Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Upholds Divorce on Insupportability Ground Despite Evidence of Adultery

Published on: April 13, 2025 | by Kelly McClure

In Texas, a court may grant a “no-fault” divorce if the marriage has become insupportable due to “discord or conflict of personalities. . .” Tex. Fam. Code § 6.001. The court may also grant divorce in favor of a spouse, if the other spouse committed adultery. Tex. Fam. Code § 6.003. In a recent case, a former wife appealed her Texas divorce decree, which was granted on the ground of insupportability instead of adultery.

According to the appeals court, the parties got married in 2014 and the wife petitioned for divorce in 2022. She alleged insupportability and adultery by the husband as grounds for the divorce and sought a disproportionate share of the community estate. In his counterpetition, the husband alleged insupportability and sought an equal division of the community estate.

Trial

At trial, the wife testified she made more than $100,000 per year in the military but was now receiving about $88,000 from retirement and disability benefits. She said that the parties generally maintained separate finances and separate bank accounts during the marriage, but she primarily paid the bills out of her own account and was reimbursed by the husband for his share. They also had a joint account for bills.

Characterization of Assets in Accounts with Commingled Funds in Texas Divorce

Published on: March 31, 2025 | by Kelly McClure

All property possessed by either spouse at the time of a Texas divorce is presumed to be community property, but this presumption can be rebutted with clear and convincing evidence. Property’s characterization is determined by the inception of title. Separate property retains its separate character if the spouse can rebut the community presumption by tracing the assets back to separate property. If separate and community property are commingled to an extent that would defy resegregation and identification, it will be presumed to be community property.

A former wife recently appealed the award of funds from a particular account in the divorce decree.

According to the appeals court, the trial court had awarded 60% of the funds in the account to the husband as his separate property. The court found the remainder of the funds were community property and awarded each party half of that amount as their separate property.

Mother’s Spouse Challenges Adjudication of Biological Father as Child’s Parent in Texas Custody Case

Published on: March 21, 2025 | by Kelly McClure

Parental rights of same-sex couples can be complex. A Texas appeals court recently considered a case in which the mother’s spouse who had been named as a parent on the child’s birth certificate challenged a court order for genetic testing and a subsequent order adjudicating the child’s biological father as the child’s parent.

According to the appeals court, C.B. and the child’s mother got married in 2017. The mother gave birth to the child in November 2018. C.B. and the mother told hospital staff they were the child’s parents and were both listed on the birth certificate. They lived and raised the child together until the mother petitioned for divorce in 2021.

The mother listed the child as a child of the marriage in her original petition, but subsequently amended the petition. In the amended petition, she denied C.B. was the child’s parent and identified another person, identified by the court as “C.H.,” as an “additional [r]espondent.” C.H. filed an answer claiming to be the child’s biological father.

Texas Appeals Court Vacates Judgment Giving Grandmother Possession and Access to Grandchildren

Published on: March 7, 2025 | by Kelly McClure

A party must establish standing to maintain a lawsuit. If the party does not have standing, the court does not have subject-matter jurisdiction. The parties cannot waive subject matter jurisdiction. The Texas Family Code sets forth when a non-parent has standing to pursue access or pursue to a child. A non-parent seeking access or possession of a child must establish standing pursuant to the requirements set forth in the applicable statute.

Chapter 153 of the Texas Family Code sets forth when a grandparent has standing to pursue a claim for access or possession. Pursuant to § 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denying them possession or access “would significantly impair the child’s physical health or emotional well-being” and state supporting facts. The court then determines if the facts would be sufficient to support possession or access under § 153.433 if true. The court may order possession or access under § 153.433 if at least one parent’s rights have not been terminated, the grandparent proves denying possession or access would significantly impair the child’s health or well-being by a preponderance of the evidence, and the grandparent’s child has been incarcerated for the three months before the petition, is incompetent, is deceased, or does not have possession or access to the child. In a recent case, a father and maternal grandmother each appealed a court order granting the grandmother possession and access.

Grandmother’s Petition

In December 2021, the grandmother petitioned for possession or access to her grandchildren. The father filed a counterpetition, asking for a judgment naming him sole managing conservator. In February 2022, the court rendered temporary orders naming the grandmother a “nonparent” possessory conservator with standard possession.

The trial court granted the grandmother possessory conservatorship after a trial. On the father’s motion, the trial court modified the judgment to remove the grandmother’s designation as “conservator,” but still granting her possession and access.

Independent Medical Decision-Making in Texas Custody Case Involving Child with Special Needs

Published on: February 25, 2025 | by Kelly McClure

In some Texas custody cases, parents may not agree on the best medical treatment for a child, especially a child with complex special needs. Courts sometimes give each parent the authority to make decisions regarding medical treatment during their periods of possession, but this can become complicated when the parents cannot agree on appropriate treatment. In a recent case, a father appealed a divorce decree that allowed each parent to make decisions regarding non-invasive treatment during their respective periods of possession.

Medical Decision Making

The parties’ divorce decree gave the mother the exclusive right to enroll their younger child in school and gave both parents the authority to consent to non-invasive medical treatment during their possession. The father appealed these two issues. Although the parties had two children, only the younger child was subject to the appeal.

