Divorce

Name Change of a Minor in Texas After Paternity Dispute

Published on: March 12, 2018 | by Kelly McClure

In a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.

About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.

The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.

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.

Divorce Involving Eight Kids and Domestic Violence Allegations

Published on: January 22, 2018 | by Kelly McClure

In a recent Texas domestic violence decision, the plaintiff appealed from the lower court’s judgment granting his divorce petition. The couple had married in 1999 and had eight kids. After 15 years of marriage, the husband sued for divorce.

At the divorce trial, the primary issue was who should have conservatorship of the eight kids. The parents and a counselor who prepared a social study testified. The father argued there was credible evidence showing that the mother had a history of past or present physical abuse against him and that the lower court was prevented from appointing him and the mother as joint managing conservators. The father also argued the lower court should appoint him sole managing conservator. Alternatively, he argued the lower court should appoint him joint managing conservator with exclusive right to determine their primary residence.

The mother argued that the lower court wasn’t prevented from appointing her and the father as joint managing conservators. The mother also argued that the lower court should appoint her the joint managing conservator with exclusive right to decide the primary residence.

Right to Designate Residence of Texas Child

Published on: January 16, 2018 | by Kelly McClure

In a recent Texas child custody decision, the court considered a situation in which the mother was given the exclusive right to designate the daughter’s primary residence within Tarrant County, Collin County, or a contiguous county to the latter. In a modification order, the court gave the father the exclusive right to designate her primary residence within Dallas County or a contiguous county.

The child was born to a married couple in 2008, and they later divorced. The father asked the court to modify the parent-child relationship. The judge issued a memorandum on the same day as the trial but didn’t sign a written order for about a month. The order granted the father’s requested remedy by providing that the daughter’s residence could be established in Tarrant County, Collin County, or a contiguous county to the latter and setting an expanded standard possession order.

The mother appealed this order. Subsequently, the father tried to enforce the order. He claimed the mother hadn’t established their daughter’s home in the appropriate county and inappropriately kept him from the daughter on 17 occasions. At the enforcement hearing, the mother and father told the court they’d come to an agreement. They had agreed the parents would stay joint managing conservators, with the father having exclusive rights to designate the daughter’s primary residence within Dallas or a county contiguous to it. The mother was going to get standard visitation for parents whose own homes are 100 miles from their child’s.

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.

Proving Separate Property Interests in Texas

Published on: January 1, 2018 | by McClure Law Group

In a recent Texas property division case, an ex-husband appealed a final divorce decree on the basis of five issues. The case arose when a couple married in 1992. The wife filed for divorce in 2013, claiming the husband had cheated on her. She asked for a disproportionate share of the marital estate due to fault for the marriage breaking up, as well as a disparity in the spouses’ earning power and their ability to support themselves.

The husband filed a general denial and counterclaim and also asked for a disproportionate share of the marital estate. The lower court granted the divorce on the ground of adultery. The husband was awarded as separate property an undivided interest in a funeral home business, the land on which it was located, and two adjacent tracts. The wife was also awarded an undivided interest in the funeral home, the land, and the adjacent land. The lower court awarded her the marital home and an insurance check as well. The husband asked for findings of fact and conclusions of law. None were filed, and he didn’t file a notice of past due findings.

He appealed. The appellate court explained that during a divorce, the court must order a division of the estate in a way that is just and right with due respect to each party’s rights under Texas Family Code section 7.001. The appellate court found it should reverse a property division ruling only if the mistake materially affected the lower court’s just and right division of property.

Default Judgment in a Texas Divorce

Published on: December 9, 2017 | by McClure Law Group

In a recent Texas divorce decision, a woman appealed from a no-answer default divorce judgment that concluded her marriage. The couple had married in 2002 and had two kids. In 2013, the father petitioned for divorce and asked for a disproportionate percentage of the marital estate. He wanted to be appointed the sole managing conservator of the kids with the mother being ordered to pay him child support and obtain a life insurance policy on herself, naming him the sole beneficiary.

A return of service was filed that showed the mother was personally served. However, the mother didn’t answer or appear. The record was minimal until the father got a hearing to obtain a default judgment. Only he appeared. He testified as to what he believed had happened in connection with the separation. He claimed the mother had moved to another state, and she hadn’t seen the kids since moving but called the kids on the phone. He testified he had no insurance for the kids. He didn’t offer further evidence by testimony or through documentary proof.

Afterwards, the court signed a divorce decree that divided the marital property and appointed the father sole managing conservator for both kids. It ordered the mother to pay child support and awarded her retroactive child support. Additionally, retroactive medical support was ordered, and the mother was required to buy a life insurance policy on herself in which the father would be named sole beneficiary.

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.

Protective Order as a Result of Family Violence During Texas Divorce

Published on: October 9, 2017 | by McClure Law Group

A recent Texas divorce appeal arose after a wife filed for a protective order against her husband. She asked for the protective order after her husband and her father had a physical fight at a pet cemetery when the group was trying to bury a dead family dog. Divorce proceedings had commenced by then.

At the graveyard were the husband and wife, their children, the wife’s father, and his wife. While the husband and father were digging with their shovels, the father’s shovel touched the husband’s scalp. He apologized to the husband and said it was an accident. However, the father didn’t believe the apology, and a fight broke out. The father was hit and kicked by his son-in-law, who later claimed he acted in self-defense. The trial judge determined that the husband had perpetrated family violence and would likely do so again. The wife was awarded a protective order and attorney’s fees.

The husband argued that there wasn’t enough legal or factual evidence to support the order and appealed. He argued it should be reversed. The appellate court explained it would need to decide whether the evidence submitted would allow a reasonable fact finder to get to the same conclusion. If it would, the evidence was enough to support the finding. In looking at whether the evidence was factually sufficient, it didn’t need to defer to the evidence that supported the decision. Instead, it had to consider all of the evidence in a neutral light and decide whether the finding cut so far against the preponderance of evidence as to be manifestly unjust or wrong.

Deviation from Standard Possession Order in Texas

Published on: October 2, 2017 | by Kelly McClure

It is crucial to retain an experienced Texas child custody attorney and obtain a clear record at the lower court level. In a recent Texas appellate decision, a mother appealed from a court’s decision in a lawsuit to modify the parent-child relationship. She argued that she and the father shouldn’t have been named joint managing conservators with her access being supervised. She also argued that the access the trial court gave was below the minimum access established by the Family Code’s standard possession order. She further argued that evidence wasn’t identified.

The case arose when a child’s parents divorced in 2011. The court appointed the parents as joint managing conservators. The mother had the right to decide the primary residence of the child, while the father simply had the right to visit. Three years later, the father petitioned for a modification, wanting the exclusive right to decide the child’s primary residence. He asked the court to deny the mother access or that her visits be supervised on the grounds that she physically abused the child, smoked and drank too much around the child, and moved around the city and had pulled the child out of school multiple times. The father also claimed the child was terrified of the mother’s new husband.

The lower court granted the father’s request. The mother appealed. She didn’t file a reporter’s record or follow the proper procedure, but she presumed the proof submitted supported the order. The appellate court explained that the child’s best interest is the lower court’s main consideration when deciding conservatorship under Tex. Fam. Code Ann. § 153.002. The lower court can modify possession or access only when it’s in the child’s best interests, and the child’s circumstances have materially and substantially changed.