McClure Law Group, Author at Texas Divorce Attorney Blog

Texas Court Allows Mother to Change Children’s Last Name

Published on: February 25, 2019 | by McClure Law Group

Most Texas divorces address property division and custody and visitation issues, where there are children. In some cases, however, there are more unusual issues that must be addressed. In one recent case, a father challenged a court’s order allowing the mother to change the children’s last name from their father’s name to their mother’s maiden name.

The parents had two children together. The father is currently serving a life sentence without parole for an offense that occurred when his children were one and three years old. The mother petitioned for divorce. She requested to be appointed sole managing conservator, to change the children’s name, and to keep the father from having contact with the children.

The mother testified that the father’s family did not help after he was incarcerated. She thought contact with the father would threaten the kids’ emotional welfare. She testified that the father was a former gang member and she was afraid of him. She argued that keeping their father’s name “would be a source of anxiety, embarrassment, inconvenience or disruption” to the kids.

Texas Court Grants Custody to Father Who Supports Kid’s Therapy

Published on: February 4, 2019 | by McClure Law Group

A change in Texas custody may be justified even when both parents love and care for the child. A custody modification is appropriate when there is a material and substantial change in circumstances of the parent or child and if the change is in the child’s best interest. Sometimes, changed circumstances put the non-custodial parent in a better position to provide for the child’s best interests, even if everyone agrees that the custodial parent loves and cares for the child.

A mother recently challenged a custody modification. The parents were originally named joint managing conservators under the divorce decree, and the mother was given the exclusive right to determine the child’s primary residence. The mother was also granted the exclusive right to receive child support. The father gained expanded possession rights through subsequent agreements, including a mediated settlement agreement (MSA). The court set forth the terms of the MSA in a 2015 order.

The father later petitioned for greater periods of possession and the right to make educational and medical decisions. He also sought the exclusive right to determine his son’s primary residence so his home would be the child’s primary residence during the school year.

Parentage in the Modern Era: What to Know When Baby is on the Way and No Wedding Day

Published on: January 16, 2019 | by McClure Law Group

Parenting is hard. Those three words are enough to capture the entire outlook of parenthood from the moment that the sweet child enters the world.

In today’s world, parenting has taken on a number of new issues such as parenting after a divorce, as an unmarried couple; single parenting; and co-parenting. Briefly stated, parenting is hard. According to the National Statistics Unit, in 2016 39.8% of births in the U.S. are by unmarried women. It is important that expecting or current modern parents consult with an attorney who can help guide them through the legal processes of ensuring full legal rights to conservatorship, possession of and access to their child and identifying numerous nuances that are becoming more and more prevalent in this modern era. Parents today face many challenges that older generations never even dreamed about.

Geographic Restriction in Designating Primary Residence in Texas Custody Cases

Published on: January 15, 2019 | by McClure Law Group

A custodial parent sometimes wishes to move away following a Texas child custody case. Although some parents may want to get the child away from the other parent, there are often legitimate reasons for a parent to want to move. The primary consideration in the litigation of relocation issues is the child’s best interest. Although the Texas family law statutes do not set forth how a court should determine the child’s best interests, the Texas Supreme Court has stated courts should consider the public policies listed in Tex. Fam. Code Ann. § 153.001. Texas has a public policy of assuring frequent and continuing contact with parents who act in the child’s best interest. There is also a public policy to provide a safe and stable environment for the child. Finally, Texas has a policy to encourage parents to share the rights and duties of raising the child after separation or divorce.

A father recently challenged a divorce decree that allowed the mother to designate the child’s primary residence without regard to location. The couple’s child was born in June 2011 and they stopped living together as husband and wife in August of the same year. The mother filed for divorce in 2015, alleging the child’s father had committed adultery. She also alleged he left her with the intention of abandonment and had stayed away for at least a year. The trial court named the mother joint managing conservator with the right to designate the child’s primary residence without any geographic limitations. The court also ordered the father to pay child support.

The father appealed, arguing in part that the trial court abused its discretion by not placing a geographic limitation on the child’s primary residence because the mother planned to move to Colorado.

Texas Appeals Court Reverses Spousal Maintenance Due to Insufficient Evidence

Published on: January 14, 2019 | by McClure Law Group

Courts may award spousal maintenance to provide temporary and rehabilitative support to a spouse who meets specific statutory requirements in a Texas divorce case. Generally, the spouse requesting maintenance cannot have enough property to meet his or her minimum reasonable needs and must meet other statutory requirements. A spouse seeking maintenance must overcome a presumption that spousal maintenance is not warranted. This presumption can be rebutted if the spouse requesting maintenance shows that he or she was diligent in trying to earn enough income to provide for his or her reasonable needs or in developing the necessary skills to provide for those needs during separation and while the case was pending. The spouse seeking maintenance must make this showing even if the other spouse does not participate in the case.

A former husband recently challenged the spousal maintenance awarded to his wife following a trial he did not participate in. The couple had been married nearly 15 years when they separated. The wife filed for divorce about a year later. The husband was served, but failed to answer or appear. The trial court held a short hearing and granted the divorce. The court also awarded the wife the family home, retirement from her husband’s income, retirement in her own name and two vehicles. The court also ordered the husband to pay $500 spousal maintenance per month.

The husband appealed the spousal maintenance award. He argued the trial court abused its discretion because there was insufficient evidence that the wife lacked the ability to earn sufficient income to provide for her minimum reasonable needs. He also argued there was no evidence to rebut the presumption against awarding maintenance. Additionally, the award was made in perpetuity. Finally, he argued the award was greater than the statutory maximum.

