Articles Tagged with texas family code

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225While videoconferencing technology allowed certain court proceedings to occur and cases to move forward during the pandemic when in-person proceedings were not available, the technology is not without its problems in a court setting.  Some individuals, especially those living in rural areas, may not have access to a strong internet connection. Others may not have appropriate devices or know how to use the technology.  Another serious issue can be control of the courtroom, including technical issues, distractions, and disruptions by parties or non-parties. In a recent case, a wife challenged a divorce decree because judgment was rendered after the trial was stopped during the presentation of her case.

Divorce Trial Held Over Zoom – and Stopped Abruptly

The divorce case was held over Zoom without a jury.  The wife was the first witness, and the husband kept interrupting, often accusing the wife of lying.  The trial judge was unable to stop him and ultimately stopped the trial before the wife had finished presenting her case.  The trial judge stated she would grant the divorce and divide the property.

The final divorce decree was signed on January 29, 2021.  The decree granted the divorce and the wife’s name change. It also divided the assets and liabilities.  The wife moved for a new trial, arguing the trial had been stopped early.  The husband died less than two months after the decree was signed.  The wife subsequently appealed.

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iStock-1404070235-300x212In dealing with Texas custody issues, courts must focus on the children’s best interest. Courts sometimes conclude that the best interest of the children requires certain restrictions on the parents when the children are in their care.  A father recently challenged a provision in the divorce decree prohibiting the parents from drinking at certain times.

Divorce Decree Prohibits Consumption of Alcohol

The parents’ divorce decree prohibited both parents from consuming alcohol while they had possession of the children or within 12 hours before their scheduled possession.  The father ultimately appealed this provision, arguing it was an abuse of the trial court’s discretion.

According to the appeals court’s opinion, there was evidence of the father’s regular excessive drinking.

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iStock-1125625723-300x200When parties to a Texas divorce agree to a property division, the final judgment based on the agreement must strictly comply with it.  The trial court cannot add, change, or leave out material terms.  A final judgment based on a property division agreement  must be set aside if it is not in strict compliance with the agreement, unless the discrepancy is a clerical error.  An appeals court may modify a judgment to correct a clerical error.  A former husband recently challenged the property division in his divorce due to a number of alleged discrepancies.

Husband and Wife Submitted Proposed Property Division

According to the appeals court’s opinion, the parties agreed to a proposed property division, identified as “Exhibit A.” The wife testified the division was fair and just. She agreed to split funds in the husband’s IRA equally after he was credited $90,000 as separate property and to split the funds in his “Edge” and “Smart” retirement plans equally.

The husband initially disagreed with the property division in Exhibit A, but later asked the court to approve it. The trial court admitted the document into evidence, asked the parties to draft and sign an agreed final decree.

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iStock-1271310078-300x200Under Texas family law, certain close relatives of a child may seek managing conservatorship if they can sufficiently show the child’s current circumstances would significantly impair the child physically or emotionally.  Tex. Fam. Code Ann. § 102.004(a)(1).  A sister recently sought custody of her siblings, asserting standing under § 102.004(a)(1).

Children’s Sister Seeks Custody After Mother’s Death

According to the appeals court’s opinion, the adult sister filed suit seeking to be named the sole managing conservator of her minor siblings a few weeks after her mother’s death.  She claimed she had standing to bring the suit because she was their sister and had “a close and substantial relationship with the children.”

The father asked the court to dismiss the case for lack of standing.  The sister amended her suit to claim standing pursuant to Tex. Fam. Code § 102.004(a)(1).  The sister attached to her brief a copy of her mother’s will, which named the sister and her husband as the children’s guardians.  The father attached a letter to his own brief which showed the Texas Department of Family and Protective Services (“Department”) had ruled out allegations of abuse against him.

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iStock-545456068-300x184A party may challenge a judgment as void through either a collateral or direct attack. Generally, a Texas divorce decree is only subject to collateral attack if the court lacked jurisdiction over the parties or subject matter.  Other errors must be challenged through a direct attack.  A direct attack can be either a pleading filed in the original case while the trial court still has plenary power or a timely-filed bill of review under a new cause number.  A bill of review is generally the only appropriate method of direct attack after the trial court’s plenary power has expired.

Husband Seeks to Set Aside Divorce Decree

In a recent case, a husband filed a separate lawsuit seeking to have the divorce decree set aside, arguing the marriage and decree were both void due to the wife’s bigamy.

A trial court had denied the husband’s request for annulment based on fraud, but granted his petition for divorce in March 2019.  The court also awarded the wife certain assets.  The following month, the wife was indicted for bigamy.  The indictment alleged she had still been married to someone else when she married the husband in 2017. The husband was ordered to pay her attorney’s fees and spousal support in June 2019.  In July, the wife petitioned for enforcement.

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2018_10_agreement-300x165People commonly obtain life-insurance policies and name their spouse as the beneficiary. They do not always remember to update the beneficiary designation when they get divorced.  Under Texas law, designation of a spouse as beneficiary before a divorce will only remain effective after the divorce in certain circumstances.  Generally, either the court or the insured must designate the former spouse as beneficiary, or the former spouse must be designated to receive the proceeds in trust for a child or dependent’s benefit.  In a recent case, an ex-wife challenged a court awarding a life-insurance policy on the ex-husband to the ex-husband many years after the original divorce.

