Texas Divorce Attorney Blog

Showing a Material and Substantial Change of Circumstances for Texas Custody Modification

Published on: February 9, 2023 | by Francesca Blackard

iStock-902725964-300x200 A court may modify a Texas custody order if doing so is in the child’s best interest and there has been a material and substantial change in circumstances. The party seeking modification must show the conditions at the time of the prior order and the subsequent changes. To determine if there has been a substantial and material change, the factfinder must be able to compare historical and current evidence. A mother recently challenged a custody modification, arguing the father had not presented evidence of the circumstances at the time of the divorce.

According to the appeals court’s opinion, the 2018 agreed divorce decree appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.

The father petitioned for modification and the exclusive right to designate the children’s primary residence after the mother’s nanny told him the stepfather was abusing them.

Texas Appeals Court Reverses Separate Property Characterization in Divorce Case

Published on: February 7, 2023 | by Francesca Blackard

In a Texas divorce, the trial court must divide the estate in a just and right manner, but the division does not have to be equal. Property possessed by either party during or on dissolution of the marriage is presumed to be community property. To rebut the presumption, a party must generally trace the property back to separate property. Without tracing, a party’s testimony they purchased the property with separate funds will generally not be sufficient to rebut the presumption. However, a presumption of separate property arises if a deed includes a separate property recital stating the property is transferred as separate property. If a spouse is party to a transaction, they may not contradict the deed’s express recitals with parol or extrinsic evidence without evidence of fraud, accident or mistake. If a spouse is not party to the transaction, however, they may use parol evidence to contradict the recitals.

A husband recently challenged the characterization of property in his divorce.

Both parties requested a disproportionate share of the community estate. The husband also requested reimbursement based on alleged waste and actual fraud by the wife.

Texas Trial Court Lacks Jurisdiction to Correct Errors in Retirement Division Years After Decree

Published on: January 24, 2023 | by Kelly McClure

iStock-543681178-300x200 A final and unambiguous Texas divorce decree that disposes of all of the marital property generally may not be relitigated. The Texas Family Code allows the trial court to keep continuing subject matter jurisdiction to clarify and enforce the property division, but it cannot change or modify it. In a recent case, a wife challenged an order purporting to clarify the division of the husband’s military retirement nearly 25 years after the divorce.

The parties divorced in 1996. In the decree, the trial court found they were married for at least 18 years and 11 months and the husband had served at least 13 years and 9 months “of creditable service toward retirement.”

Trial Court Awards Wife 50% of Husband’s Military Retirement

The trial court awarded the wife “[a]ll right, title, and interest in and to fifty (50) percent of [the husband’s military] disposable retired or retainer pay” and 50% of all increases in the disposable retirement or retainer pay. The husband served for several more years.

Texas Court Denies Wife’s Request for Name Change in Divorce

Published on: January 20, 2023 | by Francesca Blackard

How-to-Improve-Your-Mental-Health-300x200 In some Texas divorce cases, how a party requests something can determine if they are successful. A wife recently challenged part of the property division and the court’s denial of her name change after a second trial.

The appeals court’s opinion states the wife informed the court the parties had agreed two pensions would be divided with “a 50 percent shared interest per each party as of the date of divorce.” The husband’s attorney agreed that was their understanding of the agreement.

In a memorandum ruling, the trial court granted the divorce and accepted the parties’ agreement as to the fifty-fifty division of pensions.

Texas Child Support for Joint Managing Conservator

Published on: January 16, 2023 | by Kelly McClure

iStock-531351317-300x200 Texas family law presumes that is in the child’s best interest for both parents to be appointed joint managing conservators. Tex. Fam. Code § 153.131(b). When the court appoints joint managing conservators, it must give one the exclusive right to decide the primary residence of the child. Tex. Fam. Code 153.134(b)(1). The court may order a joint managing conservator to pay the other joint managing conservator child support. Tex. Fam. Code § 153.138. In both custody and child support determinations, the trial court’s primary consideration must be the best interest of the child. In a recent case, a father appealed a court’s custody and child-support determinations.

Texas Office of the Attorney General Files Paternity Suit

The Office of the Attorney General petitioned to establish the parent-child relationship, asking the court to determine the child’s parentage and order conservatorship, possession, access and support.

The father testified he earned $25 per hour working as a contractor, but the availability of the work varied. At the time of hearing, he worked between 32 and 60 hours per week. He also testified he had the child the majority of the time and requested the right to establish the child’s residence, but he had not filed paperwork to be named primary custodian. The father testified his parents kept the child during the day. He said he spent a lot of time at their house and went home after putting the child to bed.

Texas Appeals Court Upholds Child-Custody Modification

Published on: January 12, 2023 | by Francesca Blackard

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225 A Texas conservatorship order may be modified if doing so is in the child’s best interest and there’s been a material and substantial change in circumstances. When a parent seeks modification, the other parent may file a counter-petition seeking their own modification. In a recent case, a mother appealed a modification order in favor of the father after she had petitioned for modification.

According to the appeals court’s opinion, when the parties divorced, the trial court approved their agreement to be joint managing conservators with 50/50 custody. The mother petitioned for modification, seeking primary custody and educational decision-making. The father also sought appointment as primary conservator. He asked for modification allowing him to impose reasonable discipline and to limit the mother’s phone contact during his possession.

