Texas Divorce Attorney Blog

Fit Parent Presumption in Texas Custody Modification Proceedings

Published on: May 10, 2023 | by Kelly McClure

iStock-170042608-300x200 There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents. Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Courts generally cannot interfere with these fundamental rights of a fit parent. The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence. He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

Texas Appeals Court Concludes Parties’ Premarital Agreement Is Enforceable without a Signed Copy

Published on: May 7, 2023 | by Francesca Blackard

In some situations, a Texas premarital agreement can be used to protect the parties’ assets. To be valid, a premarital agreement must be signed by both parties. A wife recently challenged a trial court’s finding there was no enforceable agreement when neither party was able to produce a signed copy of the agreement.

Premarital Agreement

The appeals court’s opinion stated parties started their relationship around six months before the marriage. The wife raised the issue of premarital agreement a month or two before the wedding. The wife signed in front of the notary, but the notary refused to notarize the husband’s copy because he signed it before he arrived at the store and did not have his ID with him.

The wife testified she forgot what she did with the signed copies. She said she thought she had an electronic copy on the husband’s computer, but he had taken the computer.

Texas Appeals Court Overturns Default Judgment in Custody Case

Published on: May 5, 2023 | by Francesca Blackard

iStock-182358076-300x200 When a party in a Texas custody case fails to respond or appear, the court may find they defaulted and enter a judgment in favor of the other party. For a court to enter a post-answer default judgment against a party, however, the pleadings must give the party fair notice of the claim. A mother recently challenged a custody modification, arguing that the father’s pleadings did not specifically request the rights awarded to him by the court.

The trial court originally appointed both parents joint managing conservators with the mother having the right to determine the child’s primary residence without a geographic restriction in 2007. The court also granted the father visitation and ordered him to pay child support.

The Office of the Attorney General (“OAG”) filed a petition in 2020, alleging the father’s financial circumstances had changed and seeking an increase in child support. The father requested a hearing, which was set for March 10.

Texas Appeals Court Affirms Order with No Geographic Restriction on Children’s Residence

Published on: April 29, 2023 | by Kelly McClure

iStock-1139699594-300x200 A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence. The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence. The court’s primary consideration is the child’s best interest. The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs. Lenz v. Lenz.

A mother recently appealed a trial court order naming the father as the conservator with the exclusive right to determine the children’s primary residence with no geographic restriction. The parties got married in 2014 and had two children. The husband was an Army officer, stationed at times in Georgia and Louisiana. He was stationed at Fort Hood in 2018 and the parties bought a home in Belton. The wife started school for nursing in Austin in 2019. They decided the husband would leave the Army in the fall of 2020. The wife told the husband she wanted to separate in January 2020. The husband petitioned for divorce the next month.

The trial court granted the divorce and appointed both parents joint managing conservators, with the husband having the exclusive right to designate the children’s primary residence. The mother appealed.

Texas Appeals Court Upholds Separate Property Characterization

Published on: April 27, 2023 | by Francesca Blackard

2018_10_agreement-300x165 Property possessed by either spouse at the time of a Texas divorce is generally presumed to be community property, but that presumption can be rebutted by clear and convincing evidence. A number of other rules and presumptions may affect the characterization of property during the property division. A husband recently appealed characterization of property purchased by the wife before the marriage as her separate property.

HISTORY OF THE PROPERTY

The wife bought a residential property before her relationship with the husband. After the parties got married, the husband and his children moved in with the wife. Both parties testified they frequently argued about money and finances. When they argued, the wife would say the house was hers.

Texas Appeals Court Affirms Disproportionate Property Division in Divorce

Published on: April 25, 2023 | by Kelly McClure

iStock-483613578-300x204 A court in a Texas divorce must divide the marital estate in a just and right manner. A just and right division does not necessarily mean an equal division. Courts may consider a variety of factors in determining the property division, including fault in the break-up, income disparity, the relative earning capacity of the parties, education, age, physical condition, and financial condition of the parties. A husband recently appealed a disproportionate division of property.

The appeals court’s opinion stated the parties established a common-law marriage in 2015 after living together for 18 years. They separated in 2018 and the wife petitioned for divorce in 2019, claiming insupportability and cruelty. In his counter-petition, the husband also alleged insupportability and cruelty and adultery on the part of the wife. They each requested a disproportionate division of the marital estate.

FINAL HEARING ON PROPERTY DIVISION

They reached a settlement on the issues related to the children, so the final hearing addressed only the property division. The community estate included bank accounts, the husband’s retirement benefits, vehicles, and debt. The parties had also purchased two homes as tenants in common before they were married. They each lived in one of the homes after the separation.

