Francesca Blackard, Author at Texas Divorce Attorney Blog

Child Interviews and Extracurricular-Activity Expenses in Texas Custody Case

Published on: December 5, 2021 | by Francesca Blackard

5thingsdivorcecourt_header-300x163 Tex. Fam. Code § 153.009(a) requires the court in a Texas custody case to interview a child who is at least 12 years old to determine their wishes regarding custody, “on the application of a party. . . “ A father recently challenged a court’s failure to interview the children in a custody case.

The mother petitioned to increase child support for the parties’ three teenage children and require the father to pay their extracurricular expenses. The father asked to be named the primary managing conservator with the exclusive right to designate the children’s primary residence.

The parties stipulated that $2,760 was the amount the father should pay under the Texas Family Code’s “guidelines.” The trial court ordered the father to pay not only $2,760 monthly, but also half of the children’s extracurricular expenses. The trial court also denied his request to have the exclusive right to designate the children’s primary residence. Continue Reading ›

Texas Appeals Court Upholds Arbitration Award in Divorce Case

Published on: November 27, 2021 | by Francesca Blackard

iStock-1287431987-300x200 When a couple enters into a Texas pre-marital agreement or post-marital agreement, they may include an arbitration provision in the agreement. Arbitration can be a cost-effective way to resolve disputes, but an arbitration decision often cannot be appealed. In a recent case, a wife appealed a final divorce decree confirming an arbitration award, arguing the arbitrator exceeded her authority.

Husband and Wife Enter into Post-Nuptial Agreement During Marriage

During the marriage, the parties signed an agreement to make “what would otherwise be community property instead be separate property.” The agreement included an arbitration provision.

When the agreement was executed, the husband was president of a company and the wife was vice president. The agreement stated that the parties agreed each of them would “be guaranteed to receive equal pay and bonuses as both President and Vice President. . .”

Texas Appeals Court Enforces Property Distribution Years After Default Divorce

Published on: November 23, 2021 | by Francesca Blackard

images Failing to respond to a Texas divorce petition can result in a default judgment with an unfavorable property division. What happens, though, if the spouse who received the default judgment fails to take action to enforce the property division for several years? A Texas appeals court recently considered a case involving that issue.

Wife Obtains Default Judgment

The husband bought a home before he met the wife. They refinanced it jointly twice during the marriage. The wife subsequently filed for divorce and obtained a default divorce decree in February 2011. The decree listed the home as community property and stated that the wife owned it alone as separate property and that the court divested “any interest, title, and claim the Husband may have to [it].” The court further ordered the husband to sign any deeds necessary to transfer the property to her. There was a remaining principal of $43,399.14 according to the bank statement for the next month.

The husband testified he had not been served and only found out about the divorce case and default divorce later that year. The wife moved out about four months after the divorce. She stated the husband did not want her to live there and tried to “kick [her] out in a very aggressive way. . .” She claimed “[t]here was a lot of violence. . .” The husband testified the wife would yell at him that the house was hers and she was going to take it from him. He then went to court to see the divorce decree and learned it awarded the house to the wife. He said he could not afford an attorney at the time.

Addressing an Error in a Texas Child-Support Mediated Settlement Agreement

Published on: November 8, 2021 | by Francesca Blackard

iStock-1125625723 Parties to a Texas suit affecting the parent-child relationship may enter into a mediated settlement agreement (“MSA”) to resolve one or more issues in their suit. An MSA is binding if it prominently states in bold or underlined font or in capital letters that it is not subject to revocation, is signed by the parties, and is signed by the parties’ attorneys who are present at the execution. Tex. Fam. Code § 153.0071. When these requirements are met, a party is entitled to judgment on the MSA. Because an MSA is a contract, it is construed according to the contract-interpretation principles. If an MSA is ambiguous, there is a fact issue of the intent of the parties. A Texas appeals court recently considered what should happen when an MSA included a discrepancy between the stated amount of child support and the calculation for determining child support.

Mother and Father Enter into Settlement Agreement

Following mediation, the parents entered into an MSA that included an attached handwritten page with a child-support calculation as well as four W-2s showing the wages the father earned. The parties initialed each page of the MSA, but not the W-2s.

The MSA identified the father’s child-support obligation as $1,062.60 per month. The attachment stated that “child support is based on [the father’s] representation that he has no rental income and is calculated pursuant to the attached calculations and Exhibits.”

Medical Expense Reimbursement as Texas Child Support

Published on: October 31, 2021 | by Francesca Blackard

does-adultery-affect-alimony-in-idaho-1080x600-1 Children’s medical and educational expenses can often be a contentious issue in Texas child-support cases. Parents may disagree on whether treatment is needed, what providers should be used, and whether the child should be in private school. A father recently challenged an order to pay certain medical expenses, arguing the mother had not used preferred providers as required by the decree.

The final divorce decree appointed both parents joint managing conservators with the mother having the right to establish the primary residence with a geographical restriction. The mother was responsible for maintaining the children’s health insurance. The father had an expanded modified possession order and paid child support and reimbursement of insurance premiums as additional child support. Each party was responsible for 50% of additional health-care expenses.

Father Seeks Modification of Divorce Decree

The father petitioned for modification in 2018, seeking the exclusive right to establish the primary residence, as well as child support and certain exclusive decision-making authority.

