Texas Divorce Attorney Blog

Acceptance of Benefits Doctrine in Texas Divorce

Published on: February 14, 2017 | by Kelly McClure

In a recent Texas Supreme Court case, the Court considered the acceptance-of-benefits doctrine, which stops a litigant from challenging judgments after voluntarily accepting any benefits provided by the judgment. The Court considered the case because divorces regularly divide assets in situations in which a party can possess and control assets before the final divorce decree, which can make the rigid application of the doctrine untenable.

The case arose from a nine-year marriage involving one child and a $30 million marital estate. The couple settled a bitter divorce with two agreements after two years. One of the agreements had to do with child custody, while the other was about property distribution. After the final agreement was executed, the court held an evidentiary hearing. The court approved the settlement agreements, after the husband testified the conservatorship was in their child’s best interest and the division of property was fair and equitable.

A year later, the rulings were written down as a final divorce decree. Between the hearing and the writing, the wife revoked consent and tried to get the property distribution set aside on the ground that it was fraudulently gotten. She claimed the husband forged her signature on real estate documents and concealed major assets, which resulted in an inequitable division.

When Business and Pleasure Become Commingled

Published on: February 6, 2017 | by McClure Law Group

If your business partner is also your life partner, you need to consider a recent Texas high court decision. (read more)

Gonzalez v. Maggio, 500 S.W.3d 656 (Tex. App. – Austin 2016) is a Texas case that illustrates the complexities of ending a business partnership along side of ending a personal partnership. The Texas Court of Appeals reviewed how a husband and wife, who were also law partners, would divide their clients, fees, and remaining clientele.

The case arose out of a divorce in which the husband and wife had also formed a law partnership during their marriage. There was no written partnership agreement but it was undisputed that they shared in the capital, profits and losses 50/50.

Terminating Parental Rights Based on Parent’s Criminal Conviction

Published on: January 10, 2017 | by Kelly McClure

In re Interest of MAS concerned the troubling issue of a father who’d been convicted of aggravated sexual assault of a child. During the divorce, the mother asked the court to terminate the father’s parental rights to their two small children. The trial court held a hearing and then terminated the father’s parental rights under Ground L of Texas Family Code section 161.001(b)(1).

The father appealed, admitting he’d been convicted of aggravated sexual assault of a minor but denying criminal responsibility for serious injury or death to a child. The appellate court explained that in order to terminate parental rights, there had to be clear and convincing evidence not only that termination was in the child’s best interest but also that the parent had fulfilled a statutory ground for termination. Clear and convincing evidence is proof that results in a firm belief about the truth of the allegations.

Under Ground L, a statutory ground for termination is a conviction for being criminally responsible for a child’s death or serious injury, including aggravated sexual assault. The appellate court explained that the mother had submitted evidence showing that the father had been put on deferred adjudication community supervision for aggravated sexual assault of a child under 14, the State moved to revoke his community supervision based on a positive test for marijuana three different times, and there was a judgment showing the father’s sentence to six years for sexually assaulting a child who was 12 or 13.

Texas Parental Right to Make Medical and Psychological Treatment Decisions

Published on: January 3, 2017 | by Kelly McClure

In Davenport v. Davenport, a mother and a father each appealed from a trial court’s order related to their counter-petitions to modify the parent-child relationship. The couple was divorced in 2005, one year after their daughter was born. Ten years later, the mother filed a first amended petition to modify the parent-child relationship, hoping to modify a prior modification order rendered in 2012.

In the prior order, she and the father were appointed joint managing conservators of the daughter, but the court didn’t grant either the exclusive right to designate her residence. The order also granted both parents independent rights to make decisions about the daughter’s medical and psychological care and education as long as each first conferred with the other. Neither had to pay child support, although the father had to provide the daughter with health insurance. The parents were granted weeklong periods of possession during the school year and alternating two-week periods of possession during summers.

The mother asked to be appointed a sole managing conservator of the daughter or a primary joint managing conservator with the exclusive right to designate a primary residence, to make legal and educational decisions, and to consent to health care treatments for the daughter. She asked that the father have access through a standard possession order and that he pay monthly child support. The father counter-petitioned to have the rights that the mother wanted.

Sperm Donors, Artificial Insemination, and Paternity in Texas

Published on: January 2, 2017 | by Kelly McClure

In re Interest of PS is a Texas case that illustrates the importance of consulting an experienced family law lawyer in connection with any plans for artificial insemination. An appellate court reviewed whether a father qualified as a donor under Texas Family Code section 160.102(6). The case arose out of a friendship between the father and mother, who’d lived together but hadn’t had sex. The mother was a lesbian and wanted to have a child. She asked the father to provide sperm. The father also wanted children but didn’t think he was going to get married and thus agreed. The mother gave him sterile syringes and cups, and he gave her his sperm. The mother artificially inseminated herself and got pregnant.

The father went to the mother’s doctor appointments and a sonogram appointment and even came to the birth. He signed an acknowledgement of paternity as well as the birth certificate. The daughter received his last name. The father saw his daughter up to seven times during her first two months but then lost contact with the mother, who married someone. He came by to visit, but nobody answered the door.

A month after the daughter was born, the mother rescinded the paternity acknowledgement and asked the father to relinquish his parental rights through a form. The father asked for the Office of the Attorney General’s (OAG) help in getting official acknowledgement as the child’s father. The OAG filed a petition to establish their relationship, which the mother and her spouse opposed.

