Francesca Blackard, Author at Texas Divorce Attorney Blog

Texas Appeals Court Upholds Alcohol Restriction in Divorce Decree

Published on: July 4, 2022 | by Francesca Blackard

iStock-1404070235-300x212 In dealing with Texas custody issues, courts must focus on the children’s best interest. Courts sometimes conclude that the best interest of the children requires certain restrictions on the parents when the children are in their care. A father recently challenged a provision in the divorce decree prohibiting the parents from drinking at certain times.

Divorce Decree Prohibits Consumption of Alcohol

The parents’ divorce decree prohibited both parents from consuming alcohol while they had possession of the children or within 12 hours before their scheduled possession. The father ultimately appealed this provision, arguing it was an abuse of the trial court’s discretion.

According to the appeals court’s opinion, there was evidence of the father’s regular excessive drinking.

Discrepancies Between Texas Divorce Decree and Property-Division Agreement

Published on: June 13, 2022 | by Francesca Blackard

iStock-1125625723-300x200 When parties to a Texas divorce agree to a property division, the final judgment based on the agreement must strictly comply with it. The trial court cannot add, change, or leave out material terms. A final judgment based on a property division agreement must be set aside if it is not in strict compliance with the agreement, unless the discrepancy is a clerical error. An appeals court may modify a judgment to correct a clerical error. A former husband recently challenged the property division in his divorce due to a number of alleged discrepancies.

Husband and Wife Submitted Proposed Property Division

According to the appeals court’s opinion, the parties agreed to a proposed property division, identified as “Exhibit A.” The wife testified the division was fair and just. She agreed to split funds in the husband’s IRA equally after he was credited $90,000 as separate property and to split the funds in his “Edge” and “Smart” retirement plans equally.

The husband initially disagreed with the property division in Exhibit A, but later asked the court to approve it. The trial court admitted the document into evidence, asked the parties to draft and sign an agreed final decree.

Texas Court Allows Mother to Travel Internationally with the Child

Published on: June 8, 2022 | by Francesca Blackard

iStock-1183307633-300x169 Generally, when a parent wants to modify the parent-child relationship over the objection of the other parent, they must show the court that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. Often, modifications address major issues, such as where the child lives or the amount of child support. Modifications can address a variety of issues, however, including things like which parent makes medical or education decisions or whether a parent can travel with the child.

A father recently challenged a court order allowing a mother to travel internationally with the child. According to the appeals court’s opinion, the parents were named joint managing conservators of the child when they divorced in 2017. The mother was granted primary custody. The following year, the mother petitioned for a modification, requesting the right to get a passport for the child and take her to visit her maternal grandfather in The Gambia. The father objected and the trial court denied the request.

Mother Leaves Child with Relative During International Trip

The mother went to see her parents in The Gambia in July 2019. She testified the father did not respond when she notified him she planned to travel, so she left the child with an aunt in Chicago.

Texas Court Dismisses Case Seeking to Void Divorce Due to Bigamy

Published on: May 22, 2022 | by Francesca Blackard

iStock-545456068-300x184 A party may challenge a judgment as void through either a collateral or direct attack. Generally, a Texas divorce decree is only subject to collateral attack if the court lacked jurisdiction over the parties or subject matter. Other errors must be challenged through a direct attack. A direct attack can be either a pleading filed in the original case while the trial court still has plenary power or a timely-filed bill of review under a new cause number. A bill of review is generally the only appropriate method of direct attack after the trial court’s plenary power has expired.

Husband Seeks to Set Aside Divorce Decree

In a recent case, a husband filed a separate lawsuit seeking to have the divorce decree set aside, arguing the marriage and decree were both void due to the wife’s bigamy.

A trial court had denied the husband’s request for annulment based on fraud, but granted his petition for divorce in March 2019. The court also awarded the wife certain assets. The following month, the wife was indicted for bigamy. The indictment alleged she had still been married to someone else when she married the husband in 2017. The husband was ordered to pay her attorney’s fees and spousal support in June 2019. In July, the wife petitioned for enforcement.

Texas Court Finds Alleged Father Time-Barred From Adjudicating Paternity

Published on: May 3, 2022 | by Francesca Blackard

iStock-1033856542-300x200 Under Texas family law, a mother’s husband is presumed to be the father of a child born during the marriage. This presumption can be rebutted by an adjudication of parentage or by a valid denial of paternity filed by the presumed father along with a valid acknowledgement of paternity filed by another person. Tex. Fam. Code § 160.204. If a child has a presumed father, a suit to adjudicate the child’s parentage may not be brought after the child’s fourth birthday unless an exception applies. Tex. Fam. Code § 160.607.

Presumed Father Challenges Paternity Adjudication

A presumed father recently challenged a court’s adjudication that another man was the child’s father, arguing the suit was time-barred. The child was born in May 2014. The mother and her husband separated that October. The mother began cohabiting with the alleged father the following October. The mother and her husband divorced in August 2016. The divorce order provided for visitation by the husband of all four children born during the marriage.

The mother and alleged father got married. The alleged father petitioned for adjudication of parentage after a DNA test showed a 99.96% probability he was Lucy’s biological father. The mother’s ex-husband conceded that the alleged father was likely the child’s biological father based on the DNA test. He argued, however, that the alleged father was time-barred from seeking adjudication of parentage.