Compelling Texas Divorce Court to Specify Property Valuation

Published on: October 19, 2021 | by Francesca Blackard

iStock-483613578 A trial court that has divided property in a Texas divorce must provide written findings of fact and conclusions of law, including how it characterized and valued the assets and liabilities, if a party properly requests them. In a recent case, a husband challenged the court’s refusal to specify the valuation it used for the parties’ assets when there was no request for findings of fact and conclusions of law.

Wife Seeks Fault-Based Divorce

When the wife filed for divorce, she asked for a disproportionate share of the community estate. She claimed the husband was at fault in the break-up of the marriage.

The wife submitted a spreadsheet of the assets she requested showing both her and the husband’s valuation of each. She valued the assets she requested at $2,084,714, and the husband valued them at $2,585,450. She also presented a spreadsheet of the assets she proposed be awarded to the husband, with her valuation totaling $2,662,329 and the husband’s totaling $2,612,102.

Ex-husband Denied Share of Ex-Wife’s Military Retirement Years After Texas Divorce

Published on: October 7, 2021 | by Francesca Blackard

iStock-543681178 Many assets divided in a Texas divorce are distributed during or soon after the divorce, but some assets, such as retirement benefits, may not be distributed for many years. Issues involving retirement benefits may continue or arise several years after the divorce is final. A Texas appeals court recently decided a dispute involving retirement benefits between parties who divorced in 2008.

Both parties were in the military when they divorced. The stipulated final divorce decree divided the husband’s retirement benefits equally between them and awarded the wife 100% of her “retirement plan” or other benefits resulting from her employment.

Husband Argues He Agreed to Divorce Decree While Under Duress

The wife petitioned for a clarification of the division of the husband’s military retirement in 2017. The husband argued he agreed to the property division under duress because the wife had threatened to tell his superiors he was having an affair if he did not agree. He claimed he only agreed because he was concerned he would face a court martial or negative effects on his chances of promotion if she reported him.

Disparity in Retirement Benefits in Texas Divorce

Published on: September 26, 2021 | by Francesca Blackard

iStock-654702696 A court dividing property in a Texas divorce must do so in a “just and right” manner. The division does not have to be equal if the court has a reasonable basis to order a disproportionate division of the community estate. Texas courts have recognized a number of non-exclusive factors a court may consider, including differences in the parties’ earning capacities or incomes, difference in their ages, their relative financial circumstances, and the value of their separate estates.

A former husband recently challenged a property division, arguing the court had intended to achieve an equal distribution, but did not do so.

Comparative Circumstances of the Parties

The parties married in 1986 and the husband petitioned for divorce in 2019. The husband testified he was 57 years old and the wife was 56. Both parties were engineers. He testified they earned about the same amount each year and both were healthy. The both had substantial retirement benefits.

Texas Court Can Impose Geographic Restriction After Jury Gives Parent Custody

Published on: September 19, 2021 | by Francesca Blackard

iStock-483613578 A geographic restriction in a Texas custody order helps ensure the parent without physical custody has access to the child, but it can also impose severe limitations on the mobility of the parent with physical custody of the child. In a recent case, a mother challenged the imposition of a geographic restriction on the child’s primary residence by the trial court after a jury found she should be the child’s sole managing conservator.

Modification Suit Filed After Prior Order

The final divorce decree named the parents joint managing conservators and gave the mother the exclusive right to designate the child’s primary residence within a specific county. The father later petitioned for modification, seeking the right to designate the child’s primary residence. The mother asked the court to remove the father as a joint managing conservator and name her sole managing conservator with the exclusive rights set forth in Tex. Fam. Code § 153.132, including the right to designate the primary residence. She also asked for an additional $100 per month in child support.

The jury found the mother should be appointed the sole managing conservator. No other issues were presented to the jury. The judge’s letter ruling indicated she wanted to place a geographical restriction on the mother’s right to designate the child’s primary residence, but was uncertain of the court’s authority to do so under the circumstances. The letter ruling stated the court imposed the geographic restriction if both parties’ counsel agreed it could, but not if counsel agreed it could not. If counsel disagreed as to whether the court could impose the restriction, the court requested they provide authorities on the issue. The trial court denied the modification of the child-support obligation.

Texas Informal Marriage: Agreement to Be Married

Published on: August 29, 2021 | by Francesca Blackard

iStock-926241578 A Texas common-law marriage can occur when the parties agree to be married, subsequently live together as married within the state, and represent themselves as married. Tex. Fam. Code Ann. § 2.401. The agreement to be married is a separate requirement that must be proven, although it may sometimes be inferred from evidence of the other two requirements.

CLAIM OF INFORMAL MARRIAGE

In a recent case, a woman appealed the dismissal of her claim of common-law or “informal” marriage. The parties had previously been married and were divorced in 2014. They subsequently rekindled their relationship later that year. The alleged wife petitioned for divorce in May 2016, claiming they had “rendered a common-law marriage” in December 2014 and had stopped living together around the time she petitioned for divorce.

The man denied that there was an informal marriage and filed a motion for summary judgment, seeking the trial court to find that the woman had failed to establish its existence. The affidavit the woman attached to her response stated the parties reconciled and agreed to be married on or about December 14, 2014. She said they moved in together and represented themselves as married. She also attached affidavits from others. She also submitted an email from the man to his child’s teacher in which he referred to her as his wife. She also provided a number of documents in support of her position. Following a hearing, the court granted the man’s motion for summary judgment.