Texas Divorce Attorney Blog

Family Violence and Custody in Texas

Published on: April 18, 2017 | by Kelly McClure

A pattern of family violence can have a significant impact on custody issues in Texas. In Interest of DM, a Texas appellate court considered the impact of family violence in determining who should be managing conservator for children.

The father and mother appealed from the trial court’s order related to their parent-child relationship to three of their four children. They argued there was insufficient evidence to support a finding that having a joint managing conservatorship over the three children would impair their emotional development or physical health.

The couple’s first child was born in 1998, and the second was born two years later. When they were six and eight, their parents started using methamphetamine, sometimes while the kids were in the house and on a daily basis. The mother was diagnosed with bipolar disorder and tried to kill herself six times, blaming the father and wanting the kids to know this.

Robert Epstein and Francesca Blackard Voted by their Peers as Texas Rising Stars for 2017

Published on: March 31, 2017 | by Francesca Blackard

McClure Law Group, PC is proud to announce that both partners, Robert Epstein and Francesca Blackard have been voted by their peers as Texas Rising Stars for 2017 in Super Lawyers Magazine and Texas Monthly Magazine. Only 2.5% of attorneys in Texas receive this noteworthy distinction of a Texas Rising Star.

The attorneys are nominated by other attorneys in the state, making this an exceptional designation as they are recognized by their legal peers. At McClure Law Group, PC we strive for excellence and are proud to have both partners applauded for their hard work and dedication to our clients.

For more information on these two partners, you can access their bios by clicking here: Robert Epstein :: Francesca Blackard

Modifications to Exclusive Right to Designate Residence of a Texas Child

Published on: March 21, 2017 | by Kelly McClure

In Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

Texas Spousal Maintenance for a Disabled Spouse

Published on: March 17, 2017 | by Francesca Blackard

In a recent Texas divorce case, an appellate court considered a spousal maintenance order in a case involving a disabled spouse. The couple were divorced in 2012, and their divorce decree found the wife was eligible for spousal maintenance (also known as alimony), and it ordered the husband to pay her $400 per month until one of the following four events happened: a review of the order in three years, death, the remarriage of the wife, or a further court order.

In the summer of 2015, the ex-wife asked that her spousal maintenance be continued. The husband asked for a dismissal, claiming that it was untimely, since she was supposed to ask for review in January, six months prior to the date on which she actually sought review. The trial court denied the ex-wife’s petition but also denied the motion to dismiss.

The wife argued that there was an error in denying her request for continued maintenance because she’d shown she received Social Security Disability, and the trial court couldn’t disregard her testimony about disability. Section 8.054 of the Texas Family Code is the code section that covers the duration of spousal maintenance orders. As long as you continue to satisfy the eligibility criteria, the maintenance may continue. The trial court can conduct periodic reviews.

Community Property Presumption In Texas

Published on: March 14, 2017 | by McClure Law Group

In Texas, all property possessed by either spouse at the time of divorce is presumed to be community property under Texas Family Code § 3.003. A recent appellate case arose out of the divorce of a Texas couple who had been married in Mexico in 1999. In Mexico, they got their civil marriage application, which required them to choose between two marriage property systems, separate property or community property, in order to regulate ownership of their items of property. They chose to have separate property.

In 2015, the wife sued for divorce. She asked for the community property to be divided disproportionately. The husband counterclaimed and stated that he and his wife had to have separate property. He attached a facsimile of the couple’s marriage certificate that included the agreement to have separate property during the marriage, but the certificate wasn’t signed.

At trial, an expert testified for the husband and provided the opinion that in Mexico, a marriage application is treated as a prenuptial agreement. The husband testified that the couple signed the application, but the wife testified she didn’t remember signing the application. She claimed only the husband handled the paperwork, and she didn’t even remember talking about choosing a property regime before the wedding.

Texas Contempt Findings for Violations of Morality Clause

Published on: March 1, 2017 | by Kelly McClure

In Interest of W.B.B. considered a request for contempt findings against a Texas mother. The parents of a child had divorced in 2010. The parents were named joint managing conservators of their child, and the father had the right to designate his residence. The couple agreed to multiple mutual injunctions.

Among other injunctions, their divorce decree incorporated a morality clause agreement that prevented both the mother and the father from permitting anyone with whom she or he was romantically involved to stay overnight while the couple’s son was with her or him. The injunction was to expire in 2015 when the son turned eight, or when one of the ex-spouses remarried, whichever event happened first.

