Texas Divorce Attorney Blog

Court Denies Geographic Restriction in Texas Custody Case

Published on: October 4, 2021 | by Kelly McClure

iStock-1175949984 A trial court generally has broad discretion in deciding whether to impose a geographic restriction on the child’s primary residence in a Texas custody case. A geographic restriction limits where the children’s primary residence may be. As with other aspects of a custody case, the primary consideration is whether the restriction is in the best interest of the child. A geographic restriction can help ensure the child maintains relationships with the non-custodial parent, extended family, and the community. In some cases, however, a parent may have good reasons to want to move with the child. The Texas Supreme Court has identified a number of factors in determining whether a move is in a child’s best interest: how it would affect relationships with extended family, how it would affect the non-custodial parent’s visitation and communication with the child, whether a meaningful relationship between the child and non-custodial parent could be maintained with a visitation schedule, the child’s current contact with both parents, the reasons for and against the move, the child’s age, the child’s ties to the community, and the child’s health and educational needs. Lenz v. Lenz.

A father recently appealed an order granting the mother the exclusive right to designate the primary residence without a geographic restriction when the mother intended to move out-of-state with the children.

Mother Offered Opportunity in Arizona

The trial court made several findings of fact. The trial court found the parents moved to Austin so the mother could attend graduate school and intended to stay there until she received her PhD. They had agreed to live there temporarily until the mother got a faculty position at a university. She earned her PhD in 2012. The parties’ twin children were born prematurely in 2013, and the mother took time to care for them instead of advancing her career. During the marriage, she only applied for positions in cities where the father would also have potential job opportunities. They agreed she should apply for a position in Arizona in 2018, but the job was not filled at that time. The parties separated in February 2019 and the mother continued to be primary caregiver.

Disparity in Retirement Benefits in Texas Divorce

Published on: September 26, 2021 | by Francesca Blackard

iStock-654702696 A court dividing property in a Texas divorce must do so in a “just and right” manner. The division does not have to be equal if the court has a reasonable basis to order a disproportionate division of the community estate. Texas courts have recognized a number of non-exclusive factors a court may consider, including differences in the parties’ earning capacities or incomes, difference in their ages, their relative financial circumstances, and the value of their separate estates.

A former husband recently challenged a property division, arguing the court had intended to achieve an equal distribution, but did not do so.

Comparative Circumstances of the Parties

The parties married in 1986 and the husband petitioned for divorce in 2019. The husband testified he was 57 years old and the wife was 56. Both parties were engineers. He testified they earned about the same amount each year and both were healthy. The both had substantial retirement benefits.

Texas Grandmother Must Overcome Fit-Parent Presumption to Become Possessory Conservator

Published on: September 22, 2021 | by Kelly McClure

iStock-1147846829 Grandparents sometime take on a parental role in the lives of their grandchildren. In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children. The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.

Texas Court Can Impose Geographic Restriction After Jury Gives Parent Custody

Published on: September 19, 2021 | by Francesca Blackard

iStock-483613578 A geographic restriction in a Texas custody order helps ensure the parent without physical custody has access to the child, but it can also impose severe limitations on the mobility of the parent with physical custody of the child. In a recent case, a mother challenged the imposition of a geographic restriction on the child’s primary residence by the trial court after a jury found she should be the child’s sole managing conservator.

Modification Suit Filed After Prior Order

The final divorce decree named the parents joint managing conservators and gave the mother the exclusive right to designate the child’s primary residence within a specific county. The father later petitioned for modification, seeking the right to designate the child’s primary residence. The mother asked the court to remove the father as a joint managing conservator and name her sole managing conservator with the exclusive rights set forth in Tex. Fam. Code § 153.132, including the right to designate the primary residence. She also asked for an additional $100 per month in child support.

The jury found the mother should be appointed the sole managing conservator. No other issues were presented to the jury. The judge’s letter ruling indicated she wanted to place a geographical restriction on the mother’s right to designate the child’s primary residence, but was uncertain of the court’s authority to do so under the circumstances. The letter ruling stated the court imposed the geographic restriction if both parties’ counsel agreed it could, but not if counsel agreed it could not. If counsel disagreed as to whether the court could impose the restriction, the court requested they provide authorities on the issue. The trial court denied the modification of the child-support obligation.

Employer-Paid Insurance Premiums Are Not Net Resources for Texas Child-Support Calculation

Published on: September 6, 2021 | by McClure Law Group

iStock-531351317 When a court determines the amount of Texas child support a parent is obligated to pay, it must consider that parent’s net resources. The statute sets forth certain items to be included in the parent’s net resources and other items that are not to be included. Tex. Fam. Code § 154.062. An appeals court recently had to determine if a trial court could consider an item that is not specifically included in the statute.

The divorce decree required the father to pay child support, provide health insurance, and reimburse the mother for 50% of non-covered health-care expenses.

Mother Moves for Modification

The mother subsequently moved to modify the decree to change the father’s possession and access and to increase his child-support obligation. She also moved to enforce the decree, claiming the father failed to reimburse her for health-care expenses.

Texas Court Denies Child-Support Modification upon Finding of Underemployment

Published on: September 1, 2021 | by Kelly McClure

iStock-1132277483 In determining the Texas child-support obligation of a parent, the court may consider whether that parent is intentionally unemployed or underemployed. If the court finds the parent is intentionally unemployed or underemployed, it may apply the support guidelines to that parent’s earning potential, rather than to their actual earnings. Tex. Fam. Code Ann. § 154.066. The court does not have to find the parent was attempting to avoid child support to find intentional unemployment or underemployment.

In a recent case, a father challenged the denial of his request for modification of his child-support obligation following a change in jobs that resulted in a significant salary reduction. When the parties divorced in 2015, the trial court appointed the parents joint managing conservators and gave the mother the exclusive right to determine the children’s primary residence. The father was ordered to pay $1,600 in monthly child support and to maintain insurance for the children.

Mother and Father File Competing Modification Suits

The mother petitioned to modify the medical-support provision to give her the obligation to maintain medical insurance in 2019. The father counter-petitioned to reduce his monthly child support based on a change in his salary.

Texas Informal Marriage: Agreement to Be Married

Published on: August 29, 2021 | by Francesca Blackard

iStock-926241578 A 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.

Texas Court Grants Divorce and Denies Annulment

Published on: August 21, 2021 | by McClure Law Group

iStock-1270267953 Marriages 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.

Texas Spousal Maintenance Upheld Without Medical Records or Expert Testimony

Published on: August 8, 2021 | by Kelly McClure

iStock-1183385986-scaled A 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.

Cruelty and Fraud on the Community in a Texas Divorce

Published on: August 4, 2021 | by Francesca Blackard

iStock-848796670 The 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.