Texas Divorce Attorney Blog

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.

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.