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iStock-926241578A Texas common-law marriage can occur when the parties agree to be married, subsequently live together as married within the state, and represent themselves as married.  Tex. Fam. Code Ann. § 2.401. The agreement to be married is a separate requirement that must be proven, although it may sometimes be inferred from evidence of the other two requirements.

CLAIM OF INFORMAL MARRIAGE

In a recent case, a woman appealed the dismissal of her claim of common-law or “informal” marriage. The parties had previously been married and were divorced in 2014.  They subsequently rekindled their relationship later that year.  The alleged wife petitioned for divorce in May 2016, claiming they had “rendered a common-law marriage” in December 2014 and had stopped living together around the time she petitioned for divorce.

The man denied that there was an informal marriage and filed a motion for summary judgment, seeking the trial court to find that the woman had failed to establish its existence.  The affidavit the woman attached to her response stated the parties reconciled and agreed to be married on or about December 14, 2014.  She said they moved in together and represented themselves as married.  She also attached affidavits from others. She also submitted an email from the man to his child’s teacher in which he referred to her as his wife.  She also provided a number of documents in support of her position. Following a hearing, the court granted the man’s motion for summary judgment.

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iStock-1270267953Marriages in Texas are generally presumed to be valid. Tex. Fam. Code Ann. § 1.101.  In some cases, however, a party may seek to have a marriage determined to be invalid by pursuing an annulment.  When a person petitions for annulment, they are taking the position that the marriage was not valid and should be declared void.  One reason a party may seek an annulment is if they were induced to enter the marriage through fraud, duress, or force by the other party. A party may only be granted an annulment on these grounds if they did not voluntarily live with the other party after finding out about the fraud or no longer being under duress or force. Tex. Fam. Code § 6.107. A divorce suit, however, presumes the marriage was valid, but asks that it be dissolved.

Trial Court Grants Divorce instead of Annulment

A former husband recently appealed his divorce, arguing that the court should have granted his petition for annulment instead of the wife’s counter-petition for divorce.  They were both Chinese nationals living in different cities in Texas and got married days before the husband’s last interview for his green card. The wife was attending university in Odessa on a non-immigrant student visa at the time. Before the marriage, they agreed they would live apart until the wife graduated, but that the wife would move into off-campus housing so the husband could visit her. They also agreed she would move to San Antonio, where the husband lived, after graduation. She instead ultimately rented a room in Odessa.

The wife got a green card in 2016 based on her marriage.  The husband became concerned she married him to speed up her immigration.  He petitioned for annulment on the grounds of fraud in July 2017.   The wife subsequently counter-petitioned for divorce.

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iStock-1183385986-scaledA court may order Texas spousal maintenance if the spouse requesting it is not able to earn enough to provide for their own minimum reasonable needs due to an incapacitating disability. The incapacitating disability may be either physical or mental.  Tex. Fam. Code 8.051.  A former husband recently challenged a spousal-maintenance award, arguing that the former wife had not shown her disability was “incapacitating.”

Husband Files for Divorce

The couple separated in September 2016 and the husband petitioned for divorce in 2018.  At trial, the wife testified she had fallen down the stairs in April 2016.

The wife testified she had lost her vision for several days as a result of the fall. She also experienced seizures.  She was in the hospital for several days and was diagnosed with traumatic brain injury with severe memory loss.  She said she had difficulty with words and processing things.  She testified she recently started regaining her memory and taught herself to read again.  She also testified her short-term memory had gotten better than it had been.  She admitted that she could currently drive and do math with a calculator.

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iStock-848796670The trial court must divide property in a just and right manner in a Texas divorce.  The division must be equitable, and should not be punitive against either spouse.  A husband recently challenged a property division, arguing it had been punitive against him.

The wife filed for divorce after the parties had been married for over 30 years.  She alleged the husband had engaged in cruel treatment and had committed fraud on the community estate.

Wife’s Trial Testimony Highlighted Abusive Marriage

The wife said the husband often disparaged her appearance, individual worth, and profession in front of others and in private. According to appeals court’s opinion, the husband earned significantly more money than the wife and controlled the couple’s finances.  The wife said the husband used his control of the couple’s finances punitively and, for example, would not give her money to go to Poland to visit her family when they were sick and would not pay for a surgery she needed. She also testified that he said her mother had died of a stroke because she was a bad daughter and a bad person. Other witnesses, including the couple’s daughter, corroborated the wife’s allegations of verbal abuse. The husband, however, denied it and claimed they were all liars.

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iStock-1147846829A court may generally only modify a Texas custody order if the modification is in the best interest of the child and there has been a material and substantial change in circumstances since the previous order was rendered or the parties signed the settlement agreement. The court may also modify an order if the modification is in the child’s best interest and an older child has told the court his or her preference or if the parent with the exclusive right to designate the child’s primary residence voluntarily gave up primary care or possession of the child for six months or more. Tex. Fam. Code Ann. § 156.101.

In some cases, when one parent seeks a modification, the trial court may instead grant a modification requested by the other parent.  In a recent case, a mother challenged a modification giving the father the exclusive right to designate the child’s primary residence after she had initially moved for a modification to expand the geographic restriction on the child’s primary residence.

Mother Files Modification Suit

Following the parties’ divorce, the mother had the exclusive right to designate the child’s primary residence in one of two counties.  She petitioned for modification eight years later, seeking increased child support and the right to designate the child’s primary residence in one of the counties or any contiguous county.  The father requested the exclusive right to designate the child’s primary residence within that designated county.

