Kelly McClure, Author at Texas Divorce Attorney Blog

Property Division Pursuant to Texas Premarital Agreement Turns on Interpretation of “Their”

Published on: August 28, 2024 | by Kelly McClure

Property’s characterization as either separate or community property in a Texas divorce is generally determined by its character at inception. The Texas Family Code includes a presumption that property either spouse possesses during or on dissolution is community property. Tex. Fam. Code § 3.003(a). The Code defines “community property” as the property acquired during the marriage by either spouse, except separate property. § 3.002. Personal income and income produced by separate property is generally community property. Spouses may, however, enter contracts changing their rights and obligations with regard to property. Although premarital agreements are contracts and generally interpretated according to the rules of contract interpretation, they are narrowly construed in favor of the community estate. A former husband recently appealed the property division in his divorce, argued the court had failed to apply the terms of the premarital agreement.

Premarital Agreement

The parties had signed a premarital agreement two days before their wedding. The husband drafted the agreement based on a form from the internet. The agreement was partially typed and partially handwritten. The agreement included a Separate Property Provision that provided that the separate property each party brought to the marriage would stay their separate property. It also included an Acquired Property Provision that provided, “All property acquired by each during the marriage shall be deemed [th]eir property.” The agreement also stated that the husband’s 401(k), along with “income profits, Deferred Retirement Option (D.R.O.P.) or any benefits of any kind accruing from it” would remain his separate property. The agreement further provided that the wife’s “personal income or retirement will remain her separate property.”

The dispute was over the meaning of the Acquired Property Provision, specifically related to the marital home and a vehicle. The husband bought the house four years into the marriage with funds received from the sale of a house in Hurst, Texas, he had purchased with his separate property in 2006. The parties had lived in the home in Hurst from 2006 until 2014. The wife said she paid for improvements to both.

Texas Appeals Court Affirms Order Requiring Ex-Husband to Sign Papers to Transfer Stock to Ex-Wife

Published on: August 14, 2024 | by Kelly McClure

After rendering a Texas divorce decree, the trial court retains continuing subject-matter jurisdiction to enforce its property division. Tex. Fam. Code § 9.002. The court may issue additional orders to enforce the property division. Tex. Fam. Code § 9.006. An order to enforce may help in implementing or clarify the previous order, but it may not make substantive changes to the property division. Tex. Fam. Code § 9.007. The court generally has broad discretion to enforce the property division.

In a recent case, a former husband appealed a court order requiring him to sign documents to effectuate the transfer of stocks that were awarded to the wife in the divorce.

The divorce decree awarded the wife all shares of a particular stock owned by the husband or in his name. It also ordered the husband to appear at a particular law office on or before September 15, 2022 to sign the documents to transfer the shares.

Texas Court Declines to Recognize Pakistani Divorce Due to Lack of Notice

Published on: July 31, 2024 | by Kelly McClure

Texas divorces can be complicated when other potential jurisdictions are involved. A former husband recently challenged his Texas divorce, arguing the parties had already been divorced in Pakistan.

The parties got married in 2009 in Pakistan and subsequently moved to Texas. The husband petitioned for divorce in Dallas County in May 2021 and the wife filed a counter-petition. They both alleged the had been residents of Dallas County for the preceding 90 days and domiciliaries of Texas for the preceding six months.

In January 2022, the husband filed a “Notice of Filing of Foreign Judgment” and attached a “Divorce Registration Certificate” that had been issued in Pakistan on January 1, 2022. It showed addresses in Lahore, Pakistan for both parties for dates in September 2021, December 2021, and January 2022.

Texas Father Did Not Voluntarily Relinquish Child to Grandmother Before Parental Adjudication

Published on: July 21, 2024 | by Kelly McClure

Parents generally have a fundamental right to make decisions regarding their children. In Texas, there is presumption that being raised by the parents is in the child’s best interest. This presumption can be rebutted if the court finds appointment of a nonparent is in the child’s best interest and the parent “voluntarily relinquished actual care, control, and possession of the child to a nonparent . . .” for at least a year, with part of that time being within 90 days before the date suit was filed. Tex. Fam. Code 153.373. A grandmother recently appealed a directed verdict in favor of the child’s father in a Texas custody case, arguing he had voluntarily relinquished care, control, and possession of the child to her.

