Kelly McClure, Author at Texas Divorce Attorney Blog

Mediated Settlement Agreements in Texas Divorces

Published on: November 15, 2016 | by Kelly McClure

In Araujo v. Araujo, an ex-wife appealed from an order denying her motion to revoke and set aside a mediated settlement agreement for her divorce. The ex-wife argued on appeal that the agreement lacked consideration and therefore wasn’t enforceable, her own attorney coerced her to sign it, and there was an invalid provision that made it unenforceable.

The case arose when a husband and wife entered into a mediated settlement agreement in August 2014. It awarded the wife certain property in two Texas cities and required her to pay $27,000 to the husband by a certain date. The agreement stated that each party had made a fair, reasonable disclosure of finances and property to the other. The wife was represented by an attorney, who withdrew from representation in October 2014.

Her second attorney filed a motion to revoke and set aside the agreement. She argued that the agreement resulted in an unjust estate division, due to the husband’s fraud. She claimed that the only property she got under the agreement was separate property, that she was entitled to half of the community property awarded to her ex-husband, that the agreement didn’t address the retirement in the amount of about $22,000, and that it didn’t address or divide the couple’s two vehicles. A trial court denied her motion.

Retroactive Child Support in Texas

Published on: November 10, 2016 | by Kelly McClure

In the Texas appellate case of In re Aer, a father appealed a divorce decree in connection with an award of retroactive child support and the distribution of marital property. The mother and father sued for divorce. The court held a bench trial and appointed the couple joint managing conservators of the children. The mother was the parent with the exclusive right to designate the children’s primary address. She was also awarded over $50,000 in retroactive child support, attorneys’ fees, and 80% of the marital estate (according to the father).

The father appealed, claiming that the evidence for the child support award and property distribution was legally and factually insufficient. The appellate court explained that it would consider whether the trial court had enough evidence upon which to use its discretion and whether it had made a mistake in applying its discretion. It further explained that a trial court has broad discretion to award attorneys’ fees under Texas Family Code § 106.002. The mother’s attorney had provided testimony regarding his fees and claimed that the high fees were driven by the father’s conduct in not answering timely discovery and dumping unorganized documents on him. The court found there was no abuse of discretion in awarding $130,000 in fees to the mother.

The father also argued that the mother didn’t have pleadings to support her request for retroactive child support. The mother’s attorney had asked during closing arguments that child support be paid retroactively to June 2012, due to the father’s intentional unemployment or underemployment during that period. However, the father had not objected at trial to either the closing arguments or the mother’s request to include an order to pay retroactive child support, nor did he object at the time the trial court signed the divorce decree, including retroactive child support. The court concluded these complaints weren’t preserved for review.

Valuation of Separate Property and Reimbursement in a Texas Divorce

Published on: October 30, 2016 | by Kelly McClure

In Maher v. Maher, a husband challenged the court’s final divorce decree. He argued, among other things, that the trial court had mischaracterized and misvalued certain assets of the marital estate. The wife had sought the divorce on the grounds that they had discord or personality conflicts. She asked for a division of community property, confirmation of her separate property, reimbursement, and attorneys’ fees. The husband asked for a division of community property in which he received a disproportionate share, confirmation of his separate property, reimbursement, and attorneys’ fees.

The matter went to trial. The wife testified they had a son who was over 18 years old. The couple didn’t have a close marital relationship, and the wife claimed the husband’s drinking threatened their relationship. In 1995, her parents started giving her monetary gifts, and when her mother died, she became the beneficiary of a bypass trust that her mother created.

When her father died, she received distributions from his estate too. From her parents, she’d received over $1.2 million, which she claimed was separate property. She also explained that they’d given her husband monetary gifts of about $68,000, which she said was his separate property.

Defrauding the Marital Community in Texas

Published on: October 25, 2016 | by Kelly McClure

Often times, before commencement of or during a suit for dissolution of marriage, one spouse will commit fraud against the couple’s community estate. Texas law recognizes two types of fraud: (1) constructive fraud; and (2) actual fraud.

Constructive fraud claims are based on a breach of fiduciary duty by one spouse against the other. Puntarelli v. Peterson, 405 S.W.3d 131, 2013 Tex. App. LEXIS 1458, 2013 WL 561484 (Tex. App. Houston 1st Dist. 2013) If someone owes a fiduciary duty, they have a legal obligation to act in the best interest of another. When a constructive fraud claim is being alleged, the argument is that one spouse has a fiduciary duty to act in the best interest of the other spouse regarding the protection and management of the community estate, and that duty was breached by a spouse who misappropriated assets from the community estate. A constructive fraud claim can also be pursued under the theory of waste, where one spouse disburses community assets for noncommunity purposes without the other spouse’s knowledge or consent. Connell v. Connell, 889 S.W.2d 534, 1994 Tex. App. LEXIS 3020 (Tex. App. San Antonio 1994)

Family Violence After a Texas Divorce

Published on: October 11, 2016 | by Kelly McClure

Burt v. Francis arose from a contentious Texas divorce involving family violence. The trial court dissolved the marriage on May 29, 2014. There were three children. Although the couple had agreed to the terms of the divorce decree, they still fought over their three children. The mother later testified that the father was required to have the overnights with the kids at his mother’s house, and his behavior worsened after their divorce.

On the day after the divorce, the father was angry when he picked the children up for their weekend. He started yelling and smacking his fists. The mother was worried about his ability to drive safely and called the sheriff. That night, the father returned the children. The parents argued. The father pulled the three-year-old out of her arms and woke up the older child, and he left with all the children. He also threatened the children and told them the mother was a bad person. She called the sheriff again.

