Kelly McClure, Author at Texas Divorce Attorney Blog

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 The husband’s attorney claimed he’d withdrawn money from his 401K, and the monthly income of about $1,400 wouldn’t be available.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.

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.