texas family code

Texas Court Limits Visitation Due to History of Family Violence

Published on: February 23, 2022 | by Francesca Blackard

iStock-839381426-300x200 Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence. A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child. The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order. The mother was given a standard possession order and required to pay child support.

Enforcement of High Net Worth Texas Divorce

Published on: February 20, 2022 | by Kelly McClure

iStock-1139699594-300x200 When a couple has complex and high-value assets, the actions required to achieve the property division may drag out long after their Texas divorce. The parties may need to refinance or liquidate certain assets. These ongoing transactions can result in additional disputes and possibly enforcement actions by one or sometimes both parties.

A husband recently challenged a court’s order in favor of the wife in dualling enforcement motions. The trial court entered an Agreed Final Decree of Divorce in March 2019. The decree awarded the wife a business, but required her to pay the husband a $770,000 equalization judgment secured by her primary residence and rental properties. She was also ordered to make monthly payments with 3% interest starting in February 2019. She defaulted in 2020, triggering an acceleration clause.

The decree also addressed the parties’ 2017 tax return and liability. The wife would pay $60,000 of the approximate $199,000 liability and any penalties and interest “arising solely out of the failure to previously make the $60,000 payment to the Internal Revenue Service.” The parties would split the remaining tax liability, penalties, and interest equally. The wife consented to filing the tax return in June of 2019, but the husband asked to review certain documents before he consented. There was evidence he received the documents in the summer of 2020 and notified the wife and accountant he had identified additional medical expenses within a week of receipt. He ultimately gave his consent to file the day before the enforcement hearing.

Challenging a Texas Acknowledgment of Paternity

Published on: February 6, 2022 | by Francesca Blackard

iStock-1033856542-300x200 Some families choose to resolve custody manners informally. When the parties are the biological parents, subsequent disputes can be resolved through a Texas custody case. When one party is not biological parent, however, resulting disputes may be more complex. In a recent case, a maternal uncle and aunt appealed an order that required them to pay child support for their nephew.

When the child was born, the child’s biological mother asked her brother to act as the child’s father. The brother signed an acknowledgment of paternity, birth certificate, and a verification of birth facts. The birth certificate listed the brother’s wife as the mother. Initially, they all lived together, but the mother moved out following a falling out with the couple.

Mother Files Paternity Suit

In August of 2016, the mother petitioned to adjudicate parentage, asking the court to adjudicate her as the mother and an identified man as the father. The brother and his wife were named as parties, but they also intervened in the case, asking the court to name them the child’s managing conservators and terminate the mother and alleged father’s parental rights.

Ex-Wife Entitled to Ongoing Interest in Ex-Husband’s Defined Benefit Retirement Plan

Published on: January 31, 2022 | by Kelly McClure

iStock-1187184203-300x200 Retirement benefits are often subject to property division in a Texas divorce. In some cases, calculating the community interest is straight forward; however, in other cases, it can be somewhat more complex. In a recent case, a former wife challenged a trial court’s handling of the former husband’s retirement benefits after it concluded she had already received all of the benefits to which she was entitled.

The parties had been married 22 years when they divorced. The wife was awarded 50% of the husband’s Civil Service Retirement Benefits accrued as of the date of the decree’s entry. The trial court signed a Qualified Domestic Relations Order (“QDRO”) authorizing payment of an interest in the husband’s monthly annuity payments to the wife and stating that she was entitled to a survivor annuity.

Trial Court Enters Original QDRO

The parties began receiving the monthly annuity payments pursuant to the QDRO after the husband retired at the end of 2011. In March 2016, the husband moved to vacate the QDRO, arguing the wife was not entitled to a survivor’s benefit under the decree but a premium was being deducted from his monthly benefit. He asked the court to amend the QDRO to match the property division in the divorce decree.

Death of a Party During a Texas Divorce Case

Published on: January 25, 2022 | by Francesca Blackard

“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas marriage can end through either death or a court’s decree. If a party dies before judgment is rendered in a divorce case, the divorce case abates. In a recent case, a husband challenged a divorce when the decree was signed after the death of the wife.

