iStock-1214358087-300x169The division of property in a Texas divorce does not have to be equal, but should be “just and right.” Each party is responsible for providing evidence to show the value of the property so the court can make the division.  A Texas appeals court recently considered what happens when parties do not provide information regarding the marital estate.

Conflicting Testimony Regarding Parties’ Relationship at Trial

According to the appeals court’s opinion, the husband was sixty and the wife was twenty-seven when they met and married.  According to the husband, he met the wife on an online dating site and went to Monterrey, Mexico to meet her in person in October or November 2007.  After spending time with her that night and the next day, the husband came back to the U.S. The wife denied meeting on a dating site and instead said they met at a hotel bar.  They communicated via email and the husband visited the wife in Mexico a few more times.  They married in February 2008 in Monterrey.  The husband testified they did not have sexual relations or go on a honeymoon.  He came back to Texas a few days later and the wife stayed in Mexico.

The husband obtained an attorney to get visas for the wife and her son.  The visas were denied after an immigration interview in 2008.  The husband claimed he had no further relationship or communications with the wife until late 2017 or early 2018 when she contacted him wanting to come to the U.S. He hired an attorney again.  The wife obtained a visa in March 2018 and moved to Texarkana.  There were substantial differences in the parties’ testimony regarding their relationship while they lived together and the reasons the wife moved to Dallas in 2018.

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iStock-1175949984-300x200When the trial court appoints joint managing conservators in a Texas custody case, it must identify who has the right to determine the child’s primary residence with or without a geographic restriction.  Tex. Fam. Code Ann. § 153.134(b). The court must consider the child’s best interest.  The court may also modify the terms and conditions of the child’s conservatorship if doing so is in the child’s best interest.  Tex. Fam. Code Ann. § 156.101.

A father recently challenged a trial court’s modification order adding a geographic restriction broader than that he requested.  In the original order establishing the parent-child relationship, both parents were named joint managing conservators, with the mother having the right to determine the child’s primary residence without any geographic restriction.  Both parents lived in Kerr County at the time.

Father Seeks to Modify Prior Order

The father subsequently sought modification of the order to give him extended visitation and add a geographic restriction of Kerr County.  The trial court ultimately granted the extended visitation and added a geographic restriction of Kerr, Atascosa, and Bexar counties and counties contiguous to Kerr.

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iStock-1033856542-300x200When a mother is married at the time of her child’s birth, the husband is generally presumed to be the father under Texas family law. There are two ways to rebut the presumption: with a proceeding to adjudicate parentage or with the filing of a denial of paternity along with the filing of an acknowledgement of paternity by another person.  Suits to adjudicate parentage of a child with a presumed father generally must be brought by the child’s fourth birthday. There is an exception, however if the mother and presumed father did not live together or engage in sexual intercourse at the probable time of the child’s conception.  There is also an exception if the presumed father mistakenly believed he was the biological father based on misrepresentations. Tex. Fam. Code § 160.607.

Alleged Father Challenges Adjudication of Paternity

An alleged father recently challenged a trial court’s determination that his adjudication of parentage case was time-barred.  According to the appeals court’s unpublished opinion, the alleged father petitioned to adjudicate parentage of two children, one born in 2014 and the other in 2015.  The mother was married to another man when the children were born.

The mother moved for summary judgment, arguing the alleged father’s suit was time-barred and none of the exceptions that toll the statute of limitations for adjudication of parentage applied.  She attached her own affidavit and an affidavit from her then husband as summary judgment evidence.  Her motion was granted.

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iStock-178756342-300x199A spouse in a Texas divorce may have a reimbursement claim if they use their own separate property to fund improvements to the other spouse’s separate property.  Likewise, if community funds are used for the benefit of a spouse’s property, the spouse may be ordered to reimburse the community.  The party seeking reimbursement must plead and prove the claim, including showing that the funds used were their separate property. Courts must resolve claims for reimbursement using principles of equity.

A husband recently challenged a trial court’s denial of his reimbursement claims.  According to the appeals court’s opinion, both parties had significant separate property when they married in 2010.  The husband owned one home and the wife owned two.  They bought a new house 2014.  The husband sold his home and used $141,000 of the proceeds for the new house.  The wife sold one of her homes and used $150,000 from that sale on the new home.

Testimony Regarding Husband’s Reimbursement Claim

The husband also paid about $70,000 for a pool at the new house.  He claimed the funds were his separate property, but the wife testified she thought he had used community funds.

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iStock-1125625723-300x200A custody determination issued in another state or country can be registered in Texas.  To do so, the party must send a letter requesting registration to the Texas court, along with two copies of the determination, one of them certified, a sworn statement that, to the best of the requester’s knowledge and belief, the order has not been modified, and their name and address and the name and address of any parent or person acting as a parent who has been awarded custody or visitation under the order.  Tex. Fam. Code § 152.305(a). The Texas court then files the determination as a foreign judgment. The court must also give notice to the person seeking the registration and any parent or person acting as a parent who was awarded custody or visitation in the determination and provide them with an opportunity to contest the registration. If a person wants to contest the validity of the registered order, they must request a hearing within 20 days of being served the notice.  The court must confirm the registered order unless the person contesting it establishes that the issuing court did not have jurisdiction, that the determination was vacated, stayed, or modified, or that they did not receive required notice in the proceedings before the court that issued the order. Tex. Fam. Code § 152.305.

Mother’s Request for Registration of Custody Determination Denied

A mother recently challenged a court’s denial of her request for registration.  She had filed a “Registration of Child Custody Determination” to register an order from New York. The New York order provided that the parties would share joint custody of the child and that the child would live with the mother.