The father remarried in 2013, and the son’s eighth birthday was in 2015. The father moved to modify the divorce decree. The couple reached a mediated settlement agreement that the court incorporated into its order granting the motion to modify the original agreement. The order allowed the father to designate the child’s primary residence and also kept the morality clause in effect with the exception that it would be void if the mother remarried before the child turned eight, and this would be the material and substantial change in circumstances. The mother’s child support obligation would increase to be in line with the Texas Child Support Guidelines, the mother would have to reimburse the father for their child’s health insurance, and the mother would need to notify the father of the remarriage if it happened before the child turned eight. The parents were also prohibited from coming within 50 feet of each other, interfering with the other’s job, and doing other things.

Child Custody Dispute Between Mother and Grandmother in Texas

Published on: February 28, 2017 | by Francesca Blackard

A recent Texas appellate case involved a child custody dispute that arose between a mom and her children’s paternal grandmother after their father committed suicide in 2014. After his death, the mother asked the trial court to appoint her managing conservator of the kids. The kids’ paternal grandmother cross-petitioned for the same appointment.

Before his death, the father had been CFO for a multinational corporation. His job required him to travel outside the country often. He met the mother in Mexico and became romantically involved with her. She immigrated to the United States, gave birth to three children, and married the father. While pregnant with the fourth child, the mother took a quick trip to Mexico to get a United States visa.

The immigrant officials denied her request for a visa on the ground that she’d previously been illegally present in the country for one or more years. For that reason, she had to stay in Mexico for 14 months waiting for a visa. Her kids stayed in the country with the father.

In re Cole – Who Holds the Power to Determine the Child’s School?

Published on: February 27, 2017 | by Ben Schwartz

The right to establish primary residence of a child has generally been perceived to have an inherent control over certain aspects of the right to make educational decisions. The Texas Court of Appeals out of Austin, however, recently handed down an interesting ruling regarding the connection between these two rights, thereby changing how many will interpret the meaning behind the right to designate primary residence. Continue Reading ›

Maintenance Seized From Retirement Account in Texas Enforcement Lawsuit

Published on: February 24, 2017 | by McClure Law Group

In Dalton v. Dalton, a Texas ex-husband appealed from post-divorce enforcement orders. The couple was divorced in 2011, with a decree giving full faith and credit to an order of separate maintenance that determined child support, custody, property division, and other aspects of the divorce. The husband was required to pay his former wife support maintenance (alimony) of $1,309,014.00, paid in increments on a monthly basis.

Afterward, the wife tried to get the ex-husband to comply. The court had rendered a wage withholding order for child support and spousal support, and the wife had asked for enforcement. She’d also petitioned for a qualified domestic relations order for the full amount of spousal support. The parties negotiated. In 2015, the court granted the QDRO petition and denied the husband’s motion to terminate the wage withholding order. He was found in contempt, and a QDRO assigned to the wife a portion of his retirement benefits to cover what he owed her in alimony.

The husband appealed the First Amended QDRO, arguing that the initial orders didn’t allow these retirement benefits to be paid to his ex-wife and that since what was at issue was contractual alimony, it couldn’t be satisfied by his retirement benefits. The appellate court explained that Texas Family Code Section 9.101 allows a lower court that renders a divorce decree to have continuing exclusive jurisdiction to render an enforceable QDRO. Therefore, the lower court was able to render the QDRO.

Emotional Abuse by a Mother in Texas

Published on: February 21, 2017 | by Kelly McClure

Many people assume that emotional abuse is not as serious as physical or sexual abuse. This is not the case in parental rights and child custody matters in Texas. In the Interest of SD and GD concerned the termination of a parent-child relationship between a Texas mother and her two children. The father and mother had married in 2003 and had two children. The father divorced the mother in 2010. Shortly thereafter, the mother accused the father of physically and sexually abusing one of the kids and physically abusing the other. She made several allegations of abuse that caused Child Protective Services to investigate the father. Each time, they found there was no abuse.

Since she’d made multiple unfounded allegations of abuse, CPS investigated her for emotional abuse of one of the children, S.D. They determined she’d coached her daughter to allege abuse against the father and found the mother had been emotionally abusive.

The court granted a divorce but appointed both parents as joint managing conservators. Although it found there was evidence the mother had a history of emotional abuse, it determined she should have a modified possession order. The mother was supposed to see a therapist who specialized in anger management and false memory syndrome. She had to give the father a written verification she was seeing the therapist in order to have certain times of unsupervised possession. The modified possession order further provided that as the mother completed additional therapy, she’d have more unsupervised possession. She was also supposed to pay child support, although this was delayed so that the mother could complete the therapy.