Texas Divorce Attorney Blog

Gift Given Before Texas Marriage

Published on: September 29, 2017 | by Kelly McClure

In a recent Texas property division decision, an ex-husband tried to reverse a property distribution order issued as part of a divorce. The couple married in 2012, after the husband had bought a tractor and multiple attachments from a dealership. The husband had signed a five-year note to finance a portion of the purchase price of the equipment. The couple separated in 2014 when the wife sued him for divorce.

They both claimed that they owned certain items of property before marrying and that these should be considered separate property. The husband took issue with the court’s treatment of the tractor he’d bought, as well as the characterization of his bonus, received in May 2014 as community property. He argued that he earned the bonus based on a project that started before his marriage.

At trial, the wife gave the court an inventory of community property and her separate property. She listed the tractor as an asset over which she and her husband had a dispute. She said that the husband gave her the tractor as a gift before they married. Documents showed he’d bought the tractor close to a year before marriage, and he made all of the monthly payments since the sale.

Temporary Spousal Maintenance in Texas

Published on: September 25, 2017 | by Kelly McClure

In a recent Texas spousal maintenance case, a husband appealed from a final divorce decree. He claimed the court made a mistake by awarding the wife $1,500 in spousal maintenance, awarding temporary spousal support of $2,500 each month, ordering him to pay $20,000 in delinquent temporary spousal support payments, failing to issue appropriate factual and legal findings, and failing to award him property he believed was solely his separate property.

In 2014, the parties agreed in court that the husband would pay the wife $2,500 each month before the divorce as temporary alimony. The wife asked for the entry of an order reflecting that. However, the husband filed a proposed rule 11 agreement, claiming an error in calculating his income. He asked for a modification of the agreement.

Another hearing was held related to the temporary orders. There, the husband’s attorney told the court that there had been an error in the first agreement. The wife’s attorney said he understood that the husband’s income was around $5,000. The husband’s attorney claimed he’d withdrawn money from his 401K, and the monthly income of about $1,400 wouldn’t be available.

Texas Final Divorce Decree Includes Error But Stands

Published on: September 4, 2017 | by Francesca Blackard

In a recent Texas divorce case, the plaintiff appealed from a trial court order related to property division in a divorce. The case arose when a couple signed a mediated settlement agreement that indicated a particular brokerage account would be awarded to the wife. The husband’s attorney drafted the divorce decree, and both parties signed it. Both parties had the opportunity to review the decree and signed it freely. The final divorce decree awarded the brokerage account to the husband, but it otherwise matched the mediated settlement agreement.

The husband’s attorney proved up the divorce, and the decree was signed by the lower court. The wife’s attorney asked the husband’s attorney for the file-stamped copy of the final decree, but it wasn’t provided.

After the expiration of the court’s plenary power, the wife went to the courthouse and procured a copy of the decree. She realized that it awarded the brokerage account to her ex-husband. When the ex-husband refused to agree that the account was hers, she filed a petition for a bill of review.

Husband Asks for Marriage to be Declared Void in Texas

Published on: August 21, 2017 | by McClure Law Group

In a recent Texas divorce case, a husband appealed from a divorce decree. He and his wife married in 2014, and they had a son in the same year. In the following year, he petitioned the court to declare that their marriage was void, claiming that his wife’s prior marriage in Eritrea had never been properly concluded. Therefore, he argued, their marriage was void. She counter-petitioned for divorce.

The trial was bifurcated such that the court looked at whether the marriage was valid in one proceeding and decided the divorce-related concerns in a separate, later proceeding. During the first proceeding, the wife testified she married an Italian citizen in Eritrea in 2002, and she had two kids with him. They were legally separated in Italy, and her ex-husband was ordered to pay her child support. She also filed for divorce in Eritrea in 2013. The record included a decree from Eritrea in which the divorce was stated to be in 2013. The ex-husband didn’t appear in court, but a divorce was decreed, and the wife believed she was properly divorced.

The husband showed that the Italian legal proceedings were ongoing in 2013. The wife testified that the Italian proceedings were to get legally separated, but she’d asked for the divorce in Eritrea. Neither the wife nor the husband submitted information about Italian or Eritrean divorce law. At the end of the first proceeding, the husband’s request that his marriage be declared void was denied.

Death Penalty Sanctions in a Texas Divorce

Published on: August 5, 2017 | by Brandon Joseph

In a recent Texas divorce case, the lower court imposed so-called “death penalty sanctions” against the wife for litigation misconduct. The wife sued for divorce in 2016, and the husband counter-petitioned in the following month. In the counter-petition, the husband pled claims of misapplication of community property, fraud, breach of fiduciary duty, and forgery.

The wife didn’t cooperate with written or oral discovery, causing the husband to ask for sanctions. He also filed a motion to compel discovery, claiming she hadn’t responded to multiple requests for written discovery and had refused to answer questions at her deposition. The lower court set a hearing but, without holding the hearing, said it would consider the motion for sanctions. It ordered the wife to respond to the husband’s discovery requests. The husband and wife agreed to an order that addressed the motions for sanctions. It found the wife had again failed to answer the written discovery and ordered her to answer. She and her husband signed the agreed order.

Nonetheless, the wife didn’t answer the discovery requests, and he again moved for sanctions. He said she hadn’t provided answers to interrogatories. He claimed that she’d produced some documents, but they weren’t identified or categorized as responses to particular requests. He also claimed she hadn’t given an accounting she’d been ordered to give and hadn’t answered the deposition questions she’d previously refused to answer. He asked for severe sanctions, including a default judgment against her.

