Francesca Blackard, Author at Texas Divorce Attorney Blog

Valid Post-Marital Agreement in Texas?

Published on: June 21, 2017 | by Francesca Blackard

A recent Texas appellate decision arose from the appeal of a divorce. The husband argued that the evidence was not enough to support the jury’s finding of an informal marriage and that it was improper for the trial court to admit hearsay evidence, as well as that an “Agreement in Contemplation of Marriage” should be enforced as a post-marital agreement.

The couple had been married in 2003 and had triplets. The husband sued for divorce in 2010. He claimed that the couple had married in a 2003 ceremony and asked that an Agreement in Contemplation of Marriage entered into in July, before the ceremony, be enforced. The agreement stated that the couple wouldn’t have community property during their marriage. The husband also argued it wasn’t in the kids’ best interests for them to be joint managing conservators of them, and he should be appointed as the sole managing conservator.

The wife counter-sued for divorce, claiming that the agreement in question had been executed after the couple had informally married and couldn’t be construed as a prenuptial agreement that prevented a community estate from being created. The wife asked that she be appointed as the sole managing conservator.

Deviation from a Standard Possession Schedule in Texas

Published on: May 31, 2017 | by Francesca Blackard

In a recent Texas appellate case, the court considered an appeal of a divorce decree. The father challenged the part of the trial court’s order that determined deviating from a standard possession schedule was in his children’s best interest. The trial court had ordered he have access to the kids on Saturdays from 10-6 every other week.

The case arose from a couple’s second marriage to each other. They were first married in an arranged marriage in India and then moved to the United States. Before their first child was born, the father left. The father wasn’t a United States citizen and went back to India during their separation. He communicated with the baby through Skype.

The mother got a default divorce, and a standard possession order was put in place. She later testified she didn’t mind this because the father was in India anyway. He visited in 2012 and gave his child a birthday gift. The couple got remarried. The father claimed he remarried the mother because he loved the child and felt he had to remarry her if he wanted to be in his daughter’s life. The mother testified she’d remarried him because he’d promised not to leave her again.

Do Step-Parents Have Any Rights?

Published on: April 20, 2017 | by Francesca Blackard

Yes, step-parents could have standing to bring a claim under Texas Family Code Section 102.003(11), often referred to as the “step-parent” statute. Under this statute, a custody suit may be brought by “[a] person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.” In other words, if the biological parent who is married to the step-parent dies, then the step-parent might have standing to pursue conservatorship, possession, of and access to the child.

This statute specifically gives rights to a step-parent who has helped raise one or more children of the parent who dies so long as the children have resided with the step-parent and deceased parent for at least six months ending not more than 90 days prior to the date of the filing of the petition. In determining whether or not the step-parent has standing, the court must determine whether the child’s principal residence was with the step-parent and deceased parent. The Court will look at the following factors when determining whether the residence was a “principal” residence of the child: (1) whether the residence is a fixed place of abode, (2) whether the residence was occupied or intended to be occupied consistently over a substantial period of time, and (3) whether the residence was permanent rather than temporary. In re Kelso, 266 S.W.3d 586, 590 (Tex.App.—Fort Worth 2008, orig. proceeding); Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.—El Paso 2002, no pet.). If the court reviews these three factors and determines that the child does have a principal residence with the step-parent and that such residency existed for a period of at least six months ending not more than 90 days before the date of filing of the petition, then standing is established for that step-parent.

After standing is established, there could be an addition hurdle for the step-parent if he or she is filing an original conservatorship suit, and that hurdle is known as the “parental presumption.” On the other hand, while the Texas Family Code imposes a “parental presumption” in original suits for parents over third parties seeking conservatorship, no such presumption applies to a modification suit filed by relatives or third parties, such as step-parents, who make a request to modify conservatorship, possession, or access. See In re V.L.K., 24 S.W.3d 338 (Tex. 2000). Therefore, depending on the type of claim that is brought, a step-parent could have a higher burden. If the step-parent is filing an original suit – then he or she may have to overcome the “parental presumption” and prove that the surviving parent is unfit in order to have certain rights.

Robert Epstein and Francesca Blackard Voted by their Peers as Texas Rising Stars for 2017

Published on: March 31, 2017 | by Francesca Blackard

McClure Law Group, PC is proud to announce that both partners, Robert Epstein and Francesca Blackard have been voted by their peers as Texas Rising Stars for 2017 in Super Lawyers Magazine and Texas Monthly Magazine. Only 2.5% of attorneys in Texas receive this noteworthy distinction of a Texas Rising Star.

The attorneys are nominated by other attorneys in the state, making this an exceptional designation as they are recognized by their legal peers. At McClure Law Group, PC we strive for excellence and are proud to have both partners applauded for their hard work and dedication to our clients.