Insurance Policy Not Divided in Divorce

During the marriage, the parties obtained a life insurance policy on the husband with the wife named as beneficiary.  The policy was not addressed in the divorce decree in 2009.  The husband subsequently filed a bill of review, and the parties agreed to be co-owners of the policy.  They agreed the wife would receive half of the proceeds and the rest would go into a trust for their children. The court ordered the parties to split the policy into two, but the insurance company was unable to do so.

The husband then filed for declaratory judgment, seeking to be named the sole owner of the policy.  He also asked for a temporary restraining order against both the wife and the insurer. Alternatively, he sought to divide undivided property.  The wife’s counter-petition also sought a declaratory judgment that the policy was her separate property and to divide undivided assets.

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iStock-1033856542-300x200Under Texas family law, a mother’s husband is presumed to be the father of a child born during the marriage.  This presumption can be rebutted by an adjudication of parentage or by a valid denial of paternity filed by the presumed father along with a valid acknowledgement of paternity filed by another person.  Tex. Fam. Code § 160.204. If a child has a presumed father, a suit to adjudicate the child’s parentage may not be brought after the child’s fourth birthday unless an exception applies.  Tex. Fam. Code § 160.607.

Presumed Father Challenges Paternity Adjudication

A presumed father recently challenged a court’s adjudication that another man was the child’s father, arguing the suit was time-barred.  The child was born in May 2014.  The mother and her husband separated that October.  The mother began cohabiting with the alleged father the following October. The mother and her husband divorced in August 2016.  The divorce order provided for visitation by the husband of all four children born during the marriage.

The mother and alleged father got married.  The alleged father petitioned for adjudication of parentage after a DNA test showed a 99.96% probability he was Lucy’s biological father.  The mother’s ex-husband conceded that the alleged father was likely the child’s biological father based on the DNA test.  He argued, however, that the alleged father was time-barred from seeking adjudication of parentage.

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iStock-952098878-300x200When child support goes unpaid, Texas child-support cases can sometimes go on for years after the obligation would otherwise have terminated. A Texas appeals court recently considered what happens when one parent dies before the past-due child support has been paid.

The parents had a daughter together during their marriage and divorced in 1976.  The father failed to pay child support as ordered at times.  The trial court found him in contempt in 1987 and ordered him to pay $200 per month in support with additional amounts for a specified time going toward the arrearages.

Adult Daughter Files Child-Support Suit After Mother’s Death

In 2010, the adult daughter filed a petition regarding the unpaid support after her mother’s death. She asked the court to render judgment for the past due child support and to make her the obligee for the arrearages.

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iStock-170042608-300x200Texas is among the states that still recognize informal marriage, sometimes called “common-law marriage.” A couple may establish an informal marriage by signing a document entitled “declaration of informal marriage.”  In the absence of a declaration, a party may also prove the existence of a Texas informal marriage through evidence that the couple agreed to be married, subsequently lived together as spouses in Texas, and represented to others that they were married.  Tex. Fam. Code § 2.401.  Although informal marriages are generally treated the same as formal marriages, the existence of an informal marriage can be far more difficult to prove.

Man Files for Divorce from Partner – No Marriage Found to Exist

A man, E.L., recently challenged a jury’s finding that he and his long-term same-sex partner, J.M., were not in an informal marriage. The parties started dating in 1997 and lived together from June 1998 until January 2017.  They were not formally married, and there was no evidence they had ever filed a declaration of informal marriage.  E.L. filed a lawsuit seeking a divorce from J.M.  The jury found the parties were not married.  E.L. appealed, arguing there was insufficient evidence supporting that finding and that the evidence conclusively proved the parties were married.

The jury was asked to determine if the parties were married.

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iStock-1270267953-300x200When a party in a Texas civil lawsuit dies, the case may proceed if the cause of action survives the death of the party. Tex.R.Civ.P. 150. Generally, when the defendant in Texas civil lawsuit dies, the plaintiff may petition for a “scire facias” to require the administrator, executor, or heir to defend the lawsuit.  Tex. R. Civ. P. 152. Pursuant to case law, however, Texas divorce cases are not subject to this rule because they are personal actions that do not survive the death of a party if judgment has not yet been rendered.  Generally, heirs do not take over a divorce case prior to final judgment.  Instead the divorce case abates when a party dies.  This means the court will dismiss the case.

Husband Dies During Divorce Suit

A wife recently challenged a trial court’s determination that her divorce petition abated upon her husband’s death.  The parties had married for about seven years when they divorced in 2000.  In 2018, they got married again.  The parties did not have any children together, but the husband had children from a previous marriage.  The wife petitioned for divorce in May of 2020. The husband filed an answer, but passed away the following January.  The wife sought to have the husband’s children defend the divorce on the husband’s behalf as his heirs.

The trial court found it did not have subject-matter jurisdiction to proceed, because a divorce petition, as a personal action, abates upon the death of either party. A judgment rendered by a court without subject-matter jurisdiction is void.

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