Divorce

Court Has Broad Discretion in Determining Texas Custody

Published on: September 29, 2023 | by Kelly McClure

The court’s primary consideration in determining Texas custody is the best interest of the child. Tex. Fam. Code § 153.002. There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence. Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence. A father recently challenged the custody, child support, and property division in his divorce.

Custody

The parties separated after fourteen years of marriage. They had two children together. The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.” The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed. She testified she thought it was in the children’s best interest to live with her. She alleged the father drank too much around the children.

Texas Spousal Maintenance

Published on: September 25, 2023 | by Francesca Blackard

Pursuant to Texas Fam. Code § 8.051, the court may award Texas spousal maintenance to a spouse who lacks sufficient resources to provide for their own minimum reasonable needs if the other spouse was convicted of or received deferred adjudication for a criminal offense that constituted an act of family violence against the spouse or the spouse’s child and the offense occurred within two years before the divorce case was filed or while it was pending. Additionally, the court may award maintenance to a spouse who lacks sufficient resources to provide for their own minimum needs if they: are unable to earn sufficient income to provide for their minimum reasonable needs due to an incapacitating disability; lack the ability to earn sufficient income after being married to the other spouse for at least 10 years; or are the custodian of the parties’ child with a disability who requires substantial care and supervision that prevents the custodial parent from earning sufficient income. A husband recently appealed a spousal maintenance award, arguing there was insufficient evidence that the wife was eligible for maintenance.

Wife Seeks Spousal Maintenance

The husband petitioned for divorce after seven years of marriage, alleging insupportability. He requested the court to appoint the parties joint managing conservators of their child.

The wife also alleged the marriage was insupportable, but also alleged cruel treatment and “a history or pattern of committing family violence” by the husband. She alleged she would not have adequate resources to meet her minimum reasonable needs and sought spousal maintenance. She claimed she was eligible to receive spousal maintenance as a result of “domestic violence.”

Texas Appeals Court Concludes Stock Issued by Husband’s Employer Was Community Property

Published on: September 19, 2023 | by Kelly McClure

There is a presumption that property possessed by a spouse during or on Texas marital dissolution is community property. A party claiming separate property must prove its separate character by clear and convincing evidence. Tex. Fam. Code § 3.003. In a recent case a wife appealed the trial court’s characterization of stock shares granted to the husband by his employer.

Stock Shares

According to the appeals court’s opinion, the parties got married in December 2006. The husband started a new job in February 2015 and the next year received a million shares of the company’s stock. The husband stated he had entered into an agreement with the company when he received the stock, but could not find it and could not get a copy from the company. The stock certificates did not indicate why they were issued.

The husband’s employment contract provided that he would receive an annual salary of $100,000. Additionally, he would receive a signing fee, an additional payment upon the next fundraising event, and an annual payment for four years, as compensation for “assets, access to ‘[husband’s] IP,’ and inventory” the husband provided pursuant to the employment agreement. The company also agreed to take on certain debts and liabilities the husband owed. The contract indicated the husband would receive “a total compensation of over $750,000” for the use of the husband’s assets and intellectual property, without referencing the stock shares.

Characterization of Personal Injury Recovery in Texas Divorce

Published on: September 4, 2023 | by Francesca Blackard

The characterization of funds received for personal injuries can be a complex issue in a Texas divorce. Texas family law presumes that property possessed by a spouse during or on dissolution of the marriage is community property. When a spouse claims certain property is separate, that spouse must prove by clear and convincing evidence that the property is separate. Tex. Fam. Code § 3.003. Pursuant to Tex. Fam. Code 3.001, recovery for personal injuries sustained during the marriage is separate property. There is an exception, however, for recovery for lost earning capacity during the marriage. Because a spouse claiming separate property has the burden of proof, that spouse must show by clear and convincing evidence what part of a personal injury settlement is separate property. Recently, a husband appealed the trial court’s ruling which characterized his personal injury recovery as community property.

Personal Injury Settlement

According to the appeals court, the husband and wife married in 1994 and lived separately at various times during the marriage. In December 2014, husband was injured as the result of an automobile accident in the scope of his employment. The parties were separated when the accident occurred, but subsequently reconciled.

The husband settled for the other driver’s policy limits of $30,000. He also received net proceeds of $710,724.25 from a settlement with his employer’s under-insured motorist coverage. Thereafter, his attorneys transferred those funds into the parties’ joint checking account on October 8, 2019. The parties then separated that month and the wife filed a divorce petition on November 1.

Texas Appeals Court Upholds Business Property Valuation in Divorce Case

Published on: August 28, 2023 | by Francesca Blackard

Businesses can be difficult to accurately value in a Texas divorce. A wife recently challenged a property division involving two businesses, arguing the court had insufficient evidence to make the just and right division.

When the husband filed for divorce, each party pleaded the marriage was insupportable. The wife also pleaded the husband had committed adultery.

According to the appeals court’s opinion, the significant assets were a business operated by the wife, an interest in a pool-installation business operated by the husband, the houses each party lived in, two rental properties, a house in Mexico, an interest in two lots where the pool installation business was located, several vehicles, and several bank accounts and a CD.

Texas Court Awards Husband Frozen Embryos in Divorce

Published on: July 26, 2023 | by Francesca Blackard

Fertility treatments and assisted reproductive techniques can be a miracle for many families. They may also, however, lead to complicated family law issues. A former wife recently appealed a judgment awarding frozen embryos to her former husband in the divorce.

According to the appeals court’s opinion, the parties utilized IVF treatment and still had three embryos in cryogenic storage at the time of the divorce.

