iStock-952098878-300x200When a party fails to participate in a Texas custody and child support proceeding, they do not have an opportunity to contest the evidence presented by the other side. The court may render judgment on the evidence presented by the other party.  In a recent case, a mother appealed a child support award that varied from the guidelines based on the evidence of the father’s income and resources she presented after he failed to appear in a modification proceeding.

According to the opinion of the appeals court, an agreed order entered in June 2017 named both parents joint managing conservators of the two minor children and required the father to pay $620 in child support each month. The father petitioned or modification of conservatorship and termination of the child support in early 2020.  In her counterpetition, the mother asked for a recalculation of child support, confirmation of child support arrearages, and modification of conservatorship.

Default Judgment Entered Against Father

The father failed to appear at trial in April 2021.  The court denied all modifications to conservatorship, possession, and parental rights and duties, but did confirm $24,082.48 in arrearages and increased child support to $1,700 per month.

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property-division-300x110Property in a Texas divorce does not have to be divided equally, but instead must be divided in a just and right manner.  There can be a number of ways to achieve a just and right division, especially when the property is a large piece of real estate.  In a recent case, a husband asked the court to award the wife a smaller portion of the parties’ ranch, which he claimed was more valuable than the rest of the ranch.

Wife Precluded from Presenting Testimony about Value of Ranch

The parties married in 1995.  When the wife petitioned for divorce, the parties owned a ranch together.  Before the trial, the husband moved to compel discovery and subsequently for discovery sanctions.  The trial court granted the motions and ordered that the wife would not be allowed to testify about the community property’s value.

According to the appeals court’s opinion, he husband testified that the tax appraisal for the ranch was $529,280, but that the ranch was only worth $400,000.  He asked the trial court to award him the entire ranch, or alternatively to award the wife the “richest 10 acres” and give him the other 40.  He testified the westernmost ten acres were the most beautiful and had the richest soil.  The remaining 40 acres included several improvements, including a mobile home, a barn, and a pond.

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iStock-483611874-300x200Texas spousal maintenance is allowed only in limited circumstances, including when the spouse pursuing maintenance is not able to earn sufficient income to provide for their own minimum reasonable needs due to a disability, is not able to earn sufficient income to provide for their minimum reasonable needs after at least ten years marriage, or is unable to earn sufficient income to provide for their minimum reasonable needs because they are the custodian to the parties’ child who has a disability.  The court may also award maintenance in certain situations involving domestic violence.  TEX. FAM. CODE ANN. § 8.051.

Husband Ordered to Pay Spousal Maintenance

In a recent case, a husband appealed an order awarding spousal maintenance to the wife, arguing there was insufficient evidence supporting it.  The parties had been married nearly 13 years when the wife petitioned for divorce.  She sought spousal maintenance for a reasonable period after the divorce and the court awarded support for three years.  The husband appealed.

According to the appeals court, the trial court had ordered the husband to pay $1,458.24 in monthly child support plus all the child’s insurance.    She testified she earned $1,700-$1,800 per two-week pay period working about 32 hours per week.  She said she previously earned $35 to $36 per hour at other jobs. She said her employer was only open four days per week so she was not able to increase her hours.

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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-1287431987-300x200Texas prenuptial agreements may include a provision requiring arbitration in the event of a divorce.  The Texas Family Code includes provisions making arbitration of divorce cases different from the arbitration of other types of cases.  A wife recently sought mandamus relief after the trial court ordered arbitration pursuant to a prenuptial agreement.

Parties Executed Islamic Premarital Agreement

According to the court’s opinion, the parties had executed an “Islamic Pre-Nuptial Agreement.” It included a provision requiring resolution of conflicts in accordance with Islamic law by either in a Muslim court or by a three-member Fiqh panel.

The wife denied knowing the contents of the agreement when it was executed.  She claimed she thought it was a second copy of the parties’ marriage contract.

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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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does-adultery-affect-alimony-in-idaho-1080x600-1-300x167Property possessed by a spouse during or upon dissolution of the marriage is presumed to be community property.  Clear and convincing evidence that the property is separate is required to rebut that presumption.

Wife Asserts Gift from Parties’ Son

A husband recently appealed a divorce decree, arguing the trial court erred in finding all accounts in the wife’s name in Bangladesh banks were the wife’s separate property.  The wife claimed the money in those accounts had been gifted to her by their son.  Property acquired by gift or inheritance is generally separate property.  TEX. FAM. CODE ANN. § 3.001.

According to the appeals court’s opinion, the parties’ son testified he had sent his mother $500 a month through an automatic deposit into her bank account since 2006.  He said the money was a gift only to his mother.  The wife testified she had transferred some of those funds into her accounts in Bangladesh.

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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-182358076-300x200A court may modify a child’s conservatorship if there has been a material and substantial change in circumstances and the change is in the child’s best interest.  A mother recently challenged a court’s modification of her child’s conservatorship.

According to the appeals court’s opinion, the parents divorced following the mother’s affair with a married man.  The divorce decree named the parents joint managing conservators with neither having the exclusive right to designate the daughter’s primary residence.  The decree also incorporated an agreement for visitation, custody, and child support.  Eleven months later they both sought modification.

Changed Circumstances Since Divorce?

The mother married the man with whom she had the affair.  He had two children and a new baby with the mother. The police were twice called to the home due to arguments between the mother and stepfather. The mother and stepfather also separated twice, once for around three months and another time for a single night.

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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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