Kelly McClure, Author at Texas Divorce Attorney Blog

Stepmother Petitions to Modify Parent-Child Relationship in Texas

Published on: November 8, 2017 | by Kelly McClure

A Texas child custody case arose after a mother asked the court to grant her plea to the jurisdiction and request for dismissal of a petition to modify the parent-child relationship, which was filed by her children’s stepmother.

The mother and father in the case had divorced in 2011. The court appointed them joint managing conservators of their three kids. The kids lived with the mother, who had the right to choose their primary residence. They spent one night a week and every other weekend with their father. They had dinner with him on a different night once a week.

Two years later, the father was diagnosed with cancer, and the parents modified their child custody order, reducing the father’s child support and life insurance obligations, and adding an overnight on the night the kids ate dinner with him. The former couple agreed that if either parent became incapacitated or died, the kids would continue to have reasonable contact with their extended family on the other side.

Wife Unable to Overcome Community Property Presumption in Texas

Published on: November 2, 2017 | by Kelly McClure

In a recent Texas property division decision, a woman appealed from a final divorce decree. A couple had been married about 30 years when the husband petitioned for divorce. The wife was incarcerated. At a divorce hearing, she appeared without a lawyer and by telephone because of her incarceration. The lower court gave her 15 days to file exhibits and permitted the husband another 15 days to object. The wife sent copies of her exhibits and also sent a settlement offer to the husband’s attorney. There were no objections to the copy she filed with the court, or any of her exhibits submitted to the court.

Her divorce was granted, and the community real property and other assets were ordered to be sold with the proceeds split between the husband and the wife equally. The wife appealed, complaining of mistakes about how the property was divided.

The appellate court explained that the court can divide the community estate during a divorce under Texas Family Code section 7.001. It cannot divide separate property. The appellate court that reviews property distribution is supposed to look at whether there was enough evidence upon which the lower court could exercise discretion, and whether the lower court erred in applying its discretion.

Deviation from Standard Possession Order in Texas

Published on: October 2, 2017 | by Kelly McClure

It is crucial to retain an experienced Texas child custody attorney and obtain a clear record at the lower court level. In a recent Texas appellate decision, a mother appealed from a court’s decision in a lawsuit to modify the parent-child relationship. She argued that she and the father shouldn’t have been named joint managing conservators with her access being supervised. She also argued that the access the trial court gave was below the minimum access established by the Family Code’s standard possession order. She further argued that evidence wasn’t identified.

The case arose when a child’s parents divorced in 2011. The court appointed the parents as joint managing conservators. The mother had the right to decide the primary residence of the child, while the father simply had the right to visit. Three years later, the father petitioned for a modification, wanting the exclusive right to decide the child’s primary residence. He asked the court to deny the mother access or that her visits be supervised on the grounds that she physically abused the child, smoked and drank too much around the child, and moved around the city and had pulled the child out of school multiple times. The father also claimed the child was terrified of the mother’s new husband.

The lower court granted the father’s request. The mother appealed. She didn’t file a reporter’s record or follow the proper procedure, but she presumed the proof submitted supported the order. The appellate court explained that the child’s best interest is the lower court’s main consideration when deciding conservatorship under Tex. Fam. Code Ann. § 153.002. The lower court can modify possession or access only when it’s in the child’s best interests, and the child’s circumstances have materially and substantially changed.

Family Violence Exception and Texas Mediated Settlement Agreements

Published on: October 1, 2017 | by Kelly McClure

In a recent Texas child support case, a mother appealed after the trial court enforced a mediated settlement agreement. She argued it was an error to enforce it because: (1) it included a child support provision that violated public policy, (2) the mother took back her consent before it was approved, and (3) she wasn’t allowed to give evidence to bolster her family violence exception argument.

The case arose several years after a divorce. The parents mediated the matter and signed an irrevocable mediated settlement agreement, in which they agreed to different terms related to child support. The mediated settlement agreement included a provision under which there would be a limited standstill period, during which nobody would ask for child support increases.

The couple had signed the agreement and filed it. The agreement stated that it was meant to be a full and final settlement and that the parents had voluntarily signed it.

Texas Child Support Modification Deviates from Statutory Guidelines

Published on: September 30, 2017 | by Kelly McClure

In a recent Texas appellate case, the lower court’s SAPCR order granting a child support modification for the mother was appealed by the father. The father argued the trial court shouldn’t have set the periodic child support obligation to be more than the statutory child support guidelines provided and found a material and substantial change in circumstances affecting either the parents or the kids that would warrant a modification.

The mother and father got divorced in 2013 after coming to a mediated settlement agreement. They were named joint managing conservators of their kids. The father was allowed to have possession for certain periods, and he had to pay the mother monthly child support until they reached 18 years old. There were two kids.

The father sought relief regarding one of the kids when she turned 18. However, he didn’t pursue it at the time of trial. The mother counter-petitioned, asking to modify the parent-child relationship and asking for child support that exceeded the statutory guideline for the other child.

