Articles Tagged with texas family code

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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iStock-839381426-300x200Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence.  A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child.  The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order.  The mother was given a standard possession order and required to pay child support.

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iStock-1139699594-300x200When a couple has complex and high-value assets, the actions required to achieve the property division may drag out long after their Texas divorce.  The parties may need to refinance or liquidate certain assets.  These ongoing transactions can result in additional disputes and possibly enforcement actions by one or sometimes both parties.

A husband recently challenged a court’s order in favor of the wife in dualling enforcement motions.  The trial court entered an Agreed Final Decree of Divorce in March 2019.  The decree awarded the wife a business, but required her to pay the husband a $770,000 equalization judgment secured by her primary residence and rental properties.  She was also ordered to make monthly payments with 3% interest starting in February 2019.  She defaulted in 2020, triggering an acceleration clause.

The decree also addressed the parties’ 2017 tax return and liability. The wife would pay $60,000 of the approximate $199,000 liability and any penalties and interest “arising solely out of the failure to previously make the $60,000 payment to the Internal Revenue Service.” The parties would split the remaining tax liability, penalties, and interest equally.  The wife consented to filing the tax return in June of 2019, but the husband asked to review certain documents before he consented.  There was evidence he received the documents in the summer of 2020 and notified the wife and accountant he had identified additional medical expenses within a week of receipt.  He ultimately gave his consent to file the day before the enforcement hearing.

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iStock-1033856542-300x200Some families choose to resolve custody manners informally.  When the parties are the biological parents, subsequent disputes can be resolved through a Texas custody case.  When one party is not biological parent, however, resulting disputes may be more complex. In a recent case, a maternal uncle and aunt appealed an order that required them to pay child support for their nephew.

When the child was born, the child’s biological mother asked her brother to act as the child’s father.  The brother signed an acknowledgment of paternity, birth certificate, and a verification of birth facts.  The birth certificate listed the brother’s wife as the mother.  Initially, they all lived together, but the mother moved out following a falling out with the couple.

Mother Files Paternity Suit

In August of 2016, the mother petitioned to adjudicate parentage, asking the court to adjudicate her as the mother and an identified man as the father.  The brother and his wife were named as parties, but they also intervened in the case, asking the court to name them the child’s managing conservators and terminate the mother and alleged father’s parental rights.

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iStock-1187184203-300x200Retirement benefits are often subject to property division in a Texas divorce.  In some cases, calculating the community interest is straight forward; however, in other cases, it can be somewhat more complex.  In a recent case, a former wife challenged a trial court’s handling of the former husband’s retirement benefits after it concluded she had already received all of the benefits to which she was entitled.

The parties had been married 22 years when they divorced.  The wife was awarded 50% of the husband’s Civil Service Retirement Benefits accrued as of the date of the decree’s entry.  The trial court signed a Qualified Domestic Relations Order (“QDRO”) authorizing payment of an interest in the husband’s monthly annuity payments to the wife and stating that she was entitled to a survivor annuity.

Trial Court Enters Original QDRO

The parties began receiving the monthly annuity payments pursuant to the QDRO after the husband retired at the end of 2011.  In March 2016, the husband moved to vacate the QDRO, arguing the wife was not entitled to a survivor’s benefit under the decree but a premium was being deducted from his monthly benefit.  He asked the court to amend the QDRO to match the property division in the divorce decree.

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“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas marriage can end through either death or a court’s decree.  If a party dies before judgment is rendered in a divorce case, the divorce case abates. In a recent case, a husband challenged a divorce when the decree was signed after the death of the wife.

The wife filed for divorce in October 2018, alleging insupportability, abandonment, and cruel treatment.  In his counterpetition, the husband alleged insupportability, cruel treatment, and adultery.

Final Trial

At the trial on September 17, 2019, the court informed the attorneys that it needed time to make its rulings regarding the property.  The court said it would email the parties with the decision. The proceedings resumed after a break on the record and the court pronounced the parties divorced and said the entry of the final decree would be ministerial.

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