Texas Divorce Attorney Blog

Geographic Restriction in Designating Primary Residence in Texas Custody Cases

Published on: January 15, 2019 | by McClure Law Group

A custodial parent sometimes wishes to move away following a Texas child custody case. Although some parents may want to get the child away from the other parent, there are often legitimate reasons for a parent to want to move. The primary consideration in the litigation of relocation issues is the child’s best interest. Although the Texas family law statutes do not set forth how a court should determine the child’s best interests, the Texas Supreme Court has stated courts should consider the public policies listed in Tex. Fam. Code Ann. § 153.001. Texas has a public policy of assuring frequent and continuing contact with parents who act in the child’s best interest. There is also a public policy to provide a safe and stable environment for the child. Finally, Texas has a policy to encourage parents to share the rights and duties of raising the child after separation or divorce.

A father recently challenged a divorce decree that allowed the mother to designate the child’s primary residence without regard to location. The couple’s child was born in June 2011 and they stopped living together as husband and wife in August of the same year. The mother filed for divorce in 2015, alleging the child’s father had committed adultery. She also alleged he left her with the intention of abandonment and had stayed away for at least a year. The trial court named the mother joint managing conservator with the right to designate the child’s primary residence without any geographic limitations. The court also ordered the father to pay child support.

The father appealed, arguing in part that the trial court abused its discretion by not placing a geographic limitation on the child’s primary residence because the mother planned to move to Colorado.

Texas Appeals Court Reverses Spousal Maintenance Due to Insufficient Evidence

Published on: January 14, 2019 | by McClure Law Group

Courts may award spousal maintenance to provide temporary and rehabilitative support to a spouse who meets specific statutory requirements in a Texas divorce case. Generally, the spouse requesting maintenance cannot have enough property to meet his or her minimum reasonable needs and must meet other statutory requirements. A spouse seeking maintenance must overcome a presumption that spousal maintenance is not warranted. This presumption can be rebutted if the spouse requesting maintenance shows that he or she was diligent in trying to earn enough income to provide for his or her reasonable needs or in developing the necessary skills to provide for those needs during separation and while the case was pending. The spouse seeking maintenance must make this showing even if the other spouse does not participate in the case.

A former husband recently challenged the spousal maintenance awarded to his wife following a trial he did not participate in. The couple had been married nearly 15 years when they separated. The wife filed for divorce about a year later. The husband was served, but failed to answer or appear. The trial court held a short hearing and granted the divorce. The court also awarded the wife the family home, retirement from her husband’s income, retirement in her own name and two vehicles. The court also ordered the husband to pay $500 spousal maintenance per month.

The husband appealed the spousal maintenance award. He argued the trial court abused its discretion because there was insufficient evidence that the wife lacked the ability to earn sufficient income to provide for her minimum reasonable needs. He also argued there was no evidence to rebut the presumption against awarding maintenance. Additionally, the award was made in perpetuity. Finally, he argued the award was greater than the statutory maximum.

Texas Appeals Court Reverses Property Division Due to Lack of Evidence

Published on: January 7, 2019 | by Francesca Blackard

Property division in a Texas divorce must be just and right. The property division may be “just and right” in a case where one party does not participate, but the court must have sufficient information to use its discretion in dividing the property fairly. A spouse recently challenged the property division following a proceeding in which he did not participate.

One spouse petitioned for divorce in July 2017, alleging insupportability, which is the “no fault” ground for divorce in Texas. He alleged, however, that the respondent had committed fraud on the estate and asked the court to reconstitute the community estate. He also asked the court to confirm certain property as his separate property.

He claimed the respondent was a nonresident of Texas, but the marital residence had most recently been in Texas and he had filed the petition within two years of the date the marital residence ended (which would allow for Texas to have personal jurisdiction over the nonresident respondent). The process server swore in an affidavit that the respondent had been served with the petition in Miami, Florida.

Gift Presumption in Texas Property Division

Published on: December 31, 2018 | by Kelly McClure

A married couple purchasing a home together generally does not consider how that property will be divided in the event of their divorce. When courts divide marital property in Texas divorce cases, there is a presumption that a spouse who uses separate funds to acquire property during the marriage and titles it in the name of both spouses intends to gift half of the separate funds to the other spouse. The purchasing spouse can, however, rebut this presumption with evidence clearly establishing he or she had no intention to gift the funds.

A wife recently challenged a property division that awarded 50% of a house to the husband despite unequal separate-property contributions. The wife had contributed nearly $65,000 to the purchase of the house, while the husband contributed $8,650. The title to the property was in both spouses’ names.

In its findings of fact and conclusions of law, the trial court found the wife failed to present clear and convincing evidence that would overcome the presumption she intended to give 50% of her separate property interest in the marital home to her husband.

Texas Appeals Court Finds Property Division in Divorce Was Just

Published on: December 24, 2018 | by McClure Law Group

Property in a Texas divorce must be divided in a “just and right” manner. The trial court has broad discretion in dividing the estate. To successfully challenge a property division, a party must show that it was so unjust as to constitute an abuse of the trial court’s discretion.

A husband recently challenged the property division in his divorce. The husband appealed the trial court’s ruling, arguing it erred in awarding the wife what he claimed was “75% of the Community Estate.” He argued that the court had awarded her 75% of the community estate by awarding her the home the couple had lived in for most of their marriage and the surrounding property. He also argued the court had improperly characterized real estate owned by his son as community property. Additionally, he argued the court had not considered that community work and assets had been used to enhance the wife’s separate property, that the wife damaged the business awarded to him, that she removed funds from community bank accounts, and committed adultery and domestic violence.

Fault

The appeals court first addressed the issue of fault. The trial court had granted a no-fault divorce. The appeals court noted that the alleged domestic violence and adultery had happened several years before the separation, and the trial court could have reasonably found they were not relevant to the property division.

