Texas Divorce Attorney Blog

Is it Possible to Keep Your 401(k) in Your Divorce?

Published on: November 25, 2021 | by Kelly McClure

iStock-654702696-300x200 One asset that many Texans do not consider their spouse to have an interest in is their 401(k) or any other retirement fund that they have been slowly building during the course of their marriage. Having to divide up your retirement funds may throw a wrench into one’s retirement plans, but, where possible, courts often award retirement accounts to the spouse in whose name they are held. Provided the somewhat-ambiguous “just and right” standard is met, Texas divorce courts have wide discretion to divide up individual assets as they see fit. This may involve splitting each asset, such as 401(k), and dividing the funds therein between the spouses. However, more commonly, courts attempt to award whole assets to either party to avoid an overly complicated, and perhaps unnecessary, division of property.

With this in mind, it is important to focus aspects of your case at trial on why the court should award your 401(k) to you. Factors such as your role in contributing to it, your need for future support, the value of assets in your spouse’s control, your and your spouse’s relevant incomes, which spouse is appointed primary conservator of their children (if any), and many others can be useful to craft a compelling case to keep your 401(k) plan (or any other asset).

In addition, you can sometimes increase the likelihood that you keep your 401(k) post-divorce by entering into a settlement agreement with your spouse. In Texas, spouses are free to enter into settlement agreements to resolve one or more aspects of their divorce, such as the division of their community estate. Settlement is an important process in a Texas divorce, because it can often be the best way to ensure that you retain your hard-earned nest egg and any other assets that you consider important.

Texas Appeals Court Enforces Property Distribution Years After Default Divorce

Published on: November 23, 2021 | by Francesca Blackard

images Failing to respond to a Texas divorce petition can result in a default judgment with an unfavorable property division. What happens, though, if the spouse who received the default judgment fails to take action to enforce the property division for several years? A Texas appeals court recently considered a case involving that issue.

Wife Obtains Default Judgment

The husband bought a home before he met the wife. They refinanced it jointly twice during the marriage. The wife subsequently filed for divorce and obtained a default divorce decree in February 2011. The decree listed the home as community property and stated that the wife owned it alone as separate property and that the court divested “any interest, title, and claim the Husband may have to [it].” The court further ordered the husband to sign any deeds necessary to transfer the property to her. There was a remaining principal of $43,399.14 according to the bank statement for the next month.

The husband testified he had not been served and only found out about the divorce case and default divorce later that year. The wife moved out about four months after the divorce. She stated the husband did not want her to live there and tried to “kick [her] out in a very aggressive way. . .” She claimed “[t]here was a lot of violence. . .” The husband testified the wife would yell at him that the house was hers and she was going to take it from him. He then went to court to see the divorce decree and learned it awarded the house to the wife. He said he could not afford an attorney at the time.

What is Spousal Maintenance and When is it Awarded?

Published on: November 21, 2021 | by Kelly McClure

Spousal maintenance (which is commonly compared to other states’ alimony) is a payment from one spouse to another to help the other spouse meet their “minimum reasonable needs” after divorce. A Texas divorce court will determine what is considered to be a spouse’s “minimum reasonable needs,” and can take many factors into consideration when making this determination. (Tex. Fam. Code Ann. § 8.001) Thus, whether a spouse is entitled to spousal maintenance is decided on a case-by-case basis.

A spouse who is seeking spousal maintenance must first demonstrate one of the following to be considered for maintenance (Tex. Fam. Code Ann. § 8.051.):

The marriage lasted 10 or more years;

Addressing an Error in a Texas Child-Support Mediated Settlement Agreement

Published on: November 8, 2021 | by Francesca Blackard

iStock-1125625723 Parties to a Texas suit affecting the parent-child relationship may enter into a mediated settlement agreement (“MSA”) to resolve one or more issues in their suit. An MSA is binding if it prominently states in bold or underlined font or in capital letters that it is not subject to revocation, is signed by the parties, and is signed by the parties’ attorneys who are present at the execution. Tex. Fam. Code § 153.0071. When these requirements are met, a party is entitled to judgment on the MSA. Because an MSA is a contract, it is construed according to the contract-interpretation principles. If an MSA is ambiguous, there is a fact issue of the intent of the parties. A Texas appeals court recently considered what should happen when an MSA included a discrepancy between the stated amount of child support and the calculation for determining child support.

Mother and Father Enter into Settlement Agreement

Following mediation, the parents entered into an MSA that included an attached handwritten page with a child-support calculation as well as four W-2s showing the wages the father earned. The parties initialed each page of the MSA, but not the W-2s.

The MSA identified the father’s child-support obligation as $1,062.60 per month. The attachment stated that “child support is based on [the father’s] representation that he has no rental income and is calculated pursuant to the attached calculations and Exhibits.”

Texas Divorce Court Must Compel Arbitration of Dispute Regarding Buyout Provision of Company Agreement

Published on: November 3, 2021 | by Kelly McClure

iStock-1287431987 A family business can complicate the property division in a Texas divorce. A recent case considered whether a husband could compel arbitration to enforce a buyout provision in a company agreement during the divorce proceeding.

The parties formed a limited-liability company together during the marriage, with each owning a 50% membership interest. The husband subsequently petitioned for divorce and the wife filed a counterpetition. Both attached the standing order required by the Travis County District Clerk to protect the parties and preserve their property while the case is pending. The standing order applies to all divorce suits filed in Travis County (and many other counties have similar standing orders, such as Dallas, Collin, Denton, Rockwall, and Tarrant Counties) and prohibits parties from taking certain actions that would harm or reduce the value of the property and from selling or otherwise alienating property belonging to either party.

