Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Court Denies Post-Divorce Property Division

Published on: April 12, 2018 | by Kelly McClure

A Texas trial court is limited in revisiting the division of property once a final divorce decree has been issued. A trial court may only order a post-divorce division of property if that property was not divided or awarded to a spouse in the final divorce decree. The court may not alter a division of property that was in the final divorce decree. It may only clarify or enforce the division of property that was addressed in the divorce decree. It is therefore extremely important that all assets are fully addressed in the divorce. If the parties agree upon the property division, they should each be sure the proposed decree accurately reflects their agreement.

The wife in a recent case sought a post-divorce division of property to allow her to receive a share of her husband’s retirement benefits. The parties used a pre-printed divorce decree and were not represented by attorneys in their divorce. Each party approved the form before it was presented and approved by the court.

After the court entered the divorce decree, the wife petitioned for a post-divorce division of property. She asked the trial court to rescind the divorce decree and award her a share of her husband’s military retirement. In the agreed decree, the trial court had awarded the husband all of his employment benefits and individual retirement accounts.

Clarification of an Ambiguous Texas Divorce Decree

Published on: March 28, 2018 | by Kelly McClure

A final unambiguous divorce decree that disposes of all of the marital property should be final. Under Texas divorce law, such a decree generally cannot be re-litigated. However, the trial court can issue additional orders to help implement or clarify a prior order if they do not alter the substantive property division. The court may issue an order of clarification if the decree is ambiguous, as determined by using the rules of contract construction. A contract is ambiguous if its meaning is uncertain or doubtful, or if it is reasonably subject to more than one meaning. The court will consider the contract as a whole in light of the circumstances surrounding its formation, including parol evidence and the conduct of the parties.

In a recent case, a wife challenged an order clarifying the division of property. The parties had signed a mediated settlement agreement. The settlement included improved property that was described in two ways, a map in Exhibit A and a reference to the metes and bounds descriptions with separate exhibits describing each party’s share.

The parties agreed the husband would be awarded 26 additional acres because the improvements on the wife’s share were of a greater value. The trial court granted the husband’s motion for clarification of the division of this property, finding the decree was ambiguous. The clarification stated the map controlled, rather than the metes and bounds descriptions. The court also entered findings of fact and conclusions of law supporting the order.

Modification of a Texas Custody Order

Published on: March 15, 2018 | by Kelly McClure

To provide some stability for children, Texas allows for the modification of a conservatorship order only if the modification is in the child’s best interest, and there has been a material and substantial change in the circumstances of the child, a conservator, or another party affected by the order. Texas law does not provide guidelines as to what qualifies as a material and substantial change. The party seeking the modification must show the material and substantial change.In a recent Texas child custody case, the mother appealed a modification of the conservatorship order. When the parties divorced, the trial court appointed both parents as join managing conservators of the two children. The court gave the mother the exclusive right to designate the primary residence within a specified geographic area. The father was ordered to pay child support.

About two years later, the mother moved the children to another county within the geographic area. The Attorney General moved to enforce the support and to transfer venue to the county where the children were living.

Name Change of a Minor in Texas After Paternity Dispute

Published on: March 12, 2018 | by Kelly McClure

In a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.

About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.

The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.

Divorce Involving Eight Kids and Domestic Violence Allegations

Published on: January 22, 2018 | by Kelly McClure

In a recent Texas domestic violence decision, the plaintiff appealed from the lower court’s judgment granting his divorce petition. The couple had married in 1999 and had eight kids. After 15 years of marriage, the husband sued for divorce.

At the divorce trial, the primary issue was who should have conservatorship of the eight kids. The parents and a counselor who prepared a social study testified. The father argued there was credible evidence showing that the mother had a history of past or present physical abuse against him and that the lower court was prevented from appointing him and the mother as joint managing conservators. The father also argued the lower court should appoint him sole managing conservator. Alternatively, he argued the lower court should appoint him joint managing conservator with exclusive right to determine their primary residence.

The mother argued that the lower court wasn’t prevented from appointing her and the father as joint managing conservators. The mother also argued that the lower court should appoint her the joint managing conservator with exclusive right to decide the primary residence.

Right to Designate Residence of Texas Child

Published on: January 16, 2018 | by Kelly McClure

In a recent Texas child custody decision, the court considered a situation in which the mother was given the exclusive right to designate the daughter’s primary residence within Tarrant County, Collin County, or a contiguous county to the latter. In a modification order, the court gave the father the exclusive right to designate her primary residence within Dallas County or a contiguous county.

The child was born to a married couple in 2008, and they later divorced. The father asked the court to modify the parent-child relationship. The judge issued a memorandum on the same day as the trial but didn’t sign a written order for about a month. The order granted the father’s requested remedy by providing that the daughter’s residence could be established in Tarrant County, Collin County, or a contiguous county to the latter and setting an expanded standard possession order.

The mother appealed this order. Subsequently, the father tried to enforce the order. He claimed the mother hadn’t established their daughter’s home in the appropriate county and inappropriately kept him from the daughter on 17 occasions. At the enforcement hearing, the mother and father told the court they’d come to an agreement. They had agreed the parents would stay joint managing conservators, with the father having exclusive rights to designate the daughter’s primary residence within Dallas or a county contiguous to it. The mother was going to get standard visitation for parents whose own homes are 100 miles from their child’s.

Father’s Motion for New Trial Denied in Texas

Published on: December 26, 2017 | by Kelly McClure

In a Texas child support decision, a father’s attorney told the trial court the couple had reached an agreement about everything but the father’s child support obligation. His attorney told the court what the terms of their agreement were. These included that the mother would decide the kids’ primary residence, and the father would have standard possession with certain modifications. After deciding the amount of the child support payment, the lower court announced it approved their agreement.

The lower court entered a divorce decree, including the terms that had been announced on the record. The decree had a place for the father to sign indicating consent, but he didn’t sign. He asked for a new trial without an attorney, and when that motion was denied, he appealed without an attorney. He presented five issues.

He argued that the mother had instituted a malicious criminal prosecution against him that adversely affected his negotiations during divorce. He claimed there was newly discovered evidence in the form of his cell phone, which had been in the district attorney’s custody previously as proof in an ongoing criminal investigation.

Termination of Parental Rights in Texas for Placing a Child in an Endangering Environment

Published on: December 2, 2017 | by Kelly McClure

In a recent Texas child custody case, the Texas Department of Family and Protective Services sued to terminate a mother’s parental rights to her daughter. After the jury trial, her parental rights were terminated.

The lower court found that the mother had placed or permitted her child to stay in surroundings that threatened the child’s wellbeing. It also found she’d put the child with people who were involved in activities that were endangering the child. It also found that she’d failed to obey a service plan that set forth actions she had to complete in order to have her child returned, and terminating her rights was in the child’s best interest under Texas Family Code section 161.001(b)(1)(D), (E), and (O).

The mother had two kids, a son and a daughter from different fathers. The son was around 11 years old at the time of trial, while the daughter was 16 months old. While the mother was pregnant with her daughter, the Department got a report that claimed there was domestic violence in her home.

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.