Texas Divorce Attorney Blog

Disability Can Be Established Through Lay Testimony in Texas Spousal Maintenance Case

Published on: December 27, 2022 | by Kelly McClure

iStock-545456068-300x184 A Texas court may award spousal maintenance in certain circumstances, including when a spouse lacks sufficient property to provide for their reasonable minimum needs and is unable to earn enough income to provide for those minimum reasonable needs due to an incapacitating disability. Tex. Fam. Code § 8.051. Spousal support is generally limited based on the length of the marriage, but may be indefinite while the spouse is unable to support himself or herself because of a disability. Tex. Fam. Code § 8.054(b).

A husband recently challenged a spousal maintenance award. According to the appeals court’s opinion, the parties had been married for about eight years and had a child together when the husband filed for divorce. The wife requested spousal maintenance.

Evidence Presented at Trial Regarding Spousal-Maintenance Request

The wife, the husband, and the husband’s mother all testified at trial. The wife testified about her work history, educational background, and health issues. She testified that she received daily dialysis, which required her to be connected to a machine for as much as 10 hours. She could, however, do the dialysis at home where she could move around the house and care for the child.

Dormancy of Texas Divorce Judgment Calculated From Date Payment Obligation Is Triggered

Published on: December 23, 2022 | by Francesca Blackard

iStock-1187184203-300x200 TEX. CIV. PRAC. & REM. CODE § 34.001(a) provides that a judgment becomes dormant if a writ of execution is not issued within 10 years of its rendition. A judgment is dormant, execution may not be issued unless it is revived. A dormant judgment may be revived within two years of becoming dormant. TEX. CIV. PRAC. & REM. CODE § 31.006. A former wife recently argued that her ex-husband could not enforce a payment obligation contained in their divorce decree because the judgment had become dormant.

2008 Divorce – $30,000 Judgment Awarded to Husband

According to the appeals court’s opinion, the parties divorced in 2008. The decree awarded the husband $30,000, with interest beginning 12 months after the judgment, secured by a lien on the home where the wife lived. The unpaid principle and accrued interest were to be paid upon the earliest of: the sale of the home, the youngest child’s emancipation, the wife’s remarriage or cohabitation with a romantic partner, the wife’s death, or the home ceasing to be the primary residence of the children.

The husband filed an application for turnover and appointment of a receiver in 2021. His counsel stated that the earliest of the listed events happened in May 2014, when the youngest child turned 18 and graduated high school. The wife argued that the judgment had become dormant. The trial court signed a turnover order and appointed a receiver to possess and liquidate the wife’s non-exempt property to satisfy the judgment. She appealed.

Texas Child Support Based on Mother’s Evidence When Father Failed to Appear

Published on: December 19, 2022 | by Kelly McClure

iStock-952098878-300x200 When 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.

Texas Division of Real Estate in Divorce

Published on: December 15, 2022 | by Francesca Blackard

property-division-300x110 Property 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.

Texas Appeals Court Finds Insufficient Evidence for Spousal Support

Published on: December 11, 2022 | by Kelly McClure

iStock-483611874-300x200 Texas 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.

Evidence Regarding Property Required in Texas Divorce

Published on: November 7, 2022 | by Francesca Blackard

iStock-1214358087-300x169 The 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.

Court Must Decide Validity and Enforceability of Arbitration Agreement in Divorce Cases

Published on: November 3, 2022 | by Kelly McClure

iStock-1287431987-300x200 Texas 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.

Geographic Restriction in Texas Custody Case

Published on: October 31, 2022 | by Francesca Blackard

iStock-1175949984-300x200 When 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.

Gifts and Separate Property in Texas Divorce

Published on: October 27, 2022 | by Kelly McClure

does-adultery-affect-alimony-in-idaho-1080x600-1-300x167 Property 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.

Exception to Texas Statute of Limitations for Adjudicating Parentage

Published on: October 23, 2022 | by Francesca Blackard

iStock-1033856542-300x200 When 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.