Property Division and Adult Disabled Child in Texas Divorce Case

Published on: December 27, 2016 | by Kelly McClure

In the Matter of Luna and Vicente Luna considered an appeal from a final divorce decree in 2015, which was memorialized in a written decree that granted a couple’s divorce, divided their property, and provided for support and conservatorship of their adult disabled child. The couple had married in 1980 and separated in 2014. During their marriage, the father started a construction company.

By the time of the divorce, the couple disagreed about the company’s ownership. The father claimed he’d sold half of the company to his son, but he later testified the son was an employee earning $23/hr. During cross-examination, the son admitted the name certificate did not include his name until 2015, and his father had responsibility for paying payroll taxes and had authority to write checks.

At trial, the father testified the construction company had paid no federal income taxes, nor had it entered profit and loss statements into the record. The total of the evidence came from introducing banking records for the construction company for 2013, 2014, and 2015.

Dividing a Family Business and the Community Estate in Texas

Published on: December 23, 2016 | by Kelly McClure

In the Matter of Marriage of Belcastro and Belcastro considered issues raised by an ex-husband related to the division of the community estate and debt. The case arose from a couple that had married in 2004. The wife was an Army major, assigned to bases in Texas, Iraq, and Germany. She’d been hurt while serving and had a disability rating of 90%. In 2007, she’d set up an LLC that repaired and installed roofs and renovated properties. Her husband had been in construction and roofing for his entire adult life, and he was general manager for the company.

He gave the company tools and equipment he owned before marriage. The company owned real estate and used different names. The wife wanted to increase the odds that the company would qualify for military contracts. She asked her husband to give up his marital rights in the business so that they could claim a disabled female veteran wholly owned the company.

The husband agreed and relinquished his communal marital property rights in connection with the business. The wife retired in 2012, and she moved home with her husband. The next year, she filed for divorce. They tried to reconcile but ultimately separated by the spring of 2014.

Grandparent Tries to Intervene in SAPCR Case in Texas

Published on: December 21, 2016 | by Kelly McClure

There is a strong presumption that a child’s best interest is served when a natural parent is awarded custody in Texas. This presumption puts a heavy burden on someone who is not a parent who wants conservatorship of a child. The non-parent will have to prove to the court that appointing a parent as managing conservator would harm the child’s physical or emotional wellbeing.

Under Texas Family Code §102.003, there are 14 different categories to which someone may belong in order to bring a SAPCR (Suit Affecting the Parent-Child Relationship). A child or parent has the right to file a case. Moreover, so do certain other people who care for a child for a minimum of six months, as long as the six-month period ends less than 90 days before the date they file a petition.

In Re HF is a recent Texas appellate proceeding involving a grandmother’s plea in intervention in a lawsuit that affected the parent-child relationship. The case arose when the Attorney General brought a SAPCR proceeding to establish conservatorship over a mother and father’s child. The judge signed an agreed order, and the father appealed it. On the same day, the child’s grandmother petitioned to intervene in the SAPCR proceeding.

Property Distribution Post-Divorce in Texas

Published on: December 20, 2016 | by Kelly McClure

Texas Family Code section 9.007(a) does not permit a trial court to modify property division that is subject to a divorce decree. In the recent Texas appellate case of Perry v. Perry, an ex-husband appealed from a post-divorce order that appointed a receiver to sell a house that was the former community property of the ex-husband and his ex-wife.

The couple had divorced in 2012. The divorce decree awarded the husband possession of the house and each of the spouses half of the sales profits. Part of the divorce decree was on a form, and the other part was added in handwriting by the divorcing couple. Specifically, the form awarded the house to the husband, while divesting the wife of her interest. However, the handwritten part gave the wife half of the profits of the sale.

Years after the couple divorced, the husband sued to enforce the decree and claimed the wife had violated it by refusing to sign a transfer deed. He asked the trial court to order her to transfer her interest to him and claimed her refusal to sign the deed kept him from selling their former home. The wife asked the court to clarify the rights and duties of the parties. She said that her ex-husband had told her he wouldn’t give her half the profits once the house was sold and asked the trial court to appoint a receiver, claiming that since there was a risk of foreclosure, it was necessary for a receiver to protect both her interest and her husband’s.

Texas Court Considers Parent-Child Relationship After Possible Suicide Attempt

Published on: December 19, 2016 | by Kelly McClure

In the Interest of NFM is a recent Texas appellate case involving a lawsuit altering the parent-child relationship. The case arose when NFM was born in 2009. The mother and father were teens and lived with the father’s family during the mother’s pregnancy. After the baby was born, they moved out and lived together for a few months before breaking up. They created an informal agreement as to the child’s custody, rather than seeking the help of the court or getting a paternity order.

The mother later had a child with someone else. CPS became involved with the family, due to family violence, and the mother separated from that person, who completed a battering intervention and prevention program. The mother was later admitted to the hospital after ingesting up to 14 pills. A CPS caseworker concluded that the mother had tried to commit suicide. However, her doctor didn’t recommend that she get psychiatric treatment but only that she not mix liquor and pills.

The mother signed a CPS child safety and evaluation plan. This provided that both children would stay with the father, and the mother would have supervised visits. The mother complied with all of the orders. The father filed an action asking the court for sole managing conservatorship of the child. He asked that the mother’s visits be supervised.