Francesca Blackard, Author at Texas Divorce Attorney Blog

Post-Majority Expenses in Texas Divorce Agreements

Published on: August 2, 2017 | by Francesca Blackard

In a recent Texas appeal, a father appealed a judgment that awarded the mother post-majority expenses for their child. The case arose from the parents entering into an agreed final decree of divorce and settlement affecting the parent-child relationship. There was a section titled “college education.” In this provision, the parties agreed that the father would pay 60% of the expenses required for their kids to enroll at and attend a public or private college, university, or graduate school as long as the kid remained enrolled in a course of study leading to a degree. The expenses were to include tuition, room and board, books, and other incidental fees. The father was to pay the school directly or reimburse the mother for any payments she made over her 40% share.

The college education provision wasn’t a part of the sections on property distribution or child support in the agreement. The parents signed the decree, thereby agreeing to all of its provisions.

In 2015, the mother sued to enforce the child support order, asking for reimbursement for health expenses and insurance premiums, in addition to college expenses. She later filed amended motions. The father filed an answer, asserting she wasn’t entitled to post-majority support, since she didn’t ask for contractual relief. He argued that the only relief sought was enforcement, rather than breach of contract.

Deviation from Standard Possession When Texas Mother Has Mental Health Problems

Published on: July 17, 2017 | by Francesca Blackard

In a recent Texas appellate case, a mother appealed from a trial court order that limited her possession of her daughter to once a month over one year. The case arose when the Department of Family and Protective Services brought an action for the protection and conservatorship of a couple’s three-year-old daughter. It asked for parental rights to be terminated in its initial pleadings.

The caseworker testified that she’d removed the child from the mother’s custody because there were concerns about the mother’s drug use and mental health, including suicide efforts and about 40 hospitalizations. When removed, the child lived with her maternal grandmother in dirty conditions. The Department put her with a foster family, which was ultimately not able to handle her special needs, including a narrowed esophagus and delayed speech development. She was later placed with her father.

The daughter did well in her placement with the father. Meanwhile, the mother did perform the tasks she was asked to perform by the Department. Accordingly, the Department no longer wanted to terminate her parental rights. The Department asked that the mother and father be named as joint managing conservators, with the father named as the parent who could designate the child’s primary residence. The Department recommended a standard visitation order.

Valid Post-Marital Agreement in Texas?

Published on: June 21, 2017 | by Francesca Blackard

A recent Texas appellate decision arose from the appeal of a divorce. The husband argued that the evidence was not enough to support the jury’s finding of an informal marriage and that it was improper for the trial court to admit hearsay evidence, as well as that an “Agreement in Contemplation of Marriage” should be enforced as a post-marital agreement.

The couple had been married in 2003 and had triplets. The husband sued for divorce in 2010. He claimed that the couple had married in a 2003 ceremony and asked that an Agreement in Contemplation of Marriage entered into in July, before the ceremony, be enforced. The agreement stated that the couple wouldn’t have community property during their marriage. The husband also argued it wasn’t in the kids’ best interests for them to be joint managing conservators of them, and he should be appointed as the sole managing conservator.

The wife counter-sued for divorce, claiming that the agreement in question had been executed after the couple had informally married and couldn’t be construed as a prenuptial agreement that prevented a community estate from being created. The wife asked that she be appointed as the sole managing conservator.

Deviation from a Standard Possession Schedule in Texas

Published on: May 31, 2017 | by Francesca Blackard

In a recent Texas appellate case, the court considered an appeal of a divorce decree. The father challenged the part of the trial court’s order that determined deviating from a standard possession schedule was in his children’s best interest. The trial court had ordered he have access to the kids on Saturdays from 10-6 every other week.

The case arose from a couple’s second marriage to each other. They were first married in an arranged marriage in India and then moved to the United States. Before their first child was born, the father left. The father wasn’t a United States citizen and went back to India during their separation. He communicated with the baby through Skype.

The mother got a default divorce, and a standard possession order was put in place. She later testified she didn’t mind this because the father was in India anyway. He visited in 2012 and gave his child a birthday gift. The couple got remarried. The father claimed he remarried the mother because he loved the child and felt he had to remarry her if he wanted to be in his daughter’s life. The mother testified she’d remarried him because he’d promised not to leave her again.

Do Step-Parents Have Any Rights?

Published on: April 20, 2017 | by Francesca Blackard

Yes, step-parents could have standing to bring a claim under Texas Family Code Section 102.003(11), often referred to as the “step-parent” statute. Under this statute, a custody suit may be brought by “[a] person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.” In other words, if the biological parent who is married to the step-parent dies, then the step-parent might have standing to pursue conservatorship, possession, of and access to the child.

