Texas Divorce Attorney Blog

Texas Appeals Court Won’t Take Piecemeal Approach to Property Division Appeal

Published on: January 8, 2020 | by Francesca Blackard

In a Texas divorce, the division of community property must be just and right. The goal is an equitable, but not necessarily equal, division. A party may not get the specific items that he or she wants, but that does not necessarily mean that the division of property is not just and right. In a recent case, the wife challenged the specifics of the property division.

According to the court’s opinion, the husband’s retirement annuity was worth $234,000 when he retired from his job. There was evidence that he withdrew funds from the account and hid them from the wife. There was evidence that he used the funds for household expenses and expenses related to the couple’s horses. The retirement account was worth approximately $50,000 at the time of trial.

The husband admitted that he did not report the withdrawals on the joint tax returns for several years, resulting in a $20,000 liability to the IRS. After the separation, the wife hired a CPA to seek innocent spouse status for her. She testified that she wanted the husband to pay the $3,000 for the CPA’s services.

Texas Appeals Court Upholds Custody Modification Based on Family Violence

Published on: January 1, 2020 | by McClure Law Group

Generally, a Texas child custody order can be modified only if the modification is in the child’s best interest, and there has been a material and substantial change in circumstances. Family violence may constitute a change in circumstances warranting a modification.

In a recent case, a mother challenged a modification, alleging that there was insufficient evidence of family violence to support a finding of a change in circumstances. When the child was an infant, the parents entered into an agreed order, appointing both of them as joint managing conservators, with the mother having the exclusive right to designate the primary residence.

The mother was subsequently charged with assaulting the father’s girlfriend. In December 2016, the mother took the child to California to live with her mother and other children.

Texas Appeals Court Affirms Order Naming Stepfather as Child’s Joint Managing Conservator

Published on: December 25, 2019 | by Kelly McClure

Texas child custody law includes a presumption that a parent will be appointed sole managing conservator or both parents will be joint managing conservators of their children unless a court finds that doing so would significantly impair the health or emotional development of the children. Although it can be difficult for a third party to get custody of a child, it does occur in some cases. Grandparents and stepparents, in particular, can play significant roles in children’s lives and may want custody. A father recently challenged an order appointing him, the mother, and the stepfather as joint managing conservators of the child.

The father argued that the stepfather had not rebutted the parental presumption. He argued that the stepfather had to rebut the parental presumption in Tex. Fam. Code Ann. § 153.131(a) to succeed in his petition to modify the prior order. The appeals court found, however, that the statute and the presumption contained therein only apply to original custody proceedings. The order at issue was not the original order, but it was instead a modification of the prior order. The presumption was therefore not applicable, and the stepfather did not have to rebut it at this stage.

The father also argued that the stepfather did not have standing to petition for a modification. The father argued that Tex. Fam. Code Ann. § 102.004 applied. Under this statute, a grandparent or another relative may file suit seeking custody if the child’s current circumstances would significantly impair his or her health or emotional development, or if the suit is filed or consented to by the parents or the managing conservator.

SSI Should Not Be Considered in Calculating Texas Child Support

Published on: December 18, 2019 | by Francesca Blackard

In calculating child support, a Texas court must consider each parent’s net resources. The Texas Family Code defines which resources are to be included, and which types of resources are excluded from consideration. In a recent case, a wife challenged an order to pay child support and medical support, partly because the court had improperly considered certain resources.

The husband testified that he lacked health insurance and did not have access to private insurance. Although the wife did not appear at the trial, the husband was previously the trustee of her supplemental social security income (SSI) and testified that he believed that she still received $750 per month. There was no other evidence of her income or ability to work.

The trial court designated the husband as the sole managing conservator of the children and ordered the wife to pay child and medical support. The court calculated the payment based on her SSI.

Texas Husband Considered Child’s Father Despite Paternity Test Otherwise

Published on: December 11, 2019 | by McClure Law Group

Texas family law presumes a husband is the father of his wife’s children born during the marriage. A presumed father may challenge paternity, but he generally must do so by the child’s fourth birthday. Adjudication of the paternity of a child with a presumed father may occur later, however, if a court finds the presumed father did not live with or have sexual intercourse with the mother when the child was conceived or if misrepresentations led the presumed father to a mistaken belief he was the biological father. Tex. Fam. Code § 160.607.

