Kelly McClure, Author at Texas Divorce Attorney Blog

Stepparent’s Rights in Texas

Published on: July 3, 2019 | by Kelly McClure

Stepparents often develop strong bonds with their stepchildren. It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child. Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed. Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed. Unfortunately, this section only applies if the parent to whom the stepparent was married dies. It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living. In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above. This section is not dependent upon the biological parent being deceased. Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.” As with the other section, the six-month period must end within 90 days before the filing.

Divorcing While Pregnant in Texas

Published on: July 3, 2019 | by Kelly McClure

Courts will not generally grant a Texas divorce during the pregnancy of a spouse. Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce. Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence. The paperwork can be filed and the process initiated during the pregnancy. The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree. If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways. First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father. This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father. Otherwise, the presumption may only be rebutted by an adjudication of paternity.

Arbitrator’s Evident Partiality in Texas Divorce Case

Published on: June 26, 2019 | by Kelly McClure

Many couples facing a Texas divorce seek alternative dispute resolutions, such as arbitration or mediation. Parties to an arbitration are entitled to an impartial arbitrator. The Texas Arbitration Act requires a court to vacate an arbitration award on the application of a party if that party’s rights were prejudiced by “evident partiality” of an arbitrator. The award should be vacated if the arbitrator does not disclose information that might give an objective observer a reasonable impression that the arbitrator is partial. The requirement to disclose applies whether the conflict arises before or during the proceedings. The nondisclosure itself establishes evident partiality, regardless of whether there is actual partiality or bias. Texas courts have acknowledged that extensive experience in the area of law related to the dispute will result in a need for the arbitrator to disclose prior dealings with parties or attorneys. However, the parties should be informed and have the opportunity to evaluate the potential bias ahead of time.

In a recent case, a wife challenged an arbitration award based on the arbitrator’s failure to disclose his connection to the husband’s attorney. The parties agreed to arbitration pursuant to their pre-marital agreement. In the initial status conference, the arbitrator said he did not have a material relationship with either party or their attorneys beyond normal professional relationships. He did not supplement his disclosures after a new attorney filed a notice of appearance on behalf of the husband as co-counsel.

When the arbitrator failed to issue an award within the time frame set by the court, the husband’s attorney requested a ruling. In her email, she stated, “You know how much I think of you as a friend and a lawyer . . .” The arbitrator issued the award several days after the email, ruling in favor of the husband and against most of the wife’s claims.

Separate Property in Texas Divorce Includes Property Claimed by One Spouse Before Marriage

Published on: April 19, 2019 | by Kelly McClure

In a Texas divorce, there is a presumption that property possessed by either spouse during the marriage or at the time of the divorce is community property, unless there is clear and convincing evidence otherwise. Separate property is property that is owned or claimed by one spouse prior to the marriage.

A wife recently challenged a court’s finding that certain property, the couple’s residence, was the husband’s separate property. The property was conveyed to the couple from the husband’s son and daughter-in-law by warranty deed. The husband and wife both testified the conveyance was a trade of real property and there was no additional consideration given. The husband testified he traded a tract of land he owned before the marriage. The wife argued, however, that the husband did not establish that he owned the tract prior to the marriage.

If property is acquired in exchange for separate property, the acquired property also becomes separate property. Thus, if the husband established that the tract was his separate property, then the residence would also be his separate property.

Texas Custody Modification Requires Material and Substantial Change that Affects the Child

Published on: March 28, 2019 | by Kelly McClure

Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances. However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.

In a recent case, a father challenged a trial court’s denial of his petition to modify custody. He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.

The original order was modified in 2015. In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence. He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession. He asked the court to either deny the mother access to the child or to have her access supervised.