The mother pointed to the father’s allowing the son to stay alone, behavior at sporting events, storage of a gun, and a text message asking her to pick up the children because “he was done” with them.

Texas Appeals Court Upholds Requirement of Flexibility in Possession and Access to Older Child

Published on: January 8, 2023 | by Kelly McClure

5thingsdivorcecourt_header-300x163 The best interest of the child is the primary consideration in a Texas custody case. Tex. Fam. Code § 153.002. The trial court has broad discretion in determining what is in the child’s best interest. There is a presumption that a standard possession order is in the child’s best interest, but a trial court can deviate from the standard upon consideration of certain factors, including the child’s age, development, and needs, and the circumstances of the parents. Tex. Fam. Code § 153.256. The trial court may impose restrictions on possession and access, but only to the extent necessary to protect the best interest of the child. Tex. Fam. Code § 153.193. A husband recently challenged a divorce decree that required flexibility in the possession and access of his children when they reached the age of 16 and started driving.

Wife Files for Divorce

According to the appeals court’s opinion, the parties got married in 2002 and had three children. The wife petitioned for divorce in September 3, 2019, and requested temporary orders for expanded possession of the children. The husband asked for equal possession.

When the children were interviewed by Family Court Services, they all indicated they wanted equal time with each parent week-to-week. They also wanted to stay together.

Attorney’s Fees in Texas Divorce Without Community Property

Published on: January 8, 2023 | by Kelly McClure

iStock-481542709-300x179 A couple may choose to enter into a Texas pre-marital agreement to protect their respective assets in the event of a divorce. A pre-martial agreement allows the parties to agree on use, control, and transfer of property, characterization of property or income, disposition of property in a divorce, and a number of other issues. In some cases, pre-marital agreements may lead to results that the parties did not consider.

Parties Signed Premarital Agreement

In a recent case, a husband challenged an award of attorney’s fees to the wife because their pre-marital agreement provided for property to remain separate. According to the appeals court’s opinion, the parties signed the pre-marital agreement which provided that their pre-marital separate property and property acquired during the marriage would stay separate. They married in 2016 and had a child the next year.

When the wife petitioned for divorce in 2018, she requested attorney’s fees. She indicated she sought fees “[t]o effect an equitable division of the estate” and for the services she provided related to support and conservatorship of the child. The trial court entered a final divorce decree in November 2019. The husband was ordered to pay $14,900 in attorney’s fees, with $10,000 of that being paid directly to the wife’s attorney.

Subject-Matter Jurisdiction in Texas Custody Case

Published on: January 4, 2023 | by Kelly McClure

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A trial court must have subject-matter jurisdiction over a matter to hear case. Subject-matter jurisdiction in a Texas child custody case is governed by Chapter 152 of the Texas Family Code. Pursuant to Tex. Fam. Code § 152.201(a), a court only has subject-matter jurisdiction to make an initial custody determination if Texas is the child’s home state, if Texas was the child’s home state during the six months immediately before commencement of the proceeding, if another state’s courts does not have jurisdiction as a home state, or if the child’s home state court has declined jurisdiction. Subject-matter jurisdiction can be raised at any time, and the parties cannot waive it.

Mother Challenges Jurisdiction

A mother recently challenged the trial court’s jurisdiction after it issued temporary custody orders. According to the appeals court’s opinion, the father petitioned for divorce and requested a temporary custody order. The wife filed a counterpetition and asked for a custody determination. After the trial court entered temporary custody orders, however, the mother alleged it did not have jurisdiction over the custody case and asked the court to dismiss the temporary orders and pending custody suit. The parents agreed to the temporary orders at the hearing. The mother subsequently moved to dismiss the custody case, alleging the court did not have subject-matter jurisdiction over the custody matter. After the hearing, the trial court found the child had never lived in Texas and had lived in Japan for the six months before the father filed his petition. The court concluded Chapter 152 of the Texas Family Code governed the subject-matter jurisdiction of the custody matter. The court also found the child’s “home state” under Tex. Fam. Code § 152.105(a) was not Texas, but Japan. The trial court determined it did not have subject-matter jurisdiction to make an initial custody determination pursuant to Tex. Fam. Code § 152.201 and that it could not acquire it by consent of the parties.

The father appealed. He argued the Texas Family code does not invoke “true” subject-matter jurisdiction or deprive the court of jurisdiction over custody issues. The appeals court disagreed, however, noting that Tex. Fam. Code § 152.201 “invokes or relinquishes subject-matter jurisdiction in initial child custody matters. . .”

Documentary Evidence in Texas Divorce

Published on: December 31, 2022 | by Francesca Blackard

iStock-1214358087-300x169 Although testimony can be important evidence in a Texas divorce, documentary evidence is needed for some claims. A wife recently challenged a number of issues in her divorce based on insufficiency of evidence.

According to the appeals court’s opinion, the parties acquired several rental properties during their marriage. The husband petitioned for divorce in July 2020. The trial was originally scheduled for October 7, 2020, but the wife moved for a continuance and asked for mediation.

The trial date was reset for April 28, 2021, but the wife moved for another continuance the day before. The trial was rescheduled for May 6, 2021, and she again requested a continuance. The trial court denied the motion.