Francesca Blackard, Author at Texas Divorce Attorney Blog

Property Division in Texas Divorce Must Be Equitable But Not Equal

Published on: April 26, 2018 | by Francesca Blackard

In a Texas divorce, the court is required to divide the property in a “just and right” manner. The court is not required to divide the property equally but must divide it equitably. It may order a disproportionate division if it has a reasonable basis to do so. There are a number of factors a trial court may consider in dividing the community estate. Those factors include the nature of the property, income disparity, business opportunities, relative financial conditions and obligations, education, physical condition, age, fault in the break-up, the benefit the innocent spouse would have received if the marriage continued, the size of the separate estates, and a probable need for future support.

The husband in a recent case challenged the disproportionate division of property in favor of the wife. The wife filed for divorce after finding escort and dating websites on her husband’s phone and home computer. She ultimately requested a disproportionate division of the property, arguing the husband was at fault in the breakup, wasted community assets, gifted community assets, and committed actual or constructive fraud.

The parties had a variety of financial and investment accounts. The wife said her husband managed her separate property investment accounts, and she did not have information about them. She also testified that he provided her with a statement purportedly identifying all of the accounts. That statement included $60,000 in company stock of his former employer. A 1099 indicated the husband sold 6,000 shares of the stock for $1,200 in September 2015. He testified he was “given” 6,000 shares when he started working there, but he had to pay $1,200. He further testified that the company required him to sell the stock back for the purchase price when he left the company. He said he did not update the information on the statement after selling the stock.

Property Division and Texas Spousal Maintenance in a Divorce

Published on: March 19, 2018 | by Francesca Blackard

In Texas spousal maintenance cases, the trial court has wide discretion in dividing the estate. The court may divide the property unequally if there is a reasonable basis to do so. It may consider a number of factors, including the capacities and abilities of each spouse, benefits the spouse who was not at fault would have received if the marriage had continued, their relative physical conditions, and their relative financial conditions and obligations. Although the trial court may also consider fault in causing the divorce, it does not have to do so and cannot use property division to punish the at-fault spouse.

A recent case examined whether an equal division of property and an award of spousal maintenance were proper. The couple married in 1999 and had two children together. During the marriage, the husband developed a substance abuse problem and was incarcerated for six years. In 2014, he was convicted of possession of a controlled substance with intent to deliver and was sentenced to 17 years. The wife filed for divorce on the day of his conviction.

The husband had previously received a $900,000 settlement for personal injuries, netting him more than $400,000. About $70,000 was used to pay household expenses and community debts, including mortgage payments and getting a car that was ultimately awarded to the wife. At the time of the last divorce hearing, he still had more than $300,000 held in his attorney’s trust account.

Modification of Child Custody Travel Provision in a Texas Case When There’s an Abduction Risk

Published on: February 19, 2018 | by Francesca Blackard

In a recent Texas child custody case, a father challenged the modification of conservatorship of a former couple’s child. The modification allowed the mother to go abroad with their child. The case arose when the mother moved to modify the divorce decree, which had appointed her and her ex-husband as joint managing conservators of the child. The decree didn’t mention the child’s ability to go abroad. In her motion, the mother claimed there was a substantial change in circumstances. Specifically, the mother claimed it was in the child’s best interests to be able to go to the country of the mother’s birth (Kenya) because her grandmother had recently died, and the mother wanted to go visit and go to the memorial service.

The mother asked for temporary orders. She wanted the father to execute a written consent and other forms required for travel, and she also wanted an international travel provision to be added to the final decree.

The father asked the court to deny international travel privileges until their child had reached age 16 or the age of maturity under the Texas Family Code section 153.501. This code section states that if there’s credible evidence showing a potential risk of international kidnapping of a child by a parent, the court can take specific protective measures. Continue Reading ›

Wasting of Community Assets in Texas

Published on: February 7, 2018 | by Francesca Blackard

After a Texas divorce, the husband appealed the lower court’s division of marital property. He argued that there wasn’t enough evidence to support the lower court’s finding that he’d wasted community assets in the amount of about $800,000.

The couple were married in 1968. The husband left the marital home in 2013, when the wife was disabled. She was not able to leave the home or take care of herself. Meanwhile, the husband went to live with his girlfriend from 2014-2015 and spent money while living with her. The wife sued for divorce in 2014 when the spouses were retired, and there was a bench trial on the issue of how to distribute property. The husband wasn’t represented by an attorney.

During the divorce, the husband said the money he’d spent while living with a girlfriend was for regular expenses, but he also testified he wouldn’t have had those expenses if he’d been living with his wife. He also testified his girlfriend and he had purchased a vacant lot in a planned development in Belize in 2010. He acknowledged that he’d established a bank account there and had sent money to that account. He also admitted that he withdrew about $703,000 from his retirement account and that he’d made withdrawals from other accounts. He said it was for bills and pleasure.

Requests to Modify Spousal Maintenance in Texas

Published on: January 8, 2018 | by Francesca Blackard

In a recent Texas alimony decision, an ex-husband appealed the granting of spousal maintenance to his ex-wife. The couple had married in 2005. The man sued for divorce 10 years later. The woman claimed that the formal marriage had occurred in 2005, but they had married in 1999 when she was 16. They had two kids.

Around age 16, she lived with the man and his son. She was prevented from working, and he paid all of the bills and paid for food, while she cleaned and cooked and went to parent-teacher meetings for her stepson. She did finish high school and took classes to become a surgical technologist, even though she claimed she wasn’t allowed to work outside the house. She almost finished the program but was stopped from finishing by her husband. She testified later she couldn’t go back and finish the program because students weren’t allowed to re-enter after dropping out.

