Texas Divorce Attorney Blog

Biological Father Ordered to Pay Child Support to Mother’s Ex-Husband in Texas Custody Case

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

A Texas custody case can become complicated when a person learns he is the biological father of a child years after the child’s birth. Although a potential father of a child with a presumed father generally must file for adjudication of paternity prior to the child’s fourth birthday, in some cases, a delay may be excused. TEX. FAM. CODE ANN. § 160.607. In a suit adjudicating parentage, the court may order retroactive child support based on the child support guidelines if the parent has not been previously ordered to pay child support and was not party to a suit where support was ordered. TEX. FAM. CODE ANN. § 154.009.

In a recent case, a biological father challenged an order requiring him to pay retroactive child support and granting custody to the mother’s ex-husband. The mother was not sure who the father was, but married during her pregnancy. The mother and her husband also had a child together. The husband was the presumptive father and was adjudicated the father of both children when he and the mother divorced. The husband was named managing conservator with the right to establish the primary residence for both children.

The mother had told the biological father about the pregnancy when she realized she may be pregnant, and he acknowledged he was aware he could be the father from that time. He went to the hospital the day the child was born. He said the mother told him he was not the father and he did not pursue paternity at that time. The mother told him he may be the father when the child was four years old and a paternity test confirmed that he was the probable father.

Spousal Maintenance in Texas Divorce Cases

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

In a Texas divorce, a spouse who cannot support herself or himself because of an incapacitating disability and does not have sufficient property to meet their needs may be eligible for spousal maintenance. Tex. Fam. Code Ann. § 8.051. Spousal support is generally limited in time, but a court may order spousal maintenance indefinitely to a spouse who is disabled. Tex. Fam. Code Ann. § 8.054. There are statutory limits to the amount of spousal maintenance a court can award. Tex. Fam. Code Ann. § 8.055.

A husband recently challenged an award of spousal maintenance to the wife. He filed for divorce after the couple had been married for more than 18 years. The wife filed a counterpetition and sought spousal maintenance.

At trial, the wife testified she owned as separate property a house she received in a previous divorce. She expected to receive $96,000 in proceeds from its sale to put toward buying a new home. She testified she would “barely have enough to pay for [the new] house.”

Ongoing Obligation Under I-864 Affidavit of Support after Texas Divorce

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

In many cases, when a person seeks to obtain lawful permanent resident status in the United States, also known as a green card, they must have a sponsor who agrees to support them. If the person is moving to the United States as a spouse of or to marry a lawful permanent resident or a U.S. citizen, the spouse often serves as the sponsor. The sponsor must sign a Form I-864 Affidavit of Support, which is a legally enforceable contract in which the sponsor agrees to use their financial resources to support the person who intends to immigrate. After the person becomes a lawful permanent resident, the sponsor’s support obligation generally continues until one of the specified conditions is met, including the immigrant becoming a US citizen or earning 40 work quarters toward Social Security. Divorce is not one of the conditions that relieves the sponsor of his or her support obligation. Therefore, the support obligation may become an issue in a Texas divorce involving an immigrant who has not become a US citizen.

The support obligation was at issue in a recent case. The wife had moved to the United States from Mexico to be with the husband in 2014. They married in June 2016. The husband signed an I-864 affidavit of support in August 2016, agreeing to provide the wife with any support needed to keep her income level at at least 125% of the federal poverty level. The wife later became a lawful permanent resident.

The husband filed for divorce in July 2017. In her counterpetition, the wife asked the court to order the husband “to support her under his federal contractual obligation” based on the form I-864. The trial court heard evidence and granted the divorce, but took the issue of the husband’s obligation pursuant to the I-864 affidavit under advisement to review the case law submitted by the parties. The court held multiple hearings on the issue.

Can I Still Get Divorced Under Quarantine?

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

The short answer is “yes.” The Courts are still open for business and so are most family law firms, albeit remotely- to protect your health and safety.

Below are answers to the most recent frequently asked questions:

How do I conduct a consult if my spouse is in the next room?

Texas Divorce Court May Base Property Valuation on the Evidence Before It

Published on: April 1, 2020 | by Kelly McClure

Texas family law requires a just and right division of community property by a divorce court. The court must, however, have the relevant information before it to identify and appraise the assets. A party who refuses to disclose assets or information about their value generally may not complain about the court’s valuation of those assets. A former husband recently challenged the court’s division of property.

Prior to the marriage in 1994, the parties signed an “Agreement in Contemplation of Marriage.” The wife filed for divorce in 2005, and the husband counter-sued. The divorce decree was issued in July 2009.

Issues related to the case had already been before the appeals court five times. The appeals court had previously remanded certain issues related to the property division back to the trial court. The husband appealed the “Judgment on New Trial for Property Division.” He argued the trial court erred by not enforcing the prenuptial agreement regarding a bank account and a legal settlement. He argued the agreement required property held in the name of either party to be presumed to be that party’s separate property.

