Texas Divorce Attorney Blog

Continuing Texas Child Support While Child Pursues High School Diploma

Published on: September 21, 2020 | by Kelly McClure

A Texas court may order child support beyond a child’s 18^th birthday if the child is still in high school, whether a public school, a private school, or course that provide joint high school and junior college credits. The child must comply with the minimum attendance requirements in the Education Code or the private school’s minimum attendance requirements. Tex. Fam. Code. Ann. § 154.002. A mother challenged the termination of child support for her son after his 18^th birthday in a recent Texas custody case.

The divorce decree ordered the father to pay monthly child support until one of the listed events occurred. Child support would continue if he was in compliance with the requirements in Tex. Fam. Code. Ann. § 154.002.

The father petitioned to terminate child support in September 2018, following the son’s 18^th birthday in April. The mother claimed the son was enrolled in an accredited secondary school. She then filed a petition for continuation and increase of child support and alleged her son was enrolled full-time in a private secondary school.

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.

Court Grants Mother Exclusive Rights in Texas Custody Case

Published on: September 8, 2020 | by Kelly McClure

In a Texas custody case, the court may grant certain rights and duties to one parent exclusively even if both parents are named conservators. The court may limit the rights or duties of a conservator parent if it finds, in writing, that doing so is in the child’s best interest. Tex. Fam. Code Ann. § 153.072. Courts may grant exclusive rights to one parent when the other reuses to cooperate with respect to those aspects of the child’s care. A father recently challenged a court order granting the mother a number of exclusive rights.

The mother petitioned to modify the parent child-relationship. She requested the exclusive right to designate the primary residence without a geographic restriction so she could accept a job and move to Louisiana.

The mother took a job in Monroe, Louisiana in 2015. The father also moved to Monroe, and they all lived there for several months. The mother testified he was abusive toward her. She also said he took her green card and moved with the children back to Texas.

Texas Court Denies Mother’s Request to Change Children’s Surname

Published on: August 21, 2020 | by Kelly McClure

A parent may want to change a child’s name for a number of reasons. Texas family law allows a court to order the change of a child’s name if doing so is in the child’s best interest. Tex. Fam. Code § 45.004(a). Generally, courts should only order a child’s name change if it is needed for the child’s “substantial welfare.” A mother recently appealed a court’s denial of her petition to change her children’s names from their father’s surname to her maiden name.

The parents divorced in 2011. After allegations the father had abused the son in 2015, the mother had sole possession of both of the minor children. The mother petitioned in 2019 to change the children’s last name to her maiden name. The children agreed to the change, but the father opposed it. He argued they had his name since they were born and that they could change their names on their own when they are adults.

The mother testified she wanted to change the children’s names because she had grown up with her maiden name. She said the children wanted to identify with her family’s name “to feel the closeness of [that] family.” They had been using her name and wanted to legally change their names. She testified that her maiden name is well respected in the area and having that name would be important when the children became involved with the family businesses.

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.

Parent Seeking Child Support Modification in Texas Must Present Evidence of Historical Income and Resources

Published on: August 7, 2020 | by McClure Law Group

When a parent seeks to modify a Texas child support order on the basis of a material and substantial change in financial circumstances, they must prove that such a change occurred. Doing so requires evidence of the parties’ current income and resources, but it also requires evidence of their income and resources at the time of the previous order.

In a recent case, a father challenged a court’s denial of his petition for modification. The parents divorced in 2012 and signed an Agreed Final Decree of divorce. The mother was given the exclusive right to designate their primary residence, but the possession schedule gave each parent possession 50% of the time.

Under the decree, the father was required to pay $1,047.95 in child support each month. The decree stated it was in accordance with the guidelines in the Texas Family Code, based on the father’s monthly net resources of $4,191.81.

Texas Appeals Court Allows Adult Daughter to Pursue Outstanding Child Support

Published on: July 31, 2020 | by McClure Law Group

If a parent fails to pay court-ordered child support in Texas, the obligee may pursue a number of cumulative remedies. The obligee may seek a contempt of court order, a cumulative money judgment, a child support lien against certain property, a judicial writ of withholding, and an administrative writ of withholding. The court keeps jurisdiction to confirm the amount of arrearages and render a cumulative money judgment for a motion for enforcement that is filed within 10 years of termination of the obligation or the child reaching adult hood. Tex. Fam. Code §157.005.

In a recent case, the appeals court allowed an adult to pursue the child support her father owed after her mother’s death. The father was ordered to pay $250 per month in child support at the time of the divorce in 1980, but did not pay. The mother initiated an enforcement action in 2011, but it was never heard and she died in 2016.

In 2017, the daughter, then 41 years old, served a notice of application for judicial writ of withholding on her father. The father moved to stay the issuance of the income withholding order. The daughter argued the father had failed to timely contest the notice so the arrearages sworn to in the notice had been determined as a matter of law.

Texas Appeals Court Finds Gift Property from Wife’s Parents Was Her Separate Property

Published on: July 29, 2020 | by McClure Law Group

In Texas divorce cases, property is presumed to be community property if either spouse possesses it during the marriage or at the time of the divorce. Tex. Fam. Code Ann. § 3.003. To rebut the presumption, a spouse must trace the property and clearly identify it as separate by clear and convincing evidence. How a property is characterized is generally determined based on the character it has at inception, or when the party’s title has vested.

In a recent case, a husband challenged the trial court’s characterization of property received as a gift from the wife’s parents. When he petitioned for divorce, the husband requested a disproportionate share of the marital estate, due in part to “fault in the breakup…” He also asked for reimbursement to his separate estate for funds he had expended for the community estate’s benefit.

He testified that the property where the couple lived had been gifted to them by the wife’s parents. The “Gift Certification” signed by the wife’s parents stated they “intend to give to [husband and wife] a gift . . .” of the lot. It also listed the relationship as “son in law to be and daughter.” Both the husband and wife signed in acknowledgement of receiving the gift.

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.