Kelly McClure, Author at Texas Divorce Attorney Blog

Property Distribution Post-Divorce in Texas

Published on: December 20, 2016 | by Kelly McClure

Texas Family Code section 9.007(a) does not permit a trial court to modify property division that is subject to a divorce decree. In the recent Texas appellate case of Perry v. Perry, an ex-husband appealed from a post-divorce order that appointed a receiver to sell a house that was the former community property of the ex-husband and his ex-wife.

The couple had divorced in 2012. The divorce decree awarded the husband possession of the house and each of the spouses half of the sales profits. Part of the divorce decree was on a form, and the other part was added in handwriting by the divorcing couple. Specifically, the form awarded the house to the husband, while divesting the wife of her interest. However, the handwritten part gave the wife half of the profits of the sale.

Years after the couple divorced, the husband sued to enforce the decree and claimed the wife had violated it by refusing to sign a transfer deed. He asked the trial court to order her to transfer her interest to him and claimed her refusal to sign the deed kept him from selling their former home. The wife asked the court to clarify the rights and duties of the parties. She said that her ex-husband had told her he wouldn’t give her half the profits once the house was sold and asked the trial court to appoint a receiver, claiming that since there was a risk of foreclosure, it was necessary for a receiver to protect both her interest and her husband’s.

Texas Court Considers Parent-Child Relationship After Possible Suicide Attempt

Published on: December 19, 2016 | by Kelly McClure

In the Interest of NFM is a recent Texas appellate case involving a lawsuit altering the parent-child relationship. The case arose when NFM was born in 2009. The mother and father were teens and lived with the father’s family during the mother’s pregnancy. After the baby was born, they moved out and lived together for a few months before breaking up. They created an informal agreement as to the child’s custody, rather than seeking the help of the court or getting a paternity order.

The mother later had a child with someone else. CPS became involved with the family, due to family violence, and the mother separated from that person, who completed a battering intervention and prevention program. The mother was later admitted to the hospital after ingesting up to 14 pills. A CPS caseworker concluded that the mother had tried to commit suicide. However, her doctor didn’t recommend that she get psychiatric treatment but only that she not mix liquor and pills.

The mother signed a CPS child safety and evaluation plan. This provided that both children would stay with the father, and the mother would have supervised visits. The mother complied with all of the orders. The father filed an action asking the court for sole managing conservatorship of the child. He asked that the mother’s visits be supervised.

Requests to Modify Maintenance in Texas

Published on: November 25, 2016 | by Kelly McClure

In Waldrop v. Waldrop, the trial court signed a divorce decree that found that the husband needed to pay the wife maintenance of $3,000 per month under Texas Family Code Chapter 8.001 et seq. The parties had stipulated that their agreement was enforceable as a contract.

Six years after their divorce, the ex-husband filed a petition claiming a material and substantial change in circumstances and asked that maintenance payments to the wife be modified or terminated. The trial court considered the contractual language in the maintenance clause of their agreement and heard testimony about their intent and the ex-husband’s financial situation.

The trial court determined that the decree required contractual alimony and that the modification provisions of chapter 8 didn’t apply. It also concluded that language related to “further orders of the court” was ambiguous but referred to three instances of termination stated within the decree.

Interpreting Texas Premarital Agreements

Published on: November 20, 2016 | by Kelly McClure

In re Interest of HDV arose when a husband appealed a final divorce decree, arguing among other things that the trial court had erred in awarding his wife money and property under their premarital agreement. The couple had entered into the agreement, which included a provision that there would be no community property, months before their marriage in 2003. The husband obtained a judgment that it was enforceable. While married, the couple had two kids.

The wife filed for divorce in 2010, and the husband counter-petitioned. The court ordered the husband to pay the wife’s attorneys’ fees on a temporary basis. The couple agreed to a parenting trial just before the court held a bench trial on the financial issues in 2014. The parenting plan was incorporated into the decree, which affirmed that the premarital agreement was valid and that there was no community property. The court awarded the husband and the wife, respectively, all of the property that he or she possessed. It awarded the wife as separate property a 2002 car. It also ordered the husband to pay the wife an allowance of $30,000, plus $3 million.

