Texas Divorce Attorney Blog

Texas Appeals Court Finds Gift Property from Wife’s Parents Was Her Separate Property

Published on: July 29, 2020 | by McClure Law Group

In Texas divorce cases, property is presumed to be community property if either spouse possesses it during the marriage or at the time of the divorce. Tex. Fam. Code Ann. § 3.003. To rebut the presumption, a spouse must trace the property and clearly identify it as separate by clear and convincing evidence. How a property is characterized is generally determined based on the character it has at inception, or when the party’s title has vested.

In a recent case, a husband challenged the trial court’s characterization of property received as a gift from the wife’s parents. When he petitioned for divorce, the husband requested a disproportionate share of the marital estate, due in part to “fault in the breakup…” He also asked for reimbursement to his separate estate for funds he had expended for the community estate’s benefit.

He testified that the property where the couple lived had been gifted to them by the wife’s parents. The “Gift Certification” signed by the wife’s parents stated they “intend to give to [husband and wife] a gift . . .” of the lot. It also listed the relationship as “son in law to be and daughter.” Both the husband and wife signed in acknowledgement of receiving the gift.

Texas Appeals Court Affirms Divorce on Grounds of Adultery

Published on: July 20, 2020 | by McClure Law Group

The court in a Texas divorce case may grant a divorce in favor of one party if it finds the other party committed adultery. There must be “clear and positive” evidence of adultery. Adultery may occur after separation. In a recent case, a husband challenged the divorce on the grounds of adultery.

The wife petitioned for divorce on the grounds of insupportability and adultery, and cruelty. She requested a disproportionate share of the community estate. The trial court found the husband committed adultery. It named the parents joint managing conservators, with the wife having the exclusive right to designate primary residence. The possession order granted the husband access to the children on the first, third, and fifth weekends, but only from 10 a.m. on Saturday to 6 p.m. on Sunday.

The trial court denied the husband’s motion to reconsider, modify, correct, or reform its judgment and entered a final decree. The husband appealed, arguing the trial court abused its discretion in granting the divorce based on a finding of adultery and that the court abused its discretion in “materially deviating” from the Standard Possession Order.

Texas Divorce Court May Clarify Divorce Decree That Omitted Amount of Wife’s Retirement Award

Published on: July 13, 2020 | by McClure Law Group

In some Texas divorce cases, the parties are able to reach an agreement on property division. Such an agreement is treated as a contract, even when it is incorporated into a final agreed divorce decree. If there is an ambiguity, the agreement may be reformed to correct a mutual mistake or reflect the parties’ intent. An ambiguity exists if the meaning is uncertain or could reasonably be interpreted in more than one way. To show there was a mutual mistake, a party must prove there was a definite agreement that was misstated in the contract due to a mistake of both parties.

In a recent case, a wife moved for clarification to correct the trial court’s omission of the amount of her portion of the husband’s military retirement. The couple divorced in 2000. The agreed final divorce decree awarded the wife an amount of the husband’s Navy disposable retired pay, and 50% of all increases. The amount was supposed to be “determined under the formula set forth below,” but the decree did not contain a provision setting forth a specific portion or calculation. The decree awarded` the portion of the retirement pay “not awarded to [the wife]” to the husband.

The husband started receiving his military retirement benefits in 2015. When the wife contacted the Defense Finance and Accounting Service to get her share of the benefits, she was told she could not be paid because the decree did not include a formula awarding her a portion of the retirement.

Dre Day: Without a prenuptial agreement, Dr. Dre and his wife, Nicole Young, might see their day in court

Published on: July 6, 2020 | by McClure Law Group

As a result of his illustrious career, Dr. Dre’s net worth currently sits at a whopping $820 million – but maybe not for long. After 24 years, Dr. Dre’s wife, Nicole Young, is filing for divorce from the producer, rapper, and hip-hop icon. Reports indicate that the couple did not execute a premarital agreement prior to their 1996 marriage, which opens up Dr. Dre to significant financial exposure. In the absence of a premarital agreement, California – a community property state much like Texas – provides that property accumulated during marriage is owned by the community estate. Put simply, all of Dr. Dre’s income during the marriage, from his royalties as a solo rapper to his profits from Beats by Dre, is up for grabs. This means that Dr. Dre could see his hard-earned fortune be split in half right before his eyes in the coming months. Continue Reading ›

Texas Supreme Court Finds that Parental Presumption Extends to Modification Suits

Published on: July 2, 2020 | by McClure Law Group

On June 26, 2020, the Supreme Court of Texas issued a ruling that is sure to have a major impact on future non-parent custody cases in the state of Texas. In the case of In re C.J.C., the Supreme Court of Texas found that the presumption that it is in the best interest of a child to award possession to a fit parent versus a non-parent extends to modification cases.[1] This decision is certain to be seen as a major win for parents, as the Court reinforced the long-held notion that in most cases, a parent having custody of their child is best for the child.

