Francesca Blackard, Author at Texas Divorce Attorney Blog

Texas Mediated Settlement Agreement May Be Binding Even If Signed Before Divorce Is Filed

Published on: October 30, 2019 | by Francesca Blackard

Texas family law allows the parties to a divorce to enter into a binding mediated settlement agreement (MSA). If the agreement meets certain requirements, a party is entitled to judgment on the agreement. In some cases, however, one party may wish to challenge a mediated settlement agreement. In a recent case, a wife challenged the enforceability of a mediated settlement agreement.

The couple was married for about 10 years when the wife decided to end the marriage. She sought a mediator, and the parties attended mediation without attorneys and executed a written MSA.

The MSA made the parents joint managing conservators, with the husband having the right to designate the kids’ primary residence. The parties agreed the husband would keep the marital home and the wife would not pay child support. The MSA required the wife to file the divorce petition within 10 days. The MSA further provided the case would be finalized any time after May 1, 2015.

The husband filed a divorce petition nine days after the MSA was executed. He asked the court to approve and render judgment consistent with the MSA. The wife filed an answer with a general denial. The husband and his attorney appeared in court, but the wife did not receive notice of the hearing and did not appear. The trial court rendered oral judgment on the MSA at the hearing.

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Published on: October 9, 2019 | by Francesca Blackard

Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met. In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest. In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child. The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence. The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing. The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction. The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

Time Limit for Alleged Biological Father to Rebut Husband’s Presumptive Paternity in Texas

Published on: September 18, 2019 | by Francesca Blackard

Under Texas family law, a child’s parents have certain rights and duties regarding their children, including the right of possession and the right to make certain decisions related to them. Parents also have the duties to support, care for, and protect their children. Though in some cases, the parent-child relationship must be established.

In a recent case, a child’s alleged biological father petitioned to establish paternity several years after the child was born. The child’s mother had been married to her husband since 2008. The child was born in July 2010. According to the appeals court’s opinion, the mother also had a sexual relationship with the petitioner for about four years, including the approximate period of the child’s conception. The mother told the petitioner he was the child’s biological father during and after the pregnancy.

The husband believed he was the child’s biological father during the pregnancy and for at least the first four years of the child’s life. The child knows the husband as his father.

Texas Court May Correct Clerical Error in Final Decree

Published on: August 28, 2019 | by Francesca Blackard

In a Texas divorce case, a mediated settlement agreement (MSA) that meets the requirements set forth in the Texas Family Code is binding and cannot be revoked. Furthermore, the parties are entitled to judgment on such an MSA during the court’s plenary power.

In a recent case, a husband challenged a final decree nunc pro nunc issued by the court after the original final divorce decree failed to conform to the MSA. The parties executed a binding MSA, which awarded the husband $50,000 of the wife’s 401(k). However, when the court signed the agreed final decree, it awarded him $100,000 of the wife’s 401(k). The decree noted the agreements were reached in mediation and it was “stipulated to represent a merger of a [MSA]…” No post-trial motion was filed and the court lost plenary power.

The husband later filed a Qualified Domestic Relations Order awarding him $100,000 of the wife’s 401(k). The wife moved for a judgment nunc pro tunc on the grounds a clerical error in the final decree erroneously divided the estate in a way that was not compliant with the MSA. She asked the court to correct that error. The husband argued it was a judicial error that the court could not change. The court signed a final decree of divorce nunc pro tunc awarding the husband $50,000 of the 401(k). The husband appealed.

Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Published on: August 7, 2019 | by Francesca Blackard

Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved. In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child. Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased. In 2016, the father’s brother filed suit to be named as the child’s primary conservator. The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order. The order gave primary possession to the uncle and periodic possession to the mother. The uncle had the right to request the mother undergo drug testing once a month. She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice. The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive. If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered. She alleged the uncle did not make the child available to her during her time. She sought criminal and civil contempt, additional periods of possession, and attorney’s fees. She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Published on: July 17, 2019 | by Francesca Blackard

Generally, a trial court in a Texas divorce case has the discretion to divide marital assets. A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling. An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property. They each pled and testified that they had separate property and submitted documentation showing they had separate property. Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property. Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial: how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions. The husband moved for reconsideration, and the wife filed a short response in opposition. The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.

Same-Sex Custody Disputes in Texas

Published on: July 3, 2019 | by Francesca Blackard

Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved. Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples. In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents. The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective. In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child. Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together. While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.

Texas Child Support Based on Earning Potential when Parent is Underemployed

Published on: July 3, 2019 | by Francesca Blackard

Parents have a duty to support their minor children and generally cannot avoid that duty through intentional unemployment or underemployment. If a Texas divorce court finds a parent is intentionally unemployed or underemployed, it may consider that party’s earning potential instead of his or her actual income in determining child support.

A mother recently appealed a trial court’s finding that she was intentionally underemployed. The parents reached a mediated settlement agreement on all issues except child support. After a bench trial, the court ordered the father to pay child support for five months. There were some circumstances under which the child support could end earlier, and after the five months passed, there was to be no child support paid by either parent.

The court provided the reasons it varied from the guidelines in its findings of fact. It found the parties had agreed to having the children for equal amounts of time. The father had been found to be disabled. He received disability income, and his health issues prevented him from earning additional income. The mother had two degrees and could work as a licensed school teacher. She had not presented evidence of disability nor a physical handicap that would keep her from earning additional income. The mother had been awarded the marital residence and newer vehicle. The father had to seek new housing to get equal visitation with the children as well as obtain another vehicle. The trial court found the mother was underemployed and could have resources comparable to those of the father.

Texas Court Finds Payment of Personal Expenses By LLC Constituted Constructive Fraud in Divorce Case

Published on: May 16, 2019 | by Francesca Blackard

Property owned by a limited liability company belongs to the company and is generally not considered either separate or community property subject to distribution in a Texas divorce case. The limited liability company’s owners, known as “members,” do have an ownership, or “membership” interest in the company. That membership interest can be classified as separate or community property and distributed in a divorce. Additionally, distributions made from the company are community property, even if only one spouse is a member.

A husband recently challenged a finding of constructive fraud and order for reimbursement based on expenditures by and loans to his limited liability company (LLC). He was the LLC’s sole member before and during the marriage. The trial court granted the wife’s constructive-fraud claim and ordered reconstitution of the community estate. The court also characterized the LLC as the husband’s separate property and reimbursed the community estate for loans made to the LLC.

The husband appealed, challenging the trial court’s findings and conclusions regarding the constructive-fraud and reimbursement claims.

Texas Divorce Court May Correct Clerical Error with Judgment Nunc Pro Tunc

Published on: April 5, 2019 | by Francesca Blackard

Sometimes courts make mistakes. When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days. If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.

A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error. The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only. The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife. The divorce decree did not reflect this award.

The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division. The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous. The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.