Property

Retroactive Child Support in Texas

Published on: November 10, 2016 | by Kelly McClure

In the Texas appellate case of In re Aer, a father appealed a divorce decree in connection with an award of retroactive child support and the distribution of marital property. The mother and father sued for divorce. The court held a bench trial and appointed the couple joint managing conservators of the children. The mother was the parent with the exclusive right to designate the children’s primary address. She was also awarded over $50,000 in retroactive child support, attorneys’ fees, and 80% of the marital estate (according to the father).

The father appealed, claiming that the evidence for the child support award and property distribution was legally and factually insufficient. The appellate court explained that it would consider whether the trial court had enough evidence upon which to use its discretion and whether it had made a mistake in applying its discretion. It further explained that a trial court has broad discretion to award attorneys’ fees under Texas Family Code § 106.002. The mother’s attorney had provided testimony regarding his fees and claimed that the high fees were driven by the father’s conduct in not answering timely discovery and dumping unorganized documents on him. The court found there was no abuse of discretion in awarding $130,000 in fees to the mother.

The father also argued that the mother didn’t have pleadings to support her request for retroactive child support. The mother’s attorney had asked during closing arguments that child support be paid retroactively to June 2012, due to the father’s intentional unemployment or underemployment during that period. However, the father had not objected at trial to either the closing arguments or the mother’s request to include an order to pay retroactive child support, nor did he object at the time the trial court signed the divorce decree, including retroactive child support. The court concluded these complaints weren’t preserved for review.

Who Keeps the Engagement Ring if the Wedding is Called Off?

Published on: November 2, 2016 | by Kaitlin Capetillo

What happens to the engagement ring if someone calls off the wedding?

Unfortunately, before some engaged couples can make it down the aisle to say “I do”, someone says “I don’t”. The issue of who gets to keep the engagement ring often surfaces during this heartbreaking time.

An engagement ring is a gift and the law requires three elements to constitute an irrevocable gift:

Right to Reimbursement in Texas Divorce

Published on: July 15, 2016 | by Kelly McClure

In McCoy v. McCoy, a Texas husband appealed from a divorce decree, arguing that the lower court should not have denied his claim for reimbursement. The couple started dating in 2009. In the following year, they got engaged, and the husband moved to start law school. His fiancée joined him there in a rental house. They married in 2011. The wife worked full time during the husband’s first year in law school but then started going to law school as well. They both relied on student loans to cover their expenses and tuition.

Later, the husband claimed they had an agreement that the wife would pay him $700 every month and also pay for groceries and gas. He argued that she budgeted poorly and only sometimes paid this part of the expenses, and as a result he had to get supplemental student loans to cover her portion. They kept separate checking accounts related to their different law school loans.

In 2013, after the husband graduated, the wife filed for divorce. The husband responded by claiming he was entitled to reimbursement from his wife because he’d had to use his separate property to pay for her necessary living expenses. A bench trial was conducted, and the trial court divided the marital estate by awarding each of them the property they possessed and by ordering each spouse to pay his or her loans and debts solely in his or her name. The trial court also found that the husband’s request for reimbursement wasn’t supported by a preponderance of the evidence.

Enforceability of a Rule 11 Agreement in Texas

Published on: July 15, 2016 | by Kelly McClure

Family law judges encourage those getting a divorce to enter into settlement negotiations rather than proceed to trial. Under rule 11 of the Texas Rules of Civil Procedure, agreements reached during these negotiations are not enforceable unless they are written, signed, and filed with the divorce papers as part of the record, or the agreement is made in open court and entered as part of the record. In order to have the agreement be enforced, all material terms are supposed to be included, and they should be clear and unambiguous.

In Bush v. Bush, a Texas Court of Appeals considered the enforceability of a rule 11 agreement. The case was an appeal from a divorce decree in which the husband challenged the trial court’s award of two parcels of real property to his former wife. The wife sued for divorce in March 2013, and in response the husband filed a counter petition for divorce and moved to enforce a rule 11 agreement regarding the division of property, which his ex-wife and he had filed in a prior divorce case that was dismissed in 2006.

He subsequently moved to transfer and consolidate the current divorce proceeding with the previously dismissed case. The trial court came to the decision that the prior divorce had been dismissed by agreement of the parties and that since the parties agreed to the dismissal and signed the order, everything in the prior proceeding had been dismissed, and the prior case did not need to be reinstated into the current case. It also found that rule 11 agreements may be revoked until they are accepted by the court and incorporated in a final order, and this wasn’t done in the prior proceeding. The court also held that even if the agreement had survived, it didn’t have the specificity necessary to be enforced, although with respect to the sale of a particular piece of real property, the agreement might be enforceable through the application of contract law.

Division of Property in Texas

Published on: April 11, 2016 | by Brandon Joseph

Alex Graves, award-winning director of “The West Wing” recently finalized his divorce from his wife of 19 years. Pursuant to the final order, the spouses’ property was divided evenly. Does the State of Texas mandate a fifty-fifty division of property upon divorce? The short answer is “no.” Continue Reading ›

It’s Not Too Late to Get a Prenup!

Published on: March 15, 2016 | by Kate Mataya

I know what you’re thinking…. “I’m already married; how is it not too late?” Don’t worry; the solution is a postnup! The Texas Family Code allows for couples to enter into a postnuptial agreement (or marital property agreement), which will offer many of the same protections and advantages that a prenuptial agreement offers.

Current Property. At the time of marriage, both spouses often have separate property interests and liabilities that were acquired prior to marriage. Without a prenup, the spouses’ separate property estates often become commingled and indistinguishable from the community estate of the spouses that begins upon marriage, especially if the spouses have been married for a substantial period of time. For example, during marriage, a spouse may inherit a large estate from a relative, gifts, buy a house, sell or trade property, or put separate property money in the same bank account. Although you and your spouse did not execute a premarital agreement, it is not too late to distinguish your separate property in a marital property agreement.

Chapter 4 of the Texas Family Code, Subchapter B, outlines the statutory requirements and guidelines for a marital agreement. Section 4.102 states:

To Move Out or Not To Move Out – That is the Question

Published on: January 12, 2016 | by Bryce Hopson

When it comes to divorce, we have all heard that timeless adage that is passed between friends, co-workers, neighbors, and the rowdy crowd of stampers that amass for Saturday-night Bingo – “Never voluntarily move out of the marital residence.” A majority of the time, people are not exactly sure why they need to stay in the family residence, they just know that somewhere along the way, this sage proverb was firmly engrained into their psyche and should never be challenged.