The father filed a timely objection to the registration. He argued there were proceedings for enforcement pending in New York.  He alleged that the New York court had recessed to let the mother get an attorney and rescheduled on the same day the wife sought to register the order in Texas.  He argued that registering the decree in Texas would make it enforceable and subject to modification in Texas, while the New York court still had and was exercising continuing jurisdiction.

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property-division-300x110The court in a Texas divorce must make a just and right division of the parties’ estate.  This does not necessarily require the court to award  the parties equal shares of the property.  Property acquired during a marriage is generally community property, but property acquired before the marriage or by gift, devise, or descent is separate property. A party claiming separate property must show that it is separate by clear and convincing evidence.  A husband recently challenged a court’s characterization of certain property as the wife’s separate property.

The parties got married in 1997 and the husband filed for divorce in 2019.  Each party sought a disproportionate share of the marital estate.

Wife Asserts Separate-Property Claim

According to the appeals court’s opinion, a significant issue in the divorce was property purchased by the wife in 1997 after the marriage.  She leased the building in 1990 and renewed the lease in 1995. After the marriage, she bought it.  She testified the written lease she signed in 1995 gave her an option to purchase, but she had lost the document.

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5thingsdivorcecourt_header-300x163A court may clarify an order in a Texas suit affecting the parent-child relationship if it finds the order lacks sufficient specificity to be enforced through contempt.  Tex. Fam. Code Ann. § 157.421.  The court cannot make substantive changes through an order to clarify and such changes are not enforceable. Tex. Fam. Code § 157.423.  Substantive changes must be pursued through a modification suit.  Generally, to obtain a modification, a parent must show there has been a material and substantial change in circumstances and the modification will be in the child’s best interest.

Mother Appeals Clarification Order

A mother recently challenged a clarification order, arguing it had made a substantive change to the previous order.  The parties entered into an agreed order regarding their children in December 2016.  The father moved for clarification of language relating to extracurricular activities.  The agreed order provided in relevant part that the parents would put each child in a single extracurricular activity at a time and have a written agreement regarding the extracurricular activity.  The court granted the motion and revised the language to state that each parent may place each child in an extracurricular activity, but, instead of referencing an agreement, the clarified order provided there would be a written designation of the extracurricular activity.

The mother appealed, arguing the court erred in granting the motion because the language in the agreed order was not ambiguous or erroneous and that the revised language constituted a substantive change.

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iStock-1270267953-300x200Even when parties seem to agree on issues related to Texas property division, disputes may still arise.  In a recent case, a husband challenged a trial court’s treatment of certain property after seemingly agreeing to that treatment during the hearing.

The husband petitioned for divorce in May 2019.  The husband and wife stipulated that a particular parcel of land was the husband’s separate property, but the mobile home on that property was the wife’s separate property.

The husband testified he wanted to purchase the mobile home or sell the parcel and mobile home together and equally divide the proceeds.  He expressed a preference to buy the mobile home himself but also said there were buyers interested in purchasing them as a single asset.  The wife testified she wanted to sell the mobile home to the husband for $15,000 or alternatively to sell both together and divide the proceeds equally.  The husband responded “Yes” when asked if he agreed to sell the parcel and the mobile home together and split the proceeds. When he was asked about division of another piece of property, he said he thought the parties had reached agreement on the five-acre parcel and mobile home and thought they could also reach agreement on the larger parcel.  The trial court specifically told the husband that he was “not going to have the five acres and the mobile home. . .”

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iStock-483611874-300x200Failure to pay Texas child support as ordered can result in an enforcement action.  If the motion for enforcement includes a request for a money judgment for arrearages, the trial court generally may not modify or reduce the amount of the arrearages. In a recent case, a mother challenged a court’s finding there was not an arrearage when the father argued he had shifted the payments from the beginning to the end of the month.

The divorce decree appointed the parents joint managing conservators of their two children with the mother having the right to designate their primary residence.  The mother was required to maintain health and dental insurance for the children and the parties were to equally split the healthcare expenses not paid by insurance.  The father was ordered to pay $1,122 monthly child support and $451.22 monthly medical child support through the Office of the Attorney General (“OAG”). The medical child support was reimbursement for the children’s insurance premiums.

Mother Files Child-Support Enforcement

The mother moved to enforce the child support in September 2020.  She sought $1,573.22 in unpaid child support and $311.21 in medical expenses.  She also asked for attorney’s fees and costs.  The trial court ordered the father to pay $155.83 for medical expenses but denied the mother’s other requests, finding the amount of child-support and medical-support arrearages were $0 as of the date of the hearing.

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While ideally a child’s parentage is determined when they are young, that does not always occur.  A Texas appeals court recently considered whether the trial court could adjudicate the parentage of an adult petitioner after the death of the putative father.

Adult Child Files Paternity Suit Against Father’s Estate

An adult petitioner filed suit against his mother, his alleged father, and the independent executor of his alleged father’s estate, seeking adjudication of his parentage and a declaration that he was the alleged father’s biological son and had the rights and privileges of a surviving child.  The executor filed a motion to dismiss, arguing a suit to adjudicate parentage cannot be brought after the putative father’s death.  The trial court denied both the executor’s and the petitioner’s respective motions for summary judgment.

Trial Court Adjudicates Parentage

At trial, the executor moved for judgment, arguing that suits to adjudicate parentage do not survive the putative father’s death pursuant to the Texas Family Code.  The trial court denied the motion and adjudicated the putative father as the petitioner’s father.

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