McClure Law Group, Author at Texas Divorce Attorney Blog

Ongoing Obligation Under I-864 Affidavit of Support after Texas Divorce

Published on: April 6, 2020 | by McClure Law Group

In many cases, when a person seeks to obtain lawful permanent resident status in the United States, also known as a green card, they must have a sponsor who agrees to support them. If the person is moving to the United States as a spouse of or to marry a lawful permanent resident or a U.S. citizen, the spouse often serves as the sponsor. The sponsor must sign a Form I-864 Affidavit of Support, which is a legally enforceable contract in which the sponsor agrees to use their financial resources to support the person who intends to immigrate. After the person becomes a lawful permanent resident, the sponsor’s support obligation generally continues until one of the specified conditions is met, including the immigrant becoming a US citizen or earning 40 work quarters toward Social Security. Divorce is not one of the conditions that relieves the sponsor of his or her support obligation. Therefore, the support obligation may become an issue in a Texas divorce involving an immigrant who has not become a US citizen.

The support obligation was at issue in a recent case. The wife had moved to the United States from Mexico to be with the husband in 2014. They married in June 2016. The husband signed an I-864 affidavit of support in August 2016, agreeing to provide the wife with any support needed to keep her income level at at least 125% of the federal poverty level. The wife later became a lawful permanent resident.

The husband filed for divorce in July 2017. In her counterpetition, the wife asked the court to order the husband “to support her under his federal contractual obligation” based on the form I-864. The trial court heard evidence and granted the divorce, but took the issue of the husband’s obligation pursuant to the I-864 affidavit under advisement to review the case law submitted by the parties. The court held multiple hearings on the issue.

Can I Still Get Divorced Under Quarantine?

Published on: April 2, 2020 | by McClure Law Group

The short answer is “yes.” The Courts are still open for business and so are most family law firms, albeit remotely- to protect your health and safety.

Below are answers to the most recent frequently asked questions:

How do I conduct a consult if my spouse is in the next room?

Texas Divorce Court May Award Damages to Wife Where Husband Improperly Withdrew Retirement Funds During Divorce

Published on: March 30, 2020 | by McClure Law Group

Under Texas family law, if a party in a divorce case fails to comply with the divorce decree and delivery of the awarded property would no longer be an adequate remedy, the court may render a money judgment for the damages. Tex. Fam. Code Ann. § 9.010. A husband recently challenged an enforcement order awarding the wife damages after the husband withdrew and spent all the funds from two retirement accounts while the divorce was pending.

The inventories submitted by the husband in the divorce proceedings included two retirement accounts in his name, but did not specify an amount. Both parties were ordered to preserve assets until the divorce was concluded, but the husband closed the accounts and transferred the funds to his personal account. The trial court awarded 50% of each account to the wife in the final divorce decree.

The wife sued to enforce the property division in the divorce decree, also alleging fraud on the community. The husband testified he had withdrawn about $75,000 from the accounts and admitted he had done so without notifying the wife or the court. He testified he spent the funds on living expenses because he was unemployed.

How Will COVID-19 Affect my Possession Schedule?

Published on: March 16, 2020 | by McClure Law Group

As COVID-19 (Coronavirus) becomes more and more ingrained as a daily part of our news cycle, its ability to affect our day-to-day lives continues. As of Monday, March 16, a total of 48 public school districts plus several religious academies across North Texas have elected to extend spring breaks until March 26 or longer. For many parents this begs the question, what do these school closures mean for my possession schedule?

According to the judges in Dallas County, Collin County, Denton County, and Tarrant County, the Standard Possession Schedule should follow the originally published school calendars, meaning there will be no extensions of time periods for parents who have the Spring Vacation possession due solely to recent changes.

As the situation and precautions surrounding this global pandemic continue to evolve, more questions regarding possession schedules and the potential need for additional childcare if schools remain closed will inevitably arise. Disagreements regarding the custody or possession of a child can be stressful and emotionally charged. We recommend consulting with your attorney regarding any questions concerning selecting substitute pick-up or drop-off locations or establishing alternative schedules before making any decisions with your co-parent or ex-spouse.

Texas Appeals Court Upholds Custody Modification Following Alleged Domestic Violence Incident

Published on: March 16, 2020 | by McClure Law Group

Texas custody orders may be modified if there has been a substantial and material change in circumstances of either of the parents or the child since the previous order. The petitioner must prove the circumstances at the time of the previous order as compared to the circumstances at the time of the modification hearing. Family violence may constitute a substantial and material change in circumstances.

A father recently appealed an order modifying custody of his daughter supported partly by an alleged incident of domestic violence. The agreed final divorce decree appointed both parents joint managing conservators with the father having the exclusive right to designate the child’s primary residence. The mother petitioned to modify the order, alleging a material and substantial change in circumstances. She alleged there had been a recent family violence incident involving the father and his fiancée. She also alleged he had a history or pattern of family violence. She asked that he be excluded from possession of their daughter. Alternatively, she requested he have only supervised visitation and that she be named as sole managing conservator or be given the right to designate the child’s primary residence.