On June 30th, the father came by and berated the children, again claiming the mother was evil. The mother asked him to leave, but he wouldn’t. Their son was terrified. The father at another point shot a handgun at the mother’s house, claiming he was just showing the kids his new gun. The mother later would testify that the children were afraid of their father and that his actions were intimidating and oppressive.

Right to Designate a Child’s Primary Residence in Texas

Published on: August 23, 2016 | by Kelly McClure

In Philips v. Filla, a couple married in 2004 and divorced in 2007. They had one child. When they made their initial custody arrangement during the divorce proceedings, the mother had the exclusive right to designate the child’s primary residence. In 2010, however, they agreed to modify the divorce terms and agreed that the father would have the exclusive right to designate the child’s primary residence.

In 2010, the mother told Child Protective Services that the father was abusing the child. While an investigation was pending, the court rendered the modified order according to the settlement agreement, giving the father the exclusive right to designate the child’s primary residence. CPS ruled out the mother’s allegations that the father had abused the child and also expressed that it had a reason to believe the mother was emotionally abusive by possibly coaching the child to make abuse allegations against the father and putting the child through many intrusive medical exams connected to the allegations.

The father petitioned to modify the earlier order and asked for temporary and permanent orders that the mother have only supervised visitation with the child. The wife counter-petitioned to modify the order, again alleging the father’s abuse and asking she be awarded the right to designate a primary residence for the child. The trial court ordered that her visitation with the child be supervised and ordered the mother to begin therapy and undergo a psychological evaluation.

Dissolution of an Informal Marriage in Texas

Published on: August 1, 2016 | by Kelly McClure

In In re Interest of JJFR, a man appealed from the denial of his motion for summary judgment, arguing there was insufficient evidence to prove his partner and he had entered into an informal marriage. In Texas, an informal (or common law) marriage under Texas Family Code §2.401(a)(2) can be proven by using evidence that a man and woman agreed to be married and after agreeing lived in Texas as husband and wife and told others they were married.

Informal marriages exist only if all three elements are present. Whoever wants to establish that there is an informal marriage needs to prove these elements by a preponderance of the evidence.

In the current case, the woman claimed there was an informal marriage and carried the burden of proof. The appellate court explained they could overturn an order on the ground of insufficient evidence only if the findings were so contrary to the overwhelming weight of the evidence they were obviously unfair and wrong.

Enforcing a Child Support Order in Texas

Published on: July 21, 2016 | by Kelly McClure

In Ochsner v. Ochsner, the Texas Supreme Court ruled on a child support order that required the father to pay for his daughter’s school and to pay through a registry when she changed schools.

The couple had divorced in 2001, and the divorce decree included a child support order. The father was to pay the mother $240 each month in two installments and would also pay the daughter’s preschool directly. After the daughter stopped going to that preschool, the father was to pay the mother $400 in two installments and also pay a registry the school tuition payments. The order stated that his failure to comply could result in his not getting credit for making the payment.

The daughter stopped going to the preschool, and the father kept making the $240 per month payments to the mother. Instead of paying the registry, the father paid the new school directly, making payments that were $20,000 more than what was required by the original order. The mother was contractually obligated to pay the tuition.

Parents’ Agreement to Terminate a Mother’s Rights in Texas

Published on: July 15, 2016 | by Kelly McClure

In the 2016 Texas case In re Morris, an appellate court considered a father’s request for a writ of mandamus after the mother and he agreed to the rendition of an order terminating the mother-child relationship. The adjudicated father of the child asked the appellate court to compel the lower court to vacate its order, which refused to render judgment in accord with the parents’ agreement to terminate the parent-child relationship between the mother and the child. He also wanted the court to render judgment according to their mediated settlement agreement.

In 2004, the trial court named the father and mother of a child the joint managing conservators of the child. In 2014, the child’s mother signed an affidavit voluntarily relinquishing her parental rights. She claimed that the termination of her relationship with the child was in the child’s best interests, but she didn’t provide facts in support. The mother didn’t expressly state she relinquished her parental rights.

In 2015, the child’s father filed a petition to terminate the parent-child relationship between the mother and child on the grounds that the mother had executed an irrevocable affidavit of relinquishment of parental rights and that termination was in the child’s best interests.

Right to Reimbursement in Texas Divorce

Published on: July 15, 2016 | by Kelly McClure

In McCoy v. McCoy, a Texas husband appealed from a divorce decree, arguing that the lower court should not have denied his claim for reimbursement. The couple started dating in 2009. In the following year, they got engaged, and the husband moved to start law school. His fiancée joined him there in a rental house. They married in 2011. The wife worked full time during the husband’s first year in law school but then started going to law school as well. They both relied on student loans to cover their expenses and tuition.

Later, the husband claimed they had an agreement that the wife would pay him $700 every month and also pay for groceries and gas. He argued that she budgeted poorly and only sometimes paid this part of the expenses, and as a result he had to get supplemental student loans to cover her portion. They kept separate checking accounts related to their different law school loans.

In 2013, after the husband graduated, the wife filed for divorce. The husband responded by claiming he was entitled to reimbursement from his wife because he’d had to use his separate property to pay for her necessary living expenses. A bench trial was conducted, and the trial court divided the marital estate by awarding each of them the property they possessed and by ordering each spouse to pay his or her loans and debts solely in his or her name. The trial court also found that the husband’s request for reimbursement wasn’t supported by a preponderance of the evidence.