Texas Court Finds Father Underemployed and Orders Retroactive Support

Published on: December 14, 2018 | by Francesca Blackard

In some Texas child support cases, the court may find a party to be “intentionally underemployed.” Although child support is generally based on the party’s income and resources, the calculation may be based on earning capacity if the party is found to be intentionally underemployed or unemployed.

A father recently challenged a child support obligation in which he was found to be intentionally underemployed. The father had petitioned for the bill of review on the grounds the child support determination had been based on an IRS tax-lien notice that contained incorrect information. He alleged he had amended his earnings information with the IRS and asked the court to order a reasonable amount based on his true earnings. The trial court declared the child-support portion of the divorce decree void, reopened the issue of child support, and ultimately issued a new order.

After the court declared the child support void, the father filed an amended counter-petition, but did not allege any of the children had been emancipated or request a credit for amounts already paid. The mother did not file an amended pleading.

Texas Appeals Court Upholds Mediated Settlement Agreement

Published on: December 3, 2018 | by Kelly McClure

Parties to a Texas divorce or a suit affecting the parent-child relationship may enter a mediated settlement agreement. To be a binding mediated settlement agreement, the agreement must meet certain statutory requirements. If it meets the requirements, the agreement is binding and the parties may obtain a judgment on it.

In a recent case, a father challenged a mediated settlement agreement. After the divorce, the mother petitioned for modification of the parent-child relationship and the parties reached a settlement agreement in 2012. They reached additional agreements in 2014 and sought to have the trial courts render those agreements into a judgment. Each party moved to enter an agreed final order, but the proposed orders did not match. The court signed the father’s proposed judgment, and the mother moved for a new trial. Before the motion was decided, the parties signed a new mediated settlement agreement (MSA) following another mediation in 2015. The mother filed a notice of settlement agreement. A proposed order granting the mother’s motion for new trial and vacating the previous judgment was filed, but the trial court did not sign it.

A few months later, the mother petitioned to enforce the 2015 MSA. The court granted the mother’s motion to compel arbitration and ultimately rendered the arbitrator’s award into a judgment.

Texas Court Erred in Dismissing Motion for Clarifying Order in Custody Case

Published on: November 28, 2018 | by Francesca Blackard

A parent can seek enforcement of the custody provisions of a court order through contempt of court. Texas custody attorneys know, however, that contempt is only available if the original order is clear and specific enough to allow the other person to readily know what duties or obligations are expected of him or her.

In a recent case, a father sought contempt against his child’s mother. The father moved for enforcement of possession or access to his child. He asked that the court hold the child’s mother in contempt for violating his visitation rights in the divorce decree. In the alternative, he requested that the court issue a clarifying order if it found the previous order was not specific enough to enforce through contempt. The mother moved to dismiss the motion. The trial court granted the mother’s oral motion for dismissal of the father’s motion and the father appealed.

The appeals court noted that the trial court’s refusal to hold the mother in contempt was not appealable, but the dismissal of the father’s request for clarification was.

Texas Appeals Court Finds Challenged Order Reflects Mediated Settlement Agreement

Published on: November 21, 2018 | by McClure Law Group

In a Texas divorce, the parties are sometimes able to reach a mediated settlement agreement (MSA). Texas Family Code Section 6.602 sets out the requirements for an MSA to be binding. To be binding the MSA must include a “prominently displayed statement” that it is not subject to revocation. It must be signed by each party and by the party’s attorney if the attorney is present at the time the agreement is signed. Sometimes, however, after reaching agreement on the terms of an MSA, the parties do not agree on what those terms really mean.

A wife recently appealed an amended Qualified Domestic Relations Order (QDRO) on the grounds it did not accurately reflect the parties’ MSA. The parties had agreed on a MSA and were divorced in 2012. The MSA set forth distribution of the husband’s Texas Municipal Retirement System (TMRS) retirement plan. It provided he would keep the retirement through his employment. If the retirement exceeded $100,000 as of the date of the MSA, the excess was to be divided equally between the parties.

The divorce decree stated that if the amount exceeded $100,000 as of January 12, 2012, the excess was to be divided equally between the parties. The trial court signed a QDRO on July 10, 2013, but TMRS rejected it. The trial court signed an amended order that stated the wife was awarded a portion of benefits payable which the husband may become entitled to receive from the retirement plan through accumulated contributions or annuity. The order set forth the calculation for determining the wife’s portion. The court subsequently amended the QDRO again, setting out a specific number for part of the calculation. The husband moved to set aside the Second Amended QDRO, arguing it allowed the wife to receive payment of interest that was not included in the MSA. He also argued that the wife’s share should not include municipal contributions. The trial court changed the calculation to exclude municipal contributions and signed a Third Amended QDRO.

Texas Court Finds Clarification Order Not Improper Modification of Divorce Decree

Published on: November 15, 2018 | by Kelly McClure

In Texas divorce cases, understanding procedure is very important. Missing a deadline can have serious and irreparable consequences. In a recent case, an ex-husband attempted to challenge a clarification order more than four years after it was issued.

The trial court signed a final divorce decree in April, 2011. The ex-wife moved for clarification of some of the divorce decree provisions. In August 2011, the court signed a clarification order. The court subsequently signed two orders of contempt and an income withholding order.

The ex-husband filled a bill of review more than four years after the clarification order was signed. The ex-husband alleged the clarification order was void because it was an improper modification of the divorce decree pursuant to Texas Family Code Section 9.007. The ex-wife argued the ex-husband’s position was barred because it was outside the statute of limitations and the clarification order was not void. The trial court denied the petition, and the ex-husband appealed. He argued that the trial court erred in denying the petition because he had shown the clarification order was void.