Kelly McClure, Author at Texas Divorce Attorney Blog

Characterization of Property During Texas Divorce and Failure to Request Findings

Published on: June 5, 2017 | by Kelly McClure

A recent Texas appeal concerned property division in a divorce. The case arose when a couple got married in 2004 and then separated in 2011. The wife filed for divorce in 2013, and the husband countersued, alleging fraud, breach of fiduciary duty, conspiracy, and other claims against the wife, some business entities, and the wife’s three adult daughters.

Certain business entities were operated by both the husband and the wife. However, the husband claimed that some of the other business entities were created by the wife in the name of her daughters, using community funds, in order to defraud the community estate.

The daughter asked for summary judgment before trial, and this motion was granted. After a bench trial, the court entered a final divorce decree dividing the marital estate between the parties. The wife appealed. She argued that the husband had been awarded a disproportionate share of the marital estate and that this was an abuse of discretion.

Partitioning Bonuses in Texas

Published on: June 2, 2017 | by Kelly McClure

In a recent Texas Supreme Court case, the Court considered a mediated settlement agreement related to a discretionary employee bonus. The issue was whether the agreement partitioned a discretionary employee bonus that the husband got nine months after the divorce was granted. The husband argued that it was future income and earnings that the agreement partitioned to him, but the wife argued it was earned during the marriage and should be considered undivided community property.

The couple in question married in 1980. The husband worked at an energy and commodity trading company starting in 1992. As part of his employment, he was eligible for an annual discretionary bonus. This wasn’t guaranteed but would be awarded based on performance. While married, he got a bonus every year.

The wife sued for divorce in 2008, and the couple agreed to divide $10 million of community assets with $5 million to each spouse. However, since they couldn’t resolve other differences, they entered into mediation from which they developed a mediated settlement agreement. This agreement partitioned other property, including retirement plans and jewelry. The husband claimed that the bonus he’d gotten in 2010 before the finalizing of the mediation settlement agreement went into an account awarded to his wife.

Texas Post-Divorce Modifications of Property Division and Collateral Estoppel

Published on: May 8, 2017 | by Kelly McClure

In a recent case, a Texas appellate court considered a motion by an ex-wife to compel her former husband to produce financial records. The husband petitioned for divorce from the wife in 2008. He was employed by a limited liability company and also participated in other limited liability partnerships with his employer, from which he received income.

During the divorce, the court addressed how the husband’s interest and income derived from the limited liability partnerships would be divided. Both parties submitted their proposed divisions to the court. The court divided the marital estate in 2009 and adopted the husband’s proposed division. This gave the wife more than $3.2 million and other property, as well as 50% of the estimated income from one limited liability partnership for 2008.

The husband got the entire interest in both limited liability partnerships other than what was expressly awarded to the wife. The appellate court affirmed the divorce decree and found that the wife was estopped from challenging the division on appeal because she’d accepted the benefits of the property division. There was further litigation about the income from the partnerships, as well as other post-divorce litigation to modify various aspects of the judgment.

Factors for Spousal Maintenance Award in Texas

Published on: April 26, 2017 | by Kelly McClure

In a recent Texas appellate case, a husband and wife filed cross petitions for divorce. The husband argued that the trial court had erred in awarding the wife $5000 each month in spousal maintenance. The wife argued that the trial court had made a mistake in not appointing her as managing conservator of their two children and for failing to grant her a divorce based on cruel treatment under Texas Family Code section 6.002. She also argued that the lower court had made a mistake in not reconstituting the community estate based on fraud.

On appeal, the husband’s sole issue was a challenge to the spousal maintenance award under Texas Family Code section 8.001(1). The appellate court explained that the purpose of spousal maintenance was to give temporary support to a spouse who has a lowered ability for self-support or whose ability to self-support has worsened during a period as a homemaker.

Under Family code section 8.051(2)(B), a spouse can receive maintenance if he or she doesn’t have the ability to earn enough money to provide for his or her minimum reasonable needs. There’s a rebuttable presumption that maintenance isn’t appropriate unless the person asking for maintenance has used diligence to try to develop necessary skills during separation and during the time the divorce is pending.

The Property Owner Rule in Valuing Texas Property for Distribution Purposes

Published on: April 22, 2017 | by Kelly McClure

In a recent Texas appellate case, the court considered the lower court’s division of a marital estate. The couple was married in 1990 and bought two businesses while married, one an insurance agency operated by the wife and the other a livestock auction house operated by the husband. The wife sued for divorce in 2010.

At a bench trial in 2013, the lower court admitted the wife’s testimony, inventory of assets and exhibits related to their value. She offered two experts to testify about their appraisal of property, including the livestock auction house. The experts were supposed to testify on the value of the assets as well as the wife’s theory that the husband had committed fraud on the estate by arranging the sale of cows through the auction house and concealing the proceeds from her.

