Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Upholds Mediated Settlement Agreement

Published on: December 3, 2018 | by Kelly McClure

Parties to a Texas divorce or a suit affecting the parent-child relationship may enter a mediated settlement agreement. To be a binding mediated settlement agreement, the agreement must meet certain statutory requirements. If it meets the requirements, the agreement is binding and the parties may obtain a judgment on it.

In a recent case, a father challenged a mediated settlement agreement. After the divorce, the mother petitioned for modification of the parent-child relationship and the parties reached a settlement agreement in 2012. They reached additional agreements in 2014 and sought to have the trial courts render those agreements into a judgment. Each party moved to enter an agreed final order, but the proposed orders did not match. The court signed the father’s proposed judgment, and the mother moved for a new trial. Before the motion was decided, the parties signed a new mediated settlement agreement (MSA) following another mediation in 2015. The mother filed a notice of settlement agreement. A proposed order granting the mother’s motion for new trial and vacating the previous judgment was filed, but the trial court did not sign it.

A few months later, the mother petitioned to enforce the 2015 MSA. The court granted the mother’s motion to compel arbitration and ultimately rendered the arbitrator’s award into a judgment.

Texas Court Finds Clarification Order Not Improper Modification of Divorce Decree

Published on: November 15, 2018 | by Kelly McClure

In Texas divorce cases, understanding procedure is very important. Missing a deadline can have serious and irreparable consequences. In a recent case, an ex-husband attempted to challenge a clarification order more than four years after it was issued.

The trial court signed a final divorce decree in April, 2011. The ex-wife moved for clarification of some of the divorce decree provisions. In August 2011, the court signed a clarification order. The court subsequently signed two orders of contempt and an income withholding order.

The ex-husband filled a bill of review more than four years after the clarification order was signed. The ex-husband alleged the clarification order was void because it was an improper modification of the divorce decree pursuant to Texas Family Code Section 9.007. The ex-wife argued the ex-husband’s position was barred because it was outside the statute of limitations and the clarification order was not void. The trial court denied the petition, and the ex-husband appealed. He argued that the trial court erred in denying the petition because he had shown the clarification order was void.

Domicile and Jurisdiction in Texas Divorce and Custody Cases

Published on: October 14, 2018 | by Kelly McClure

Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations. A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period. TEX. FAM. CODE ANN. § 6.301. Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent. For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.

The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding. According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record. Both parties testified that they and the children had lived in North Carolina continuously for the previous six years. The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.

The wife argued Texas did not have subject-matter jurisdiction. The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas. The trial court also found the father was not a resident of Kendall County, Texas. The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce. The husband appealed. The appeals court identified two separate issues in this case: the divorce and the custody.

Changed Circumstances in Texas Custody Case

Published on: August 22, 2018 | by Kelly McClure

A Texas court generally cannot modify a custody order or parenting plan unless there has been a material and substantial change in circumstances. Sometimes, a parent may seek modification because the other parent’s actions have created a change in circumstances. Texas law provides examples of potential material changes, including marriage of one of the parents, changes in the home surroundings, and mistreatment of the child by a parent or step-parent. Tex. Fam. Code Ann. § 156.101.

A Texas appeals court recently considered whether a modification allowing the father, rather than the mother, to determine the child’s primary residence was appropriate. In the Texas divorce, the mother was awarded the family home, which was subject to a mortgage in both names. The father paid child support. At the time of the divorce, the child went to daycare while the mother worked, then spent a few hours with the father, and spent the night with his mother.

The mother subsequently started working a night shift. The child continued going to daycare, but then spent both evenings and nights with the father. The mother sold the family home to the father and moved into another home with the child’s maternal grandmother. Soon afterward, she switched to the day shift. She removed the child from daycare and left him with the grandmother during the day. The mother then only allowed the father to see the child on the days specified in the divorce decree, and would deny him access to the child if he was late, even by a few minutes.

Proving Informal Marriage in Texas

Published on: August 15, 2018 | by Kelly McClure

In Texas, an informal or common law marriage can occur if the couple executed an informal marriage agreement pursuant to Texas law or agreed to be married and subsequently lived together as married in Texas and represented to others that they were married.

A Texas court recently found that a couple did not have an informal marriage, despite filing their taxes as “married filing jointly.” The couple began dating in 2003 or 2004. The man proposed in 2005, and the woman accepted. They moved to Texas together in 2006. They wanted to build a horse clinic where the man would practice veterinary medicine and the woman would train horses. They purchased property together and built the clinic. They had joint bank accounts, but the bookkeeping for each business was kept separate.

They filed joint tax returns indicating they were “married filing jointly” from 2006 to 2013. They co-habitated until 2013. The woman filed for divorce in 2015. After a bench trial, the trial court found the couple did not have an informal marriage and dismissed the divorce case. The woman appealed.

Determining If a Texas Premarital Agreement is Voluntary

Published on: July 6, 2018 | by Kelly McClure

In a Texas divorce, a premarital agreement is generally enforceable. Although they are presumptively valid, they may not be enforceable if they are unconscionable or were not voluntarily signed. There is no definition of “voluntary” in the Family Code, so courts have looked to the law governing enforcement of commercial contracts. In determining if a premarital agreement was voluntarily signed, the court considers whether the party had advice of counsel, misrepresentations made in procuring the agreement, the amount of information provided, and whether any information was withheld. Additionally, the court may consider evidence of duress or fraud in determining if the agreement was voluntary, but duress and fraud alone are not defenses to a premarital agreement. A court recently considered whether a Texas premarital agreement was voluntary.