According to the opinion of the appeals court, the child lived with his maternal grandmother after the mother’s death in 2019. The father initially petitioned to adjudicate parentage in April 2021, requesting genetic testing and to be named the child’s sole managing conservator. The grandmother asked for both parties to be joint managing conservators, with her having the exclusive right to designate the child’s primary residence.

The parties signed a Mediated Settlement Agreement for temporary orders (“MSA”) that provided the father was adjudicated the child’s father based on genetic testing and the father would have possession of the child on mutual agreement of the parties, or set periods if the parties did not agree. The court signed the agreed temporary orders.

Texas Appeals Court Husband Did Not Overcome Community Presumption in Divorce

Published on: July 14, 2024 | by Kelly McClure

Community property is the property acquired by other spouse during the marriage, except separate property. Tex. Fam. Code § 3.002. Separate property is generally that property the spouse owned or claimed prior to the marriage, property acquired by gift, devise, or descent during the marriage, and personal injury recoveries with the exception of recovery for lost earning capacity during the marriage. There is a presumption that property possessed by either spouse during or on dissolution is community property. This presumption can only be rebutted in a Texas divorce by clear and convincing evidence. Tex. Fam. Code § 3.003. Separate property remains separate as long as the community presumption is overcome by tracing the assets back to separate property. Mischaracterizing property and awarding a spouse’s separate property to the other spouse constitutes an abuse of discretion and reversible error by a trial court in a divorce. A husband recently appealed the property division in his divorce, arguing the trial court had mischaracterized some of his separate property as community property.

Property Division

The parties had been married about nine years when the wife filed for divorce. In his counterpetition, the husband asked the court to confirm certain property was his separate property. The trial was focused on the property division, included two houses and an individualized retirement account (“IRA”). The trial court awarded one house to each party and ordered that the spouse awarded each house was responsible for the balance of that house’s mortgage. The court also ordered the IRA funds be split equally. The trial court confirmed certain home furnishings were the wife’s separate property and a sword stand and orange sofa were the husband’s separate property.

Texas Appeals Court Concludes Child Can Only Have One Home State in Child Support Case

Published on: June 30, 2024 | by Kelly McClure

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) governs which state’s courts have jurisdiction over an initial custody determination. Texas has codified the UCCJEA in Chapter 152 of the Texas Family Code. A Texas court has jurisdiction if Texas is the child’s “home state” when the proceeding commences or was the child’s home state within the six months before the proceeding commences and a parent still lives in Texas. Tex. Fam. Code § 152.201(a)(1). “Home state” is defined as the state where the child lived with a parent or person acting as such for the six months immediately before the custody proceeding commenced. If the child is less than six months old, the home state is where “the child lived from birth with a parent or a person acting as a parent.” Tex. Fam. Code § 152.102(7). The court that made the initial custody determination generally retains exclusive continuing jurisdiction over the custody determination. Generally, once a home state is determined, no other state has jurisdiction to make an initial custody determination.

A father challenged a court’s finding that Texas was the child’s home state in the six months before suit was filed and another state was the child’s current home state. The mother relocated with the child to Indiana when the child was about five months old. The father petitioned to adjudicate parentage in Harris County, Texas, about five months later.

The parents reached a mediated settlement agreement (“MSA”) that neither would pay child support at the time.

Conditions and Restrictions Related to Alcohol and Substance Abuse in Texas Custody Case

Published on: June 28, 2024 | by Kelly McClure

In a Texas custody case, the court must designate who will determine the child’s primary residence and establish the geographic area within which the child’s primary residence must be or specify that there is no geographic restriction. Tex. Fam. Code § 153.134(b)(1). The court bases its determination on the specific facts of the case. The trial court also has discretion to impose restrictions on a parent’s possession and access to the child that are in the child’s best interest. A father recently challenged a number of issues related to his possession and access to his children.