The husband appealed, arguing that the trial court shouldn’t have awarded the wife money and property based on the premarital agreement. The premarital agreement had stated that upon death or divorce, each party would receive their separate property, and the husband would make a payment to the wife based on how long the marriage lasted. In this case, the provision about a five-year marriage applied. Based on the provision, the court calculated the husband’s net worth from the date of the filing of the divorce petition, and it accordingly found that the husband had to pay the wife $3 million.

Mediated Settlement Agreements in Texas Divorces

Published on: November 15, 2016 | by Kelly McClure

In Araujo v. Araujo, an ex-wife appealed from an order denying her motion to revoke and set aside a mediated settlement agreement for her divorce. The ex-wife argued on appeal that the agreement lacked consideration and therefore wasn’t enforceable, her own attorney coerced her to sign it, and there was an invalid provision that made it unenforceable.

The case arose when a husband and wife entered into a mediated settlement agreement in August 2014. It awarded the wife certain property in two Texas cities and required her to pay $27,000 to the husband by a certain date. The agreement stated that each party had made a fair, reasonable disclosure of finances and property to the other. The wife was represented by an attorney, who withdrew from representation in October 2014.

Her second attorney filed a motion to revoke and set aside the agreement. She argued that the agreement resulted in an unjust estate division, due to the husband’s fraud. She claimed that the only property she got under the agreement was separate property, that she was entitled to half of the community property awarded to her ex-husband, that the agreement didn’t address the retirement in the amount of about $22,000, and that it didn’t address or divide the couple’s two vehicles. A trial court denied her motion.

Retroactive Child Support in Texas

Published on: November 10, 2016 | by Kelly McClure

In the Texas appellate case of In re Aer, a father appealed a divorce decree in connection with an award of retroactive child support and the distribution of marital property. The mother and father sued for divorce. The court held a bench trial and appointed the couple joint managing conservators of the children. The mother was the parent with the exclusive right to designate the children’s primary address. She was also awarded over $50,000 in retroactive child support, attorneys’ fees, and 80% of the marital estate (according to the father).

The father appealed, claiming that the evidence for the child support award and property distribution was legally and factually insufficient. The appellate court explained that it would consider whether the trial court had enough evidence upon which to use its discretion and whether it had made a mistake in applying its discretion. It further explained that a trial court has broad discretion to award attorneys’ fees under Texas Family Code § 106.002. The mother’s attorney had provided testimony regarding his fees and claimed that the high fees were driven by the father’s conduct in not answering timely discovery and dumping unorganized documents on him. The court found there was no abuse of discretion in awarding $130,000 in fees to the mother.

The father also argued that the mother didn’t have pleadings to support her request for retroactive child support. The mother’s attorney had asked during closing arguments that child support be paid retroactively to June 2012, due to the father’s intentional unemployment or underemployment during that period. However, the father had not objected at trial to either the closing arguments or the mother’s request to include an order to pay retroactive child support, nor did he object at the time the trial court signed the divorce decree, including retroactive child support. The court concluded these complaints weren’t preserved for review.

Valuation of Separate Property and Reimbursement in a Texas Divorce

Published on: October 30, 2016 | by Kelly McClure

In Maher v. Maher, a husband challenged the court’s final divorce decree. He argued, among other things, that the trial court had mischaracterized and misvalued certain assets of the marital estate. The wife had sought the divorce on the grounds that they had discord or personality conflicts. She asked for a division of community property, confirmation of her separate property, reimbursement, and attorneys’ fees. The husband asked for a division of community property in which he received a disproportionate share, confirmation of his separate property, reimbursement, and attorneys’ fees.

