Texas Divorce Attorney Blog

Right to Designate a Child’s Primary Residence in Texas

Published on: August 23, 2016 | by Kelly McClure

In Philips v. Filla, a couple married in 2004 and divorced in 2007. They had one child. When they made their initial custody arrangement during the divorce proceedings, the mother had the exclusive right to designate the child’s primary residence. In 2010, however, they agreed to modify the divorce terms and agreed that the father would have the exclusive right to designate the child’s primary residence.

In 2010, the mother told Child Protective Services that the father was abusing the child. While an investigation was pending, the court rendered the modified order according to the settlement agreement, giving the father the exclusive right to designate the child’s primary residence. CPS ruled out the mother’s allegations that the father had abused the child and also expressed that it had a reason to believe the mother was emotionally abusive by possibly coaching the child to make abuse allegations against the father and putting the child through many intrusive medical exams connected to the allegations.

The father petitioned to modify the earlier order and asked for temporary and permanent orders that the mother have only supervised visitation with the child. The wife counter-petitioned to modify the order, again alleging the father’s abuse and asking she be awarded the right to designate a primary residence for the child. The trial court ordered that her visitation with the child be supervised and ordered the mother to begin therapy and undergo a psychological evaluation.

Dissolution of an Informal Marriage in Texas

Published on: August 1, 2016 | by Kelly McClure

In In re Interest of JJFR, a man appealed from the denial of his motion for summary judgment, arguing there was insufficient evidence to prove his partner and he had entered into an informal marriage. In Texas, an informal (or common law) marriage under Texas Family Code §2.401(a)(2) can be proven by using evidence that a man and woman agreed to be married and after agreeing lived in Texas as husband and wife and told others they were married.

Informal marriages exist only if all three elements are present. Whoever wants to establish that there is an informal marriage needs to prove these elements by a preponderance of the evidence.

In the current case, the woman claimed there was an informal marriage and carried the burden of proof. The appellate court explained they could overturn an order on the ground of insufficient evidence only if the findings were so contrary to the overwhelming weight of the evidence they were obviously unfair and wrong.

Enforcing a Child Support Order in Texas

Published on: July 21, 2016 | by Kelly McClure

In Ochsner v. Ochsner, the Texas Supreme Court ruled on a child support order that required the father to pay for his daughter’s school and to pay through a registry when she changed schools.

The couple had divorced in 2001, and the divorce decree included a child support order. The father was to pay the mother $240 each month in two installments and would also pay the daughter’s preschool directly. After the daughter stopped going to that preschool, the father was to pay the mother $400 in two installments and also pay a registry the school tuition payments. The order stated that his failure to comply could result in his not getting credit for making the payment.

The daughter stopped going to the preschool, and the father kept making the $240 per month payments to the mother. Instead of paying the registry, the father paid the new school directly, making payments that were $20,000 more than what was required by the original order. The mother was contractually obligated to pay the tuition.

Parents’ Agreement to Terminate a Mother’s Rights in Texas

Published on: July 15, 2016 | by Kelly McClure

In the 2016 Texas case In re Morris, an appellate court considered a father’s request for a writ of mandamus after the mother and he agreed to the rendition of an order terminating the mother-child relationship. The adjudicated father of the child asked the appellate court to compel the lower court to vacate its order, which refused to render judgment in accord with the parents’ agreement to terminate the parent-child relationship between the mother and the child. He also wanted the court to render judgment according to their mediated settlement agreement.

In 2004, the trial court named the father and mother of a child the joint managing conservators of the child. In 2014, the child’s mother signed an affidavit voluntarily relinquishing her parental rights. She claimed that the termination of her relationship with the child was in the child’s best interests, but she didn’t provide facts in support. The mother didn’t expressly state she relinquished her parental rights.

In 2015, the child’s father filed a petition to terminate the parent-child relationship between the mother and child on the grounds that the mother had executed an irrevocable affidavit of relinquishment of parental rights and that termination was in the child’s best interests.

Right to Reimbursement in Texas Divorce

Published on: July 15, 2016 | by Kelly McClure

In McCoy v. McCoy, a Texas husband appealed from a divorce decree, arguing that the lower court should not have denied his claim for reimbursement. The couple started dating in 2009. In the following year, they got engaged, and the husband moved to start law school. His fiancée joined him there in a rental house. They married in 2011. The wife worked full time during the husband’s first year in law school but then started going to law school as well. They both relied on student loans to cover their expenses and tuition.

Later, the husband claimed they had an agreement that the wife would pay him $700 every month and also pay for groceries and gas. He argued that she budgeted poorly and only sometimes paid this part of the expenses, and as a result he had to get supplemental student loans to cover her portion. They kept separate checking accounts related to their different law school loans.

