Texas Divorce Attorney Blog

Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Published on: July 17, 2019 | by Francesca Blackard

Generally, a trial court in a Texas divorce case has the discretion to divide marital assets. A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling. An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property. They each pled and testified that they had separate property and submitted documentation showing they had separate property. Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property. Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial: how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions. The husband moved for reconsideration, and the wife filed a short response in opposition. The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.

Temporary Orders in Texas Custody Cases

Published on: July 10, 2019 | by McClure Law Group

The Texas Family Code limits a trial court’s ability to issue temporary orders during a pending suit to modify the parent-child relationship. The court cannot issue a temporary order designating or changing the designation of the person with the exclusive right to designate the child’s primary residence unless it is in the child’s best interest and the current circumstances would significantly impair his or her physical health or emotional development, the designated person has voluntarily given up primary care and custody, or the child is at least 12 years old and has identified the person he or she prefers to have the right to designate the primary residence. The court is also prohibited from creating, changing, or eliminating a geographic limitation on the child’s primary residence unless those same conditions are met.

A father recently challenged a temporary court order requiring his children be enrolled in a school district where neither parent lived.

The divorce decree named the parents joint managing conservators of their three children, but granted the father the exclusive right to designate their primary residence with no geographic restriction. Each parent had the independent right to make decisions about the children’s education.

Stepparent’s Rights in Texas

Published on: July 3, 2019 | by Kelly McClure

Stepparents often develop strong bonds with their stepchildren. It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child. Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed. Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed. Unfortunately, this section only applies if the parent to whom the stepparent was married dies. It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living. In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above. This section is not dependent upon the biological parent being deceased. Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.” As with the other section, the six-month period must end within 90 days before the filing.

Divorcing an Adulterer in Texas

Published on: July 3, 2019 | by McClure Law Group

Adultery can have a devastating effect on the wronged spouse and on a marriage. When adultery leads to a Texas divorce, the wronged spouse has the option of raising the issue of adultery in the divorce or allowing the divorce to be granted without fault.

Texas recognizes no-fault divorce, but also still has fault-based grounds for divorce. A Texas divorce court may either grant a no-fault divorce upon a finding that the marriage is insupportable due to discord or conflict or it may grant a divorce based on fault for certain reasons, such as cruelty or adultery. The court has the discretion to determine whether the divorce will be granted on insupportability or fault-based grounds. Even if there is uncontroverted and sufficient evidence of adultery, the court has the discretion to grant a no-fault divorce. The presence of adultery in the marriage, therefore, does not necessarily mean that the divorce will be granted based on adultery.

Although divorce can be granted without fault, there can be benefits to obtaining a divorce based on the other party’s fault. A finding of fault can have a significant impact on property division and in some cases can also affect custody.

Divorcing While Pregnant in Texas

Published on: July 3, 2019 | by Kelly McClure

Courts will not generally grant a Texas divorce during the pregnancy of a spouse. Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce. Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence. The paperwork can be filed and the process initiated during the pregnancy. The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree. If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways. First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father. This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father. Otherwise, the presumption may only be rebutted by an adjudication of paternity.

Same-Sex Custody Disputes in Texas

Published on: July 3, 2019 | by Francesca Blackard

Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved. Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples. In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents. The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective. In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child. Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together. While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.

Texas Child Support Based on Earning Potential when Parent is Underemployed

Published on: July 3, 2019 | by Francesca Blackard

Parents have a duty to support their minor children and generally cannot avoid that duty through intentional unemployment or underemployment. If a Texas divorce court finds a parent is intentionally unemployed or underemployed, it may consider that party’s earning potential instead of his or her actual income in determining child support.

A mother recently appealed a trial court’s finding that she was intentionally underemployed. The parents reached a mediated settlement agreement on all issues except child support. After a bench trial, the court ordered the father to pay child support for five months. There were some circumstances under which the child support could end earlier, and after the five months passed, there was to be no child support paid by either parent.

The court provided the reasons it varied from the guidelines in its findings of fact. It found the parties had agreed to having the children for equal amounts of time. The father had been found to be disabled. He received disability income, and his health issues prevented him from earning additional income. The mother had two degrees and could work as a licensed school teacher. She had not presented evidence of disability nor a physical handicap that would keep her from earning additional income. The mother had been awarded the marital residence and newer vehicle. The father had to seek new housing to get equal visitation with the children as well as obtain another vehicle. The trial court found the mother was underemployed and could have resources comparable to those of the father.

Arbitrator’s Evident Partiality in Texas Divorce Case

Published on: June 26, 2019 | by Kelly McClure

Many couples facing a Texas divorce seek alternative dispute resolutions, such as arbitration or mediation. Parties to an arbitration are entitled to an impartial arbitrator. The Texas Arbitration Act requires a court to vacate an arbitration award on the application of a party if that party’s rights were prejudiced by “evident partiality” of an arbitrator. The award should be vacated if the arbitrator does not disclose information that might give an objective observer a reasonable impression that the arbitrator is partial. The requirement to disclose applies whether the conflict arises before or during the proceedings. The nondisclosure itself establishes evident partiality, regardless of whether there is actual partiality or bias. Texas courts have acknowledged that extensive experience in the area of law related to the dispute will result in a need for the arbitrator to disclose prior dealings with parties or attorneys. However, the parties should be informed and have the opportunity to evaluate the potential bias ahead of time.

In a recent case, a wife challenged an arbitration award based on the arbitrator’s failure to disclose his connection to the husband’s attorney. The parties agreed to arbitration pursuant to their pre-marital agreement. In the initial status conference, the arbitrator said he did not have a material relationship with either party or their attorneys beyond normal professional relationships. He did not supplement his disclosures after a new attorney filed a notice of appearance on behalf of the husband as co-counsel.

When the arbitrator failed to issue an award within the time frame set by the court, the husband’s attorney requested a ruling. In her email, she stated, “You know how much I think of you as a friend and a lawyer . . .” The arbitrator issued the award several days after the email, ruling in favor of the husband and against most of the wife’s claims.

Court May Order Battering Intervention and Prevention Program in Texas Custody Case

Published on: June 19, 2019 | by McClure Law Group

In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them. If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met. A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.

The parents lived together with the child until the mother moved out of the home. The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence. A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.

When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport. The father requested findings of fact and conclusions of law, then appealed.

Texas Court Finds Payment of Personal Expenses By LLC Constituted Constructive Fraud in Divorce Case

Published on: May 16, 2019 | by Francesca Blackard

Property owned by a limited liability company belongs to the company and is generally not considered either separate or community property subject to distribution in a Texas divorce case. The limited liability company’s owners, known as “members,” do have an ownership, or “membership” interest in the company. That membership interest can be classified as separate or community property and distributed in a divorce. Additionally, distributions made from the company are community property, even if only one spouse is a member.

A husband recently challenged a finding of constructive fraud and order for reimbursement based on expenditures by and loans to his limited liability company (LLC). He was the LLC’s sole member before and during the marriage. The trial court granted the wife’s constructive-fraud claim and ordered reconstitution of the community estate. The court also characterized the LLC as the husband’s separate property and reimbursed the community estate for loans made to the LLC.

The husband appealed, challenging the trial court’s findings and conclusions regarding the constructive-fraud and reimbursement claims.