The couple signed a premarital agreement the day before they got married in Las Vegas. The agreement set out the separate property of each of them and stated community property could not be acquired during the marriage.

The wife filed for divorce after ten years. The trial court granted a partial summary judgment in favor of the husband on the wife’s claims for a Separate Property Agreement, including reimbursement, maintenance, and her challenge of the premarital agreement. Following a trial, the court found the only community property accumulated during the marriage was a travel trailer. It awarded the trailer to the wife. The wife appealed, arguing the court had erred in granting the partial motion for summary judgment because there was a genuine issue of material fact as to whether she had voluntarily signed the agreement.

Texas Court Awards Attorney’s Fees in Child Support Case

Published on: June 6, 2018 | by Kelly McClure

In some Texas child support cases, attorney’s fees may be awarded. When a party fails to make child support payments, the court is to order that party to pay the other party’s reasonable attorney’s fees and court costs in pursuing the child support. The court may waive the requirement for attorney’s fees, however, if it finds good cause to do so and states its reasons.

In a recent case, a father challenged an award of attorney’s fees to the child’s mother. The father was ordered to pay child support in the divorce decree. He subsequently sued to recover child support payments that he claimed were in excess of his obligation. The mother denied the claims and asserted a counterclaim for back child support, unpaid medical support, and attorney’s fees. The trial court denied the father’s request for overpayments, determined the amount of arrearages that was owed, and awarded the mother that amount. The trial court also found each party was responsible for their own attorney’s fees.

The mother appealed, arguing the trial court should not have credited the father for payments that were made directly to her rather than through the registry of state disbursement. The appeals court affirmed that portion of the order but found the trial court abused its discretion in failing to award the mother attorney’s fees. The appeals court ordered the trial court to award the mother reasonable attorney’s fees or find good cause for denying such an award. The trial court held a hearing and awarded the mother more than $17,000 in attorney’s fees. The father appealed.

Proving Disability for Texas Spousal Maintenance

Published on: June 5, 2018 | by Kelly McClure

In a Texas divorce, the court may, in its discretion, award spousal maintenance to a spouse who will not have enough property after the divorce to provide for his or her own minimum reasonable needs and meets one of the other enumerated conditions in the statute. One of those conditions is the inability to earn sufficient income to provide for minimum reasonable needs due to an incapacitating physical or mental disability. The determination of disability may be supported solely by the spouse’s testimony if it is sufficient and probative to establish there is a disability that prevents the spouse from becoming gainfully employed.

In a recent case, a husband challenged a spousal maintenance award by arguing there was insufficient factual and legal support for the award. The husband filed for divorce after about 14 years of marriage. The wife filed a counter petition and sought a disproportionate share of community property and spousal maintenance. The husband had agreed to pay $1,875 per month in spousal maintenance temporarily as part of the mediated settlement agreement.

At trial, the wife testified about a number of health conditions, including deteriorated discs in her back and neck, vertigo, diabetes, depression, and arthritis. She testified that she was 64 years old and had not worked in almost 20 years, since her neck surgery. She further testified she was unable to go back to work due to back and neck conditions. She submitted medical records from her treating neurologist documenting some of her conditions, symptoms, and medications.

Attempted Compliance with a Texas Divorce Decree

Published on: April 26, 2018 | by Kelly McClure

Parties to a divorce often have to cooperate to complete the property division. Texas divorce attorneys know, however, that parties are not always willing to cooperate. A Texas appeals court recently considered whether a husband sufficiently complied with an order that he make a payment to the wife when he contacted the wife to make payment arrangements.

The parties came to a mediated settlement agreement and signed off on the proposed agreed final divorce decree. The final decree ordered the husband to pay the wife $10,000 for the marital residence within 90 days of May 13, 2014. Another section, under a subheading titled “Division After Full Payment of $10,000…,” provided that after the husband paid the $10,000 in full, he would be awarded the marital home.

Another section stated if the payment was not made in full within two years of May 13, 2014, the marital residence would be awarded to the wife, and the husband would be divested of all right, title, interest, and claim in the marital residence.

Texas Court Denies Post-Divorce Property Division

Published on: April 12, 2018 | by Kelly McClure

A Texas trial court is limited in revisiting the division of property once a final divorce decree has been issued. A trial court may only order a post-divorce division of property if that property was not divided or awarded to a spouse in the final divorce decree. The court may not alter a division of property that was in the final divorce decree. It may only clarify or enforce the division of property that was addressed in the divorce decree. It is therefore extremely important that all assets are fully addressed in the divorce. If the parties agree upon the property division, they should each be sure the proposed decree accurately reflects their agreement.

The wife in a recent case sought a post-divorce division of property to allow her to receive a share of her husband’s retirement benefits. The parties used a pre-printed divorce decree and were not represented by attorneys in their divorce. Each party approved the form before it was presented and approved by the court.

After the court entered the divorce decree, the wife petitioned for a post-divorce division of property. She asked the trial court to rescind the divorce decree and award her a share of her husband’s military retirement. In the agreed decree, the trial court had awarded the husband all of his employment benefits and individual retirement accounts.