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iStock-1132277483-300x200Property division in a Texas divorce is intended to be final, and a court generally is not allowed to change the division set out in the final decree.  Tex. Fam. Code Ann. § 9.007. The court may, however, issue orders to clarify or enforce the property division set out or incorporated by reference in the decree. Issues related to retirement benefits are often addressed in a Qualified Domestic Relations Order (“QDRO”) for private employees or a Court Order Acceptable for Processing (“COAP”) for employees of the federal government, which may be incorporated into the decree.  Courts may therefore correct or clarify a QDRO or COAP to achieve the property division set out in the decree.

An ex-husband recently challenged an order allowing his ex-wife half of his entire monthly federal pension.  The husband started working for the federal government in 1989. The parties got married in 2000 and divorced in 2011.

Language in the decree seemed to award the wife half of the community share of the husband’s federal government pension benefits, but another provision seemed to award her half of all of those benefits.  The decree stated the “community portion” of the pension benefits would be identified in a COAP. The court rendered the COAP in January 2012, but it indicated the wife was awarded 50% of all of the federal pension benefits.

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judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225A fit parent generally has the right to determine who has access to the child.  In some cases, however, people other than the parents may seek visitation or even custody of the child.  When someone other than a parent seeks rights in a Texas case, they must meet certain conditions.  In a recent case, a mother challenged a court’s orders granting possession and access to the child’s paternal grandmother.

According to the appeals court’s opinion, the trial court appointed the parents joint managing conservators and gave the father the exclusive right to determine the child’s primary residence.  The teenage parents and child lived with the paternal grandmother for about two years. Several months after the father went to prison, the mother and child moved out.

Mother Files Suit; Grandmother Intervenes

The mother petitioned for modification, seeking sole managing conservatorship.  The grandmother filed a petition in intervention, asking to be named joint managing conservator with the right to determine the child’s primary residence or possession and access in the alternative.

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2018_10_agreement-300x165In Texas, separate property can be converted to community property by a written agreement signed by both spouses that identifies the property to be convert and specified it is being converted to community property. Tex. Fam. Code § 4.203.  In a recent case, a former husband challenged the property division in his divorce decree, arguing certain assets had been improperly characterized as the wife’s separate property.

The wife was beneficiary of three irrevocable trusts set up by her grandparents.  The income from the trusts was to be distributed to the wife at least annually starting when she turned 21.  The trustee was also authorized to distribute principal for the wife’s care, comfort, support, and education if the trustee deemed it necessary. When she turned 32, the trustee had the discretion to distribute the balance.  After the wife’s thirty-second birthday, which occurred during the marriage, the trustee terminated the trusts and put the accounts in her name.  They were worth about $2.3 million at the time.

The parties hired an estate-planning attorney.  They both signed an engagement letter, stating they told the attorney they considered the current assets, specifically including the funds inherited by the wife, to be community property. The trust agreement stated that the trustors contemplated that all assets that would be transferred to the trust would be community property. However, it also included a provision allowing either party to modify, revoke, or terminate the agreement with respect to any of their own separate property held in the trust. They subsequently transferred the assets from the grandparents’ trusts to the new trust account.

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iStock-483611874-300x200A modification of Texas child support requires the parent seeking the modification to show there has been a material and substantial change in circumstances since the current order was rendered. Tex. Fam. Code § 156.401. A change in income may be a material and substantial change.  A court’s primary consideration should be the child’s best interest.

A father recently appealed the denial of his petition for modification of child support.

The parties divorced in 2018.  The father agreed to pay $2,000 in monthly child support, to provide health insurance,  to make monthly payments for a credit card balance that had been used for his business, and to pay the mother $50,000 in $1,500 monthly payments for her community interest in the business.

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iStock-839381426-300x200Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence.  A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child.  The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order.  The mother was given a standard possession order and required to pay child support.

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iStock-1139699594-300x200When a couple has complex and high-value assets, the actions required to achieve the property division may drag out long after their Texas divorce.  The parties may need to refinance or liquidate certain assets.  These ongoing transactions can result in additional disputes and possibly enforcement actions by one or sometimes both parties.

A husband recently challenged a court’s order in favor of the wife in dualling enforcement motions.  The trial court entered an Agreed Final Decree of Divorce in March 2019.  The decree awarded the wife a business, but required her to pay the husband a $770,000 equalization judgment secured by her primary residence and rental properties.  She was also ordered to make monthly payments with 3% interest starting in February 2019.  She defaulted in 2020, triggering an acceleration clause.