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does-adultery-affect-alimony-in-idaho-1080x600-1When the parties to a Texas divorce agree on a property division, they may agree that certain obligations or conditions must be met.  If a party fails to meet their obligations as agreed to and set forth in the divorce decree, they may not be entitled to the property they were expecting.  In a recent case, a husband challenged a court order requiring him to reimburse the wife for certain tax liabilities after she failed to provide him the documentation required to calculate the amount he owed in accordance with the decree.

Wife Fails to Comply with Requirements of Divorce Decree

The parties’ mediated settlement agreement was incorporated into their divorce decree. The decree required the wife to withdraw funds from the husband’s pension plan. After paying certain debts, her attorney was to distribute 30% of the remainder to the wife and 70% to the husband. The decree required the husband to reimburse the wife 70% of her income tax liability for those funds. The decree ordered the wife have two draft income tax returns prepared, one showing the pension plan funds as income and the other not including the funds, to allow the husband to calculate that reimbursement. She was to provide the husband with the draft returns by June 1 of the year after the year the funds were liquidated.

The wife hired a tax preparation company.  The first draft return was a joint return with her new husband and included his wages, her wages, her social security disability income, and the liquidated pension plan funds.  The second draft return indicated it was a joint return, but only included her wages.  She sent the drafts to the husband before the deadline. He informed her he needed a draft return that included only her wages and the liquidated pension plan funds.  The wife went back to the tax preparer multiple times, but said they kept getting it wrong.

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iStock-1215119911A trial court must divide community property in a “just and right” manner in a Texas divorce.  The court must properly characterize the property before it in order to achieve a just and right division. Characterization can be complex when the parties have significant assets acquired through various means.  It can get even more complicated when the parties have ownership interests in business entities that also own property.

A husband recently appealed the property division in his divorce decree, arguing the court had improperly awarded him property owned by business entities as his separate property. The parties got married in 1993.  They lived in Connecticut, but the wife moved to Texas in 2018 for a job.  The husband remained in Connecticut where his construction businesses were located. He told the wife, however, that he would move to Texas in a year to a year and a half, but ultimately did not do so.

Wife Files for Divorce

The wife petitioned for divorce in 2019.  The husband’s father and his company filed suit against three of the husband’s businesses a few days before the divorce trial. The lawsuit alleged the husband’s companies owed his father’s company $770,644 for equipment rental.

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iStock-1183385986-scaledTexas divorce cases can involve multiple areas of law. Contract law applies to pre-marital and post-marital agreements. Contract law may also apply to agreements the parties enter into as part of a divorce.  In a recent case, a portion of a wife’s claims for contractual alimony was barred by the contract statute of limitations.

When the parties divorced in 2012, they entered into a written agreement.  Their divorce decree included a provision for “Contractual Alimony,” with the parties agreeing that the husband would pay the wife $4,000 per month, payable on the first of the month with a five-day grace period before the payment would be considered late.  The contractual alimony was to be paid from June 2013 to May 2015. The decree further stated that the wife could accelerate the payments if the husband defaulted and failed to cure within 30 days of receiving notice of intent to accelerate.

Wife Moves to Enforce Contractual Alimony

The wife moved to enforce the alimony requirements on March 26, 2019. She alleged the husband had failed to make the payments starting in December 2013.  She asked the court to order him to pay the past due payments, interest, and fees and costs.

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iStock-483611874The trial court has some discretion in determining the modified amount of child support when it has determined that a Texas child support order should be modified. Tex. Fam. Code § 154.125 provides a schedule of percentages that are presumptively applied when the parent’s net monthly resources do not exceed a specified amount. The trial court, however,  may consider the listed factors or “any other reason” to determine the application of those amounts is not in the best interest of the child.  Tex. Fam. Code § 154.123. There must be evidence of the child’s “proven needs” in the record for the court to deviate upwards from the guidelines. Tex. Fam. Code § 154.126.

A father recently challenged a modification to his child support obligation, arguing the trial court improperly deviated from the presumptive amount. According to the appeals court’s opinion, the parties’ 2017 divorce decree obligated the father to pay $1,710 in child support each month for one child (i.e., max child support at the time). In 2018, he petitioned to modify the amount of child support, claiming his income had decreased.

Father Seeks Reduction in Child Support

The father lived in California and worked as a vice president, selling software testing. His base salary was $80,000, but he also earned commissions and a significant bonus (up to 50% of his base salary). The mother had been a homemaker, but had just begun providing catering services at the time of the hearing.  She had earned approximately $1,400 for the one event she had catered at the time of trial.

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iStock-531351317Texas family law considers Social Security disability benefits to be a substitute for the parent’s earnings. Pursuant to Tex. Fam. Code § 157.009, when a child receives a lump-sum payment due to the parent’s disability, the parent is entitled to a credit applied to any arrearage and interest. Additionally, when a trial court applies the child support guidelines to a parent who receives disability benefits, the court must determine how much child support would be ordered under the guidelines then subtract the value of any benefits paid to the child as a result of the parent’s disability.  Tex. Fam. Code § 154.132.

The Office of the Attorney General (“OAG”) recently appealed a trial court order applying a lump sum disability payment as a credit to future child support. The trial court signed the parents’ divorce decree in 2016.  The court ordered the father to pay $603.25 in monthly child support.  He filed a petition for modification in 2018, asking the court to modify his child support obligations. The OAG intervened, stating he owed back child support and asking the court to enter judgment for the arrearages and accrued interest.

Father Argues He is Entitled to Future Credit for Disability Payment

The OAG stated in its brief that the father had started receiving Social Security Disability benefits and the children had received a lump sum benefit payment. The OAG contended that amount could only be used as a credit against the father’s arrearage and not for future child support.  The father, however, asked the court to give him a credit against his future obligation.

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