Texas Divorce Attorney Blog

Waiver of Appeal in Texas Divorce Cases

Published on: April 19, 2018 | by McClure Law Group

Texas divorce attorneys know that even when a divorcing couple reaches a settlement agreement, there still may be issues that are in dispute. Settlement agreements sometimes include provisions that the parties waive the right to appeal. In a recent case, a husband attempted to appeal a final divorce decree despite a waiver of appeals in the settlement agreement.

When the couple filed for divorce, they owned several piece of property. They had two parcels of the wife’s family ranch, one that she owned as separate property. They purchased the second parcel from the wife’s brother and financed it through a loan secured by her separate property parcel. They also took out a second loan on the wife’s property to pay for divorce attorney’s fees.

The parties eventually entered into an “Informal Settlement Agreement.” Pursuant to this agreement, the husband would receive the family homestead and the wife would receive both parcels of her family ranch, with the husband paying the two loans. As part of the agreement, the parties waived their right to appeal or move for a new trial. The parties also agreed to submit any disputes regarding the language for the final decree to the trial court.

Texas Court Denies Post-Divorce Property Division

Published on: April 12, 2018 | by Kelly McClure

A Texas trial court is limited in revisiting the division of property once a final divorce decree has been issued. A trial court may only order a post-divorce division of property if that property was not divided or awarded to a spouse in the final divorce decree. The court may not alter a division of property that was in the final divorce decree. It may only clarify or enforce the division of property that was addressed in the divorce decree. It is therefore extremely important that all assets are fully addressed in the divorce. If the parties agree upon the property division, they should each be sure the proposed decree accurately reflects their agreement.

The wife in a recent case sought a post-divorce division of property to allow her to receive a share of her husband’s retirement benefits. The parties used a pre-printed divorce decree and were not represented by attorneys in their divorce. Each party approved the form before it was presented and approved by the court.

After the court entered the divorce decree, the wife petitioned for a post-divorce division of property. She asked the trial court to rescind the divorce decree and award her a share of her husband’s military retirement. In the agreed decree, the trial court had awarded the husband all of his employment benefits and individual retirement accounts.

Clarification of an Ambiguous Texas Divorce Decree

Published on: March 28, 2018 | by Kelly McClure

A final unambiguous divorce decree that disposes of all of the marital property should be final. Under Texas divorce law, such a decree generally cannot be re-litigated. However, the trial court can issue additional orders to help implement or clarify a prior order if they do not alter the substantive property division. The court may issue an order of clarification if the decree is ambiguous, as determined by using the rules of contract construction. A contract is ambiguous if its meaning is uncertain or doubtful, or if it is reasonably subject to more than one meaning. The court will consider the contract as a whole in light of the circumstances surrounding its formation, including parol evidence and the conduct of the parties.

In a recent case, a wife challenged an order clarifying the division of property. The parties had signed a mediated settlement agreement. The settlement included improved property that was described in two ways, a map in Exhibit A and a reference to the metes and bounds descriptions with separate exhibits describing each party’s share.

The parties agreed the husband would be awarded 26 additional acres because the improvements on the wife’s share were of a greater value. The trial court granted the husband’s motion for clarification of the division of this property, finding the decree was ambiguous. The clarification stated the map controlled, rather than the metes and bounds descriptions. The court also entered findings of fact and conclusions of law supporting the order.

Evidence of Adultery in Texas Divorce

Published on: March 28, 2018 | by McClure Law Group

A Texas divorce may be granted in favor of one spouse if the other committed adultery. Adultery occurs when one spouse has voluntary sexual intercourse with someone other than their spouse. Adultery may occur after separation. Suggestion and innuendo are insufficient to support a finding of adultery, but the finding can be based on circumstantial evidence. One recent case addressed sufficiency of evidence for a finding of adultery.

The couple married in 1996 in India and had a daughter in the following year. The husband moved to the U.S. in 2003, and his wife and daughter followed in 2004. In 2006, however, the wife and daughter moved back to India. The wife testified that she had not stayed in India voluntarily, but she had to remain because her husband canceled her plane ticket and her visa. The husband agreed to help the daughter come back to the U.S. for college in 2013, and she insisted her mother join her.

The husband filed for divorce in 2015. The trial court granted the divorce on the ground of adultery. The wife appealed both the finding of adultery and the property division. The appeals court had to determine whether the trial court abused its discretion by making a decision that was not supported by sufficient legal or factual evidence.

Property Division and Texas Spousal Maintenance in a Divorce

Published on: March 19, 2018 | by Francesca Blackard

In Texas spousal maintenance cases, the trial court has wide discretion in dividing the estate. The court may divide the property unequally if there is a reasonable basis to do so. It may consider a number of factors, including the capacities and abilities of each spouse, benefits the spouse who was not at fault would have received if the marriage had continued, their relative physical conditions, and their relative financial conditions and obligations. Although the trial court may also consider fault in causing the divorce, it does not have to do so and cannot use property division to punish the at-fault spouse.