According to the opinion of the appeals court, the parties married in 2017 and had two children together. The mother petitioned for divorce in 2020, requesting the father have supervised possession of the children, submit to random alcohol and drug testing, and use a Soberlink monitoring device. A number of witnesses testified, including a custody evaluation expert and a co-parenting therapist, both of whom the court found credible. The final divorce decree named the parties joint managing conservators but gave the mother the exclusive right to designate the children’s primary residence with a geographic restriction of Williamson and contiguous counties. The order provided for a step-up possession schedule for the father and limited both parents’ romantic partners being around the children.

Geographic Restriction

The father appealed, challenging the geographic restriction. He argued it should be limited to Williamson County without including contiguous counties. He argued that it could be very difficult for him to attend activities and appointments if the children lived an hour away.

Texas Appeals Court Affirms Modification Naming Father Sole Managing Conservator

Published on: June 14, 2024 | by Kelly McClure

To modify a Texas custody order, the court must find that there has been a material and substantial change in circumstances and that the modification would be in the children’s best interest. In a recent case, a mother challenged the court’s finding that it was in the children’s best interest for the father to be the sole managing conservator following involvement by the Department of Family and Protective Services.

History

When the parents divorced, they were named joint managing conservators and the mother was awarded the right to designate the children’s primary residence.

The mother testified that the father did not regularly visit the children or telephone them. She said she “moved a lot” with the children and did not communicate with them. She was homeless for a week or two. The children stayed in with their father’s mother while the mother stayed in her car.

Meritorious Defense Requirement for Bill of Review for Default Texas Divorce

Published on: May 31, 2024 | by Kelly McClure

When a party does not file an answer or participate in a Texas divorce proceeding, the court may issue a default judgment against them. A mother recently challenged the default divorce decree entered against her through a petition for bill of review.

A bill of review is brought when a party seeks to set aside a judgment that cannot be challenged by appeal or a motion for a new trial. A party seeking a bill of review generally must show that they have meritorious claim or defense they could not make due to an official mistake or the other party’s fraud, accident, or a wrongful act, with no fault or negligence by the petitioner. Unless the petitioner claims they were not served, they must first present prima facie proof of a meritorious defense before trial. If the petitioner meets this burden, the court then conducts a trial on the merits. A petitioner shows they have a meritorious defense if the defense is not barred by law and they would be entitled to judgment if there is not contradictory evidence offered on retrial. Any factual dispute is resolved in favor of the petitioner.

The parties got married in 2012 and had two children together. They separated in 2021. The father petitioned for divorce in February 2022. According to the appeals court’s opinion, the mother was service with process, but did not file an answer or otherwise participate. The mother alleged that they “communicated openly” about child support and possession while the case was pending. The mother contacted the court’s office in March regarding final hearing dates and was told nothing had been set, but a default divorce decree was entered on April 4.

Texas Appeals Court Upholds Child Support Modification

Published on: May 20, 2024 | by Kelly McClure

Texas family law matters are often complex. A father recently challenged a modification order changing his child support obligation after a lengthy and somewhat complicated litigation involving the child.

The mother petitioned for enforcement of child support and medical support in September 2022, asking the father be held in contempt and ordered to pay arrearages for child support and medical support, as well as attorney’s fees.

Enforcement and Modification Hearing

According to the appeals court, the parties and court treated the matter as a modification action as well as an enforcement action during the bench trial. The father had previously been ordered to pay $592 in child support and $92 in medical support monthly. It was established at trial that the mother had been receiving $834 in monthly Veterans Administration payments on behalf of the child since January 2021 because the father was a veteran. The mother also testified the father received social security disability benefits and income from business ventures. The father was not present, but was represented by counsel at trial.