Texas Divorce Attorney Blog

Texas Court Grants Custody to Father Who Supports Kid’s Therapy

Published on: February 4, 2019 | by McClure Law Group

A change in Texas custody may be justified even when both parents love and care for the child. A custody modification is appropriate when there is a material and substantial change in circumstances of the parent or child and if the change is in the child’s best interest. Sometimes, changed circumstances put the non-custodial parent in a better position to provide for the child’s best interests, even if everyone agrees that the custodial parent loves and cares for the child.

A mother recently challenged a custody modification. The parents were originally named joint managing conservators under the divorce decree, and the mother was given the exclusive right to determine the child’s primary residence. The mother was also granted the exclusive right to receive child support. The father gained expanded possession rights through subsequent agreements, including a mediated settlement agreement (MSA). The court set forth the terms of the MSA in a 2015 order.

The father later petitioned for greater periods of possession and the right to make educational and medical decisions. He also sought the exclusive right to determine his son’s primary residence so his home would be the child’s primary residence during the school year.

Texas Appeals Court Reverses Child Support in Excess of Statutory Guidelines

Published on: January 28, 2019 | by Francesca Blackard

After a court issues a Texas child support order based on an agreement of the parties, the trial court may only modify the order if there has been a material and substantial change in circumstances. If there has been such a change, the court has the discretion to modify the order. The court’s analysis depends on the resources of the obligor. If the parent paying child support has net monthly resources equal to or less than an identified amount, currently $8,550, the court must base the presumptive award on a percentage of the net resources and the number of children. If the net monthly resources are greater than this amount, then the court has the discretion to order amounts greater than the presumptive award, depending on the parties’ income and the “proven needs” of the children. Thus, the court must determine the proven needs of the children before awarding an amount greater than that set by the guidelines. If the children’s needs exceed the presumptive award, the court allocates the difference between the parties. No party can be required to pay more than 100% of the proven needs of the children. Unfortunately, neither the legislature nor the courts have clearly defined “needs,” but the Texas Supreme Court has stated that needs are not determined by the family’s lifestyle or the parents’ ability to pay.

In a recent case, a father challenged a modification that ordered him to pay an amount greater than the monthly guidelines.

The father also challenged whether there was a material and substantial change in circumstances, but the appeals court readily found that a significant increase in the father’s income since the Agreed Order was sufficient to support a modification.

Personal Injury Recoveries in Texas Divorce

Published on: January 21, 2019 | by Kelly McClure

When a court divides property in a Texas divorce, it presumes all property possessed by either spouse during the marriage or upon the divorce is community property. Community property is all property acquired by other spouse during the marriage, other than separate property. Separate property is either property owned or claimed by the spouse before the marriage or acquired by one spouse during the marriage by gift, devise, or descent. Personal injury recoveries are separate property, but the community estate may recover for medical expenses , lost earning capacity, and other expenses the community estate incurred due to the injury. The spouse asserting that the property is separate has the burden of showing which part of the settlement is separate property. Language in a settlement agreement identifying the basis for the payment may displace the presumption of community property and create a new presumption that the funds are separate property. In such cases, the spouse claiming the property is community property must provide evidence to rebut the presumption that it is separate.

A husband recently challenged the trial court’s property division, partly because it denied his reimbursement claim related to funds from a settlement. He had settled a discrimination claim against his employer during the marriage. The settlement included mental anguish, pain and suffering, and physical injuries, but did not include back pay or front pay. He agreed to resign as part of the settlement. He deposited the funds into a savings account.

Funds from the savings account were used to make a down payment on the couple’s home, the monthly mortgage, and the final payment. The mortgage was in the husband’s name, but the deed was in both names.

Parentage in the Modern Era: What to Know When Baby is on the Way and No Wedding Day

Published on: January 16, 2019 | by McClure Law Group

Parenting is hard. Those three words are enough to capture the entire outlook of parenthood from the moment that the sweet child enters the world.

In today’s world, parenting has taken on a number of new issues such as parenting after a divorce, as an unmarried couple; single parenting; and co-parenting. Briefly stated, parenting is hard. According to the National Statistics Unit, in 2016 39.8% of births in the U.S. are by unmarried women. It is important that expecting or current modern parents consult with an attorney who can help guide them through the legal processes of ensuring full legal rights to conservatorship, possession of and access to their child and identifying numerous nuances that are becoming more and more prevalent in this modern era. Parents today face many challenges that older generations never even dreamed about.

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.