A recent case examined whether an equal division of property and an award of spousal maintenance were proper. The couple married in 1999 and had two children together. During the marriage, the husband developed a substance abuse problem and was incarcerated for six years. In 2014, he was convicted of possession of a controlled substance with intent to deliver and was sentenced to 17 years. The wife filed for divorce on the day of his conviction.

The husband had previously received a $900,000 settlement for personal injuries, netting him more than $400,000. About $70,000 was used to pay household expenses and community debts, including mortgage payments and getting a car that was ultimately awarded to the wife. At the time of the last divorce hearing, he still had more than $300,000 held in his attorney’s trust account.

Modification of a Texas Custody Order

Published on: March 15, 2018 | by Kelly McClure

To provide some stability for children, Texas allows for the modification of a conservatorship order only if the modification is in the child’s best interest, and there has been a material and substantial change in the circumstances of the child, a conservator, or another party affected by the order. Texas law does not provide guidelines as to what qualifies as a material and substantial change. The party seeking the modification must show the material and substantial change.In a recent Texas child custody case, the mother appealed a modification of the conservatorship order. When the parties divorced, the trial court appointed both parents as join managing conservators of the two children. The court gave the mother the exclusive right to designate the primary residence within a specified geographic area. The father was ordered to pay child support.

About two years later, the mother moved the children to another county within the geographic area. The Attorney General moved to enforce the support and to transfer venue to the county where the children were living.

Name Change of a Minor in Texas After Paternity Dispute

Published on: March 12, 2018 | by Kelly McClure

In a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.

About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.

The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.

Modification of Child Custody Travel Provision in a Texas Case When There’s an Abduction Risk

Published on: February 19, 2018 | by Francesca Blackard

In a recent Texas child custody case, a father challenged the modification of conservatorship of a former couple’s child. The modification allowed the mother to go abroad with their child. The case arose when the mother moved to modify the divorce decree, which had appointed her and her ex-husband as joint managing conservators of the child. The decree didn’t mention the child’s ability to go abroad. In her motion, the mother claimed there was a substantial change in circumstances. Specifically, the mother claimed it was in the child’s best interests to be able to go to the country of the mother’s birth (Kenya) because her grandmother had recently died, and the mother wanted to go visit and go to the memorial service.

The mother asked for temporary orders. She wanted the father to execute a written consent and other forms required for travel, and she also wanted an international travel provision to be added to the final decree.

The father asked the court to deny international travel privileges until their child had reached age 16 or the age of maturity under the Texas Family Code section 153.501. This code section states that if there’s credible evidence showing a potential risk of international kidnapping of a child by a parent, the court can take specific protective measures. Continue Reading ›

Wasting of Community Assets in Texas

Published on: February 7, 2018 | by Francesca Blackard

After a Texas divorce, the husband appealed the lower court’s division of marital property. He argued that there wasn’t enough evidence to support the lower court’s finding that he’d wasted community assets in the amount of about $800,000.

The couple were married in 1968. The husband left the marital home in 2013, when the wife was disabled. She was not able to leave the home or take care of herself. Meanwhile, the husband went to live with his girlfriend from 2014-2015 and spent money while living with her. The wife sued for divorce in 2014 when the spouses were retired, and there was a bench trial on the issue of how to distribute property. The husband wasn’t represented by an attorney.

During the divorce, the husband said the money he’d spent while living with a girlfriend was for regular expenses, but he also testified he wouldn’t have had those expenses if he’d been living with his wife. He also testified his girlfriend and he had purchased a vacant lot in a planned development in Belize in 2010. He acknowledged that he’d established a bank account there and had sent money to that account. He also admitted that he withdrew about $703,000 from his retirement account and that he’d made withdrawals from other accounts. He said it was for bills and pleasure.

When are Temporary Orders Changing Child Custody Appropriate in Texas?

Published on: February 1, 2018 | by McClure Law Group

In a recent Texas child custody decision, a mother petitioned complaining about temporary orders that kept her from removing her three youngest kids from the county or any contiguous county in order to establish the kids’ primary residence.

The father petitioned to modify the parent-child relationship in October, trying to modify the couple’s divorce decree signed in July. The final divorce decree approved and incorporated the couple’s mediated settlement agreement signed by the couple in January. At the time of divorcing, the couple had 15 kids, and six of the kids were minors.

The settlement agreement gave the mother the right to decide the primary residence of the three youngest kids and the father the right to determine the other three kids’ primary residence. The final decree also gave the mother the exclusive right to designate the three youngest kids’ primary residence without regard to geographic location and granted the same right to the father as to the other three minor kids. During this time, the father lived in Burnet County. When the couple entered into the mediated settlement agreement, the mother lived in Amarillo, but she moved to Temple in a county contiguous to Burnet prior to the signing of the final order. The final decree allowed access and possession on the statutory basis provided, due to the couple living within 100 miles of each other.