Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Grandmother Must Overcome Fit-Parent Presumption to Become Possessory Conservator

Published on: September 22, 2021 | by Kelly McClure

iStock-1147846829 Grandparents sometime take on a parental role in the lives of their grandchildren. In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children. The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.

Texas Court Denies Child-Support Modification upon Finding of Underemployment

Published on: September 1, 2021 | by Kelly McClure

iStock-1132277483 In determining the Texas child-support obligation of a parent, the court may consider whether that parent is intentionally unemployed or underemployed. If the court finds the parent is intentionally unemployed or underemployed, it may apply the support guidelines to that parent’s earning potential, rather than to their actual earnings. Tex. Fam. Code Ann. § 154.066. The court does not have to find the parent was attempting to avoid child support to find intentional unemployment or underemployment.

In a recent case, a father challenged the denial of his request for modification of his child-support obligation following a change in jobs that resulted in a significant salary reduction. When the parties divorced in 2015, the trial court appointed the parents joint managing conservators and gave the mother the exclusive right to determine the children’s primary residence. The father was ordered to pay $1,600 in monthly child support and to maintain insurance for the children.

Mother and Father File Competing Modification Suits

The mother petitioned to modify the medical-support provision to give her the obligation to maintain medical insurance in 2019. The father counter-petitioned to reduce his monthly child support based on a change in his salary.

Texas Spousal Maintenance Upheld Without Medical Records or Expert Testimony

Published on: August 8, 2021 | by Kelly McClure

iStock-1183385986-scaled A court may order Texas spousal maintenance if the spouse requesting it is not able to earn enough to provide for their own minimum reasonable needs due to an incapacitating disability. The incapacitating disability may be either physical or mental. Tex. Fam. Code 8.051. A former husband recently challenged a spousal-maintenance award, arguing that the former wife had not shown her disability was “incapacitating.”

Husband Files for Divorce

The couple separated in September 2016 and the husband petitioned for divorce in 2018. At trial, the wife testified she had fallen down the stairs in April 2016.

The wife testified she had lost her vision for several days as a result of the fall. She also experienced seizures. She was in the hospital for several days and was diagnosed with traumatic brain injury with severe memory loss. She said she had difficulty with words and processing things. She testified she recently started regaining her memory and taught herself to read again. She also testified her short-term memory had gotten better than it had been. She admitted that she could currently drive and do math with a calculator.

Wife Waived Right to Tax Reimbursement by Failing to Comply with Texas Divorce

Published on: July 25, 2021 | by Kelly McClure

does-adultery-affect-alimony-in-idaho-1080x600-1 When the parties to a Texas divorce agree on a property division, they may agree that certain obligations or conditions must be met. If a party fails to meet their obligations as agreed to and set forth in the divorce decree, they may not be entitled to the property they were expecting. In a recent case, a husband challenged a court order requiring him to reimburse the wife for certain tax liabilities after she failed to provide him the documentation required to calculate the amount he owed in accordance with the decree.

Wife Fails to Comply with Requirements of Divorce Decree

The parties’ mediated settlement agreement was incorporated into their divorce decree. The decree required the wife to withdraw funds from the husband’s pension plan. After paying certain debts, her attorney was to distribute 30% of the remainder to the wife and 70% to the husband. The decree required the husband to reimburse the wife 70% of her income tax liability for those funds. The decree ordered the wife have two draft income tax returns prepared, one showing the pension plan funds as income and the other not including the funds, to allow the husband to calculate that reimbursement. She was to provide the husband with the draft returns by June 1 of the year after the year the funds were liquidated.

The wife hired a tax preparation company. The first draft return was a joint return with her new husband and included his wages, her wages, her social security disability income, and the liquidated pension plan funds. The second draft return indicated it was a joint return, but only included her wages. She sent the drafts to the husband before the deadline. He informed her he needed a draft return that included only her wages and the liquidated pension plan funds. The wife went back to the tax preparer multiple times, but said they kept getting it wrong.

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.