Francesca Blackard, Author at Texas Divorce Attorney Blog

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.

Cruelty and Fraud on the Community in a Texas Divorce

Published on: August 4, 2021 | by Francesca Blackard

iStock-848796670 The trial court must divide property in a just and right manner in a Texas divorce. The division must be equitable, and should not be punitive against either spouse. A husband recently challenged a property division, arguing it had been punitive against him.

The wife filed for divorce after the parties had been married for over 30 years. She alleged the husband had engaged in cruel treatment and had committed fraud on the community estate.

Wife’s Trial Testimony Highlighted Abusive Marriage

The wife said the husband often disparaged her appearance, individual worth, and profession in front of others and in private. According to appeals court’s opinion, the husband earned significantly more money than the wife and controlled the couple’s finances. The wife said the husband used his control of the couple’s finances punitively and, for example, would not give her money to go to Poland to visit her family when they were sick and would not pay for a surgery she needed. She also testified that he said her mother had died of a stroke because she was a bad daughter and a bad person. Other witnesses, including the couple’s daughter, corroborated the wife’s allegations of verbal abuse. The husband, however, denied it and claimed they were all liars.

Texas Divorce Court Cannot Divide Property Owned by Business Entity

Published on: July 18, 2021 | by Francesca Blackard

iStock-1215119911 A trial court must divide community property in a “just and right” manner in a Texas divorce. The court must properly characterize the property before it in order to achieve a just and right division. Characterization can be complex when the parties have significant assets acquired through various means. It can get even more complicated when the parties have ownership interests in business entities that also own property.

A husband recently appealed the property division in his divorce decree, arguing the court had improperly awarded him property owned by business entities as his separate property. The parties got married in 1993. They lived in Connecticut, but the wife moved to Texas in 2018 for a job. The husband remained in Connecticut where his construction businesses were located. He told the wife, however, that he would move to Texas in a year to a year and a half, but ultimately did not do so.

Wife Files for Divorce

The wife petitioned for divorce in 2019. The husband’s father and his company filed suit against three of the husband’s businesses a few days before the divorce trial. The lawsuit alleged the husband’s companies owed his father’s company $770,644 for equipment rental.

Texas Appeals Court Affirms Lump Sum Disability Payment Credited to Future Child Support

Published on: July 5, 2021 | by Francesca Blackard

iStock-531351317 Texas family law considers Social Security disability benefits to be a substitute for the parent’s earnings. Pursuant to Tex. Fam. Code § 157.009, when a child receives a lump-sum payment due to the parent’s disability, the parent is entitled to a credit applied to any arrearage and interest. Additionally, when a trial court applies the child support guidelines to a parent who receives disability benefits, the court must determine how much child support would be ordered under the guidelines then subtract the value of any benefits paid to the child as a result of the parent’s disability. Tex. Fam. Code § 154.132.

The Office of the Attorney General (“OAG”) recently appealed a trial court order applying a lump sum disability payment as a credit to future child support. The trial court signed the parents’ divorce decree in 2016. The court ordered the father to pay $603.25 in monthly child support. He filed a petition for modification in 2018, asking the court to modify his child support obligations. The OAG intervened, stating he owed back child support and asking the court to enter judgment for the arrearages and accrued interest.

Father Argues He is Entitled to Future Credit for Disability Payment

The OAG stated in its brief that the father had started receiving Social Security Disability benefits and the children had received a lump sum benefit payment. The OAG contended that amount could only be used as a credit against the father’s arrearage and not for future child support. The father, however, asked the court to give him a credit against his future obligation.

Texas Appeals Court Upholds Finding of Informal Marriage

Published on: June 20, 2021 | by Francesca Blackard

iStock-1270267953 Texas is one of the few states that still recognizes “informal marriage,” also sometimes known as “common law marriage.” A party who petitions for divorce from an informal marriage often must prove the existence of the informal marriage in the first place. To prove there was an informal marriage, the party must show the couple had an agreement to be married, subsequently lived as spouses together in Texas, and represented themselves as married. Tex. Fam. Code Ann. § 2.401. Furthermore, all of these elements must occur at the same time. Evidence of an informal marriage may include evidence the parties addressed each other as spouses, conducted themselves as married people, or lived together. Evidence that the parties lived together and represented themselves as married is not alone sufficient to establish the existence of an agreement to be married.

In a recent case, an alleged husband challenged the court’s finding of the existence of an informal marriage. The parties moved to Texas from Colorado with the alleged wife’s two children in 1985. They separated in early 2012. In 2015, the alleged wife filed a trespass to try title suit, claiming joint ownership in real property due to an informal marriage. That lawsuit was consolidated with her subsequent divorce action.

The trial court ultimately found the parties had been in an informal marriage. The court granted a divorce and divided their property. The husband appealed, arguing there was insufficient evidence to support the existence of an informal marriage.

Trial or Contested Hearing Required to Determine Disputed Texas Property Division

Published on: May 24, 2021 | by Francesca Blackard

iStock-483613578 In a Texas divorce, a jury may decide issues regarding the characterization and valuation of property, but the judge is responsible for actually dividing the community property in a just and right manner. The court may consider a number of factors, including fault, education, ages and physical conditions, financial conditions, and the amount of separate property. Generally, the court must hold an evidentiary hearing or trial, unless the parties agree on the property division.

Wife Argues Trial Court Did Not Hear Property Issues

In a recent case, a wife appealed a property division, arguing the court failed to hold a hearing on the property division.

The parties married in 2003 and the husband filed for divorce in 2017. The jury did not hear the property division issues, which were reserved for the trial court. The court stated that it would try those issues during the jury deliberations if there was time or would otherwise schedule a date after the verdict on the issues related to the children.

Wife Entitled to Share of Husband’s Military Retirement in Texas Divorce

Published on: May 7, 2021 | by Francesca Blackard

retire Retirement benefits can be a complex and contentious issue in a Texas divorce case. Generally, any income earned during marriage is considered community property unless proven to be separate property, including funds contributed to a retirement account or earned as pension benefits. In a recent case, a husband challenged a court’s order awarding a portion of his military retirement benefits to his ex-wife.

According to the appeals court’s opinion, the wife petitioned for enforcement of property division by contempt, alleging the husband had not paid her the retirement benefits awarded to her in their divorce decree. The husband argued the military benefits had either been awarded to him or had not been divided at the time of the divorce.

The wife filed an amended motion to clarify, asking the court to enter a clarifying order if it found any part of the previous order was not specific enough for enforcement through contempt. She specifically asked the court to clarify the order to reflect the length of the marriage and the husband’s dates of military service. She also asked the court to sign a Military Qualified Domestic Relations Order.

Arbitration Provisions in Texas Premarital Agreements

Published on: April 18, 2021 | by Francesca Blackard

Premarital agreement

Some Texas premarital agreements may include a binding arbitration clause. A party may compel arbitration when the claims at issue are within the scope of a valid and enforceable agreement to arbitrate. If the claim falls within the agreement’s scope and there is no defense to enforcing it, the court must compel arbitration. Fraud may be a defense against compelled arbitration, but the party must show that the fraud was specifically related to the arbitration provision.

A husband recently appealed a denial of his motion for arbitration in his divorce proceeding. The parties signed a premarital agreement that included an arbitration clause. The wife filed a petition for divorce in July 2014. In 2016, she filed an amended petition. Neither petition mentioned the premarital agreement. The husband filed an answer in 2016, but did not mention the premarital agreement either.

In a second amended petition, the wife stated there was a premarital agreement and requested it be set aside and vacated. She alleged she entered into it involuntarily and that it was unconscionable.