The decree also addressed the parties’ 2017 tax return and liability. The wife would pay $60,000 of the approximate $199,000 liability and any penalties and interest “arising solely out of the failure to previously make the $60,000 payment to the Internal Revenue Service.” The parties would split the remaining tax liability, penalties, and interest equally.  The wife consented to filing the tax return in June of 2019, but the husband asked to review certain documents before he consented.  There was evidence he received the documents in the summer of 2020 and notified the wife and accountant he had identified additional medical expenses within a week of receipt.  He ultimately gave his consent to file the day before the enforcement hearing.

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iStock-1033856542-300x200Some families choose to resolve custody manners informally.  When the parties are the biological parents, subsequent disputes can be resolved through a Texas custody case.  When one party is not biological parent, however, resulting disputes may be more complex. In a recent case, a maternal uncle and aunt appealed an order that required them to pay child support for their nephew.

When the child was born, the child’s biological mother asked her brother to act as the child’s father.  The brother signed an acknowledgment of paternity, birth certificate, and a verification of birth facts.  The birth certificate listed the brother’s wife as the mother.  Initially, they all lived together, but the mother moved out following a falling out with the couple.

Mother Files Paternity Suit

In August of 2016, the mother petitioned to adjudicate parentage, asking the court to adjudicate her as the mother and an identified man as the father.  The brother and his wife were named as parties, but they also intervened in the case, asking the court to name them the child’s managing conservators and terminate the mother and alleged father’s parental rights.

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iStock-1187184203-300x200Retirement benefits are often subject to property division in a Texas divorce.  In some cases, calculating the community interest is straight forward; however, in other cases, it can be somewhat more complex.  In a recent case, a former wife challenged a trial court’s handling of the former husband’s retirement benefits after it concluded she had already received all of the benefits to which she was entitled.

The parties had been married 22 years when they divorced.  The wife was awarded 50% of the husband’s Civil Service Retirement Benefits accrued as of the date of the decree’s entry.  The trial court signed a Qualified Domestic Relations Order (“QDRO”) authorizing payment of an interest in the husband’s monthly annuity payments to the wife and stating that she was entitled to a survivor annuity.

Trial Court Enters Original QDRO

The parties began receiving the monthly annuity payments pursuant to the QDRO after the husband retired at the end of 2011.  In March 2016, the husband moved to vacate the QDRO, arguing the wife was not entitled to a survivor’s benefit under the decree but a premium was being deducted from his monthly benefit.  He asked the court to amend the QDRO to match the property division in the divorce decree.

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“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas marriage can end through either death or a court’s decree.  If a party dies before judgment is rendered in a divorce case, the divorce case abates. In a recent case, a husband challenged a divorce when the decree was signed after the death of the wife.

The wife filed for divorce in October 2018, alleging insupportability, abandonment, and cruel treatment.  In his counterpetition, the husband alleged insupportability, cruel treatment, and adultery.

Final Trial

At the trial on September 17, 2019, the court informed the attorneys that it needed time to make its rulings regarding the property.  The court said it would email the parties with the decision. The proceedings resumed after a break on the record and the court pronounced the parties divorced and said the entry of the final decree would be ministerial.

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iStock-1139699594-300x200When a parent in a Texas custody case fails to comply with a court order, the other parent may petition for enforcement of the court order. The parent seeking enforcement may pursue an order of contempt, which can result in six months’ jail time, a fine of $500 per violation, or both. A father recently appealed a contempt order against him, arguing in part that the trial court failed to inform him of his rights to an attorney and against self-incrimination.

Mother Files Enforcement Action Against Father

Several months after the divorce, each party filed an enforcement petition alleging the other violated the decree.  The mother asked the court to hold the father in contempt, incarcerate him for up to 180 days, put him on community supervision for 10 years, order him to pay a $500 fine for each violation, and award her attorney’s fees. She alleged he failed to provide documents needed to file tax returns, failed to sign documents to transfer property, and repeatedly interfered with her possession of the child.

A flight delay had resulted in the mother losing two days of possession. The other incidents were related to a disagreement regarding the exchange of possession.  Under the decree, the father was required to surrender the child to the mother at the  daycare or school, in the parking lot of a specified grocery store if the daycare or school was closed.  The decree further permitted each party to “designate any competent adult to pick up and return the child. . .” and required either the party or a designated adult to be present for the drop off.

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