Divorce

Texas Court Finds No Common Law Marriage Existed Despite Representations the Parties Were Married

Published on: December 21, 2020 | by Kelly McClure

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Texas, unlike many states, still recognizes common law marriage (also known as an “informal” marriage). Unlike with formal marriages, a common law spouse often has to prove that the marriage even existed before getting a divorce. A party may prove that an informal marriage exists by showing that the parties agreed to be married, then lived together as spouses in Texas, and represented themselves to others as married. TEX. FAM. CODE ANN. § 2.401(a)(2).

In a recent case, a woman challenged a determination that she and her former romantic partner had not established the existence of an informal marriage. After they broke up, the man filed for a declaratory judgment that there was no informal marriage, but the woman counter-petitioned for divorce, alleging that they were informally married. The woman argued they had an informal marriage starting in August 2014, but the man argued they had only been “boyfriend/girlfriend” or domestic partners.

Texas Court May Order Primary Custodial Parent to Pay Child Support

Published on: December 18, 2020 | by Francesca Blackard

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A court may order one joint managing conservator to pay Texas child support to another joint managing conservator. Tex. Fam. Code Ann. § 153.138. The child’s best interest is the primary consideration in determining child support. There may, therefore, be occasions where a court orders the parent with primary physical custody to nonetheless pay child support to the other parent, when they are both joint managing conservators. A mother recently challenged an order to pay child support when she had been awarded the exclusive right to determine the child’s primary residence.

Mexican Premarital Agreement Found Valid and Enforceable in Texas

Published on: December 14, 2020 | by Spencer Page

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With such close geographic proximity, the legal issues that arise in a Texas divorce case occasionally transcend our border with Mexico. In a recent opinion, one Texas court explored the intersection between the laws of Mexico and Texas and whether a Mexican premarital agreement is valid and enforceable in Texas. Continue Reading ›

Who Gets the Family Pet in a Divorce?

Published on: December 4, 2020 | by Spencer Page

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With an increasing number of couples having children in their 30s, or skipping having children altogether, pets are taking on a whole new role for many Texas couples: a temporary stand-in for children and sometimes even a permanent replacement. As a result, more Texas couples consider their pets to be members of the family now than ever before. Pets now accompany us to restaurants, sleep on memory-foam mattresses, and even have their own social-media accounts. However, when it comes to divorce, many Texas couples are understandably unsure what might happen to their “fur baby.” Will their pet be awarded to their soon-to-be ex-spouse, never to be seen by them again? Will the Court order shared possession of their pet, like it would a child? Is it possible to get court-ordered FaceTime sessions with a miniature poodle?

Pet Custody in Texas Divorce

While a few states, such as California, Alaska, and Illinois, have given legal recognition to the unique role that pets play within the family, Texas law still considers pets to be personal property in the divorce context. As a result, Texas divorce courts are unlikely to order shared possession of a pet like they would a child. In this regard, Texas divorce law creates a zero-sum game: either you are awarded the family pet or your spouse is. With this in mind, it is important to inform the Court to whom the family pet should be awarded and why.

Fraudulent Texas Partition or Exchange Agreement Found Unenforceable

Published on: November 25, 2020 | by Spencer Page

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What is a Partition or Exchange Agreement?

In Texas, spouses can enter into agreements (often referred to as “partition or exchange agreements“) during marriage, partitioning community property between themselves. A partition or exchange agreement must satisfy several requirements to be valid and enforceable, including being signed by both spouses. However, when the stakes are high, some unscrupulous spouses may trick their unknowing partner into signing the partition or exchange agreement under false pretenses or, even worse, forge their partner’s signature. Recently, one husband did both.

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Texas Appeals Court Affirms Charging Order Against Businesses to Enforce Judgments Arising from Divorce

Published on: October 26, 2020 | by Kelly McClure

Unfortunately, former spouses do not always comply with all of their obligations under a Texas divorce decree. When that happens, the other party may need to take action to enforce those obligations. A father recently challenged a court order charging his interest in certain business organizations with judgments the mother obtained following the divorce.

After the mother was unable to collect on two judgments against the father related to his obligations under the divorce decree, she filed an Application for Charging Order. She alleged the he had “a position of authority” in five business entities. She alleged he received distributions from one or more of the entities, through funds disbursed to him and funds paid by the entities for his personal living expenses.