The case involved grandparents of the child and the boyfriend of the child’s deceased mother attempting to modify the possession of the child and gain at least some court-ordered possession from the child’s father. The trial court found that the boyfriend was entitled to some possession and even some rights, such as the right to consent to emergency medical decisions.[2] The child’s father appealed this decision. Continue Reading ›

Texas Court Must Transfer Custody Enforcement Action After Child Moves

Published on: June 29, 2020 | by McClure Law Group

In a Texas divorce case, the trial court that enters the divorce decree generally maintains continuing and exclusive jurisdiction over the children. In some situations, however, transfer may be appropriate or even required. If a party moves to enforce an order, but the child has resided in another county for at least six months, the trial court must transfer the case. Tex. Fam. Code § 155.201. To contest a transfer, a party must timely file “a controverting affidavit.” The controverting affidavit must deny the “grounds for transfer exist . . .” If the opposing party files a timely qualifying controverting affidavit, then there is a hearing. If no qualifying controverting affidavit is timely filed, the case must be transferred without a hearing. The transfer is mandatory if the elements are met, even when an enforcement action is pending. A mother recently challenged an enforcement order that was followed by a transfer order just two hours later.

The mother was granted the exclusive right to designate the child’s primary residence and to designate it in McLennan County. According to the appeals court’s opinion, she had moved to McLennan County by the time the divorce decree was entered in April 2018.

The father petitioned for enforcement of possession or access in June 2019 in Harris County, where the divorce decree had been issued. The mother moved to transfer venue based on a statute requiring a case to be transferred to the county where the child has lived for at least six months. Tex. Fam. Code § 155.201. The mother submitted an affidavit averring that she and the child had been living in McLennan County for more than six months.

Can my spouse kick me out of our house or keep me from moving out of our house?

Published on: June 26, 2020 | by McClure Law Group

Whether a celebrity or not, we all worry about many of the same core issues when facing a divorce – How do I protect my stuff (money, investments, real property, personal property) and how do I protect the kids.

Divorce in Texas after a Pandemic: What to Know

Published on: June 24, 2020 | by Jackson Olesky

As states begin to emerge from months of lockdown resulting from the COVID-19 pandemic, will there be an increase in divorce filings? This question is of particular interest in Texas, where state and local officials have started the process of easing quarantine restrictions. However, with much uncertainty as to the pandemic in the months ahead, the answer to this question remains unclear at the moment. So, should a potential increase in divorce filings effect your decision-making regarding your own divorce? Perhaps, an even more important consideration is not how many divorces there will be, but rather how filing for divorce changed since the pandemic began. Continue Reading ›

Texas Appeals Court Upholds Denial of Mother’s Petition to Change Custody

Published on: June 22, 2020 | by McClure Law Group

It is not uncommon for a non-custodial parent who moves away to seek custody. To change a Texas custody order, the parent must show that the change is in the child’s best interest and that there has been a substantial and material change in circumstances. A mother recently challenged the denial of her petition for a change in custody.

The parents divorced in 2014 when the child was four. The parties agreed in the decree the husband had the right to designate the child’s primary residence, but the mother petitioned for that right in December 2016.

The mother said the child lived with her until she enlisted in the Army in 2015. According to the mother, the child then alternated between her grandmothers. The mother remarried in 2016 and moved to Fort Hood. She continued visiting the child most weekends until she was transferred to Poland for part of 2016. She now lives in Colorado.

Texas Appeals Court Upholds Order Requiring Father to Pay Mother’s Attorney’s Fees

Published on: June 15, 2020 | by McClure Law Group

When a party wants a judgment corrected, he or she generally has to challenge it directly within a specific time frame. In some cases, however, a person may seek to avoid the effect of the judgment through a collateral attack. A voidable judgment becomes final unless it is attacked directly in accordance with applicable procedural rules, but a void judgment may be challenged at any time. In a recent case, a Texas appeals court had to determine if a provision in a Texas divorce decree ordering a father to pay the mother’s attorney’s fees was void or voidable.

The divorce decree included a fee provision that ordered the father to pay the mother’s attorney’s fees related “to issues concerning the suit affecting parent-child relationship [“SAPCR”] and the safety and welfare of the children.”

The father moved to modify the decree about a month after it was signed. He asked for increased possession and decreased child support. He also challenged the fee provision. The court’s order increased his possession. In its Findings of Fact and Conclusions of Law, the court found there was not a sufficient change in circumstances of either parent or the children to support a change in the father’s child support obligations or the fee provision. The court ordered him to continue to pay all of the mother’s attorney’s fees related to the SAPCR.