Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Court Denies Mother’s Request to Relocate with Child

Published on: February 25, 2023 | by Kelly McClure

iStock-1147846829-300x200 The best interest of the child is the primary consideration in Texas custody matters, but the courts have identified factors to be considered in determining the child’s best interest in certain circumstances. A mother recently appealed a court’s denial of her request to remove a geographic restriction, arguing the court failed to properly balance the appropriate factors.

The divorce decree gave the mother the exclusive right to designate the child’s primary residence with a geographic restriction. It also required both parents to provide the other written notice before taking the child out of the country.

The mother married a man who lived in Oklahoma. She ultimately petitioned for modification and requested removal of the geographic restriction. The father believed she had already moved to Oklahoma and sought the right to designate the child’s primary residence.

Texas Court Addresses Validity of Post-Nuptial Agreement

Published on: February 18, 2023 | by Kelly McClure

iStock-185949423-300x199

While it is not the most comfortable thing to consider before or during the marriage, premarital and postnuptial agreements are critical to establishing each partner’s property and financial rights. Texas law provides a mechanism for couples in a marriage to accomplish the same results that could have been created in a premarital agreement. These post-nuptial agreements are often referred to as “marital property agreements.”

There is a general understanding that there are many reasons why a couple might want to change the character of their marital assets during their marriage. Accordingly, the formalities and enforcement rules for post-nuptial agreements are, in effect, the same as for premarital agreements. However, Texas post-nuptial agreements are often prone to issues surrounding unconscionability and involuntariness.

TEXAS COURT FINDS POST-NUPTIAL PARTIAL AND EXCHANGE AGREEMENT INVALID AND UNENFORCEABLE

In one of the more recent published opinions regarding post-nuptial agreements, a Texas appeals court affirmed a trial court’s judgment finding that a post-nuptial Partition and Exchange Agreement (PEA) was not valid or enforceable.

How Do Texas Courts Value a Medical Practice During Divorce Proceedings?

Published on: February 17, 2023 | by Kelly McClure

iStock-932331618-300x200

Valuing a closely-held medical practice during a divorce in Texas requires a complex understanding of the measures of value, methods of valuation, and Texas statutes. Although business valuations do not adhere to precise mathematical processes, general methods, procedures, and principles exist. In Texas, determining the value of medical practice is often a critical and hotly contested aspect of divorce proceedings. Understanding how a court will incorporate the value of medical practice to come to a “just and right” division of property is crucial to securing a favorable outcome in a divorce.

TEXAS ASSETS DURING A DIVORCE

Texas is a community property state, meaning only property created or accrued during the marriage is subject to division during a divorce. Community property may include real estate, businesses, medical practices, cars, money, and retirement accounts. Under the law, courts must make divisions that are “just and right.” It is important to note that “just and right” does not necessarily equate to a 50 percent division.

OWNERSHIP OF MEDICAL PRACTICE AFTER A DIVORCE

Medical practices fall under an important caveat of Texas’ property division laws. The Corporate Practice of Medicine (CPOM) doctrine prohibits non-physicians, entities, or corporations from practicing medicine. Thus, a court cannot divide the ownership of a medical practice to a non-physician spouse; instead, the court can only determine and divide the value of the practice.

Texas Court Rejects Mother’s Request to Modify Relocation Restrictions in Recent Divorce Appeal

Published on: February 14, 2023 | by Kelly McClure

iStock-902725964-300x200 When a judge finalizes a Texas divorce involving the custody of children, they will determine which parent has the right to determine where the child will live. However, courts will almost always place certain restrictions on that parent’s ability to relocate. While a relocation restriction may not immediately be an issue for a parent with primary custody, that may change if they obtain employment elsewhere in the state or decide to move for other reasons.

MOTHER UNSUCCESSFULLY SEEKS MODIFICATION ORDER TO PERMIT RELOCATION

In a recent opinion issued by the Fifth District Court of Appeals in Dallas, the court rejected a mother’s request to modify a divorce decree that placed restrictions on her ability to relocate as well as her rights to travel internationally with her son. According to the court’s opinion, Mother and Father divorced in November 2016. At that time, the court gave Mother the right to determine where the child would live, provided it was within Dallas County, Collin County, or Southlake Independent School District. The divorce decree also required either parent to provide written notice to the other if they intended to travel outside the United States with their son.

In July 2017, Mother married a man who lived in Oklahoma. Mother started to spend as much time as possible in Oklahoma, and she would often take her son. Subsequently, Mother sought modification of the initial divorce decree in hopes of being able to relocate. Father filed a counter-petition, hoping to be named as their son’s conservator so he could keep the child in Dallas County, Collin County, or Southlake Independent School District.

Texas Court Prohibits Parents from Communicating

Published on: February 11, 2023 | by Kelly McClure

iStock-1163040189-300x200 Texas has a public policy to assure frequent and continuing contact between children and “parents who have shown the ability to act” in the children’s best interest. Tex. Fam. Code § 153.001(a). In some circumstances, however, parents are not able to effectively communicate and co-parent. In a recent case, the appeals court upheld a trial court order restricting the parents’ communication with each other and with the children while in the other parent’s care.

According to the appeals court, the agreed final divorce decree appointed the parents joint managing conservators. It gave the mother the exclusive right to designate the primary residence of the children and receive child support. Both parties had the right to consent to non-invasive medical and dental care and the right to consent to invasive procedures after meaningful consultation with the other.

Both Parents File Competing Motions for Enforcement and Modification

The mother moved for enforcement alleging the father had kept the children several days beyond his spring break possession.

The father filed his own enforcement motion, alleging the mother failed to maintain insurance, provide information required to submit a health insurance claim, pay uninsured health expenses, and notify him of activities and medical appointments. He also petitioned for modification.

Texas Trial Court Lacks Jurisdiction to Correct Errors in Retirement Division Years After Decree

Published on: January 24, 2023 | by Kelly McClure

iStock-543681178-300x200 A final and unambiguous Texas divorce decree that disposes of all of the marital property generally may not be relitigated. The Texas Family Code allows the trial court to keep continuing subject matter jurisdiction to clarify and enforce the property division, but it cannot change or modify it. In a recent case, a wife challenged an order purporting to clarify the division of the husband’s military retirement nearly 25 years after the divorce.

The parties divorced in 1996. In the decree, the trial court found they were married for at least 18 years and 11 months and the husband had served at least 13 years and 9 months “of creditable service toward retirement.”

Trial Court Awards Wife 50% of Husband’s Military Retirement

The trial court awarded the wife “[a]ll right, title, and interest in and to fifty (50) percent of [the husband’s military] disposable retired or retainer pay” and 50% of all increases in the disposable retirement or retainer pay. The husband served for several more years.

Texas Child Support for Joint Managing Conservator

Published on: January 16, 2023 | by Kelly McClure

iStock-531351317-300x200 Texas family law presumes that is in the child’s best interest for both parents to be appointed joint managing conservators. Tex. Fam. Code § 153.131(b). When the court appoints joint managing conservators, it must give one the exclusive right to decide the primary residence of the child. Tex. Fam. Code 153.134(b)(1). The court may order a joint managing conservator to pay the other joint managing conservator child support. Tex. Fam. Code § 153.138. In both custody and child support determinations, the trial court’s primary consideration must be the best interest of the child. In a recent case, a father appealed a court’s custody and child-support determinations.

Texas Office of the Attorney General Files Paternity Suit

The Office of the Attorney General petitioned to establish the parent-child relationship, asking the court to determine the child’s parentage and order conservatorship, possession, access and support.

The father testified he earned $25 per hour working as a contractor, but the availability of the work varied. At the time of hearing, he worked between 32 and 60 hours per week. He also testified he had the child the majority of the time and requested the right to establish the child’s residence, but he had not filed paperwork to be named primary custodian. The father testified his parents kept the child during the day. He said he spent a lot of time at their house and went home after putting the child to bed.

Texas Appeals Court Upholds Requirement of Flexibility in Possession and Access to Older Child

Published on: January 8, 2023 | by Kelly McClure

5thingsdivorcecourt_header-300x163 The best interest of the child is the primary consideration in a Texas custody case. Tex. Fam. Code § 153.002. The trial court has broad discretion in determining what is in the child’s best interest. There is a presumption that a standard possession order is in the child’s best interest, but a trial court can deviate from the standard upon consideration of certain factors, including the child’s age, development, and needs, and the circumstances of the parents. Tex. Fam. Code § 153.256. The trial court may impose restrictions on possession and access, but only to the extent necessary to protect the best interest of the child. Tex. Fam. Code § 153.193. A husband recently challenged a divorce decree that required flexibility in the possession and access of his children when they reached the age of 16 and started driving.

Wife Files for Divorce

According to the appeals court’s opinion, the parties got married in 2002 and had three children. The wife petitioned for divorce in September 3, 2019, and requested temporary orders for expanded possession of the children. The husband asked for equal possession.

When the children were interviewed by Family Court Services, they all indicated they wanted equal time with each parent week-to-week. They also wanted to stay together.

Attorney’s Fees in Texas Divorce Without Community Property

Published on: January 8, 2023 | by Kelly McClure

iStock-481542709-300x179 A couple may choose to enter into a Texas pre-marital agreement to protect their respective assets in the event of a divorce. A pre-martial agreement allows the parties to agree on use, control, and transfer of property, characterization of property or income, disposition of property in a divorce, and a number of other issues. In some cases, pre-marital agreements may lead to results that the parties did not consider.

Parties Signed Premarital Agreement

In a recent case, a husband challenged an award of attorney’s fees to the wife because their pre-marital agreement provided for property to remain separate. According to the appeals court’s opinion, the parties signed the pre-marital agreement which provided that their pre-marital separate property and property acquired during the marriage would stay separate. They married in 2016 and had a child the next year.

When the wife petitioned for divorce in 2018, she requested attorney’s fees. She indicated she sought fees “[t]o effect an equitable division of the estate” and for the services she provided related to support and conservatorship of the child. The trial court entered a final divorce decree in November 2019. The husband was ordered to pay $14,900 in attorney’s fees, with $10,000 of that being paid directly to the wife’s attorney.

Subject-Matter Jurisdiction in Texas Custody Case

Published on: January 4, 2023 | by Kelly McClure

Rules and regulations books with official instructions and directions of organization or team. 3d illustration

A trial court must have subject-matter jurisdiction over a matter to hear case. Subject-matter jurisdiction in a Texas child custody case is governed by Chapter 152 of the Texas Family Code. Pursuant to Tex. Fam. Code § 152.201(a), a court only has subject-matter jurisdiction to make an initial custody determination if Texas is the child’s home state, if Texas was the child’s home state during the six months immediately before commencement of the proceeding, if another state’s courts does not have jurisdiction as a home state, or if the child’s home state court has declined jurisdiction. Subject-matter jurisdiction can be raised at any time, and the parties cannot waive it.

Mother Challenges Jurisdiction

A mother recently challenged the trial court’s jurisdiction after it issued temporary custody orders. According to the appeals court’s opinion, the father petitioned for divorce and requested a temporary custody order. The wife filed a counterpetition and asked for a custody determination. After the trial court entered temporary custody orders, however, the mother alleged it did not have jurisdiction over the custody case and asked the court to dismiss the temporary orders and pending custody suit. The parents agreed to the temporary orders at the hearing. The mother subsequently moved to dismiss the custody case, alleging the court did not have subject-matter jurisdiction over the custody matter. After the hearing, the trial court found the child had never lived in Texas and had lived in Japan for the six months before the father filed his petition. The court concluded Chapter 152 of the Texas Family Code governed the subject-matter jurisdiction of the custody matter. The court also found the child’s “home state” under Tex. Fam. Code § 152.105(a) was not Texas, but Japan. The trial court determined it did not have subject-matter jurisdiction to make an initial custody determination pursuant to Tex. Fam. Code § 152.201 and that it could not acquire it by consent of the parties.

The father appealed. He argued the Texas Family code does not invoke “true” subject-matter jurisdiction or deprive the court of jurisdiction over custody issues. The appeals court disagreed, however, noting that Tex. Fam. Code § 152.201 “invokes or relinquishes subject-matter jurisdiction in initial child custody matters. . .”