Francesca Blackard, Author at Texas Divorce Attorney Blog

Texas Court Rejects Wife’s Argument Husband Sold Commercial Goodwill

Published on: July 7, 2024 | by Francesca Blackard

The court must divide marital property in a just and right manner in a Texas divorce. In some cases, the parties only have tangible or clearly identifiable assets such as real estate and back accounts. In other cases, however, there may be more abstract assets involved. A former wife recently challenged a property division, arguing the court had not properly divided the assets in light of the husband’s sale of commercial goodwill.

The Husband’s Agreement

The parties got married in 1998. The husband worked as a financial advisor starting in the early 2000s. He entered into a “Non-Compete Representative Agreement” with a financial services company in late 2014. The agreement stated he would solicit security purchases as an independent contractor of the company and be compensated on a commission basis. He earned 35% for business written after June 1, 2014, and 52% for business written before April 1, 2014. He could increase his earning to 64% for business written before April if the “net GDC” was greater than $700,001. The agreement also provided that the husband could only continue business with the clients listed in Exhibit B after the agreement was terminated, but no Exhibit B was generated.

The divorce decree was signed at the end of February 2023. The court found the right to receive a greater commission for business written before April 1, 2014 was not a material asset to be divided but was income earned for services and constituted the husband’s “future separate property.” The court also found no commercial good will was transferred to the company because of the husband’s employment with the company or the agreement.

Texas Appeals Court Affirms Unequal Property Division and Spousal Maintenance

Published on: June 21, 2024 | by Francesca Blackard

Courts are required to divide marital estates in a just and right manner in a Texas divorce. A court may divide the estate unequally, but must have a reasonable basis to do so. Courts may consider a number of factors in making that determination, including the parties’ relative physical conditions, their relative financial conditions, disparity in their ages, the value of their separate estates, disparity in income or earning capacity, and the nature of the property. A husband recently appealed a disproportionate division.

Divorce Proceedings

The parties were married for 27 years and their children were all adults at the time of the divorce. The husband had been working for the Border Patrol since September 2022 and participated in the Federal Employees Retirement System (“FERS”). He testified he was not eligible to collect the benefits yet. He also testified he contributed to a Thrift Savings Plan, which is similar to a 401(k) for civil servants, with a balance of $135,734.73. His net earnings, not including overtime, were $4,500.34 per month. Tax records showed he earned $114,626.75 from his job as a border patrol agent in 2017 and $120,674.96 in 2018. He also testified he prepared taxes as a side job and earned an extra $24,800 in 2019.

The wife testified she was earning a monthly net income of $1,807.64, totaling $21,691.68 per year. She testified she had $2,229.97 in monthly expenses. The husband disagreed with her net monthly earnings, but agreed it was insufficient to cover her monthly expenses. The wife also testified her retirement account was worth $6,168.78.

Texas Court Denies Decrease in Child Support After Mother’s Remarriage

Published on: June 6, 2024 | by Francesca Blackard

It can be difficult to modify a child support order to decrease the child support obligation. A father recently appealed the denial of his request for a decrease in his above-guideline child support obligation without step-downs. Generally, a child support order for multiple children will provide for a decrease in the child support obligation as support ends for each child. In this case, however, the parties signed an agreement for additional child support.

Original Order

The children were 17, 15, and 12 when the parents divorced in 2019. The parents were named joint managing conservators. The father’s gross yearly income was about $500,000. Pursuant to the decree, he was required to pay the mother $4,000 per month until all of the children graduated high school or were emancipated. He was also required to pay all of their uninsured medical, vision, and dental expenses until they reached the applicable deductible, and half after the deductible was met. The parties signed a separate “Agreement Regarding Additional Agreed-Upon Child Support” that required the father to pay an additional $2,000 per month if his gross income was more than $500,000 in a calendar year. Neither the decree nor the agreement had any provisions for step-downs.

The father testified he agreed to the extra provisions so the children and mother could stay in the area and in their current schools. The mother claimed she would not be able to stay in central Austin without the above-guideline support and the children would be required to go to different schools.

Appeals Court Addresses Family Violence, Sole Conservatorship, and Child Support in a Texas Custody Case

Published on: May 27, 2024 | by Francesca Blackard

The Seventh District Court of Appeals recently considered a case involving significant issues of custody and child support. The trial court had appointed the father sole managing conservator and ordered him to pay child support to the mother. Both parents appealed.

Sole Managing Conservator

The mother argued the trial court erred in finding an incident in June 2021 prevented it from appointing both parents joint managing conservators. According to the appeals court, the mother pleaded guilty to misdemeanor assault on the father as a result of the referenced incident. The trial court found a history of abuse by the mother against the father and that the mother pleaded guilty to misdemeanor assault on the father regarding an incident on or about June 13, 2021. The court named the father sole managing conservator and the mother possessory conservator. The court stated in its conclusions of law that “[b]ecause Petitioner pleaded guilty to misdemeanor assault of Respondent, the Court cannot appoint the parties joint managing conservators.” The mother argued, based on this statement, that the trial court had concluded it was required to find a history of abuse based only on the guilty plea.

Tex. Fam. Code § 153.004(b), prohibits a court from appointing joint managing conservators there is credible evidence “of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . .” The statute does not define the meaning of “history.” The appeals court noted that it had not held that a single instance of physical abuse against the other parent necessarily constitutes a history of abuse, but had ruled that the trial court has the discretion to conclude that a single incident can constitute a history. The appeals court therefore concluded that the trial court could have found the mother’s guilty plea to a misdemeanor assault charge sufficient to prove the existence of a history of abuse against the child’s father.