In his response, the father acknowledged holding an ownership interest in one of the organizations, but denied having an interest in any of the other named organizations.

Appeals Court Reverses Finding of Business Partnership in Texas Divorce Case

Published on: September 14, 2020 | by McClure Law Group

Long term relationships that involve joint business dealings prior to marriage can lead to complicated divorces. In a recent case, a wife challenged a trial court’s finding that she and her husband had formed a business partnership in 1995 and that properties purchased in her name belonged to the partnership.

The wife filed for divorce, alleging the parties married in 2009. The husband alleged the parties had been informally married since 1984. He also alleged, in the alternative, that they had entered into a farming and ranching business partnership in 1995.

The parties began a romantic relationship in 1984. In 1995, the wife bought a property in her name and made all related payments. The husband moved into the property to work on the house. The wife also worked on the house on weekends.

Threats of Criminal Prosecution Can Constitute Duress in Texas Divorce Case

Published on: August 17, 2020 | by McClure Law Group

Divorce is usually fraught with emotion, but in some cases, a party may be pressured to the point of duress. Duress exists when there have been threats that prevent a person from exercising their own free will. Although it is not duress when a person threatens something they have a legal right to do, duress may exist if they exhort or make improper demands of another person. An agreement signed under duress may be void. In a recent Texas divorce case, a husband alleged he was under duress when he signed the marital home over to the wife.

The parties married in 1994. During the marriage, they purchased the home. They separated in March 2017. They agreed the wife would take the home and the husband would not have to pay child support, but they never memorialized the agreement. The husband testified he changed his mind after finding out his wife was unfaithful.

The husband moved out in March 2017. The wife also filed her divorce petition that month. She testified that the husband came to the house in April, kicked in the door, and threatened to kill her, her boyfriend, and her grandmother. She reported the incident to the police.

Texas Appeals Court Affirms Divorce on Grounds of Adultery

Published on: July 20, 2020 | by McClure Law Group

The court in a Texas divorce case may grant a divorce in favor of one party if it finds the other party committed adultery. There must be “clear and positive” evidence of adultery. Adultery may occur after separation. In a recent case, a husband challenged the divorce on the grounds of adultery.

The wife petitioned for divorce on the grounds of insupportability and adultery, and cruelty. She requested a disproportionate share of the community estate. The trial court found the husband committed adultery. It named the parents joint managing conservators, with the wife having the exclusive right to designate primary residence. The possession order granted the husband access to the children on the first, third, and fifth weekends, but only from 10 a.m. on Saturday to 6 p.m. on Sunday.

The trial court denied the husband’s motion to reconsider, modify, correct, or reform its judgment and entered a final decree. The husband appealed, arguing the trial court abused its discretion in granting the divorce based on a finding of adultery and that the court abused its discretion in “materially deviating” from the Standard Possession Order.

Texas Divorce Court May Clarify Divorce Decree That Omitted Amount of Wife’s Retirement Award

Published on: July 13, 2020 | by McClure Law Group

In some Texas divorce cases, the parties are able to reach an agreement on property division. Such an agreement is treated as a contract, even when it is incorporated into a final agreed divorce decree. If there is an ambiguity, the agreement may be reformed to correct a mutual mistake or reflect the parties’ intent. An ambiguity exists if the meaning is uncertain or could reasonably be interpreted in more than one way. To show there was a mutual mistake, a party must prove there was a definite agreement that was misstated in the contract due to a mistake of both parties.

In a recent case, a wife moved for clarification to correct the trial court’s omission of the amount of her portion of the husband’s military retirement. The couple divorced in 2000. The agreed final divorce decree awarded the wife an amount of the husband’s Navy disposable retired pay, and 50% of all increases. The amount was supposed to be “determined under the formula set forth below,” but the decree did not contain a provision setting forth a specific portion or calculation. The decree awarded` the portion of the retirement pay “not awarded to [the wife]” to the husband.

The husband started receiving his military retirement benefits in 2015. When the wife contacted the Defense Finance and Accounting Service to get her share of the benefits, she was told she could not be paid because the decree did not include a formula awarding her a portion of the retirement.