Texas Court Finds Mother Is Intentionally Unemployed

Published on: April 26, 2022 | by Francesca Blackard

iStock-1331374129-300x200 When a parent is intentionally unemployed, a court may order Texas child support based on that parent’s earning potential. Tex. Fam. Code 154.066(a). A mother recently challenged a court’s finding she was intentionally unemployed, arguing instead that her mental health concerns prevented her from being employed.

When the parents divorced in 2010, the court ordered the mother to pay $150 in child support.

She sought to modify the custody order in 2018, and the other party responded by asking for more child support. The mother asked the court to eliminate her child-support obligation altogether.

Separate Property and Tort Claims in Texas Divorce

Published on: April 7, 2022 | by Francesca Blackard

Divorce-property-fraud-300x273 Property in the possession of either spouse at the time of dissolution of marriage is presumed to be community property under Texas family law. A spouse may rebut this presumption by tracing and clearly identifying the separate property. That spouse must present evidence of the time and means of acquisition of the property. The property remains separate if the spouse can trace the assets back to separate property. Testimony is generally not enough to overcome the community-property presumption. The spouse must have clear and convincing evidence the property is separate. Tex. Fam. Code § 3.003.

An appeals court recently considered tort claims within a divorce case arising from the purchase of a business. When the parties married in 2014, the wife owned a 49% interest in her optometry practice. She offered to buy the remaining interest in 2015. Her husband and another attorney in his firm helped negotiate the deal.

Wife Brings Tort Claims in Divorce Suit

The wife petitioned for divorce in September 2018. She added claims of fraud, theft, and breach of fiduciary duty to her petition, arguing husband failed to structure that purchase as separate property and allowed her separate property to be converted to community property.

Texas Jury Finds Same-Sex Couple Was Not Informally Married

Published on: March 27, 2022 | by Francesca Blackard

iStock-170042608-300x200 Texas is among the states that still recognize informal marriage, sometimes called “common-law marriage.” A couple may establish an informal marriage by signing a document entitled “declaration of informal marriage.” In the absence of a declaration, a party may also prove the existence of a Texas informal marriage through evidence that the couple agreed to be married, subsequently lived together as spouses in Texas, and represented to others that they were married. Tex. Fam. Code § 2.401. Although informal marriages are generally treated the same as formal marriages, the existence of an informal marriage can be far more difficult to prove.

Man Files for Divorce from Partner – No Marriage Found to Exist

A man, E.L., recently challenged a jury’s finding that he and his long-term same-sex partner, J.M., were not in an informal marriage. The parties started dating in 1997 and lived together from June 1998 until January 2017. They were not formally married, and there was no evidence they had ever filed a declaration of informal marriage. E.L. filed a lawsuit seeking a divorce from J.M. The jury found the parties were not married. E.L. appealed, arguing there was insufficient evidence supporting that finding and that the evidence conclusively proved the parties were married.

The jury was asked to determine if the parties were married.

Ex-Wife Entitled to 50% of Community Portion of Pension Benefits in Texas Divorce

Published on: March 16, 2022 | by Francesca Blackard

iStock-1132277483-300x200 Property division in a Texas divorce is intended to be final, and a court generally is not allowed to change the division set out in the final decree. Tex. Fam. Code Ann. § 9.007. The court may, however, issue orders to clarify or enforce the property division set out or incorporated by reference in the decree. Issues related to retirement benefits are often addressed in a Qualified Domestic Relations Order (“QDRO”) for private employees or a Court Order Acceptable for Processing (“COAP”) for employees of the federal government, which may be incorporated into the decree. Courts may therefore correct or clarify a QDRO or COAP to achieve the property division set out in the decree.

An ex-husband recently challenged an order allowing his ex-wife half of his entire monthly federal pension. The husband started working for the federal government in 1989. The parties got married in 2000 and divorced in 2011.

Language in the decree seemed to award the wife half of the community share of the husband’s federal government pension benefits, but another provision seemed to award her half of all of those benefits. The decree stated the “community portion” of the pension benefits would be identified in a COAP. The court rendered the COAP in January 2012, but it indicated the wife was awarded 50% of all of the federal pension benefits.

Texas Appeals Court Finds Wife Did Not Convert Inheritance to Community Property

Published on: March 2, 2022 | by Francesca Blackard

2018_10_agreement-300x165 In Texas, separate property can be converted to community property by a written agreement signed by both spouses that identifies the property to be convert and specified it is being converted to community property. Tex. Fam. Code § 4.203. In a recent case, a former husband challenged the property division in his divorce decree, arguing certain assets had been improperly characterized as the wife’s separate property.

The wife was beneficiary of three irrevocable trusts set up by her grandparents. The income from the trusts was to be distributed to the wife at least annually starting when she turned 21. The trustee was also authorized to distribute principal for the wife’s care, comfort, support, and education if the trustee deemed it necessary. When she turned 32, the trustee had the discretion to distribute the balance. After the wife’s thirty-second birthday, which occurred during the marriage, the trustee terminated the trusts and put the accounts in her name. They were worth about $2.3 million at the time.

The parties hired an estate-planning attorney. They both signed an engagement letter, stating they told the attorney they considered the current assets, specifically including the funds inherited by the wife, to be community property. The trust agreement stated that the trustors contemplated that all assets that would be transferred to the trust would be community property. However, it also included a provision allowing either party to modify, revoke, or terminate the agreement with respect to any of their own separate property held in the trust. They subsequently transferred the assets from the grandparents’ trusts to the new trust account.