Texas Divorce Attorney Blog

Texas Appeals Court Upholds Divorce Decree with No Payment Mechanism or Schedule for Owelty Lien

Published on: May 15, 2023 | by Francesca Blackard

BSgavelx1200-768x432-1-300x169 In dividing property in a Texas divorce, the court must effect a just and right division. If the marital residence is part of the community estate and one party will keep it, the court must address the other spouse’s share of the equity. The court may do this by placing an owelty lien on the property. An owelty lien creates an encumbrance on the property that follows it upon a sale. The lien must be paid before the net proceeds of the sale are distributed to the spouse. In a recent case, a mother challenged a divorce decree that did not include a payment mechanism or schedule for her owelty lien, while the father challenged the specifics of the geographic restriction imposed on the primary residence of the child.

The father asked the trial court to appoint both parents joint managing conservators of their child. He asked neither parent be given the exclusive right to determine the child’s primary residence and that the court impose a geographic restriction. He requested the trial court to divide the estate in a just and right manner. He asked that the mother receive a lien on the marital estate for half of the net equity of the home.

The mother asked for the right to designate the child’s primary residence. She also asked the trial court to award her half the market value of the home.

Texas Spousal Maintenance Award Cannot Exceed Statutory Maximum

Published on: May 14, 2023 | by Kelly McClure

Texas spousal maintenance is intended to be temporary and rehabilitative. A trial court can only award spousal maintenance if the party seeking it meets certain requirements, which depend on the parties’ circumstances. A husband recently challenged a trial court’s award spousal maintenance to the wife for 81 months.

According to the appeals court, the parties got married in 2012 and had three children together. The husband worked primarily in law enforcement, while the wife was a homemaker. They separated in February 2021 and the husband moved out. He petitioned for divorce in March. The wife requested a disproportionate share of the community estate and spousal maintenance.

The trial court awarded the wife the home and a disproportionate share of the assets. It also ordered the husband to pay her $1,200 in monthly spousal maintenance for 81 months. The husband appealed the order for maintenance.

Marital Home Built on Gifted Lots Retains Separate Property Characterization in Texas Divorce

Published on: May 13, 2023 | by Francesca Blackard

iStock-483613578-300x204 The characterization of property in a Texas divorce is generally determined by the property’s character when the spouse acquired it. Separate property is property a spouse owned before the marriage or acquired during the marriage through gift, devise, or decent. Improvements made to separate property are generally also separate property because they are not divisible from the land. Community property is property acquired by either spouse during the marriage that is not separate property. In a recent case, a wife challenged a court’s characterization of the marital home as community property.

Home Built During Marriage

According to the opinion of the appeals court, the parties got married in 1995. In 2000, the husband’s mother transferred two lots to both of the parties by a gift deed. They built the marital home on those two lots during the marriage. The wife moved out of the home when the parties separated in 2015. The husband had stayed there and paid the household bills and property taxes.

The trial court ordered the home to be sold. It awarded 75% of the net proceeds from the sale of the home to the husband and the other 25% of the net proceeds to the wife.

Fit Parent Presumption in Texas Custody Modification Proceedings

Published on: May 10, 2023 | by Kelly McClure

iStock-170042608-300x200 There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents. Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Courts generally cannot interfere with these fundamental rights of a fit parent. The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence. He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

Texas Appeals Court Concludes Parties’ Premarital Agreement Is Enforceable without a Signed Copy

Published on: May 7, 2023 | by Francesca Blackard

In some situations, a Texas premarital agreement can be used to protect the parties’ assets. To be valid, a premarital agreement must be signed by both parties. A wife recently challenged a trial court’s finding there was no enforceable agreement when neither party was able to produce a signed copy of the agreement.

Premarital Agreement

The appeals court’s opinion stated parties started their relationship around six months before the marriage. The wife raised the issue of premarital agreement a month or two before the wedding. The wife signed in front of the notary, but the notary refused to notarize the husband’s copy because he signed it before he arrived at the store and did not have his ID with him.

The wife testified she forgot what she did with the signed copies. She said she thought she had an electronic copy on the husband’s computer, but he had taken the computer.

Texas Appeals Court Overturns Default Judgment in Custody Case

Published on: May 5, 2023 | by Francesca Blackard

iStock-182358076-300x200 When a party in a Texas custody case fails to respond or appear, the court may find they defaulted and enter a judgment in favor of the other party. For a court to enter a post-answer default judgment against a party, however, the pleadings must give the party fair notice of the claim. A mother recently challenged a custody modification, arguing that the father’s pleadings did not specifically request the rights awarded to him by the court.