The father argued that allowing each parent the right to decide whether to administer medication to the child during their possession was not in the child’s best interest.

Texas Appeals Court Affirms International Travel Restrictions for Child in Divorce Decree

Published on: February 14, 2025 | by Kelly McClure

The Fourteenth Court of Appeals recently reversed a trial court’s order imposing restrictions on international travel for a child whose mother had ties to Russia. In another recent case, however, the Third District Court of Appeals determined there was no error in a trial court’s imposition of travel restrictions for a child in a Texas divorce decree involving a mother with ties to India.

The parties’ son was nine years old when the final divorce decree was signed in 2023. The trial court ordered that the father maintain control and possession of the son’s passport until the child turns 13. The court also prohibited either party from traveling outside the U.S. with the child without the written agreement of the parties, with such agreement not being unreasonably withheld after the child turns 13.

The mother appealed, arguing the trial court abused its discretion in restricting international travel without evidence of a risk of abduction.

Modification of Texas Child Custody and Child’s Preference

Published on: January 30, 2025 | by Kelly McClure

A trial court may modify a Texas conservatorship if modification is in the child’s best interest and the child is at least 12 years old and has told the court in chambers which parent they prefer to have the exclusive right to designate their primary residence. Tex . Fam . Code § 156.101(a)(2). In a recent case, a mother challenged a modification that named the father primary managing conservator, in part based on the fourteen-year-old daughter’s preference.

The 2017 final divorce decree appointed both parents joint managing conservators of their child. The mother had the exclusive right to designate the child’s primary residence. The father was given an expanded standard visitation schedule and ordered to pay monthly child support.

Modification Proceeding

The father petitioned for modification in March 2021, requesting the exclusive right to designate the child’s primary residence. He argued there had been a material and substantial change in circumstances. He alleged the child, who was now older than twelve years old, would express a preference on which parent should have the exclusive right to designate her primary residence.

Texas Appeals Court Concludes Company Was Husband’s Separate Property

Published on: January 20, 2025 | by Kelly McClure

Division of a business in a Texas divorce can complicate a Texas divorce. As with other property, a business interest possessed during the marriage is presumed to be community property, but that presumption can be rebutted by clear and convincing evidence that it is separate property. In a recent case, a husband appealed a property division involving a business interest and property owned by the business.

The trial court signed a final divorce decree in July 2023 and subsequently filed findings of fact and conclusions of law.

The property at issue was a 125-acre tract of land that the husband’s father previously owned. The trial court found the husband and his father each received 50 shares of company stock on the day the company was created in May 2008. A few days later, the husband’s father deeded the property to the company. The parties got married in June 2009.

Texas Appeals Court Affirms Spousal Maintenance Award to Disabled Spouse

Published on: January 6, 2025 | by Kelly McClure

A court may award Texas spousal maintenance in a divorce case if the spouse seeking maintenance meets the statutory requirements. Generally, a spouse seeking maintenance must show that they lack sufficient property to provide for their own minimum reasonable needs and meet one of the other statutory conditions, including being unable to earn sufficient income due to an incapacitating disability. Tex. Fam. Code § 8.051.

“Minimum reasonable needs” is not defined in the Texas Family Code. The court therefore has the discretion to determine a party’s minimum reasonable needs based on the facts and circumstances of the case. Courts consider expenses including housing, clothing, and transportation. A former husband recently challenged the divorce decree that ordered him to pay spousal maintenance, arguing the wife had not proven her minimum reasonable needs.

The parties got married in Australia in 2009 and subsequently moved to Texas. Although the husband had a high-paying job, the wife only earned up to $10.50 per hour. She had significant mental and physical health issues that resulted in her unemployment in 2017.

Texas Court Denies Petition to Enforce Provisions of 1993 Divorce Decree in High Net Worth Divorce

Published on: January 6, 2025 | by Kelly McClure

The conflict in a Texas divorce does not always end when the divorce is finalized, especially a high net worth divorce or one that involves complex assets. A Texas appeals court recently considered an appeal of a denial of a petition to enforce certain property division provisions from a divorce decree from 1993. The ex-husband was deceased when the petition for enforcement was filed, so his widow, as heir to the property, was the real party in interest in the proceedings.

Divorce Decree

The divorce decree incorporated and adopted a “Property Statement and Settlement,” an agreement between the ex-husband and ex-wife addressing the division of assets and liabilities. The decree awarded the ex-husband a particular property in Williamson Count as his sole and separate property. It provided that the ex-wife was divested of any right and title in the homestead. The ex-husband would be solely responsible for all liabilities and benefits associated with the dwelling. The decree further provided that if the husband failed to make the monthly mortgage payments, the house and/or property would be sold. “In the event of sale of said dwelling and/or acreage,” the wife would be entitled to ½ of the net profit. The ex-wife was not to be held liable for any mortgage payments, taxes, or other expenses related to the property.

The decree awarded the ex-wife 100% of the proceeds from the sale of a different property, as well as all benefits associated with it. The decree also awarded her a vehicle, jewelry, a savings account, and a checking account. All debt was awarded to the ex-husband.