For more information on these two partners, you can access their bios by clicking here: Robert Epstein :: Francesca Blackard

Texas Spousal Maintenance for a Disabled Spouse

Published on: March 17, 2017 | by Francesca Blackard

In a recent Texas divorce case, an appellate court considered a spousal maintenance order in a case involving a disabled spouse. The couple were divorced in 2012, and their divorce decree found the wife was eligible for spousal maintenance (also known as alimony), and it ordered the husband to pay her $400 per month until one of the following four events happened: a review of the order in three years, death, the remarriage of the wife, or a further court order.

In the summer of 2015, the ex-wife asked that her spousal maintenance be continued. The husband asked for a dismissal, claiming that it was untimely, since she was supposed to ask for review in January, six months prior to the date on which she actually sought review. The trial court denied the ex-wife’s petition but also denied the motion to dismiss.

The wife argued that there was an error in denying her request for continued maintenance because she’d shown she received Social Security Disability, and the trial court couldn’t disregard her testimony about disability. Section 8.054 of the Texas Family Code is the code section that covers the duration of spousal maintenance orders. As long as you continue to satisfy the eligibility criteria, the maintenance may continue. The trial court can conduct periodic reviews.

Child Custody Dispute Between Mother and Grandmother in Texas

Published on: February 28, 2017 | by Francesca Blackard

A recent Texas appellate case involved a child custody dispute that arose between a mom and her children’s paternal grandmother after their father committed suicide in 2014. After his death, the mother asked the trial court to appoint her managing conservator of the kids. The kids’ paternal grandmother cross-petitioned for the same appointment.

Before his death, the father had been CFO for a multinational corporation. His job required him to travel outside the country often. He met the mother in Mexico and became romantically involved with her. She immigrated to the United States, gave birth to three children, and married the father. While pregnant with the fourth child, the mother took a quick trip to Mexico to get a United States visa.

The immigrant officials denied her request for a visa on the ground that she’d previously been illegally present in the country for one or more years. For that reason, she had to stay in Mexico for 14 months waiting for a visa. Her kids stayed in the country with the father.

Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas

Published on: June 9, 2016 | by Francesca Blackard

Johnny Depp and Amber Heard are flooding the media with news of their divorce and allegations of family violence. This blog post is not here to pick sides between Team Amber or Team Depp, but we do want to explain the difference between a Protective Order and a Temporary Restraining Order, and what to do if you need either of those.

There is a lot of confusion about how to protect yourself from family violence in Texas. Many clients approach our law firm asking for a restraining order, but what they really want is a protective order. Here is the difference:

Life After Divorce- Ways to Successfully Coparent After You Split

Published on: April 25, 2016 | by Francesca Blackard

If you’re in the middle of a divorce, it may seem impossible, but it is essential for you to healthily coparent with your spouse/ex-spouse after you split for the sake of the children. Luckily, there have been many celebrities publicly demonstrating this positive behavior such as Gwyneth and Chris Martin, Jennifer and Ben Affleck, and most recently Drew Barrymore and Will Kopelman. In addition, there are people who dedicate their careers to assist divorcees in post-divorce coparenting. Keep in mind, it’s best to start this positive behavior even prior to filing for divorce, but it’s never too late to start. Here are a few resources to help push you in the right direction:

FedEx May Have to Honor Same-Sex Widow’s Benefits

Published on: January 15, 2016 | by Francesca Blackard

In a positively surprising ruling, a federal Court refused to dismiss a hearing where FedEx denied survivor benefits to a same-sex spouse. The Plaintiff is Stacy Schuett and she was in a committed relationship for 27 years with her spouse when they were finally married in a civil ceremony in Sonoma County in June of 2013. A day later, her wife, Lesly Taboada-Hall passed away after a long struggle with cancer. The deceased wife worked for FedEx for 26 years and was fully vested in her company’s retirement plan. It was not until six days after her death that same-sex marriage licenses were available in the state of California. At this time, the surviving spouse, Stacy Schuett, submitted a claim as a surviving spouse entitling her to her deceased wife’s pension plan, but FedEx immediately denied her claim because they said she did not meet the definition of “spouse.”

How Sexually Transmitted Diseases Affect Divorces in Texas

Published on: November 23, 2015 | by Francesca Blackard

By now we are sure everyone has heard the headlines about Charlie Sheen having HIV after he announced it on the Today show last week. Being a divorce attorney, the first thought that came into my head was how mortified his ex-wives Brooke Mueller and Denise Richards must have been after his revelation. In his interview on the Today show, Sheen mentioned that people had been blackmailing him for years threatening to leak the information. Since he couldn’t afford to keep his disease a lie anymore, he disclosed it on live T.V. so the threats would stop.

Now the new threats have arrived- his ex-girlfriends (some who happen to be prostitutes) are claiming they want to see criminal charges brought against him for failing to disclose that he was HIV positive prior to having intercourse with them. Sheen claims he was diagnosed four years ago, but his former girlfriends claim he had symptoms of HIV prior to that time and therefore must have known. According to certain ex-girlfriends, he only used lambskin condoms which only prevent against pregnancy and not STDs. Since these women were not married to Sheen, their relief will come in criminal or civil suits, but what if you’re married and living in Texas and your husband/wife gives you a sexually transmitted disease? Is it grounds for divorce?