Kelly McClure, Author at Texas Divorce Attorney Blog

Father’s Disability Following Stroke Leads to Modification of His Texas Child Support Obligation

Published on: September 25, 2019 | by Kelly McClure

Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation. If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.

In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled. The original support order was entered in 2006. The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.

Soon after the 2012 order was entered, the father had a stroke. The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits. He moved to modify the support order on the grounds his circumstances had materially and substantially changed.

Jurisdiction in Texas Divorce

Published on: September 4, 2019 | by Kelly McClure

In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue. In other cases, however, one parent has moved away and there may be a dispute over jurisdiction. Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody. The family lived in South Carolina when the child was born, but moved to Texas a few months later. They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then. They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas. He sought the exclusive right to designate the child’s primary residence. The Texas court entered temporary orders. The father added a divorce petition.

Texas Court Awards Custody to Stepfather

Published on: August 14, 2019 | by Kelly McClure

It can be very difficult for a non-parent to get custody of a child in Texas custody cases. A presumptive father may, however, have an advantage over other non-parents. In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”

Award of Retirement Increases in Texas Divorce

Published on: July 24, 2019 | by Kelly McClure

Retirement can be a complex issue in Texas divorce cases. In some cases, retirement accounts may not be fully vested. In others, retirement income may be subject to periodic increases. When retirement income is subject to increases, the spouse required to make ongoing payments should be sure he or she understands how to calculate those payments in light of the increases.

A former couple recently ended up back in court more than a decade after their divorce due to a dispute over how to calculate retirement increases. The couple married in 1976 and divorced in 1998, after the husband’s retirement from the military. The wife was awarded $754.80 per month of the husband’s retirement, and 60% of all increases “due to cost of living or other reasons…” The husband was ordered to name the wife beneficiary under the Armed Services Survivor Benefit Plan (SBP). The wife was ordered to pay 40% of the cost of the SBP, which was to offset the retirement award the wife received.

In 2012, the wife informed the husband he had underpaid her. His new attorney told him he had been calculating his payments incorrectly. He had been calculating the payment using a method that resulted in payment of 60% of all cost of living increases cumulatively. After receiving advice from counsel, he began paying his wife 60% of the increases only in the first year they were received.

Stepparent’s Rights in Texas

Published on: July 3, 2019 | by Kelly McClure

Stepparents often develop strong bonds with their stepchildren. It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child. Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed. Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed. Unfortunately, this section only applies if the parent to whom the stepparent was married dies. It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living. In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above. This section is not dependent upon the biological parent being deceased. Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.” As with the other section, the six-month period must end within 90 days before the filing.

Divorcing While Pregnant in Texas

Published on: July 3, 2019 | by Kelly McClure

Courts will not generally grant a Texas divorce during the pregnancy of a spouse. Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce. Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence. The paperwork can be filed and the process initiated during the pregnancy. The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree. If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways. First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father. This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father. Otherwise, the presumption may only be rebutted by an adjudication of paternity.

Arbitrator’s Evident Partiality in Texas Divorce Case

Published on: June 26, 2019 | by Kelly McClure

Many couples facing a Texas divorce seek alternative dispute resolutions, such as arbitration or mediation. Parties to an arbitration are entitled to an impartial arbitrator. The Texas Arbitration Act requires a court to vacate an arbitration award on the application of a party if that party’s rights were prejudiced by “evident partiality” of an arbitrator. The award should be vacated if the arbitrator does not disclose information that might give an objective observer a reasonable impression that the arbitrator is partial. The requirement to disclose applies whether the conflict arises before or during the proceedings. The nondisclosure itself establishes evident partiality, regardless of whether there is actual partiality or bias. Texas courts have acknowledged that extensive experience in the area of law related to the dispute will result in a need for the arbitrator to disclose prior dealings with parties or attorneys. However, the parties should be informed and have the opportunity to evaluate the potential bias ahead of time.

In a recent case, a wife challenged an arbitration award based on the arbitrator’s failure to disclose his connection to the husband’s attorney. The parties agreed to arbitration pursuant to their pre-marital agreement. In the initial status conference, the arbitrator said he did not have a material relationship with either party or their attorneys beyond normal professional relationships. He did not supplement his disclosures after a new attorney filed a notice of appearance on behalf of the husband as co-counsel.

When the arbitrator failed to issue an award within the time frame set by the court, the husband’s attorney requested a ruling. In her email, she stated, “You know how much I think of you as a friend and a lawyer . . .” The arbitrator issued the award several days after the email, ruling in favor of the husband and against most of the wife’s claims.

Separate Property in Texas Divorce Includes Property Claimed by One Spouse Before Marriage

Published on: April 19, 2019 | by Kelly McClure

In a Texas divorce, there is a presumption that property possessed by either spouse during the marriage or at the time of the divorce is community property, unless there is clear and convincing evidence otherwise. Separate property is property that is owned or claimed by one spouse prior to the marriage.

A wife recently challenged a court’s finding that certain property, the couple’s residence, was the husband’s separate property. The property was conveyed to the couple from the husband’s son and daughter-in-law by warranty deed. The husband and wife both testified the conveyance was a trade of real property and there was no additional consideration given. The husband testified he traded a tract of land he owned before the marriage. The wife argued, however, that the husband did not establish that he owned the tract prior to the marriage.

If property is acquired in exchange for separate property, the acquired property also becomes separate property. Thus, if the husband established that the tract was his separate property, then the residence would also be his separate property.

Texas Custody Modification Requires Material and Substantial Change that Affects the Child

Published on: March 28, 2019 | by Kelly McClure

Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances. However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.

In a recent case, a father challenged a trial court’s denial of his petition to modify custody. He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.

The original order was modified in 2015. In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence. He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession. He asked the court to either deny the mother access to the child or to have her access supervised.

Successful Restricted Appeal Based on Lack of Evidence in Texas Divorce Proceeding

Published on: March 4, 2019 | by Kelly McClure

When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce. However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed. The petitioner must present evidence that supports the material allegations. If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree. The husband did not answer the divorce petition. Only the wife appeared and testified at the final hearing. The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate. To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames. Furthermore, he must also show that there is an error apparent on the record’s face. The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal. He had timely filed his restricted appeal. He had not answered the petition or participated in the hearing. Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal. Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences. The appeals court found the trial court had made factually based decisions without supporting evidence. The trial court made decisions relating to conservatorship and visitation. It ordered the husband to pay child support. The court also divided the community estate. The appeals court therefore found there was error apparent on the face of the record.