Texas Divorce Attorney Blog

Texas Court Awards Custody to Stepfather

Published on: August 14, 2019 | by Kelly McClure

It can be very difficult for a non-parent to get custody of a child in Texas custody cases. A presumptive father may, however, have an advantage over other non-parents. In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”

Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Published on: August 7, 2019 | by Francesca Blackard

Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved. In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child. Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased. In 2016, the father’s brother filed suit to be named as the child’s primary conservator. The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order. The order gave primary possession to the uncle and periodic possession to the mother. The uncle had the right to request the mother undergo drug testing once a month. She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice. The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive. If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered. She alleged the uncle did not make the child available to her during her time. She sought criminal and civil contempt, additional periods of possession, and attorney’s fees. She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

Court Must Assign Value to Lease in Texas Divorce

Published on: July 31, 2019 | by McClure Law Group

A trial court in a Texas divorce must divide community property in a just and right manner. Property can be somewhat broadly defined as it relates to property division in a divorce case. Many people do not realize that a lease of someone else’s property is subject to division in a divorce, unless the lease is shown to be separate property.

In a recent case, the wife challenged a property division that did not include a recreational lease held by the husband. The wife appealed the property division, arguing error in the trial court’s division of property. She argued the court failed to include a recreational lease in the community estate and that the court unfairly allocated the husband’s tax debt. The court had allocated all of the tax debt to the husband, but the wife argued the court erred in using it to offset the value of the assets awarded to the husband.

At trial, there was evidence the husband signed a written lease for a ranch during the marriage. The husband’s friend owned the property and testified the husband had helped him build or enhance some of the improvements on the property. The owner testified he would sell the ranch to the husband for a significant discount and indicated he would extend the lease to the husband indefinitely as long as he paid the rent.

Award of Retirement Increases in Texas Divorce

Published on: July 24, 2019 | by Kelly McClure

Retirement can be a complex issue in Texas divorce cases. In some cases, retirement accounts may not be fully vested. In others, retirement income may be subject to periodic increases. When retirement income is subject to increases, the spouse required to make ongoing payments should be sure he or she understands how to calculate those payments in light of the increases.

A former couple recently ended up back in court more than a decade after their divorce due to a dispute over how to calculate retirement increases. The couple married in 1976 and divorced in 1998, after the husband’s retirement from the military. The wife was awarded $754.80 per month of the husband’s retirement, and 60% of all increases “due to cost of living or other reasons…” The husband was ordered to name the wife beneficiary under the Armed Services Survivor Benefit Plan (SBP). The wife was ordered to pay 40% of the cost of the SBP, which was to offset the retirement award the wife received.

In 2012, the wife informed the husband he had underpaid her. His new attorney told him he had been calculating his payments incorrectly. He had been calculating the payment using a method that resulted in payment of 60% of all cost of living increases cumulatively. After receiving advice from counsel, he began paying his wife 60% of the increases only in the first year they were received.

Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Published on: July 17, 2019 | by Francesca Blackard

Generally, a trial court in a Texas divorce case has the discretion to divide marital assets. A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling. An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property. They each pled and testified that they had separate property and submitted documentation showing they had separate property. Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property. Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial: how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions. The husband moved for reconsideration, and the wife filed a short response in opposition. The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.

Temporary Orders in Texas Custody Cases

Published on: July 10, 2019 | by McClure Law Group

The Texas Family Code limits a trial court’s ability to issue temporary orders during a pending suit to modify the parent-child relationship. The court cannot issue a temporary order designating or changing the designation of the person with the exclusive right to designate the child’s primary residence unless it is in the child’s best interest and the current circumstances would significantly impair his or her physical health or emotional development, the designated person has voluntarily given up primary care and custody, or the child is at least 12 years old and has identified the person he or she prefers to have the right to designate the primary residence. The court is also prohibited from creating, changing, or eliminating a geographic limitation on the child’s primary residence unless those same conditions are met.

A father recently challenged a temporary court order requiring his children be enrolled in a school district where neither parent lived.

The divorce decree named the parents joint managing conservators of their three children, but granted the father the exclusive right to designate their primary residence with no geographic restriction. Each parent had the independent right to make decisions about the children’s education.

Stepparent’s Rights in Texas

Published on: July 3, 2019 | by Kelly McClure

Stepparents often develop strong bonds with their stepchildren. It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child. Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed. Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed. Unfortunately, this section only applies if the parent to whom the stepparent was married dies. It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living. In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above. This section is not dependent upon the biological parent being deceased. Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.” As with the other section, the six-month period must end within 90 days before the filing.

Divorcing an Adulterer in Texas

Published on: July 3, 2019 | by McClure Law Group

Adultery can have a devastating effect on the wronged spouse and on a marriage. When adultery leads to a Texas divorce, the wronged spouse has the option of raising the issue of adultery in the divorce or allowing the divorce to be granted without fault.

Texas recognizes no-fault divorce, but also still has fault-based grounds for divorce. A Texas divorce court may either grant a no-fault divorce upon a finding that the marriage is insupportable due to discord or conflict or it may grant a divorce based on fault for certain reasons, such as cruelty or adultery. The court has the discretion to determine whether the divorce will be granted on insupportability or fault-based grounds. Even if there is uncontroverted and sufficient evidence of adultery, the court has the discretion to grant a no-fault divorce. The presence of adultery in the marriage, therefore, does not necessarily mean that the divorce will be granted based on adultery.

Although divorce can be granted without fault, there can be benefits to obtaining a divorce based on the other party’s fault. A finding of fault can have a significant impact on property division and in some cases can also affect custody.

Divorcing While Pregnant in Texas

Published on: July 3, 2019 | by Kelly McClure

Courts will not generally grant a Texas divorce during the pregnancy of a spouse. Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce. Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence. The paperwork can be filed and the process initiated during the pregnancy. The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree. If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways. First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father. This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father. Otherwise, the presumption may only be rebutted by an adjudication of paternity.

Same-Sex Custody Disputes in Texas

Published on: July 3, 2019 | by Francesca Blackard

Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved. Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples. In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents. The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective. In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child. Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together. While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.