This statute specifically gives rights to a step-parent who has helped raise one or more children of the parent who dies so long as the children have resided with the step-parent and deceased parent for at least six months ending not more than 90 days prior to the date of the filing of the petition. In determining whether or not the step-parent has standing, the court must determine whether the child’s principal residence was with the step-parent and deceased parent. The Court will look at the following factors when determining whether the residence was a “principal” residence of the child: (1) whether the residence is a fixed place of abode, (2) whether the residence was occupied or intended to be occupied consistently over a substantial period of time, and (3) whether the residence was permanent rather than temporary. In re Kelso, 266 S.W.3d 586, 590 (Tex.App.—Fort Worth 2008, orig. proceeding); Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.—El Paso 2002, no pet.). If the court reviews these three factors and determines that the child does have a principal residence with the step-parent and that such residency existed for a period of at least six months ending not more than 90 days before the date of filing of the petition, then standing is established for that step-parent.

After standing is established, there could be an addition hurdle for the step-parent if he or she is filing an original conservatorship suit, and that hurdle is known as the “parental presumption.” On the other hand, while the Texas Family Code imposes a “parental presumption” in original suits for parents over third parties seeking conservatorship, no such presumption applies to a modification suit filed by relatives or third parties, such as step-parents, who make a request to modify conservatorship, possession, or access. See In re V.L.K., 24 S.W.3d 338 (Tex. 2000). Therefore, depending on the type of claim that is brought, a step-parent could have a higher burden. If the step-parent is filing an original suit – then he or she may have to overcome the “parental presumption” and prove that the surviving parent is unfit in order to have certain rights.

Robert Epstein and Francesca Blackard Voted by their Peers as Texas Rising Stars for 2017

Published on: March 31, 2017 | by Francesca Blackard

McClure Law Group, PC is proud to announce that both partners, Robert Epstein and Francesca Blackard have been voted by their peers as Texas Rising Stars for 2017 in Super Lawyers Magazine and Texas Monthly Magazine. Only 2.5% of attorneys in Texas receive this noteworthy distinction of a Texas Rising Star.

The attorneys are nominated by other attorneys in the state, making this an exceptional designation as they are recognized by their legal peers. At McClure Law Group, PC we strive for excellence and are proud to have both partners applauded for their hard work and dedication to our clients.

For more information on these two partners, you can access their bios by clicking here: Robert Epstein :: Francesca Blackard

Texas Spousal Maintenance for a Disabled Spouse

Published on: March 17, 2017 | by Francesca Blackard

In a recent Texas divorce case, an appellate court considered a spousal maintenance order in a case involving a disabled spouse. The couple were divorced in 2012, and their divorce decree found the wife was eligible for spousal maintenance (also known as alimony), and it ordered the husband to pay her $400 per month until one of the following four events happened: a review of the order in three years, death, the remarriage of the wife, or a further court order.

In the summer of 2015, the ex-wife asked that her spousal maintenance be continued. The husband asked for a dismissal, claiming that it was untimely, since she was supposed to ask for review in January, six months prior to the date on which she actually sought review. The trial court denied the ex-wife’s petition but also denied the motion to dismiss.

The wife argued that there was an error in denying her request for continued maintenance because she’d shown she received Social Security Disability, and the trial court couldn’t disregard her testimony about disability. Section 8.054 of the Texas Family Code is the code section that covers the duration of spousal maintenance orders. As long as you continue to satisfy the eligibility criteria, the maintenance may continue. The trial court can conduct periodic reviews.

Child Custody Dispute Between Mother and Grandmother in Texas

Published on: February 28, 2017 | by Francesca Blackard

A recent Texas appellate case involved a child custody dispute that arose between a mom and her children’s paternal grandmother after their father committed suicide in 2014. After his death, the mother asked the trial court to appoint her managing conservator of the kids. The kids’ paternal grandmother cross-petitioned for the same appointment.

Before his death, the father had been CFO for a multinational corporation. His job required him to travel outside the country often. He met the mother in Mexico and became romantically involved with her. She immigrated to the United States, gave birth to three children, and married the father. While pregnant with the fourth child, the mother took a quick trip to Mexico to get a United States visa.

The immigrant officials denied her request for a visa on the ground that she’d previously been illegally present in the country for one or more years. For that reason, she had to stay in Mexico for 14 months waiting for a visa. Her kids stayed in the country with the father.

Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas

Published on: June 9, 2016 | by Francesca Blackard

Johnny Depp and Amber Heard are flooding the media with news of their divorce and allegations of family violence. This blog post is not here to pick sides between Team Amber or Team Depp, but we do want to explain the difference between a Protective Order and a Temporary Restraining Order, and what to do if you need either of those.

There is a lot of confusion about how to protect yourself from family violence in Texas. Many clients approach our law firm asking for a restraining order, but what they really want is a protective order. Here is the difference:

Life After Divorce- Ways to Successfully Coparent After You Split

Published on: April 25, 2016 | by Francesca Blackard

If you’re in the middle of a divorce, it may seem impossible, but it is essential for you to healthily coparent with your spouse/ex-spouse after you split for the sake of the children. Luckily, there have been many celebrities publicly demonstrating this positive behavior such as Gwyneth and Chris Martin, Jennifer and Ben Affleck, and most recently Drew Barrymore and Will Kopelman. In addition, there are people who dedicate their careers to assist divorcees in post-divorce coparenting. Keep in mind, it’s best to start this positive behavior even prior to filing for divorce, but it’s never too late to start. Here are a few resources to help push you in the right direction: