Texas Divorce Attorney Blog

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.

Former Spouse Cannot File New Suit for Division of Property Disposed of in Texas Divorce

Published on: December 22, 2021 | by Francesca Blackard

iStock-545456068-300x184 A trial court may order a post-divorce division of community property that was not divided or awarded to either spouse in a Texas divorce decree. Tex. Fam. Code § 9.201. The court may not, however, order a post-divorce division of property that was already divided in the divorce. The legal doctrine of res judicata prevents a party from re-litigating issues such as categorization of assets or improper division in a new case. Parties must instead address such issues through direct appeals. In a recent case, a wife sought a post-divorce division of certain bonuses the husband received after the divorce.

The parties married in 2014, and the wife petitioned for divorce the next year. The husband included several bonuses in his asset inventory. He listed a $0 value for the bonuses that would only be payable after the divorce if he remained employed on the designated date. He testified they had no value because they were conditional on future events.

The wife argued the future bonuses were deferred compensation for work performed during the marriage and estimated their value at more than $4 million.

Texas Court Denies Child-Support Increase Despite Father’s Tenfold Salary Increase

Published on: December 19, 2021 | by Kelly McClure

iStock-848796670-300x200 In some Texas custody cases, parents may agree to a support order that differs from the child-support guidelines. A Texas appeals court recently considered what evidence was necessary to support a modification when the father’s income had increased significantly since the agreed order.

The trial court issued an agreed order in 2013 following a mediated settlement agreement between the parties. The parties agreed the father’s child support would be $1,000 per month, because he would pay all of the travel costs when the mother moved to Virginia (which she did shortly after the agreement).

In 2017, the mother sought an increase in child support by filing a modification suit. Since the original agreed order, the father’s income had increased dramatically. The trial court ordered an increased monthly payment, but the appeals court reversed the order and remanded for a new trial, finding insufficient evidence supporting the amount ordered.

Child Interviews and Extracurricular-Activity Expenses in Texas Custody Case

Published on: December 5, 2021 | by Francesca Blackard

5thingsdivorcecourt_header-300x163 Tex. Fam. Code § 153.009(a) requires the court in a Texas custody case to interview a child who is at least 12 years old to determine their wishes regarding custody, “on the application of a party. . . “ A father recently challenged a court’s failure to interview the children in a custody case.

The mother petitioned to increase child support for the parties’ three teenage children and require the father to pay their extracurricular expenses. The father asked to be named the primary managing conservator with the exclusive right to designate the children’s primary residence.

The parties stipulated that $2,760 was the amount the father should pay under the Texas Family Code’s “guidelines.” The trial court ordered the father to pay not only $2,760 monthly, but also half of the children’s extracurricular expenses. The trial court also denied his request to have the exclusive right to designate the children’s primary residence. Continue Reading ›

Evidence of Separate Property in Texas Divorce Cases

Published on: November 29, 2021 | by Kelly McClure

iStock-1214358087-300x169 Texas law presumes that property possessed by a spouse during or on dissolution of the marriage is community property. Tex. Fam. Code § 3.003. The presumption can only be rebutted by clear-and-convincing evidence the property is separate. In a recent case, a husband challenged the characterization and distribution of property in his divorce.

The parties got married in 2008 and separated in 2018. The wife moved into her own apartment and filed for divorce in March 2018.

The wife submitted an inventory and appraisement, a copy of her student-loan activity, and a proposed property division. The husband also submitted an inventory and appraisement, as well as account statements and receipts.

Texas Appeals Court Upholds Arbitration Award in Divorce Case

Published on: November 27, 2021 | by Francesca Blackard

iStock-1287431987-300x200 When a couple enters into a Texas pre-marital agreement or post-marital agreement, they may include an arbitration provision in the agreement. Arbitration can be a cost-effective way to resolve disputes, but an arbitration decision often cannot be appealed. In a recent case, a wife appealed a final divorce decree confirming an arbitration award, arguing the arbitrator exceeded her authority.

Husband and Wife Enter into Post-Nuptial Agreement During Marriage

During the marriage, the parties signed an agreement to make “what would otherwise be community property instead be separate property.” The agreement included an arbitration provision.

When the agreement was executed, the husband was president of a company and the wife was vice president. The agreement stated that the parties agreed each of them would “be guaranteed to receive equal pay and bonuses as both President and Vice President. . .”

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.