Texas Divorce Attorney Blog

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.

Separate Property in Texas Divorce Includes Property Claimed by One Spouse Before Marriage

Published on: April 19, 2019 | by Kelly McClure

In a Texas divorce, there is a presumption that property possessed by either spouse during the marriage or at the time of the divorce is community property, unless there is clear and convincing evidence otherwise. Separate property is property that is owned or claimed by one spouse prior to the marriage.

A wife recently challenged a court’s finding that certain property, the couple’s residence, was the husband’s separate property. The property was conveyed to the couple from the husband’s son and daughter-in-law by warranty deed. The husband and wife both testified the conveyance was a trade of real property and there was no additional consideration given. The husband testified he traded a tract of land he owned before the marriage. The wife argued, however, that the husband did not establish that he owned the tract prior to the marriage.

If property is acquired in exchange for separate property, the acquired property also becomes separate property. Thus, if the husband established that the tract was his separate property, then the residence would also be his separate property.

Texas Divorce Court May Reconstitute Community Estate to Account for Waste and Dissipation

Published on: April 12, 2019 | by McClure Law Group

Property division in a Texas divorce must be equitable. In dividing the property, the court may consider amounts from the community estate that a party has dissipated or wasted. In a recent case, a husband appealed the divorce decree arguing that there was insufficient evidence to support the division and that the division was manifestly unjust and unfair.

The couple had been married for about 40 years when the wife filed for divorce. An associate judge issued a final divorce decree in 2015. The wife filed a motion for a new trial, which was granted.

The couple lived in a trailer home on an undivided tract of land. The husband ran his electrician business from the trailer and stored the heavy equipment he used for the business in the barn. This real property was awarded to the husband in the original trial. After the second trial, the property was partitioned into two tracts. The property division awarded Tract A with the trailer to the husband and Tract B with the barn to the wife.

Texas Divorce Court May Correct Clerical Error with Judgment Nunc Pro Tunc

Published on: April 5, 2019 | by Francesca Blackard

Sometimes courts make mistakes. When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days. If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.

A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error. The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only. The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife. The divorce decree did not reflect this award.

The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division. The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous. The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.

Texas Custody Modification Requires Material and Substantial Change that Affects the Child

Published on: March 28, 2019 | by Kelly McClure

Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances. However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.

In a recent case, a father challenged a trial court’s denial of his petition to modify custody. He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.

The original order was modified in 2015. In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence. He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession. He asked the court to either deny the mother access to the child or to have her access supervised.