The husband objected, and the court agreed with him. The court prevented one expert from testifying and found that the other’s testimony wasn’t credible. The wife didn’t challenge these rulings when she appealed. The husband’s exhibits were mostly not admitted. The court deferred judgment after trial and asked the couple to go to mediation.

Grandparents Seek Court-Ordered Visitation in Texas

Published on: April 20, 2017 | by Kelly McClure

In a recent Texas appellate case, paternal grandparents wanted the court to order a mother to give them access to their grandchild. The case arose after a couple married in 2004 and had two children in the subsequent years. The father died, and at the time of his death, the kids were three and two years old.

Before the father died, his parents had regular visits with the kids. The paternal grandmother cared for one of the kids for 15 months, while the mother prepared for a teaching career. The two kids started daycare after the second was born, but the grandparents transported them to activities. During the week, the grandparents had dinner with the parents and the older child. After the second child was born, the grandmother made them dinner, including special foods due to the older child’s food allergy.

After the father died, the grandparents and the mother had a conflict. The mother testified she thought the house where the father and kids lived was a gift. She learned after the father’s death that a deed of trust securing a note that the grandmother held encumbered the house. There may have been a disagreement about who owned a vehicle. The grandparents sued the mother in connection with the property disputes, but the kids had continued having visits after the father’s death until the holidays of 2012. The grandmother later testified that after they gave each other Christmas gifts, the mother told the grandparents they wouldn’t see their grandchildren again. The mother denied this.

Protecting Your Assets in the Event of Divorce

Published on: April 20, 2017 | by Kelly McClure

One of the best ways to protect your assets during marriage is to enter into a premarital agreement (also known as a prenuptial agreement or prenup) prior to getting married that details all the assets and liabilities of both parties prior to marriage and details each party’s rights and obligations to the other’s income earned during marriage.

You might be thinking that a premarital agreement may cause strain on the marriage before it even begins so you instead plan to protect your assets by setting up separate bank accounts for your separate property and ensuring no community assets are ever commingled into the account during marriage. While this may seem like a suitable alternative, these measures may be insufficient to protect your fortune. Since interest accrued during the marriage, salary earned during the marriage, and cash dividends distributed the marriage will all be community property without a premarital agreement stating otherwise, a premarital agreement will often be necessary.

So how do you ask your fiancé to sign a premarital agreement without causing strain on the engagement? The answer lies in the actual terms of the premarital agreement. The words ‘prenuptial agreement’ are too often associated with misconceptions about one-sided deals with the non-monied spouse getting nothing. In reality, prenups are simply agreements to define the rights and obligations of couples who are about to marry. Additionally, the future spouse who is wealthier should know that the more one-sided the agreement, the more likely it is to be attacked upon divorce. As such, the wealthier future spouse has an incentive to make the agreement attractive to his or her fiancé.

Family Violence and Custody in Texas

Published on: April 18, 2017 | by Kelly McClure

A pattern of family violence can have a significant impact on custody issues in Texas. In Interest of DM, a Texas appellate court considered the impact of family violence in determining who should be managing conservator for children.

The father and mother appealed from the trial court’s order related to their parent-child relationship to three of their four children. They argued there was insufficient evidence to support a finding that having a joint managing conservatorship over the three children would impair their emotional development or physical health.

The couple’s first child was born in 1998, and the second was born two years later. When they were six and eight, their parents started using methamphetamine, sometimes while the kids were in the house and on a daily basis. The mother was diagnosed with bipolar disorder and tried to kill herself six times, blaming the father and wanting the kids to know this.

Modifications to Exclusive Right to Designate Residence of a Texas Child

Published on: March 21, 2017 | by Kelly McClure

In Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

Texas Contempt Findings for Violations of Morality Clause

Published on: March 1, 2017 | by Kelly McClure

In Interest of W.B.B. considered a request for contempt findings against a Texas mother. The parents of a child had divorced in 2010. The parents were named joint managing conservators of their child, and the father had the right to designate his residence. The couple agreed to multiple mutual injunctions.

Among other injunctions, their divorce decree incorporated a morality clause agreement that prevented both the mother and the father from permitting anyone with whom she or he was romantically involved to stay overnight while the couple’s son was with her or him. The injunction was to expire in 2015 when the son turned eight, or when one of the ex-spouses remarried, whichever event happened first.

The father remarried in 2013, and the son’s eighth birthday was in 2015. The father moved to modify the divorce decree. The couple reached a mediated settlement agreement that the court incorporated into its order granting the motion to modify the original agreement. The order allowed the father to designate the child’s primary residence and also kept the morality clause in effect with the exception that it would be void if the mother remarried before the child turned eight, and this would be the material and substantial change in circumstances. The mother’s child support obligation would increase to be in line with the Texas Child Support Guidelines, the mother would have to reimburse the father for their child’s health insurance, and the mother would need to notify the father of the remarriage if it happened before the child turned eight. The parents were also prohibited from coming within 50 feet of each other, interfering with the other’s job, and doing other things.