Texas Appeals Court Finds Property Division in Divorce Was Just

Published on: December 24, 2018 | by McClure Law Group

Property in a Texas divorce must be divided in a “just and right” manner. The trial court has broad discretion in dividing the estate. To successfully challenge a property division, a party must show that it was so unjust as to constitute an abuse of the trial court’s discretion.

A husband recently challenged the property division in his divorce. The husband appealed the trial court’s ruling, arguing it erred in awarding the wife what he claimed was “75% of the Community Estate.” He argued that the court had awarded her 75% of the community estate by awarding her the home the couple had lived in for most of their marriage and the surrounding property. He also argued the court had improperly characterized real estate owned by his son as community property. Additionally, he argued the court had not considered that community work and assets had been used to enhance the wife’s separate property, that the wife damaged the business awarded to him, that she removed funds from community bank accounts, and committed adultery and domestic violence.

Fault

The appeals court first addressed the issue of fault. The trial court had granted a no-fault divorce. The appeals court noted that the alleged domestic violence and adultery had happened several years before the separation, and the trial court could have reasonably found they were not relevant to the property division.

Texas Appeals Court Finds Challenged Order Reflects Mediated Settlement Agreement

Published on: November 21, 2018 | by McClure Law Group

In a Texas divorce, the parties are sometimes able to reach a mediated settlement agreement (MSA). Texas Family Code Section 6.602 sets out the requirements for an MSA to be binding. To be binding the MSA must include a “prominently displayed statement” that it is not subject to revocation. It must be signed by each party and by the party’s attorney if the attorney is present at the time the agreement is signed. Sometimes, however, after reaching agreement on the terms of an MSA, the parties do not agree on what those terms really mean.

A wife recently appealed an amended Qualified Domestic Relations Order (QDRO) on the grounds it did not accurately reflect the parties’ MSA. The parties had agreed on a MSA and were divorced in 2012. The MSA set forth distribution of the husband’s Texas Municipal Retirement System (TMRS) retirement plan. It provided he would keep the retirement through his employment. If the retirement exceeded $100,000 as of the date of the MSA, the excess was to be divided equally between the parties.

The divorce decree stated that if the amount exceeded $100,000 as of January 12, 2012, the excess was to be divided equally between the parties. The trial court signed a QDRO on July 10, 2013, but TMRS rejected it. The trial court signed an amended order that stated the wife was awarded a portion of benefits payable which the husband may become entitled to receive from the retirement plan through accumulated contributions or annuity. The order set forth the calculation for determining the wife’s portion. The court subsequently amended the QDRO again, setting out a specific number for part of the calculation. The husband moved to set aside the Second Amended QDRO, arguing it allowed the wife to receive payment of interest that was not included in the MSA. He also argued that the wife’s share should not include municipal contributions. The trial court changed the calculation to exclude municipal contributions and signed a Third Amended QDRO.

Alienation and the Child’s Best Interest in Texas Custody Cases

Published on: October 20, 2018 | by McClure Law Group

A Texas custody order can generally only be modified if there has been a material and substantial change in circumstances and if the modification is in the child’s best interest. Texas courts have developed a non-exhaustive list of nine factors to be considered to determine the best interest of the child. In some cases, a parent seeks modification because of attempted alienation by the other parent.

In a recent case, both parents sought modification of the original custody order. Under the original agreed order, both parents were joint managing conservators, the child lived with the mother, and the father had visitation rights. The mother had the exclusive right to determine the child’s domicile and direct his education. The parents shared the right to direct the child’s medical and psychiatric care. The child was to be transferred for visitation at a designated location.

According to the opinion, the mother began refusing to transfer the child unless a police officer was present. The father filed suit to change the transfer location to a police department. The mother petitioned for supervised visitation with the father and to be named the sole managing conservator. The father sought the exclusive right to determine domicile.

The Fifth Amendment and Death Penalty Sanctions in Texas Divorce

Published on: October 1, 2018 | by McClure Law Group

The Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense. A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue. The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.

In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition. In June 2015, the wife filed for divorce and the husband filed a counterpetition. The wife alleged the husband had assaulted her and committed adultery. She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister. The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.

When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges. During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege. He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…” He refused to answer questions regarding his income, assets, and a list of property. He also refused to identify documents. There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.

Proving Separate Property in a Commingled Account in Texas Divorce

Published on: August 15, 2018 | by McClure Law Group

Property possessed by either party at the time of a Texas divorce is presumed to be community property. To show that property was instead separate, the presumption must be rebutted by clear and convincing evidence. If the assets were not maintained separately from community assets, they must be traced back to separate property by showing the origin of the property. Income earned during the marriage is also community property.

A wife recently challenged a court’s finding that a down payment made from her savings account was made with community funds. After six years of marriage, the parties filed for divorce. In the wife’s counter petition, she sought reimbursement to her separate estate for assets she alleged were spent for the benefit of the community estate.

At the hearing, the husband sought half the equity in the marital home and community funds he alleged the wife had deposited into her checking account and given to her adult child. The parties agreed on the value of the home and the amount of the down payment. The husband admitted the down payment had come from the wife’s savings account, but argued that it came from community property funds that had been commingled into the wife’s savings account. He testified that she deposited her paychecks into her checking account and transferred funds to the savings account. He testified the savings account had $162,168.61 at the time of the marriage. The bank records showed $282,847.69 was in the account before the withdrawal for the down payment. The husband also testified he had given his wife cash to pay the utilities and half of the mortgage payment.