The matter went to trial. The wife testified they had a son who was over 18 years old. The couple didn’t have a close marital relationship, and the wife claimed the husband’s drinking threatened their relationship. In 1995, her parents started giving her monetary gifts, and when her mother died, she became the beneficiary of a bypass trust that her mother created.

When her father died, she received distributions from his estate too. From her parents, she’d received over $1.2 million, which she claimed was separate property. She also explained that they’d given her husband monetary gifts of about $68,000, which she said was his separate property.

Defrauding the Marital Community in Texas

Published on: October 25, 2016 | by Kelly McClure

Often times, before commencement of or during a suit for dissolution of marriage, one spouse will commit fraud against the couple’s community estate. Texas law recognizes two types of fraud: (1) constructive fraud; and (2) actual fraud.

Constructive fraud claims are based on a breach of fiduciary duty by one spouse against the other. Puntarelli v. Peterson, 405 S.W.3d 131, 2013 Tex. App. LEXIS 1458, 2013 WL 561484 (Tex. App. Houston 1st Dist. 2013) If someone owes a fiduciary duty, they have a legal obligation to act in the best interest of another. When a constructive fraud claim is being alleged, the argument is that one spouse has a fiduciary duty to act in the best interest of the other spouse regarding the protection and management of the community estate, and that duty was breached by a spouse who misappropriated assets from the community estate. A constructive fraud claim can also be pursued under the theory of waste, where one spouse disburses community assets for noncommunity purposes without the other spouse’s knowledge or consent. Connell v. Connell, 889 S.W.2d 534, 1994 Tex. App. LEXIS 3020 (Tex. App. San Antonio 1994)

Family Violence After a Texas Divorce

Published on: October 11, 2016 | by Kelly McClure

Burt v. Francis arose from a contentious Texas divorce involving family violence. The trial court dissolved the marriage on May 29, 2014. There were three children. Although the couple had agreed to the terms of the divorce decree, they still fought over their three children. The mother later testified that the father was required to have the overnights with the kids at his mother’s house, and his behavior worsened after their divorce.

On the day after the divorce, the father was angry when he picked the children up for their weekend. He started yelling and smacking his fists. The mother was worried about his ability to drive safely and called the sheriff. That night, the father returned the children. The parents argued. The father pulled the three-year-old out of her arms and woke up the older child, and he left with all the children. He also threatened the children and told them the mother was a bad person. She called the sheriff again.

On June 30th, the father came by and berated the children, again claiming the mother was evil. The mother asked him to leave, but he wouldn’t. Their son was terrified. The father at another point shot a handgun at the mother’s house, claiming he was just showing the kids his new gun. The mother later would testify that the children were afraid of their father and that his actions were intimidating and oppressive.

Right to Designate a Child’s Primary Residence in Texas

Published on: August 23, 2016 | by Kelly McClure

In Philips v. Filla, a couple married in 2004 and divorced in 2007. They had one child. When they made their initial custody arrangement during the divorce proceedings, the mother had the exclusive right to designate the child’s primary residence. In 2010, however, they agreed to modify the divorce terms and agreed that the father would have the exclusive right to designate the child’s primary residence.

In 2010, the mother told Child Protective Services that the father was abusing the child. While an investigation was pending, the court rendered the modified order according to the settlement agreement, giving the father the exclusive right to designate the child’s primary residence. CPS ruled out the mother’s allegations that the father had abused the child and also expressed that it had a reason to believe the mother was emotionally abusive by possibly coaching the child to make abuse allegations against the father and putting the child through many intrusive medical exams connected to the allegations.

The father petitioned to modify the earlier order and asked for temporary and permanent orders that the mother have only supervised visitation with the child. The wife counter-petitioned to modify the order, again alleging the father’s abuse and asking she be awarded the right to designate a primary residence for the child. The trial court ordered that her visitation with the child be supervised and ordered the mother to begin therapy and undergo a psychological evaluation.