Texas Appeals Court Upholds Spousal Support Awarded to Wife after 28-year Marriage

Published on: May 14, 2024 | by Francesca Blackard

The purpose of Texas spousal maintenance is to give a spouse temporary rehabilitative support after deterioration of their ability to support themselves while taking care of the home and family during the marriage. Spousal maintenance is only available if the spouse meets certain statutory requirements. A former husband recently challenged a spousal maintenance award.

The wife petitioned for divorce after about 28 years of marriage and sought spousal maintenance. In the final decree, the trial court ordered the husband to pay her $2,000 per month for five years.

The husband appealed, challenging the wife’s eligibility, as well as the amount and duration of maintenance ordered. The wife argued there was an agreed decree and the husband had waived his right to challenge it.

Texas Divorce Involving Adultery

Published on: April 19, 2024 | by Francesca Blackard

Although Texas has recognized no-fault divorce since 1970, it also still recognizes fault-based divorce on grounds including adultery, cruelty, and conviction of a felony. Proving an at-fault ground for divorce can affect property division, spousal maintenance, and other matters in a divorce.

A spouse seeking divorce based on adultery must prove by “clear and convincing” evidence, beyond just suggestion and innuendo, that the other spouse had sexual intercourse with someone else during the marriage. Evidence may include text or email messages, phone records, photos, or financial records. Adultery can occur at any point during the marriage, even after the spouses stop living together.

Property Division

The court in a Texas divorce must divide the community estate in a “just and right” manner. A court has broad discretion in formulating a just and right division, and may consider a number of factors in doing so. One of those factors is fault in the breakup of the marriage. A spouse alleging the other committed adultery may therefore seek a disproportionate share of the community property based on the alleged affair.

Agreement Regarding Real Property During Texas Divorce

Published on: April 14, 2024 | by Francesca Blackard

Parties to a Texas divorce may enter into an “agreement incident to divorce” regarding property division, liabilities, and spousal maintenance. If the court finds the agreement’s terms are just and right, they become binding and the court may set forth the agreement or incorporate it by reference in the final divorce decree. Tex. Fam. Code Ann. § 7.006. A former husband recently appealed a postdivorce property division order that found the marital home was the wife’s separate property, based on an agreement between the parties.

According to the appeals court’s opinion, the agreement signed by the parties during the divorce proceedings stated that the marital home was community property, but that the parties agreed the wife would become its owner and assume the mortgage. It further stated the husband granted, conveyed, and gave his interest in the property to the wife and agreed to executed any documents needed to effectuate and document the conveyance. The husband moved out.

The final divorce decree did not address the home’s ownership. The husband subsequently petitioned for postdivorce property division. The trial court found the home was the wife’s separate property. The husband requested findings of fact and conclusions of law. The findings identified the home as the wife’s separate property. The husband asked for additional findings and conclusions, but the trial court did not file any additional or amended findings. He appealed.

Texas Appeals Court Reverses Restitution and Reconstitution of Community Estate

Published on: April 7, 2024 | by Francesca Blackard

A party to a Texas divorce is entitled to reimbursement to the marital estate when community time, labor, or skills are used to benefit the other party’s separate estate beyond what is needed for maintenance of the separate property. The trial court has broad discretion to apply equitable principles. A former wife recently challenged a divorce decree that granted her former husband’s requests for reimbursement and reconstitution of the community estate.

According to the appeals court’s opinion, the husband requested a disproportionate share of the community property and reimbursement to both the community estate and his separate estate. He argued the wife’s separate estate had benefited from both the community and his separate estate. He also alleged the wife conspired with her daughter “to accomplish an unlawful purpose and/or to accomplish a lawful purpose by unlawful means” to dispose of the proceeds from the sale of a house. He sought actual and exemplary damages as well as attorney’s fees.

The wife also requested a disproportionate share of the community estate. She argued the civil conspiracy claim was barred by both the statute of limitations and the statute of frauds. She also argued that the parties freely granted their interest in the property to her daughter and that the husband had agreed to and ratified her actions.

Texas Appeals Court Upholds Order Making Ex-Husband Liable for Salary Payments

Published on: March 11, 2024 | by Francesca Blackard

A court may render orders to enforce or clarify the property division in a Texas divorce decree, but generally may not render an order that makes substantive changes to the property division once it is final. A former husband recently challenged a clarification order, arguing it improperly modified the decree.

Divorce Decree

According to the appeals court, the parties were married for more than 15 years when they got divorced in 2018. The agreed divorce decree referenced a “privately held compan[y]” that employed them both. The decree awarded all ownership interest in the company to the husband as separate property. It also awarded him the intellectual property he created used in connection with that ownership and the cash in two bank accounts in the company’s name beginning November 1, 2018.

Those bank accounts had been included in a list in the decree for which the husband would have the “sole right to withdraw funds” or “subject to [his] sole control[.]”

Texas Court Cannot Consider Extrinsic Evidence in Collateral Attack on Custody Jurisdiction

Published on: February 25, 2024 | by Francesca Blackard

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Chapter 152 of the Texas Family Code addresses how to determine jurisdiction in custody matters involving more than one state. Generally, a Texas trial court that made a custody determination consistent with § 152.201 or 152.203 retains continuing jurisdiction until a court makes certain determinations regarding a lack of significant connection to the state or residence. Tex. Fam. Code § 152.202.

In a recent case, a mother appealed following a modification, arguing the trial court had not acquired custody jurisdiction in the original divorce case because Colorado had subject-matter jurisdiction over the children pursuant to the UCCJEA.

Procedural History

According to the appeals court’s opinion, the trial court entered an agreed final divorce decree in 2017 that named the parents joint managing conservators of their two children. The mother was awarded the exclusive right to designate the children’s primary residence until they turned twelve, with no geographic limitations.