The parties signed a “Consent Form Cryopreservation of Embryos” (“Agreement”) that addressed the storage of the embryos and made them subject to the disposition of the husband if the parties divorced.

Texas Appeals Court Upholds Divorce Decree Following Arbitration Award

Published on: May 23, 2023 | by Francesca Blackard

iStock-1287431987-300x200 Parties to a Texas divorce may choose to pursue alternative dispute resolution to avoid litigation. They may resolve part or all of their disputes through mediation. A mediated settlement agreement (“MSA”) is binging on both parties if it prominently states that it is not subject to revocation, is signed by both parties, and is signed by the party’s attorney, if present. Tex. Fam. Code Ann. § 6.602. In some cases, an MSA may include an arbitration provision, requiring the parties to arbitrate disputes arising from the MSA. A wife recently appealed the divorce decree, arguing it did not comply with the parties’ MSA and that the judgment based on the arbitrator’s award should be overturned.

Mediation and Arbitration

The husband and wife entered into a mediated settlement agreement (“MSA”), agreeing to use a specific realtor to sell their properties. According to the appeals court’s opinion, the husband obtained a new realter after the wife informed him the chosen realtor “declined” to sell their properties. That realtor found errors in the deed and recommended referred them to real estate attorneys.

The parties did not agree on which realtor to use or if they should have the documents corrected by an attorney. Arbitration had been scheduled, with the arbitrator being the same person who had served as the parties’ mediator. The wife obtained new counsel, who objected to the arbitrator due to concerns about impartiality. He also expressed an intention to move for a new trial or set aside the MSA. He alleged the husband’s attorney failed to disclose a working relationship with the mediator before the mediation occurred. However, there were emails showing the husband’s attorney had disclosed to the wife’s previous attorney that she previously had been an intern with the mediator and the wife’s attorney had no objection to the mediator. Additionally, she disclosed the same information to the wife’s second counsel by phone, and the mediator stated before the mediation started that the husband’s attorney had been an intern, and there were no objections.

House Bought Before Marriage Declared Both Parties’ Separate Property in Texas Divorce

Published on: May 21, 2023 | by Kelly McClure

Atlanta-Property-Division-Attorneys-2-300x198 Pursuant to the Inception of Title doctrine, a property’s character is determined when the party acquires their interest in it. This means that property acquired before the marriage will generally be characterized as that spouse’s separate property in a Texas divorce. In a recent case, however, the court determined that a house purchased solely in the name of the husband before the marriage was the separate property of both spouses.

According to the appeals court’s opinion, the parties started dating in late 1999. The wife moved in with the husband and his grandfather in 2003 or 2004. The husband bought a house from the wife’s parents in 2004 as “a single man,” according to the Deed of Trust and Note and both parties moved into it. They deposited their paychecks into a joint account from which the mortgage and property taxes were paid. They got married in July 2005 and lived together in the house until 2020.

Divorce Trial

The wife petitioned for divorce and ultimately requested reimbursement to the community estate. She asked for 50% of the community estate and 50% of the husband’s separate property. She argued the house was both parties’ separate property because they had lived together and both paid for it. The husband argued it should be his separate property.

Characterization of Personal Injury Recovery in Texas Divorce Cases

Published on: May 19, 2023 | by Francesca Blackard

iStock-178756342-300x199 Under Texas family law, property acquired by a spouse during the marriage is community property, unless it meets the requirements of separate property. Pursuant to Tex. Fam. Code § 3.001, personal injury recoveries are the separate property of the injured spouse, but recovery for lost earning capacity is community property. Property possessed by a spouse during or on dissolution is presumed to be community property, so a spouse claiming a personal injury recovery is their separate property must prove by clear and convincing evidence what portion is separate. A wife recently challenged the property division in her Texas divorce after the court concluded monthly payments from a personal injury settlement were the husband’s separate property.

According to the appeals court’s opinion, the wife had primarily been a homemaker during the marriage, but she sometimes worked part-time.

The husband was seriously injured at work in 2006. He was found to be incapacitated and the wife acted as his guardian in the resulting lawsuit. In the personal injury settlement agreement, the wife agreed, on behalf of her husband and herself, to release all claims against the defendants. The defendants’ insurance companies agreed to immediate cash payments and monthly payments for the rest of the husband’s life. The settlement provided that $1,150,000 of the cash payments was for the husband’s benefit and $50,000 would go to the wife. The settlement agreement also stated the monthly payments were for the husband’s benefit. The monthly payments were secured through the purchase of an annuity pursuant to the settlement agreement. The agreement also stated that funds were “damages on account of personal physical injuries or sickness” pursuant to the Internal Revenue Code. It also provided that the husband and wife were responsible for paying their attorney’s fees, court costs and case expenses, and any medical bills and liens.

Texas Spousal Maintenance Award Cannot Exceed Statutory Maximum

Published on: May 14, 2023 | by Kelly McClure

Texas spousal maintenance is intended to be temporary and rehabilitative. A trial court can only award spousal maintenance if the party seeking it meets certain requirements, which depend on the parties’ circumstances. A husband recently challenged a trial court’s award spousal maintenance to the wife for 81 months.

According to the appeals court, the parties got married in 2012 and had three children together. The husband worked primarily in law enforcement, while the wife was a homemaker. They separated in February 2021 and the husband moved out. He petitioned for divorce in March. The wife requested a disproportionate share of the community estate and spousal maintenance.

The trial court awarded the wife the home and a disproportionate share of the assets. It also ordered the husband to pay her $1,200 in monthly spousal maintenance for 81 months. The husband appealed the order for maintenance.