In 2013, after the husband graduated, the wife filed for divorce. The husband responded by claiming he was entitled to reimbursement from his wife because he’d had to use his separate property to pay for her necessary living expenses. A bench trial was conducted, and the trial court divided the marital estate by awarding each of them the property they possessed and by ordering each spouse to pay his or her loans and debts solely in his or her name. The trial court also found that the husband’s request for reimbursement wasn’t supported by a preponderance of the evidence.

Enforceability of a Rule 11 Agreement in Texas

Published on: July 15, 2016 | by Kelly McClure

Family law judges encourage those getting a divorce to enter into settlement negotiations rather than proceed to trial. Under rule 11 of the Texas Rules of Civil Procedure, agreements reached during these negotiations are not enforceable unless they are written, signed, and filed with the divorce papers as part of the record, or the agreement is made in open court and entered as part of the record. In order to have the agreement be enforced, all material terms are supposed to be included, and they should be clear and unambiguous.

In Bush v. Bush, a Texas Court of Appeals considered the enforceability of a rule 11 agreement. The case was an appeal from a divorce decree in which the husband challenged the trial court’s award of two parcels of real property to his former wife. The wife sued for divorce in March 2013, and in response the husband filed a counter petition for divorce and moved to enforce a rule 11 agreement regarding the division of property, which his ex-wife and he had filed in a prior divorce case that was dismissed in 2006.

He subsequently moved to transfer and consolidate the current divorce proceeding with the previously dismissed case. The trial court came to the decision that the prior divorce had been dismissed by agreement of the parties and that since the parties agreed to the dismissal and signed the order, everything in the prior proceeding had been dismissed, and the prior case did not need to be reinstated into the current case. It also found that rule 11 agreements may be revoked until they are accepted by the court and incorporated in a final order, and this wasn’t done in the prior proceeding. The court also held that even if the agreement had survived, it didn’t have the specificity necessary to be enforced, although with respect to the sale of a particular piece of real property, the agreement might be enforceable through the application of contract law.

Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas

Published on: June 9, 2016 | by Francesca Blackard

Johnny Depp and Amber Heard are flooding the media with news of their divorce and allegations of family violence. This blog post is not here to pick sides between Team Amber or Team Depp, but we do want to explain the difference between a Protective Order and a Temporary Restraining Order, and what to do if you need either of those.

There is a lot of confusion about how to protect yourself from family violence in Texas. Many clients approach our law firm asking for a restraining order, but what they really want is a protective order. Here is the difference:

Divorce and Taxes – What to do if your ex-spouse botched your joint tax return

Published on: May 31, 2016 | by Adam Mundt

In many families, one spouse takes primary responsibility for all the family finances, including the preparation of the joint income tax return. A joint income tax return may provide tax benefits to families that would not be available from filing two separate returns. However, in order to file a joint income tax return, both spouses are required to sign the return. The result of filing a joint tax return is that each spouse is joint and severally liable for any reported tax liability, along with any additional tax, interest, and penalties assessed on the return by the IRS. Even if the couple is later divorced, both spouses remain joint and severally liable for the total liability associated with the joint return. But is this fair to the spouse who did not handle any of the family finances? What if the spouse was also the victim of abuse or domestic violence and was prevented from accessing any of the family financial records?

Congress and the Department of Treasury have created Innocent Spouse Relief, which gives the innocent spouse the ability to request relief from the IRS for the joint liability associated with any additional tax, penalties, or interest assessed on the joint return. To qualify for Innocent Spouse Relief, the innocent spouse must meet all of the following conditions:

How Surrogacy Contracts Work

Published on: May 16, 2016 | by Kate Mataya

Surrogacy is the process of a mother carrying a child for a family who can’t conceive. The process can be a godsend for parents who do not have the option of traditional conception. As surrogacy works in Texas, it involves a life-altering event for at least three parties– the intended parents and the gestational mother. Naturally, it is a delicate process with many emotions and moving parts. Surrogacy can be a great option for many reasons- whether the parents are a same-sex couple, medical issues prevent a mother from carrying a baby, or if either parent is concerned about passing down a genetic disorder or defect. For anyone thinking about growing a family through surrogacy, keep in mind that the legal process is just as essential as the biological process. Continue Reading ›

Life After Divorce- Ways to Successfully Coparent After You Split

Published on: April 25, 2016 | by Francesca Blackard

If you’re in the middle of a divorce, it may seem impossible, but it is essential for you to healthily coparent with your spouse/ex-spouse after you split for the sake of the children. Luckily, there have been many celebrities publicly demonstrating this positive behavior such as Gwyneth and Chris Martin, Jennifer and Ben Affleck, and most recently Drew Barrymore and Will Kopelman. In addition, there are people who dedicate their careers to assist divorcees in post-divorce coparenting. Keep in mind, it’s best to start this positive behavior even prior to filing for divorce, but it’s never too late to start. Here are a few resources to help push you in the right direction: