Texas Divorce Attorney BlogPursuant to the Texas Supreme Court’s 17th Emergency Order Regarding The Covid-19 State of Disaster, Texas courts may now modify or suspend deadlines for civil and criminal cases, except for child-welfare cases, until September 30. In child-welfare cases, the Texas courts may modify or suspend a deadline or procedure imposed by statute, rule or order for a period not to exceed 180 days and extend the dismissal date for any case previously retained on a court’s docket for no longer than 180 days. The 17th Emergency Order reiterates the status quo of following the trial court’s order in possession and access cases. Continue Reading ›
Possession Schedules While on the Front Line of COVID-19
As COVID-19 began to take hold in the United States, Texas and other states took action to ensure that child possession schedules remained in effect and were followed according to court orders. These actions were effective, and as COVID-19 continues to persist in society, parents have adapted to working within court-ordered possession schedules. Now, however, new issues have surfaced regarding the safety and protection of children who are subject to the court-ordered possession schedules. Continue Reading ›
Texas Divorce Court May Base Property Valuation on the Evidence Before It
Texas family law requires a just and right division of community property by a divorce court. The court must, however, have the relevant information before it to identify and appraise the assets. A party who refuses to disclose assets or information about their value generally may not complain about the court’s valuation of those assets. A former husband recently challenged the court’s division of property.
Prior to the marriage in 1994, the parties signed an “Agreement in Contemplation of Marriage.” The wife filed for divorce in 2005, and the husband counter-sued. The divorce decree was issued in July 2009.
Issues related to the case had already been before the appeals court five times. The appeals court had previously remanded certain issues related to the property division back to the trial court. The husband appealed the “Judgment on New Trial for Property Division.” He argued the trial court erred by not enforcing the prenuptial agreement regarding a bank account and a legal settlement. He argued the agreement required property held in the name of either party to be presumed to be that party’s separate property.
Texas Appeals Court Upholds Injunction Prohibiting Child Being in Father’s Girlfriend’s Presence
In some Texas custody cases, the major issue is not the actual custody or visitation. Sometimes a court may enjoin a parent from allowing a child to spend time with or be in the presence of another person. Such injunctions can be particularly difficult for the parent if they prohibit the parent from letting the child be with the parent’s relative or romantic partner. A father recently challenged an injunction prohibiting him from allowing his daughter to be in the presence of his girlfriend and her child.
The parents married in 2011 and moved to Austin in 2015. The mother became pregnant in 2017. The father became romantically involved with a co-worker. The father testified he lied to the mother repeatedly to hide the affair. The daughter was born prematurely and stayed in the neonatal intensive care unit for five and a half weeks.
Both parties testified the father spent a lot of time away from the mother and daughter due to his relationship. The mother filed for divorce after she learned of the affair. She also sought an injunction to keep the father from letting his daughter have contact with his girlfriend or her daughter for at least six months after the decree.
Texas Appeals Court Upholds Disproportionate Property Distribution
Property division in a Texas divorce must be just and right. In some cases, courts may determine that a disproportionate division of the community assets is just and right. In dividing the property, courts may consider a number of factors, including the ages of the parties and their relative physical conditions, their abilities, their education and business opportunites, and the size of their separate estates. The court may also consider fault, but may not punish a spouse through the property division. In a recent case, a husband challenged the disproportionate division of property awarded to the wife.
The parties separated after the husband was fired from his nursing job for failing to take a drug test. The wife testified she lived with the husband’s mother during the separation. She testified she withdrew funds from their joint checking accounts because the money was being used for drugs and gambling. According to the appeals court’s opinion, the husband was banned from his mother’s home and ordered to have no contact with the wife or their children by an Arkansas court.
The wife petitioned for divorce and asked to be awarded a disproportionate share of the community assets. The trial court ordered the husband to vacate the home. There was evidence the husband broke into the home and caused damage to the home and personal property.
Texas Possession Order Can’t Contravene Jury Verdict on Primary Residence
A parent may demand a jury trial in a Texas custody case. After the jury decides certain foundational issues, the trial court then determines the specific terms and conditions. The Texas Family Code prohibits the court from contravening the jury’s verdict on certain specified issues, including primary residence. Tex. Fam. Code Ann. § 105.002.
A mother recently challenged a trial court’s possession order on the grounds it contravened the jury’s verdict and was not in the child’s best interest. The father petitioned to be named joint managing conservator with the exclusive right to designate the child’s primary residence when the child was two months old. The jury found the mother should have the exclusive right to designate the child’s primary residence within the state of Texas. Following a bench trial on possession and access, the trial court orally ordered the father would have “week on/week off” possession.
The court issued a final order appointing the parents joint managing conservators with the mother having the exclusive right to designate the primary residence in Texas. The order also granted the father week-on/week-off possession until the child turned five and started kindergarten. In August 2022, the father would be subject to a standard possession order.
Texas Appeals Court Affirms Order Naming Stepfather as Child’s Joint Managing Conservator
Texas child custody law includes a presumption that a parent will be appointed sole managing conservator or both parents will be joint managing conservators of their children unless a court finds that doing so would significantly impair the health or emotional development of the children. Although it can be difficult for a third party to get custody of a child, it does occur in some cases. Grandparents and stepparents, in particular, can play significant roles in children’s lives and may want custody. A father recently challenged an order appointing him, the mother, and the stepfather as joint managing conservators of the child.
The father argued that the stepfather had not rebutted the parental presumption. He argued that the stepfather had to rebut the parental presumption in Tex. Fam. Code Ann. § 153.131(a) to succeed in his petition to modify the prior order. The appeals court found, however, that the statute and the presumption contained therein only apply to original custody proceedings. The order at issue was not the original order, but it was instead a modification of the prior order. The presumption was therefore not applicable, and the stepfather did not have to rebut it at this stage.
The father also argued that the stepfather did not have standing to petition for a modification. The father argued that Tex. Fam. Code Ann. § 102.004 applied. Under this statute, a grandparent or another relative may file suit seeking custody if the child’s current circumstances would significantly impair his or her health or emotional development, or if the suit is filed or consented to by the parents or the managing conservator.
Texas Divorce Court May Clarify Latent Ambiguity in Divorce Decree
Parties sometimes realize they have different understandings of a Texas divorce decree. The trial court may issue a clarifying order if the decree is ambiguous. In some cases, the decree may be facially unambiguous, but have a latent ambiguity when read in context of the surrounding circumstances. In a recent case, a husband challenged a clarification order.
The final divorce decree included a provision setting forth the amount of his bonuses the husband would pay to the wife. It further provided he would provide her a 1099 tax statement for each payment if allowed by his employer. If he could not provide the 1099, “then the payments made to [the wife would] be the amounts above net of taxes paid in [his] tax bracket.”
The wife later petitioned for enforcement, arguing the husband was not dividing the bonuses “net of taxes paid in [his] bracket,” but was instead dividing them after the tax withholding by his employer. She requested a clarifying order if the court found the decree was not specific enough to enforce by contempt.
Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support
The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders. Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services. The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.
In a recent case, a father challenged the OAG’s enforcement actions against him. The father was ordered to pay child support beginning in December 1996. The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.
In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers. The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.
Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support
The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources. The statute sets forth what types of income are included and excluded from the parent’s net monthly resources. In many families, it is fairly straight-forward to determine what is included in the calculation. If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources. Some families, however, have more complicated financial circumstances making it less clear what should be included.
In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation. Prior to the marriage, the father settled a claim for a work-related accident with his employer. As a result of the settlement, the father receives $6,970 per month from an annuity. The payments will continue until either the the father’s death or June 1, 2044.
The couple had one child during the marriage. The mother filed for divorce less than a year after the couple was married. Although the couple reached agreement on some issues, they were unable to agree on child support and medical support. The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.