Texas Court Denies Grandparents’ Request to Register Utah Visitation Order

Published on: April 23, 2023 | by Kelly McClure

iStock-1175949984-300x200 A child custody determination from another state may be registered so it can be enforced in Texas pursuant to Tex. Fam. Code section 152.305. A request must be sent to the Texas state court with a sworn statement the order has not been modified. The requestor must also identify who was awarded custody or visitation in the determination. The court will give the people identified in the request notice so they can contest the registration. To successfully contest the registration, the contesting party must show the prior court lacked jurisdiction, the determination has been vacated, stayed or modified, or they were not given proper notice before the court issued the determination order. Tex. Fam. Code 152.305(d). The grandparents of two children recently appealed a court’s denial of their request to register a foreign child custody determination containing their visitation rights.

After the parents divorced in Utah in 2016, the maternal grandparents were given grandparent time and certain related rights pursuant to a stipulation order in 2017. They later petitioned for modification, but the Utah court found it no longer had jurisdiction because the parties and children no longer lived in the state. The Utah court dismissed the petition, also noting in the order there had been a separate adoption case and termination of the mother’s parental rights.

Request for Registration

The grandparents requested registration of the divorce decree, stipulation order, and order dismissing their modification petition in Texas. Their request identified the father as the parent awarded custody or visitation in the custody determination.

Texas Appeals Court Upholds Denial of Spousal Maintenance

Published on: April 21, 2023 | by Francesca Blackard

iStock-1331374129-300x200 Texas spousal maintenance is intended to give temporary support to a spouse whose ability to support themselves has diminished and whose assets are insufficient to support them. After 10 years of marriage, a spouse who shows they lack sufficient property or the ability to earn sufficient income to provide for their “minimum reasonable needs” may be entitled to spousal maintenance. Tex. Fam. Code § 8.051(2)(B). They must, however, overcome the rebuttable presumption that maintenance is not warranted by showing they have exercised diligence in earning sufficient income to provide for their reasonable needs or developing the necessary skills to do so during separation and the pendency of the divorce case. Tex. Fam. Code 8.053. In a recent case, a wife appealed a trial court’s denial of her request for spousal maintenance.

The appeals court’s opinion stated the parties got married in 2009 and separated in 2018. The husband lived in Texas and the wife lived in a vacation condominium they bought in Illinois in 2018. The husband petitioned for divorce in 2019 and the final hearing occurred in February 2021.

The husband requested an equal property division and no spousal maintenance.

The wife asked for a 60/40 split of the assets and $5,000 per month in spousal maintenance for five years. She had not worked during the marriage or during the divorce case. Her mother testified she loaned her $37,500 during the separation. The husband had also transferred about $50,000 worth of assets to the wife during the case. The wife testified her monthly living expenses were about $12,000. She had last worked as a medication aide in 2008. She testified she previously worked as a certified nursing assistant but did not want to do so again. She testified her dental assistance certification did not transfer to Illinois. She also testified she had photography certifications but had not tried to earn income from them. She started a real estate course in 2019, but had not passed part of the test. She also admitted she had “not done anything” to become employed since the divorce case commenced. She said businesses were closed due to the pandemic and she did not have time to seek employment due to the divorce case.

Considerations in Texas Divorces Involving Complex Business Assets

Published on: April 20, 2023 | by Francesca Blackard

iStock-1344397136-300x225

For many business owners and entrepreneurs, their business is not only imperative to their financial well-being but is also a large part of their identity. This can raise obvious concerns when divorce is on the horizon. And when a couple owns a large business or corporation, or the business assets are complex in nature, the thought of dividing business assets can be overwhelming. Nonetheless, dividing complex business assets is often required, and, therefore, it is imperative that spouses understand how Texas law handles these situations.

WHAT ARE COMPLEX BUSINESS ASSETS?

Complex business assets are assets that belong to or are associated with a business that do not necessarily lend themselves to simple valuation or division. For example, the monetary value of a business’s goodwill or intellectual property rights are two common examples of complex business assets.

ARE BUSINESS ASSETS DIVIDED BETWEEN SPOUSES IN A TEXAS DIVORCE?

The short answer is it depends. Texas is a community property state. So, any assets that are acquired by either spouse during the marriage are presumed to be community property, which is subject to division upon divorce. However, determining whether complex business assets are community property is not always a straightforward endeavor. And even then, this is only the first question courts must answer when hearing a divorce involving complex business assets.

Texas Court Denies Mother’s Request to Relocate with Child

Published on: February 25, 2023 | by Kelly McClure

iStock-1147846829-300x200 The best interest of the child is the primary consideration in Texas custody matters, but the courts have identified factors to be considered in determining the child’s best interest in certain circumstances. A mother recently appealed a court’s denial of her request to remove a geographic restriction, arguing the court failed to properly balance the appropriate factors.

The divorce decree gave the mother the exclusive right to designate the child’s primary residence with a geographic restriction. It also required both parents to provide the other written notice before taking the child out of the country.

The mother married a man who lived in Oklahoma. She ultimately petitioned for modification and requested removal of the geographic restriction. The father believed she had already moved to Oklahoma and sought the right to designate the child’s primary residence.