The trial court originally appointed both parents joint managing conservators with the mother having the right to determine the child’s primary residence without a geographic restriction in 2007. The court also granted the father visitation and ordered him to pay child support.

The Office of the Attorney General (“OAG”) filed a petition in 2020, alleging the father’s financial circumstances had changed and seeking an increase in child support. The father requested a hearing, which was set for March 10.

Texas Appeals Court Affirms Order with No Geographic Restriction on Children’s Residence

Published on: April 29, 2023 | by Kelly McClure

iStock-1139699594-300x200 A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence. The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence. The court’s primary consideration is the child’s best interest. The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs. Lenz v. Lenz.

A mother recently appealed a trial court order naming the father as the conservator with the exclusive right to determine the children’s primary residence with no geographic restriction. The parties got married in 2014 and had two children. The husband was an Army officer, stationed at times in Georgia and Louisiana. He was stationed at Fort Hood in 2018 and the parties bought a home in Belton. The wife started school for nursing in Austin in 2019. They decided the husband would leave the Army in the fall of 2020. The wife told the husband she wanted to separate in January 2020. The husband petitioned for divorce the next month.

The trial court granted the divorce and appointed both parents joint managing conservators, with the husband having the exclusive right to designate the children’s primary residence. The mother appealed.

Texas Appeals Court Upholds Separate Property Characterization

Published on: April 27, 2023 | by Francesca Blackard

2018_10_agreement-300x165 Property possessed by either spouse at the time of a Texas divorce is generally presumed to be community property, but that presumption can be rebutted by clear and convincing evidence. A number of other rules and presumptions may affect the characterization of property during the property division. A husband recently appealed characterization of property purchased by the wife before the marriage as her separate property.

HISTORY OF THE PROPERTY

The wife bought a residential property before her relationship with the husband. After the parties got married, the husband and his children moved in with the wife. Both parties testified they frequently argued about money and finances. When they argued, the wife would say the house was hers.

Texas Appeals Court Affirms Disproportionate Property Division in Divorce

Published on: April 25, 2023 | by Kelly McClure

iStock-483613578-300x204 A court in a Texas divorce must divide the marital estate in a just and right manner. A just and right division does not necessarily mean an equal division. Courts may consider a variety of factors in determining the property division, including fault in the break-up, income disparity, the relative earning capacity of the parties, education, age, physical condition, and financial condition of the parties. A husband recently appealed a disproportionate division of property.

The appeals court’s opinion stated the parties established a common-law marriage in 2015 after living together for 18 years. They separated in 2018 and the wife petitioned for divorce in 2019, claiming insupportability and cruelty. In his counter-petition, the husband also alleged insupportability and cruelty and adultery on the part of the wife. They each requested a disproportionate division of the marital estate.

FINAL HEARING ON PROPERTY DIVISION

They reached a settlement on the issues related to the children, so the final hearing addressed only the property division. The community estate included bank accounts, the husband’s retirement benefits, vehicles, and debt. The parties had also purchased two homes as tenants in common before they were married. They each lived in one of the homes after the separation.

Texas Court Denies Grandparents’ Request to Register Utah Visitation Order

Published on: April 23, 2023 | by Kelly McClure

iStock-1175949984-300x200 A child custody determination from another state may be registered so it can be enforced in Texas pursuant to Tex. Fam. Code section 152.305. A request must be sent to the Texas state court with a sworn statement the order has not been modified. The requestor must also identify who was awarded custody or visitation in the determination. The court will give the people identified in the request notice so they can contest the registration. To successfully contest the registration, the contesting party must show the prior court lacked jurisdiction, the determination has been vacated, stayed or modified, or they were not given proper notice before the court issued the determination order. Tex. Fam. Code 152.305(d). The grandparents of two children recently appealed a court’s denial of their request to register a foreign child custody determination containing their visitation rights.

After the parents divorced in Utah in 2016, the maternal grandparents were given grandparent time and certain related rights pursuant to a stipulation order in 2017. They later petitioned for modification, but the Utah court found it no longer had jurisdiction because the parties and children no longer lived in the state. The Utah court dismissed the petition, also noting in the order there had been a separate adoption case and termination of the mother’s parental rights.

Request for Registration

The grandparents requested registration of the divorce decree, stipulation order, and order dismissing their modification petition in Texas. Their request identified the father as the parent awarded custody or visitation in the custody determination.