Texas Divorce Court May Award Damages to Wife Where Husband Improperly Withdrew Retirement Funds During Divorce

Published on: March 30, 2020 | by McClure Law Group

Under Texas family law, if a party in a divorce case fails to comply with the divorce decree and delivery of the awarded property would no longer be an adequate remedy, the court may render a money judgment for the damages. Tex. Fam. Code Ann. § 9.010. A husband recently challenged an enforcement order awarding the wife damages after the husband withdrew and spent all the funds from two retirement accounts while the divorce was pending.

The inventories submitted by the husband in the divorce proceedings included two retirement accounts in his name, but did not specify an amount. Both parties were ordered to preserve assets until the divorce was concluded, but the husband closed the accounts and transferred the funds to his personal account. The trial court awarded 50% of each account to the wife in the final divorce decree.

The wife sued to enforce the property division in the divorce decree, also alleging fraud on the community. The husband testified he had withdrawn about $75,000 from the accounts and admitted he had done so without notifying the wife or the court. He testified he spent the funds on living expenses because he was unemployed.

The Effects of COVID-19 on Child Custody Matters

Published on: March 25, 2020 | by Francesca Blackard

As cases of COVID-19 are continually popping up in the North Texas region (currently 155 confirmed cases in Dallas County and growing) and with the recent “Stay Home Stay Safe” Order that went into effect at 11:59 PM on March 23, 2020, parents are scrambling to find reliable answers to their questions regarding possession schedules and quarantine, as well as concerns about child support. These are questions that are relatively unprecedented in today’s world, and with the courts recently ruling on several of these topics, this blog seeks to provide helpful updates during this difficult time.

In its March 17, 2020 emergency order, the Supreme Court of Texas, ordered that court-ordered possession schedules remain in accordance with any original published school calendar regardless of the newly extended Spring Breaks or school closures. This order is effective until May 8, 2020 or until further notice. However, as the situation continues to ramp up, and fears about this pandemic are at an all-time high, many parents want to take precautionary measures to keep their family safe.

Various concerns have arisen regarding possession schedules when one parent is quarantined for possible contraction of COVID-19. The Dallas County family courts have recently released a statement encouraging parents to keep open lines of communication with and one another and to make all decisions with the well-being and health of the child as the primary concern. This communication should include notifying the other parent of any exposure to or a positive diagnosis of COVID-19, as well as discussing any actions necessary to ensure the child’s safety. Unfortunately, disagreements regarding the custody or possession of a child may arise, and it is imperative that you consult with your attorney to discuss questions about establishing alternative schedules before making any decisions with your co-parent or ex-spouse

How Will COVID-19 Affect my Possession Schedule?

Published on: March 16, 2020 | by McClure Law Group

As COVID-19 (Coronavirus) becomes more and more ingrained as a daily part of our news cycle, its ability to affect our day-to-day lives continues. As of Monday, March 16, a total of 48 public school districts plus several religious academies across North Texas have elected to extend spring breaks until March 26 or longer. For many parents this begs the question, what do these school closures mean for my possession schedule?

According to the judges in Dallas County, Collin County, Denton County, and Tarrant County, the Standard Possession Schedule should follow the originally published school calendars, meaning there will be no extensions of time periods for parents who have the Spring Vacation possession due solely to recent changes.

As the situation and precautions surrounding this global pandemic continue to evolve, more questions regarding possession schedules and the potential need for additional childcare if schools remain closed will inevitably arise. Disagreements regarding the custody or possession of a child can be stressful and emotionally charged. We recommend consulting with your attorney regarding any questions concerning selecting substitute pick-up or drop-off locations or establishing alternative schedules before making any decisions with your co-parent or ex-spouse.

Texas Appeals Court Upholds Custody Modification Following Alleged Domestic Violence Incident

Published on: March 16, 2020 | by McClure Law Group

Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order. The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing. Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence. The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence. The mother petitioned to modify the order, alleging a material and substantial change in circumstances. She alleged there had been a recent family violence incident involving the father and his fiancée. She also alleged he had a history or pattern of family violence. She asked that he be excluded from possession of their daughter. Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule. The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am. They required the mother to reside either at her parents’ home or her own home. Finally, they ordered that neither parent would provide support to the other.

Texas Appeals Court Upholds Injunction Prohibiting Child Being in Father’s Girlfriend’s Presence

Published on: March 11, 2020 | by Kelly McClure

In some Texas custody cases, the major issue is not the actual custody or visitation. Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person. Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner. A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.

The parents married in 2011 and moved to Austin in 2015. The mother became pregnant in 2017. The father became romantically involved with a co-worker. The father testified he lied to the mother repeatedly to hide the affair. The daughter was born prematurely and stayed in the neonatal intensive care unit for five and a half weeks.

Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship. The mother filed for divorce after she learned of the affair. She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.