother petitioned to be named the child’s sole managing conservator and asked the court to either deny visitation with the father or, in the alternative, to require it to be supervised. She alleged the child had reported being spanked, being physically punished by her stepmother and her step-grandmother, being forced to stand in a corner, being underfed sometimes, being subjected to verbal abuse and threats of physical violence, and being required to stay in her room watching television for hours while she was in her father’s custody. The mother also alleged the child’s foot had been injured by her step-grandmother and not given medical attention. She further alleged the child’s stepmother repeatedly tried to put makeup on the child when she was allergic to it.

Texas Divorce Decree Must Adopt Terms of a Mediated Settlement Agreement

Published on: February 23, 2021 | by Kelly McClure

A Texas Mediated Settlement Agreement (“MSA”) that meets the statutory formalities is binding and the parties are entitled to a judgment upon it (i.e., the divorce decree must adopt it). In a recent case, a husband challenged an order issued after the divorce decree that was intended to conform the decree with the terms of the MSA.

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parties executed an MSA. A couple of weeks after the court entered the final divorce decree, the wife moved for clarification of the MSA. She alleged the final decree did not reflect the MSA, because it failed to confirm certain items as her separate property. The trial court entered an order confirming those items as her separate property after a hearing.

The husband appealed.

Texas Appeals Court Upholds Finding Father Was Intentionally Unemployed or Underemployed

Published on: February 8, 2021 | by Kelly McClure

iStock-483611874 If a parent in a Texas child-support case is intentionally unemployed or underemployed resulting in an income significantly less than what they could earn, the court may calculate child support based on their earning potential. Tex. Fam. Code § 154.066(a). The other parent has the burden of showing that the parent is intentionally unemployed or underemployed.

A father recently challenged a trial court’s finding that he was intentionally unemployed or underemployed and the child-support obligation based upon that finding.

Arbitration Award Involving Texas Couple’s Business Entities Upheld on Appeal

Published on: January 20, 2021 | by Kelly McClure

iStock-1215119911 A Texas premarital agreement can help protect each party’s assets in the event a marriage ends in divorce. Premarital agreements may also include other provisions, including a requirement to submit certain issues to binding arbitration instead of for determination before a judge or jury. In a recent case, a husband attempted to vacate an arbitrator’s decision, arguing he had exceeded his authority.