Once the husband sued for divorce, she worked as a waitress and then in retail. She got under $2,000 in monthly income, and her expenses were almost twice that. She didn’t have enough money, even with child support being paid, to cover her reasonable needs. She also said she didn’t have the education necessary for a better job. She estimated that getting the education she needed while caring for two kids would take five or six years, due to clinical hours.

Abusive Spouse Appeals Texas Child Custody Order

Published on: December 19, 2017 | by Francesca Blackard

In a recent Texas appellate decision, a father appealed a divorce decree naming the mother the sole managing conservator of their two kids. The mother had filed for divorce in 2016. When the matter came to trial, the father was serving a 15-year prison sentence for aggravated assault with a deadly weapon and was waiting to go on trial for other issues.

By the time of the trial, their kids were nine years old. At trial, the mother testified that she’d separated from him because of abuse over a period of years. For example, he’d choked her son from an earlier marriage and once thrown her to the ground with a gun to her head and threatened to kill her. The kids were just three and had seen the abuse.

She testified that the kids had seen family violence a lot. Texts were introduced into evidence that also included threats from the father to the mother. An abusive letter from him was introduced. After he was convicted, the mother took the kids to the jail to visit him twice so that they could see he was fine. After the visit, the kids were emotionally affected, and she decided it wasn’t in their best interests to keep visiting him. The kids’ behavior improved after they stopped talking to the father, who the mother believed spoke to them inappropriately, in a way that they could not process.

Termination of Parental Rights Due to Child Injury in Texas

Published on: November 22, 2017 | by Francesca Blackard

In a recent Texas child custody case, a mother sought reversal of a judgment that terminated her parental rights to her two kids. The parents were the biological parents of two small kids, one a four-year-old autistic boy and the other a 19-month-old girl. They lived in an apartment, and the father served as the breadwinner, while the mother managed the household and took care of the kids.

The mother suffered from rheumatoid arthritis, and this was one reason she didn’t work outside the home. She was hospitalized for treatment in 2015 and then took medications that made her feel out of it. She needed help from the father when she was on medication.

In December 2015, the father moved out, which was the start of a marital separation. When he left, she stayed in the apartment with their kids. She didn’t have significant resources and had to manage them alone. Her son from a prior relationship visited the family that year. He was 11 and helped the mother.

Modification of Parent-Child Relationship Post-Divorce in Texas

Published on: November 16, 2017 | by Francesca Blackard

In a Texas child custody decision, the appellate court considered child custody and a petition to modify the parent-child relationship. The couple had married in 2010 and had their first child the next year. They separated and got back together multiple times, but they finally separated a last time in 2012, after police were called to stop a domestic fight.

The wife sought and received a two-year protective order against the husband that stopped him from going within 200 yards of her home, her workplace, or the child’s school, except when it was necessary for visitation. The divorce was finalized in 2013. The wife was named the child’s sole managing conservator, and the father was named possessory conservator with visitation rights.

The wife filed a motion for enforcement and a petition to modify a year later. She claimed her ex had violated the divorce decree by not paying child support, not attending an orientation at the neutral exchange location, and not going to therapy. She asked the court to hold her ex-husband in contempt and confine him. The ex-husband sued to reduce his child support obligation. She then asked for another protective order because the ex-husband had violated the original protective order by harassing her with texts in which he labeled her with derogatory names. A new protective order was granted.

Partitioning a Marital Home After an Ex-Spouse’s Death

Published on: October 16, 2017 | by Francesca Blackard

In a recent Texas divorce case, a couple was divorced in 2006. The wife initiated divorce proceedings, and the couple went to mediation. They agreed on a divorce decree and split a house and lot 50-50. The order included a procedure for selling the property, which was that the property was to be listed with a realtor. The realtor would select a price that was at least $77,000. The sale price would be reduced below $77,000 only by written agreement. If there was an offer that met the $77,000 threshold, both parties still had to accept it.

The husband had the right of first refusal of a bona fide offer by paying the woman half of the offer, minus the mortgage amount and 6% realtor fee. Either of the spouses could ask the court to appoint a receiver. The agreement also stated that if the husband failed to pay his wife half of the equity in the house within 30 days of an offer being made, the house would be sold for the offer made, with the couple splitting the funds remaining equally after the costs of the sale were paid.

When the ex-husband died in 2016, the ex-wife sued to enforce the divorce decree. She alleged that the husband had died, and the executrix of his estate had deeded the property to herself as an individual. The independent executrix of the ex-husband’s estate responded. She argued that the ex-wife wasn’t entitled to the relief she sought because the trial court didn’t have jurisdiction, and the claim was barred totally or partially by the statute of limitations or laches.

Texas Final Divorce Decree Includes Error But Stands

Published on: September 4, 2017 | by Francesca Blackard

In a recent Texas divorce case, the plaintiff appealed from a trial court order related to property division in a divorce. The case arose when a couple signed a mediated settlement agreement that indicated a particular brokerage account would be awarded to the wife. The husband’s attorney drafted the divorce decree, and both parties signed it. Both parties had the opportunity to review the decree and signed it freely. The final divorce decree awarded the brokerage account to the husband, but it otherwise matched the mediated settlement agreement.

The husband’s attorney proved up the divorce, and the decree was signed by the lower court. The wife’s attorney asked the husband’s attorney for the file-stamped copy of the final decree, but it wasn’t provided.

After the expiration of the court’s plenary power, the wife went to the courthouse and procured a copy of the decree. She realized that it awarded the brokerage account to her ex-husband. When the ex-husband refused to agree that the account was hers, she filed a petition for a bill of review.