The court entered temporary orders naming the parents temporary joint managing conservators and modifying the possession schedule. The temporary orders prohibited unrelated persons from being in the same residence as the child from 8 pm to 8 am. They required the mother to reside either at her parents’ home or her own home. Finally, they ordered that neither parent would provide support to the other.

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Published on: February 26, 2020 | by McClure Law Group

Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children. In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent. In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage. The mother moved to another town and filed for divorce. The decree required the father to use a Soberlink alcohol monitoring device before and during visitation. The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits. She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity. She also alleged the father failed one of his alcohol tests.

Texas Court Can’t Deny Petition for Modification of Conservatorship for No Material Change without Evidentiary Hearing

Published on: January 29, 2020 | by McClure Law Group

A court may modify a Texas custody order only in certain circumstances. One of the most common reasons to modify an order is that there has been a material and substantial change in circumstances since the previous order and a modification is in the child’s best interest. Whether a material and substantial change has occurred is a question of fact. The party seeking modification has the burden of proving a material and substantial change has occurred.

In a recent case, a father challenged denial of his petition for modification because he had not been allowed to present evidence to support it. A 2010 order named the parents joint managing conservators, with the mother having the exclusive right to designate the child’s primary residence.

The child moved in with his father, his paternal grandmother and his step-grandfather following his mother’s death in 2015. The grandparents filed a petition to modify the 2010 custody order based on the mother’s death, as well as the father’s behaviors they claimed significantly impaired the child’s safety and well-being. The grandparents asked to be named temporary joint managing conservators with the right to designate the child’s primary residence. They also asked the father be denied access to the child, or alternatively, that his access to the child be supervised.

Texas Appeals Court Upholds Custody Modification Based on Family Violence

Published on: January 1, 2020 | by McClure Law Group

Generally, a Texas child custody order can be modified only if the modification is in the child’s best interest, and there has been a material and substantial change in circumstances. Family violence may constitute a change in circumstances warranting a modification.

In a recent case, a mother challenged a modification, alleging that there was insufficient evidence of family violence to support a finding of a change in circumstances. When the child was an infant, the parents entered into an agreed order, appointing both of them as joint managing conservators, with the mother having the exclusive right to designate the primary residence.

The mother was subsequently charged with assaulting the father’s girlfriend. In December 2016, the mother took the child to California to live with her mother and other children.

Texas Husband Considered Child’s Father Despite Paternity Test Otherwise

Published on: December 11, 2019 | by McClure Law Group

Texas family law presumes a husband is the father of his wife’s children born during the marriage. A presumed father may challenge paternity, but he generally must do so by the child’s fourth birthday. Adjudication of the paternity of a child with a presumed father may occur later, however, if a court finds the presumed father did not live with or have sexual intercourse with the mother when the child was conceived or if misrepresentations led the presumed father to a mistaken belief he was the biological father. Tex. Fam. Code § 160.607.

A husband recently challenged a trial court order including a child as a child of the marriage after he presented evidence of a DNA test showing he was not the father. The daughter was born in 2004 and the son in 2012. In 2013, the husband obtained a paternity test confirming he was not the daughter’s biological father. He filed for divorce in 2017. In his petition, he listed both children as “children of the marriage” and sought the right to designate their primary residence. He sought child support and medical support from the wife for both children. The wife also sought child support, medical support, and the right to designate primary residence.

Each spouse alleged the other had been unfaithful. The husband presented the DNA test results to support his allegation. When his attorney asked if he was asking the court to say that the daughter was not his child, he indicated he was not and agreed he accepted parental responsibility for her. He indicated the purpose of admitting the paternity test was not to deny paternity, but to show that his wife had been unfaithful. Both parents testified the girl had not been told she was not the husband’s biological child.

Texas Court Orders Child’s Name Change to Include His Father’s Surname

Published on: November 13, 2019 | by McClure Law Group

Under Texas family law, a court may order a child’s name be changed if doing so is in the child’s best interest. Neither parent is specifically granted the right to name the child under Texas law, but generally a child’s name will not be changed unless the party seeking the change shows a good reason for it. In a recent case, a mother challenged a court’s order to change the child’s name to include the father’s last name.

The parties appeared to have a good co-parenting relationship. According to the appeals court’s opinion, the child lived with the mother, but the father had always been a part of his life and assisted financially with his living expenses. The father’s family was also significantly involved in the child’s life, helping the mother financially and with child care.

The mother had been adopted as a young child. She grew up in Virginia and moved to Texas when she was 18. She did not have any family other than her son in Texas. Due to the distance, the child did not have the same amount of interaction with his mother’s family that he had with his father’s family.