Texas Divorce Attorney Blog

Invited Error in Texas Divorce Case

Published on: August 8, 2022 | by Francesca Blackard

iStock-1270267953-300x200 Even when parties seem to agree on issues related to Texas property division, disputes may still arise. In a recent case, a husband challenged a trial court’s treatment of certain property after seemingly agreeing to that treatment during the hearing.

The husband petitioned for divorce in May 2019. The husband and wife stipulated that a particular parcel of land was the husband’s separate property, but the mobile home on that property was the wife’s separate property.

The husband testified he wanted to purchase the mobile home or sell the parcel and mobile home together and equally divide the proceeds. He expressed a preference to buy the mobile home himself but also said there were buyers interested in purchasing them as a single asset. The wife testified she wanted to sell the mobile home to the husband for $15,000 or alternatively to sell both together and divide the proceeds equally. The husband responded “Yes” when asked if he agreed to sell the parcel and the mobile home together and split the proceeds. When he was asked about division of another piece of property, he said he thought the parties had reached agreement on the five-acre parcel and mobile home and thought they could also reach agreement on the larger parcel. The trial court specifically told the husband that he was “not going to have the five acres and the mobile home. . .”

Texas Spousal Maintenance After 10-Year Marriage

Published on: August 4, 2022 | by Kelly McClure

iStock-172302804-195x300 A trial court may order Texas spousal maintenance, sometimes referred to as “spousal support” or “alimony,” if certain criteria are met pursuant to Tex. Fam. Code Ann. § 8.051.. If the marriage lasted at least 10 years, a court may order spousal maintenance to a spouse who does not have sufficient property or earning ability to provide for their own minimum reasonable needs. Tex. Fam. Code Ann. § 8.051(2)(B). A court may also award spousal maintenance to a spouse who does not have sufficient property and is not able to earn sufficient income to provide for their minimum reasonable needs due to their own incapacitating disability or the disability of the parties’ child.

Husband Order to Pay Spousal Maintenance

A husband recently challenged an order requiring him to pay spousal maintenance, arguing the wife had been awarded sufficient property to meet her reasonable minimum needs. The wife petitioned for divorce after nearly thirteen years of marriage. The trial court ordered the husband to pay $2,500 in monthly spousal support for two years and he appealed.

The marriage had lasted for more than 10 years, so the wife was eligible to pursue spousal maintenance if she did not have sufficient property or the ability to earn sufficient income to provide for her minimum reasonable needs. The trial court had awarded her assets worth $830,871.60 and she estimated her expenses to be $6,791 per month.

Texas Child-Support Arrearages

Published on: July 31, 2022 | by Francesca Blackard

iStock-483611874-300x200 Failure to pay Texas child support as ordered can result in an enforcement action. If the motion for enforcement includes a request for a money judgment for arrearages, the trial court generally may not modify or reduce the amount of the arrearages. In a recent case, a mother challenged a court’s finding there was not an arrearage when the father argued he had shifted the payments from the beginning to the end of the month.

The divorce decree appointed the parents joint managing conservators of their two children with the mother having the right to designate their primary residence. The mother was required to maintain health and dental insurance for the children and the parties were to equally split the healthcare expenses not paid by insurance. The father was ordered to pay $1,122 monthly child support and $451.22 monthly medical child support through the Office of the Attorney General (“OAG”). The medical child support was reimbursement for the children’s insurance premiums.

Mother Files Child-Support Enforcement

The mother moved to enforce the child support in September 2020. She sought $1,573.22 in unpaid child support and $311.21 in medical expenses. She also asked for attorney’s fees and costs. The trial court ordered the father to pay $155.83 for medical expenses but denied the mother’s other requests, finding the amount of child-support and medical-support arrearages were $0 as of the date of the hearing.

Texas Modification of Person With the Exclusive Right to Designate Child’s Primary Residence

Published on: July 11, 2022 | by Kelly McClure

iStock-839381426-300x200 When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children. A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations. The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development. If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest. Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification. The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence. In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children. He also alleged the mother neglected the children.

Texas Appeals Court Holds Paternity Cannot Be Adjudicated After Putative Father’s Death

Published on: July 8, 2022 | by Francesca Blackard

While ideally a child’s parentage is determined when they are young, that does not always occur. A Texas appeals court recently considered whether the trial court could adjudicate the parentage of an adult petitioner after the death of the putative father.

Adult Child Files Paternity Suit Against Father’s Estate

An adult petitioner filed suit against his mother, his alleged father, and the independent executor of his alleged father’s estate, seeking adjudication of his parentage and a declaration that he was the alleged father’s biological son and had the rights and privileges of a surviving child. The executor filed a motion to dismiss, arguing a suit to adjudicate parentage cannot be brought after the putative father’s death. The trial court denied both the executor’s and the petitioner’s respective motions for summary judgment.

Trial Court Adjudicates Parentage

At trial, the executor moved for judgment, arguing that suits to adjudicate parentage do not survive the putative father’s death pursuant to the Texas Family Code. The trial court denied the motion and adjudicated the putative father as the petitioner’s father.

Texas Court Cannot Stop Divorce Trial Without Allowing Parties to Present Their Cases

Published on: July 6, 2022 | by Kelly McClure

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225 While videoconferencing technology allowed certain court proceedings to occur and cases to move forward during the pandemic when in-person proceedings were not available, the technology is not without its problems in a court setting. Some individuals, especially those living in rural areas, may not have access to a strong internet connection. Others may not have appropriate devices or know how to use the technology. Another serious issue can be control of the courtroom, including technical issues, distractions, and disruptions by parties or non-parties. In a recent case, a wife challenged a divorce decree because judgment was rendered after the trial was stopped during the presentation of her case.

Divorce Trial Held Over Zoom – and Stopped Abruptly

The divorce case was held over Zoom without a jury. The wife was the first witness, and the husband kept interrupting, often accusing the wife of lying. The trial judge was unable to stop him and ultimately stopped the trial before the wife had finished presenting her case. The trial judge stated she would grant the divorce and divide the property.

The final divorce decree was signed on January 29, 2021. The decree granted the divorce and the wife’s name change. It also divided the assets and liabilities. The wife moved for a new trial, arguing the trial had been stopped early. The husband died less than two months after the decree was signed. The wife subsequently appealed.

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.

Challenging a Texas Acknowledgment of Paternity

Published on: June 20, 2022 | by Kelly McClure

iStock-1033856542-300x200 A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated. Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however. Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.” He did not, however, make specific allegations. The mother argued the petition was time-barred.

Only William testified at the trial. The mother did not appear or participate. The trial court found the petition was untimely and denied it.

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.

Decision-Making Rights in Texas Joint Managing Conservatorship

Published on: June 10, 2022 | by Kelly McClure

iStock-1163040189-300x200 When parents cannot cooperate to make decisions regarding the children in a Texas custody case, the court may give one parent certain decision-making rights, even if the parents are joint managing conservators. In a recent case, a father challenged a court order requiring him to cooperate in the children’s activities and to pay for half of the children’s tutoring expenses.

The parents were named joint managing conservators of the children in the divorce decree with a modified standard possession order. The mother was granted the exclusive right to designate their primary residence and the father ordered to pay child support. Each parent was responsible for half of any extracurricular activity the parents agreed upon.

Mother Files Modification Suit

The mother petitioned for modification in 2018, seeking the right to make certain decisions after consulting with the father, continuation of certain extracurricular activities, and therapy for the children. In a counterpetition, the father asked the court to give him the right to designate the primary residence and receive child support. He also asked that the mother be required to schedule extracurricular activities only while she had the children.