Texas Divorce Attorney Blog

Texas Court Limits Visitation Due to History of Family Violence

Published on: February 23, 2022 | by Francesca Blackard

iStock-839381426-300x200 Texas 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.

Enforcement of High Net Worth Texas Divorce

Published on: February 20, 2022 | by Kelly McClure

iStock-1139699594-300x200 When 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.

Challenging a Texas Acknowledgment of Paternity

Published on: February 6, 2022 | by Francesca Blackard

iStock-1033856542-300x200 Some 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.

Ex-Wife Entitled to Ongoing Interest in Ex-Husband’s Defined Benefit Retirement Plan

Published on: January 31, 2022 | by Kelly McClure

iStock-1187184203-300x200 Retirement 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.

Death of a Party During a Texas Divorce Case

Published on: January 25, 2022 | by Francesca Blackard

“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.

Right to Attorney and Right Against Self-Incrimination in Texas Custody Enforcement Action

Published on: January 19, 2022 | by Kelly McClure

iStock-1139699594-300x200 When 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.

Texas Mediated Settlement Agreement Upheld Despite Husband’s Failure to Disclose Assets

Published on: January 17, 2022 | by Francesca Blackard

Insurance agent checking policy documents in office.

When parties to a Texas divorce case enter into a mediated settlement agreement (“MSA”) that meets the statutory requirements, the MSA is generally binding and the divorce decree must adopt the agreement. An MSA may not be enforceable, however, if it was procured by fraud or other dishonest means.

A wife recently challenged a divorce decree incorporating an MSA that she asserted was procured by fraud. A divorce decree was issued in Dubai and both parties appealed. The wife subsequently petitioned for divorce and to modify the Dubai court orders in Texas. During discovery in the Texas cases, the husband disclosed one bank account.

The parties signed an MSA that gave the wife half of a retirement account in the husband’s name, $94,000 in cash, and the real and personal property and accounts in her own name or possession. The husband received the other half of the retirement account, real property in Florida, and the real and personal property and accounts in his name or possession. The parties also agreed to cease discovery, except as to issues involving the child.

Texas Appeals Court Denies New Trial and Affirms Disproportionate Division in Default Divorce

Published on: January 5, 2022 | by Kelly McClure

iStock-545456068-300x184 A court may proceed with a Texas divorce case even if a party does not appear for the trial. In some cases, a party who fails to respond to divorce papers or appear at trial may be entitled to a new trial, but they must meet certain requirements. In a recent case, a husband appealed the denial of a new trial and challenged the property division in a default divorce.

According to the appeals court’s opinion, the parties lived in the husband’s home in Texas after their marriage in Nigeria. The husband bought a home in New Hampshire and moved there in 2017. The wife petitioned for divorce in 2018.

The trial court issued a temporary restraining order prohibiting the husband from interfering with the wife’s health insurance, but he informed the insurer they were divorced while the divorce was pending. The wife’s coverage was cancelled. The wife had to pay $7,500 for medical expenses that the insurer had approved before cancellation. The trial court also prohibited the husband from terminating utility services, but the wife alleged he had them disconnected repeatedly.

Timeframe for Paying Texas Child-Support Arrearages

Published on: January 2, 2022 | by Francesca Blackard

iStock-952098878-300x200 When a trial court orders income withholding for Texas child-support arrearages, the amount withheld must either be sufficient to pay off the arrearages within two years, or must be an additional 20% added to the current monthly support, whichever would result in the arrearages being paid off sooner. Tex. Fam. Code § 158.003. The court may, however, extend the timeframe for paying the arrearages if it finds the two-year timeframe would cause the party, their family, or the children unreasonable hardship. Tex. Fam. Code § 158.007. A custodial aunt recently appealed an order that would allow a father to pay off child-support and medical-support arrearages he owed her over 25 to 30 years.

Aunt Awarded Child Support and Medical Support

The child’s aunt intervened in a suit affecting the parent-child relationship in 2005 and was awarded child support from the child’s father. The court found the father in contempt for failing to pay the child support and awarded the aunt a judgment for the arrearages in 2006.

The trial court ultimately appointed the aunt and the father joint managing conservators, but ordered that the child would live primarily with the aunt. Both the mother and father were ordered to pay child support to the aunt. The father was ordered to pay $160 in child support and $70 in medical support each month. The support was to begin September 1, 2006 and continue until the child’s 18^th birthday, graduation from high school, marriage, or death.

Valuation and Separate Property in Texas Divorce

Published on: December 27, 2021 | by Kelly McClure

property-division-300x110 Courts must divide community property in a “just and right” manner in Texas divorce cases. The property division does not have to be mathematically equal, but should be equitable to both parties. To achieve a just and right division, the court needs evidence of the value of the assets before it. In a recent case, a husband challenged a property division, arguing the court had divested him of his separate property and did not have sufficient evidence to fairly divide the community estate.

The husband petitioned for divorce in 2017. His petition stated there was no community property to be divided.

The wife asked for a disproportionate share of the community estate, her own separate property, and reimbursement for community funds she alleged the husband used for the benefit of his separate property.