Gift Given Before Texas Marriage

Published on: September 29, 2017 | by Kelly McClure

In a recent Texas property division decision, an ex-husband tried to reverse a property distribution order issued as part of a divorce. The couple married in 2012, after the husband had bought a tractor and multiple attachments from a dealership. The husband had signed a five-year note to finance a portion of the purchase price of the equipment. The couple separated in 2014 when the wife sued him for divorce.

They both claimed that they owned certain items of property before marrying and that these should be considered separate property. The husband took issue with the court’s treatment of the tractor he’d bought, as well as the characterization of his bonus, received in May 2014 as community property. He argued that he earned the bonus based on a project that started before his marriage.

At trial, the wife gave the court an inventory of community property and her separate property. She listed the tractor as an asset over which she and her husband had a dispute. She said that the husband gave her the tractor as a gift before they married. Documents showed he’d bought the tractor close to a year before marriage, and he made all of the monthly payments since the sale.

Temporary Spousal Maintenance in Texas

Published on: September 25, 2017 | by Kelly McClure

In a recent Texas spousal maintenance case, a husband appealed from a final divorce decree. He claimed the court made a mistake by awarding the wife $1,500 in spousal maintenance, awarding temporary spousal support of $2,500 each month, ordering him to pay $20,000 in delinquent temporary spousal support payments, failing to issue appropriate factual and legal findings, and failing to award him property he believed was solely his separate property.

In 2014, the parties agreed in court that the husband would pay the wife $2,500 each month before the divorce as temporary alimony. The wife asked for the entry of an order reflecting that. However, the husband filed a proposed rule 11 agreement, claiming an error in calculating his income. He asked for a modification of the agreement.

Another hearing was held related to the temporary orders. There, the husband’s attorney told the court that there had been an error in the first agreement. The wife’s attorney said he understood that the husband’s income was around $5,000. The husband’s attorney claimed he’d withdrawn money from his 401K, and the monthly income of about $1,400 wouldn’t be available.

Petition to Modify Parent-Child Relationship After Texas Divorce

Published on: July 3, 2017 | by Kelly McClure

In a recent Texas appellate case, the court considered a divorce in which each parent was appointed joint managing conservator of their three kids. The father was given the exclusive right to designate the kids’ primary residence, and neither parent required supervised access.

The father petitioned to modify the parent-child relationship on the ground that there had been a material and substantial change in their circumstances. He asked for the mother to be denied access or have supervised access only. The mother cross-petitioned, asking that she be appointed the sole managing conservator and that the father be denied access to the kids. The parties went to trial only on the mother’s petition.

At trial, the court heard from two psychologists. The parents were ordered to continue being joint managing conservators with the mother having the exclusive right to designate the kids’ primary residence. The father’s access to his kids was limited, and steps that had to be taken were specified. Only if he completed those steps would he be permitted visitation.

Child Support for an Adult Disabled Child in Texas

Published on: June 10, 2017 | by Kelly McClure

In a recent Texas appellate decision, a father raised four issues related to a lower court’s provision of child support for his adult disabled child, among other things. The couple was married in 1992 and had two kids, TWG and a minor daughter, EAG. In 2008, the father left the mother to move in with his girlfriend, only to move back in a few months later, claiming the other relationship was over. The mother and father signed a lease with a term of one year, but in another few months, the father left for his girlfriend again, which saddled the mother with $4,000 for the remainder of the lease.

The father had a child with his girlfriend and didn’t pay child support to either of his minor children with the mother until 2011, when the mother asked for child support through the Attorney General’s Office. The father began paying monthly child support but provided no other financial assistance and eventually sued for divorce. The mother counter-petitioned, asking for child support for both kids, a disproportionate share of the community estate, and damages from the father’s girlfriend.

The mother explained to the court that her adult son, TWG, had agenesis of the corpus collosum, a condition in which the fibers linking the right brain to the left brain had never developed. The son lived with his mother and would need support his whole life. He’d never gone to college and wasn’t employed. He saw a doctor every year and spent the night with the father in 2015 2-3 times in total. He required adult care, which cost $500 per month, and got a certain amount in SSI and SNAP benefits.

Mediated Settlement Agreements in Texas Divorce

Published on: June 9, 2017 | by Kelly McClure

In a recent Texas appellate case, a wife appealed from a final divorce decree that incorporated the terms of the couple’s mediated settlement agreement. After she and her husband entered into the agreement, she asked the trial court to set it aside.

The couple had married in 1997 and had no kids. They decided to divorce in 2015 and mediated their differences. They signed an agreement dividing up their property and debts, but it was contingent on a short sale of a house they owned. The husband was awarded the interest in the property, and the wife had to sign certain documents. She would be paid a portion of the proceeds from the sale. Meanwhile, the husband got all of the interest in their two trusts.

A few weeks later, the wife tried to withdraw, and the trial court granted the motion. The husband asked the court to sign a final divorce decree, while the wife tried to quash the agreement. The husband asked a receiver to be appointed, claiming that the wife refused to sign the papers in order to facilitate the property sale.