Successful Restricted Appeal Based on Lack of Evidence in Texas Divorce Proceeding

Published on: March 4, 2019 | by Kelly McClure

When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce. However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed. The petitioner must present evidence that supports the material allegations. If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree. The husband did not answer the divorce petition. Only the wife appeared and testified at the final hearing. The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate. To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames. Furthermore, he must also show that there is an error apparent on the record’s face. The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal. He had timely filed his restricted appeal. He had not answered the petition or participated in the hearing. Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal. Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences. The appeals court found the trial court had made factually based decisions without supporting evidence. The trial court made decisions relating to conservatorship and visitation. It ordered the husband to pay child support. The court also divided the community estate. The appeals court therefore found there was error apparent on the face of the record.

Texas Appeals Court Upholds Geographic Residency Restriction in Custody Order

Published on: February 11, 2019 | by Kelly McClure

When one parent wants to move away with the child, the court hearing the Texas custody case must determine whether the move is in the child’s best interest. In making its determination, the court needs to consider the public policies set forth in the Texas Family Code. The court may also consider reasons for and against the move, opportunities the move will provide, accommodation of the child’s needs and talents, relationships with extended family, visitation and communication with the noncustodial parent, the non-custodial parent’s ability to relocate, and the child’s age. The court may also consider the same factors to be considered in determining the best interest of the child generally.

In a recent case, a mother challenged a geographic residency limitation the court placed on the child when she had planned to move. The mother filed for divorce and asked the court to appoint her as joint managing conservator and give her the exclusive right to designate the child’s primary residence. The father asked that the parties be appointed joint managing conservators, but also sought the exclusive right to designate the child’s primary residence.

During the marriage, the couple had lived in Cass County. The child went to pre-K in Cass County, but both parents worked in Bowie County. After the separation, both parents moved to different areas of Bowie County and the child went to school where his mother lived.

Personal Injury Recoveries in Texas Divorce

Published on: January 21, 2019 | by Kelly McClure

When a court divides property in a Texas divorce, it presumes all property possessed by either spouse during the marriage or upon the divorce is community property. Community property is all property acquired by other spouse during the marriage, other than separate property. Separate property is either property owned or claimed by the spouse before the marriage or acquired by one spouse during the marriage by gift, devise, or descent. Personal injury recoveries are separate property, but the community estate may recover for medical expenses , lost earning capacity, and other expenses the community estate incurred due to the injury. The spouse asserting that the property is separate has the burden of showing which part of the settlement is separate property. Language in a settlement agreement identifying the basis for the payment may displace the presumption of community property and create a new presumption that the funds are separate property. In such cases, the spouse claiming the property is community property must provide evidence to rebut the presumption that it is separate.

A husband recently challenged the trial court’s property division, partly because it denied his reimbursement claim related to funds from a settlement. He had settled a discrimination claim against his employer during the marriage. The settlement included mental anguish, pain and suffering, and physical injuries, but did not include back pay or front pay. He agreed to resign as part of the settlement. He deposited the funds into a savings account.

Funds from the savings account were used to make a down payment on the couple’s home, the monthly mortgage, and the final payment. The mortgage was in the husband’s name, but the deed was in both names.

Gift Presumption in Texas Property Division

Published on: December 31, 2018 | by Kelly McClure

A married couple purchasing a home together generally does not consider how that property will be divided in the event of their divorce. When courts divide marital property in Texas divorce cases, there is a presumption that a spouse who uses separate funds to acquire property during the marriage and titles it in the name of both spouses intends to gift half of the separate funds to the other spouse. The purchasing spouse can, however, rebut this presumption with evidence clearly establishing he or she had no intention to gift the funds.

A wife recently challenged a property division that awarded 50% of a house to the husband despite unequal separate-property contributions. The wife had contributed nearly $65,000 to the purchase of the house, while the husband contributed $8,650. The title to the property was in both spouses’ names.

In its findings of fact and conclusions of law, the trial court found the wife failed to present clear and convincing evidence that would overcome the presumption she intended to give 50% of her separate property interest in the marital home to her husband.

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.