Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Post-Judgment Qualified Domestic Relations Order

Published on: May 7, 2024 | by Kelly McClure

When retirement accounts are an issue in a Texas divorce, the court will generally issue a Qualified Domestic Relations Order (“QDRO”). A QDRO is an order that creates, recognizes, or assigns rights of an alternate payee to receive benefits from another person’s retirement plan. Although a QDRO is often issued during the divorce, in some cases, a court may enter a post-judgment QDRO. A former wife recently challenged a post-judgment QDRO, arguing it was void.

The parties had been married around nine years when the wife petitioned for divorce. The trial court awarded the wife all sums, increases, proceeds, and other rights related to her employee retirement accounts, except $10,000 from her Teacher Retirement System (“TRS”) account went to the husband. The divorce decree was signed on March 27, 2019 and the divorce was effective October 31, 2018.

Husband Seeks QDRO

The husband filed a proposed order on June 3 in the divorce case seeking a QDRO but did not serve the wife. The court entered an order a few days later designating the husband alternate payee of the wife’s TRS plan and stating he was not to “receive more than a total of $10,000 plus interest. . ..”

Texas Court Reopens Evidence After Custody Trial

Published on: April 29, 2024 | by Kelly McClure

Generally, all evidence in a Texas custody case should be presented at trial. In some cases, however, the court may decide to reopen evidence pursuant to Texas Rule of Civil Procedure 270. In a recent case, a mother challenged the court’s custody order after it reopened evidence following the trial.

The only issue at trial was who would be primary conservator and get child support. The court expressed an intent to give the mother the exclusive right to designate the child’s primary residence at the end of the trial.

The father subsequently moved to reopen evidence, seeking permission to present evidence on the child’s best interest. He argued the mother had presented evidence of a stable relationship with a person identified by the court as “B.J.,” but misrepresented her relationship and he had not way of knowing this information before trial. He argued she testified she and B.J. were in a stable relationship and cohabitating without mentioning a new romantic interest. He argued she had represented her relationship as more stable than his. He argued the court indicated the decision was close and this evidence could have been a deciding factor.

How Substance Abuse Affects Parental Rights and Custody in Texas

Published on: April 19, 2024 | by Kelly McClure

Substance abuse can be devastating to families. Texas family law recognizes the risk to children from parental substance abuse and seeks to protect them.

Termination of Parental Rights

One of the most severe potential consequences of substance abuse is termination of parental rights. The court may terminate the parental rights of a parent who is the cause of a child being born addicted to alcohol or an illegal controlled substance. Additionally, a court may order termination of parental rights if it finds by clear and convincing evidence that the parent used a controlled substance in a way that endangered the child’s health or safety and either failed to complete a court-ordered treatment program or continued to abuse a controlled substance after completing a court-ordered program. Tex. Fam. § Code 161.001.

Custody and Visitation

Even when parental substance abuse does not result in termination of parental rights, it can still have a significant result on custody and visitation. The Texas Family Code includes a stated public policy to both ensure that children have frequent contact with parents who act in their best interest and to provide children with a safe, stable and nonviolent environment. The primary consideration in custody matters is the child’s best interest.

Division of Military Retirement in a Texas Divorce

Published on: March 31, 2024 | by Kelly McClure

A Domestic Relations (“DRO”) is often used in divorce to address the rights of the former spouse as an alternate payee to receive some or all of a participant’s benefits under a retirement plan. A trial court generally does not have the authority to render orders after expiration of its plenary power over a final judgment. If a Texas divorce decree becomes final and unappealable without rendering a DRO, then the trial court only has the authority to render a valid DRO upon a petition and service pursuant to the Texas Rules of Civil Procedure. A judgment is rendered when the trial court officially announces its decision orally in open court or in a filed memorandum. An oral rendition must indicate the trail court’s intent to render the full, final, and complete judgment.

A husband recently appealed a DRO. The parties entered into a mediated settlement (“MSA”) that was memorialized in the agreed final divorce decree. The decree included provisions related to the husband’s military retirement and stated they would be more particularly described in a Domestic Relations Order (“DRO”). The husband his attorney signed the decree. The husband moved for the signing of the DRO in June 2022, stating he believed the proposed DRO accurately reflected the parties’ agreements. The court and the parties’ attorneys signed the DRO.

After the husband got a new attorney, he moved to vacate the DRO, arguing the divorce decree was not a rendition of judgment on the DRO and the DRO had been rendered outside the court’s plenary power. He argued, in the alternative, for modification of the DRO because the calculation used to determine the wife’s share was not in compliance with federal law. The trial court denied the motion.

Enforcement of Unpaid Obligations in Texas Divorce Decree

Published on: March 27, 2024 | by Kelly McClure

If a parent does not comply with a Texas custody or child support order, the other parent may seek enforcement of the court order and, in some cases, request the parent be held in contempt. A father recently challenged an order granting the mother’s motion to enforce the divorce decree.

When the parties divorced, one of their two children was still a minor. Pursuant to the divorce decree, the parties were required to equally share health care costs, the cost of a vehicle, and college fund for the minor child. The decree also ordered the father to pay for the minor child’s phone plan until she finished high school, and then that expense would also be split. The decree incorporated an agreement incident to divorce that required the mother and father to share the other child’s healthcare costs.

Both parties moved to enforce the decree in 2019, each seeking contempt, or clarification if the court found the decree was not sufficiently specific. The trial court’s subsequent order required the parties to communicate and exchange expense sharing exclusively through MyFamilyWizard. The court’s order also clarified that the father was required to pay full cost of the minor child’s phone.