Post-Majority Expenses in Texas Divorce Agreements

Published on: August 2, 2017 | by Francesca Blackard

In a recent Texas appeal, a father appealed a judgment that awarded the mother post-majority expenses for their child. The case arose from the parents entering into an agreed final decree of divorce and settlement affecting the parent-child relationship. There was a section titled “college education.” In this provision, the parties agreed that the father would pay 60% of the expenses required for their kids to enroll at and attend a public or private college, university, or graduate school as long as the kid remained enrolled in a course of study leading to a degree. The expenses were to include tuition, room and board, books, and other incidental fees. The father was to pay the school directly or reimburse the mother for any payments she made over her 40% share.

The college education provision wasn’t a part of the sections on property distribution or child support in the agreement. The parents signed the decree, thereby agreeing to all of its provisions.

In 2015, the mother sued to enforce the child support order, asking for reimbursement for health expenses and insurance premiums, in addition to college expenses. She later filed amended motions. The father filed an answer, asserting she wasn’t entitled to post-majority support, since she didn’t ask for contractual relief. He argued that the only relief sought was enforcement, rather than breach of contract.

Duties Owed by Constructive Trustee for Property Awarded to A Spouse in Texas

Published on: July 21, 2017 | by McClure Law Group

In a recent Texas divorce case, the court examined a divorce decree that named a husband as constructive trustee of property decreed to the wife. The property at issue was a 50% undivided interest in the shares of an LLC. The dispute in the case was whether the constructive trustee had to give the wife documentation showing the status of the shares and the LLC’s tax returns and financial statements.

The case arose when the couple divorced and a mediated settlement agreement was incorporated into their divorce decree. The couple had agreed that any shares of the LLC that had been awarded to the wife would still be managed by the husband, who also had the exclusive right to control, manage, possess, and exercise the rights associated with shares of the LLC held in his name. The decree also stated that the husband was the constructive trustee for the wife’s benefit with regard to any of the LLC’s shares to the extent he was obligated to pay her under that provision of the agreement. It also ordered him to pay her 1/2 of the sum of all of the monies he received due to selling shares of the LLC.

The wife wanted assurance that the husband was properly maintaining the values of the LLC shares when he didn’t answer her questions. She sued him and moved for the appointment of a Rule 172 auditor. Through several procedural mechanisms, she asked for an accounting of the LLC’s finances from 2011 to the present. She also wanted him to produce the tax returns and K-1 forms that were related to her ownership interest. To support her claims, she claimed that the husband owed her statutory and common law duties, including a duty to give her an accounting, as a constructive trustee.

Deviation from Standard Possession When Texas Mother Has Mental Health Problems

Published on: July 17, 2017 | by Francesca Blackard

In a recent Texas appellate case, a mother appealed from a trial court order that limited her possession of her daughter to once a month over one year. The case arose when the Department of Family and Protective Services brought an action for the protection and conservatorship of a couple’s three-year-old daughter. It asked for parental rights to be terminated in its initial pleadings.

The caseworker testified that she’d removed the child from the mother’s custody because there were concerns about the mother’s drug use and mental health, including suicide efforts and about 40 hospitalizations. When removed, the child lived with her maternal grandmother in dirty conditions. The Department put her with a foster family, which was ultimately not able to handle her special needs, including a narrowed esophagus and delayed speech development. She was later placed with her father.

The daughter did well in her placement with the father. Meanwhile, the mother did perform the tasks she was asked to perform by the Department. Accordingly, the Department no longer wanted to terminate her parental rights. The Department asked that the mother and father be named as joint managing conservators, with the father named as the parent who could designate the child’s primary residence. The Department recommended a standard visitation order.

When Does an Uncle Have Standing to Petition for Custody in Texas?

Published on: July 10, 2017 | by McClure Law Group

In a recent Texas child custody case, the children’s maternal uncle asked the trial court to name him to be sole managing conservator of the kids. The kids’ father, who was joint managing conservator of the kids when their mother died, moved to dismiss the lawsuit on the basis that he couldn’t establish standing to maintain the claim. The court determined that the uncle had failed to present enough evidence to show that the kids’ present situation would significantly harm their health or emotional development, as required by Texas Family Code section 102.004(a)(1).

The mother and father were appointed joint managing conservators of their two kids in 2012, with the mother having the right to designate a primary residence. The mother died of cancer in 2015 when one child was nine and the other was four. The father took over daily care for his kids. Prior to the mother dying, the kids had had significant interaction with the mother’s family, particularly their uncle on that side. After the death, the father refused to bring the kids to visit with the uncle’s cousin and didn’t bring the kids to their mother’s memorial service.

The uncle brought a petition, asking to be sole managing conservator of the kids, and supported it with an affidavit in which the mother had asked that he and his wife care for the kids if she died and in which he stated he and his wife had been actively involved in the kids’ lives. He also claimed that the father hadn’t supported the kids financially, hadn’t been involved with the kids before their mother died, and didn’t provide appropriate emotional support or arrangements.

Petition to Modify Parent-Child Relationship After Texas Divorce

Published on: July 3, 2017 | by Kelly McClure

In a recent Texas appellate case, the court considered a divorce in which each parent was appointed joint managing conservator of their three kids. The father was given the exclusive right to designate the kids’ primary residence, and neither parent required supervised access.

The father petitioned to modify the parent-child relationship on the ground that there had been a material and substantial change in their circumstances. He asked for the mother to be denied access or have supervised access only. The mother cross-petitioned, asking that she be appointed the sole managing conservator and that the father be denied access to the kids. The parties went to trial only on the mother’s petition.

At trial, the court heard from two psychologists. The parents were ordered to continue being joint managing conservators with the mother having the exclusive right to designate the kids’ primary residence. The father’s access to his kids was limited, and steps that had to be taken were specified. Only if he completed those steps would he be permitted visitation.