Wife Seeks to Compel Arbitration on Business Disputes

The husband sought injunctive relief and temporary orders to address disputes relating to operation of the business. The wife asked for those disputes to be resolved according to the company agreement, which required any court proceeding brought by one owner against the other be submitted to mediation first and then to binding arbitration if not resolved. The parties were required to go to mediation and arbitration and the arbitrator entered an award regarding management and control of the business. The wife moved to enforce the arbitration award and the court entered temporary orders in accordance with that award.

Medical Expense Reimbursement as Texas Child Support

Published on: October 31, 2021 | by Francesca Blackard

does-adultery-affect-alimony-in-idaho-1080x600-1 Children’s medical and educational expenses can often be a contentious issue in Texas child-support cases. Parents may disagree on whether treatment is needed, what providers should be used, and whether the child should be in private school. A father recently challenged an order to pay certain medical expenses, arguing the mother had not used preferred providers as required by the decree.

The final divorce decree appointed both parents joint managing conservators with the mother having the right to establish the primary residence with a geographical restriction. The mother was responsible for maintaining the children’s health insurance. The father had an expanded modified possession order and paid child support and reimbursement of insurance premiums as additional child support. Each party was responsible for 50% of additional health-care expenses.

Father Seeks Modification of Divorce Decree

The father petitioned for modification in 2018, seeking the exclusive right to establish the primary residence, as well as child support and certain exclusive decision-making authority.

Texas Default Divorce Judgment Requires Supporting Evidence

Published on: October 24, 2021 | by Kelly McClure

Rules and regulations books with official instructions and directions of organization or team. 3d illustration

Sometimes, people served with divorce papers do not respond. They may be unsure what to do or they may not want to face the realities of divorce. Failing to respond will not prevent the divorce, however. If a respondent fails to file an answer to a Texas divorce petition, the court may still grant the divorce through a default judgment. Although the petitioner must submit evidence supporting their material allegations and the property division must still be just and right, the divorce may be granted on terms that are unfavorable to the respondent.

A husband recently appealed a default judgment that granted a divorce on the ground of adultery. The parties married in 2008 and had two children together. They entered into a post-marital agreement in 2018. Under that agreement, if the wife filed for divorce because of the husband’s adultery, she would get conservatorship of the children without a geographical restriction, spousal maintenance, and certain property in which the husband held a separate property interest. The wife petitioned for divorce the next year and alleged adultery. The husband did not file an answer.

Default Judgment is Entered

The wife submitted an affidavit to prove up the divorce that incorporated the post-marital agreement by reference. She asked the court to approve the post-marital agreement as the agreement of the parties. The trial court granted the divorce on the ground of adultery. The husband appealed.

Compelling Texas Divorce Court to Specify Property Valuation

Published on: October 19, 2021 | by Francesca Blackard

iStock-483613578 A trial court that has divided property in a Texas divorce must provide written findings of fact and conclusions of law, including how it characterized and valued the assets and liabilities, if a party properly requests them. In a recent case, a husband challenged the court’s refusal to specify the valuation it used for the parties’ assets when there was no request for findings of fact and conclusions of law.

Wife Seeks Fault-Based Divorce

When the wife filed for divorce, she asked for a disproportionate share of the community estate. She claimed the husband was at fault in the break-up of the marriage.

The wife submitted a spreadsheet of the assets she requested showing both her and the husband’s valuation of each. She valued the assets she requested at $2,084,714, and the husband valued them at $2,585,450. She also presented a spreadsheet of the assets she proposed be awarded to the husband, with her valuation totaling $2,662,329 and the husband’s totaling $2,612,102.

Father May Challenge Amount of Arrearages in Decades-Old Texas Child Support Case

Published on: October 17, 2021 | by Kelly McClure

iStock-483611874 Sometimes Texas child-support disputes can continue well past the child’s eighteenth birthday. A Texas appeals court recently decided a case regarding back child support for children who were in their 50s.

This case dealt with a writ of income withholding and child-support liens. Pursuant to Tex. Fam. Code § § 158.301, a parent may file a notice of application of judicial writ of withholding if there is a delinquency in child support that is at least the total due for a month. The notice must include the amount of the arrearages and the amount to be withheld. Tex. Fam. Code § 158.302(1). The obligor may file a motion to stay the writ within 10 days of receiving the notice. Tex. Fam. Code § 158.307(a). The clerk of court may not deliver the judicial writ of withholding until a hearing has occurred. Tex. Fam. Code § 158.308.

According to the appeals court’s opinion, the trial court ordered the father to pay child support when the parents divorced in 1970.

Ex-husband Denied Share of Ex-Wife’s Military Retirement Years After Texas Divorce

Published on: October 7, 2021 | by Francesca Blackard

iStock-543681178 Many assets divided in a Texas divorce are distributed during or soon after the divorce, but some assets, such as retirement benefits, may not be distributed for many years. Issues involving retirement benefits may continue or arise several years after the divorce is final. A Texas appeals court recently decided a dispute involving retirement benefits between parties who divorced in 2008.

Both parties were in the military when they divorced. The stipulated final divorce decree divided the husband’s retirement benefits equally between them and awarded the wife 100% of her “retirement plan” or other benefits resulting from her employment.

Husband Argues He Agreed to Divorce Decree While Under Duress

The wife petitioned for a clarification of the division of the husband’s military retirement in 2017. The husband argued he agreed to the property division under duress because the wife had threatened to tell his superiors he was having an affair if he did not agree. He claimed he only agreed because he was concerned he would face a court martial or negative effects on his chances of promotion if she reported him.