Texas Appeals Court Reverses Dismissal of Grandmother’s Petition for Visitation

Published on: March 20, 2024 | by Kelly McClure

Pursuant to Tex. Fam. Code § 153.432, a grandparent who meets certain requirements has standing to file suit for possession or access to their grandchild. The grandparent must sign an affidavit “on knowledge or belief” that alleges that denial of possession or access would significantly impair the physical health or emotional well-being of the child and provides supporting facts. The trial court then has to determine if those allegations would be sufficient to grant possession or access under Section 153.433. If not, the trial court must dismiss the grandparent’s suit.

Parents have a fundamental right to make decisions about their children’s care, custody, and control. The law presumes that a fit parent acts in their children’s best interest. Once the grandparent establishes standing, they must overcome the fit-parent presumption by proving denying them possession or access would significantly impair the child’s health or well-being. The grandparent must allege “specific, identifiable behavior or conduct,” such as severe neglect, physical abuse, abandonment, abuse of drugs or alcohol, or immoral behavior, that would likely cause significant impairment to the child. Rolle v. Hardy. Prior cases have held that illegal drug use by a mother during pregnancy may support a finding of significant impairment and illegal drug use after the birth may impair the ability to parent. A grandparent does not have standing just because the child wants to see them or because they would be a better custodian. A grandmother recently challenged a court order dismissing her petition for possession or access to her grandchild.

The Grandmother’s Petition

The child’s father died before the child was born. His mother then petitioned for grandparent possession of or access to the child shortly after the birth. The grandmother alleged the mother had abused drugs and alcohol while she was pregnant with the child. She claimed denying her access to the child would significantly impair his health and well-being.

Texas Appeals Court Affirms Spousal Maintenance Modification

Published on: March 4, 2024 | by Kelly McClure

A spouse paying Texas spousal maintenance may seek modification if there has been a material and substantial change in circumstances, which may include significant change in their income. In a recent case, a former husband challenged a modification award based on the modified amount of maintenance as well as the court’s denial of his request to apply the modification retroactively.

The parties’ 2011 Agreed Final Divorce Decree ordered the husband to pay $1,150 in monthly spousal maintenance until the wife remarried or died or until her disability was removed or the trial court otherwise rendered a new order. The husband earned about $80,000 per year at the time.

Motion for Modification

The husband petitioned for modification in November after he retired the previous June. The court granted the modification in an order signed in June 2019, although the hearing occurred in May 2016. The court granted the husband’s motion for reconsideration and vacated the order.

Texas Appeals Court Concluded Father Did Not Have Sufficient Notice for Contempt Order

Published on: February 28, 2024 | by Kelly McClure

Parents sometimes have difficulty getting their child’s other parent to comply with a Texas custody or visitation order. If a parent fails to comply with requirements to exchange the child, the other parent may seek enforcement of the court’s order, sometimes through contempt. In a recent case, a father challenged a court’s contempt order.

According to the appeals court’s opinion, the trial court entered a standard possession order in 2012 that set forth where the exchanges were to occur. When the mother’s possession ended, the exchange occurred at her home. When the father’s possession ended, it occurred at either his home or the mother’s home, depending upon circumstances set forth in the order. The trial court signed a modification order on the mother’s motion in March 2017 that changed the exchange location to the police department parking lot. The modification order also allowed the parties to change the location in writing. In August 2017, the parties entered a Rule 11 agreement moving the exchange location to a different police department parking lot and the court signed and the court signed an order adopting their agreement.

The mother filed a motion for enforcement by contempt in 2023. She relied on the original 2012 order and the 2017 modification order. The father moved for a directed verdict because the mother did not plead “the date, the time, and the place of the alleged violations,” but the motion was denied.

Texas Court Denies Ex-Wife Postjudgment Interest on Accounts Awarded in Divorce

Published on: February 19, 2024 | by Kelly McClure

Appeals of a Texas divorce can be lengthy and may sometimes result in a significant delay in a party receiving the assets they were awarded in the decree. In some cases, courts may award postjudgment interest on a money judgment. In a recent case, a Texas appeals court considered whether an award of a brokerage account in a divorce property division authorized postjudgment interest.

Case History

According to the appeals court’s opinion, the parties got married in the early 1990s and divorced in 2018. The decree awarded the wife two investment accounts, together valued at $548,177.25. The decree also awarded her the equivalent value of $1,062,242.20. The accounts were invested and therefore fluctuated in value. The decree provided that the accounts were to be divided as “more particularly defined in a Qualified Domestic Relations Order signed by the Court.” The decree did not state the amounts of cash or securities held in the accounts, but did include “interest, dividends, gains, or losses” on the awards.

The husband appealed, but the appeals court affirmed the property division and the Texas Supreme Court denied review. The appeal was not resolved until April 19, 2021, and the wife was denied access to the accounts while the appeal was pending. She requested interest on their value, but the trial court concluded the awards were not “money judgments” and denied the request for interest.

Texas Appeals Court Rejects Challenge to Jury Charge in Divorce Case

Published on: February 14, 2024 | by Kelly McClure

In a jury trial, the court must submit to the jury the instructions and definitions needed for it to render a verdict. The court cannot comment directly on the weight of the evidence, but an incidental comment on the weight of the evidence may be acceptable. Tex. R. Civ. P. 277. A husband recently appealed his divorce decree, arguing the trial court erred in failing to give a requested jury instruction and improperly commenting on the weight of the evidence.

The Trial

According to the appeals court, the husband petitioned for divorce in August 2019, seeking a disproportionate share of the marital estate and alleging the wife committed fraud on the marriage. He asked the court to confirm the marital residence was part separate property and set aside a 2019 gift warranty deed conveying it to the wife. He alleged the deed was “done by mistake, undue influence, and under duress.”

The wife disputed the husband’s claims of mistake or fraud. She also sought a disproportionate share of the property and requested exclusive possession and use of the residence.