A husband recently challenged a trial court order including a child as a child of the marriage after he presented evidence of a DNA test showing he was not the father. The daughter was born in 2004 and the son in 2012. In 2013, the husband obtained a paternity test confirming he was not the daughter’s biological father. He filed for divorce in 2017. In his petition, he listed both children as “children of the marriage” and sought the right to designate their primary residence. He sought child support and medical support from the wife for both children. The wife also sought child support, medical support, and the right to designate primary residence.

Each spouse alleged the other had been unfaithful. The husband presented the DNA test results to support his allegation. When his attorney asked if he was asking the court to say that the daughter was not his child, he indicated he was not and agreed he accepted parental responsibility for her. He indicated the purpose of admitting the paternity test was not to deny paternity, but to show that his wife had been unfaithful. Both parents testified the girl had not been told she was not the husband’s biological child.

Texas Divorce Court May Clarify Latent Ambiguity in Divorce Decree

Published on: November 27, 2019 | by Kelly McClure

Parties sometimes realize they have different understandings of a Texas divorce decree. The trial court may issue a clarifying order if the decree is ambiguous. In some cases, the decree may be facially unambiguous, but have a latent ambiguity when read in context of the surrounding circumstances. In a recent case, a husband challenged a clarification order.

The final divorce decree included a provision setting forth the amount of his bonuses the husband would pay to the wife. It further provided he would provide her a 1099 tax statement for each payment if allowed by his employer. If he could not provide the 1099, “then the payments made to [the wife would] be the amounts above net of taxes paid in [his] tax bracket.”

The wife later petitioned for enforcement, arguing the husband was not dividing the bonuses “net of taxes paid in [his] bracket,” but was instead dividing them after the tax withholding by his employer. She requested a clarifying order if the court found the decree was not specific enough to enforce by contempt.

Texas Court Grants Grandparents Visitation and Access to Grandchildren

Published on: November 20, 2019 | by Francesca Blackard

Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met. First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child. Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being. Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child. TEX. FAM. CODE ANN. § 153.433.

In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children. The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California. The grandparents supported the family so the parents could save up to buy the home. After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight. The grandparents would take the children to school and attend school functions. The grandmother testified she felt she had assumed the role of parent.

The grandmother testified both parents were alcoholics. The mother’s friend testified the parents had a tense and unhealthy relationship. There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense. The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies. He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.

Texas Court Orders Child’s Name Change to Include His Father’s Surname

Published on: November 13, 2019 | by McClure Law Group

Under Texas family law, a court may order a child’s name be changed if doing so is in the child’s best interest. Neither parent is specifically granted the right to name the child under Texas law, but generally a child’s name will not be changed unless the party seeking the change shows a good reason for it. In a recent case, a mother challenged a court’s order to change the child’s name to include the father’s last name.

The parties appeared to have a good co-parenting relationship. According to the appeals court’s opinion, the child lived with the mother, but the father had always been a part of his life and assisted financially with his living expenses. The father’s family was also significantly involved in the child’s life, helping the mother financially and with child care.

The mother had been adopted as a young child. She grew up in Virginia and moved to Texas when she was 18. She did not have any family other than her son in Texas. Due to the distance, the child did not have the same amount of interaction with his mother’s family that he had with his father’s family.

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Published on: November 6, 2019 | by Kelly McClure

The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders. Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services. The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him. The father was ordered to pay child support beginning in December 1996. The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers. The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

Texas Mediated Settlement Agreement May Be Binding Even If Signed Before Divorce Is Filed

Published on: October 30, 2019 | by Francesca Blackard

Texas family law allows the parties to a divorce to enter into a binding mediated settlement agreement (MSA). If the agreement meets certain requirements, a party is entitled to judgment on the agreement. In some cases, however, one party may wish to challenge a mediated settlement agreement. In a recent case, a wife challenged the enforceability of a mediated settlement agreement.

The couple was married for about 10 years when the wife decided to end the marriage. She sought a mediator, and the parties attended mediation without attorneys and executed a written MSA.

The MSA made the parents joint managing conservators, with the husband having the right to designate the kids’ primary residence. The parties agreed the husband would keep the marital home and the wife would not pay child support. The MSA required the wife to file the divorce petition within 10 days. The MSA further provided the case would be finalized any time after May 1, 2015.

The husband filed a divorce petition nine days after the MSA was executed. He asked the court to approve and render judgment consistent with the MSA. The wife filed an answer with a general denial. The husband and his attorney appeared in court, but the wife did not receive notice of the hearing and did not appear. The trial court rendered oral judgment on the MSA at the hearing.