The wife filed for divorce in October 2018, alleging insupportability, abandonment, and cruel treatment. In his counterpetition, the husband alleged insupportability, cruel treatment, and adultery.

Final Trial

At the trial on September 17, 2019, the court informed the attorneys that it needed time to make its rulings regarding the property. The court said it would email the parties with the decision. The proceedings resumed after a break on the record and the court pronounced the parties divorced and said the entry of the final decree would be ministerial.

Right to Attorney and Right Against Self-Incrimination in Texas Custody Enforcement Action

Published on: January 19, 2022 | by Kelly McClure

iStock-1139699594-300x200 When a parent in a Texas custody case fails to comply with a court order, the other parent may petition for enforcement of the court order. The parent seeking enforcement may pursue an order of contempt, which can result in six months’ jail time, a fine of $500 per violation, or both. A father recently appealed a contempt order against him, arguing in part that the trial court failed to inform him of his rights to an attorney and against self-incrimination.

Mother Files Enforcement Action Against Father

Several months after the divorce, each party filed an enforcement petition alleging the other violated the decree. The mother asked the court to hold the father in contempt, incarcerate him for up to 180 days, put him on community supervision for 10 years, order him to pay a $500 fine for each violation, and award her attorney’s fees. She alleged he failed to provide documents needed to file tax returns, failed to sign documents to transfer property, and repeatedly interfered with her possession of the child.

A flight delay had resulted in the mother losing two days of possession. The other incidents were related to a disagreement regarding the exchange of possession. Under the decree, the father was required to surrender the child to the mother at the daycare or school, in the parking lot of a specified grocery store if the daycare or school was closed. The decree further permitted each party to “designate any competent adult to pick up and return the child. . .” and required either the party or a designated adult to be present for the drop off.

Valuation and Separate Property in Texas Divorce

Published on: December 27, 2021 | by Kelly McClure

property-division-300x110 Courts must divide community property in a “just and right” manner in Texas divorce cases. The property division does not have to be mathematically equal, but should be equitable to both parties. To achieve a just and right division, the court needs evidence of the value of the assets before it. In a recent case, a husband challenged a property division, arguing the court had divested him of his separate property and did not have sufficient evidence to fairly divide the community estate.

The husband petitioned for divorce in 2017. His petition stated there was no community property to be divided.

The wife asked for a disproportionate share of the community estate, her own separate property, and reimbursement for community funds she alleged the husband used for the benefit of his separate property.

Former Spouse Cannot File New Suit for Division of Property Disposed of in Texas Divorce

Published on: December 22, 2021 | by Francesca Blackard

iStock-545456068-300x184 A trial court may order a post-divorce division of community property that was not divided or awarded to either spouse in a Texas divorce decree. Tex. Fam. Code § 9.201. The court may not, however, order a post-divorce division of property that was already divided in the divorce. The legal doctrine of res judicata prevents a party from re-litigating issues such as categorization of assets or improper division in a new case. Parties must instead address such issues through direct appeals. In a recent case, a wife sought a post-divorce division of certain bonuses the husband received after the divorce.

The parties married in 2014, and the wife petitioned for divorce the next year. The husband included several bonuses in his asset inventory. He listed a $0 value for the bonuses that would only be payable after the divorce if he remained employed on the designated date. He testified they had no value because they were conditional on future events.

The wife argued the future bonuses were deferred compensation for work performed during the marriage and estimated their value at more than $4 million.

Texas Court Denies Child-Support Increase Despite Father’s Tenfold Salary Increase

Published on: December 19, 2021 | by Kelly McClure

iStock-848796670-300x200 In some Texas custody cases, parents may agree to a support order that differs from the child-support guidelines. A Texas appeals court recently considered what evidence was necessary to support a modification when the father’s income had increased significantly since the agreed order.

The trial court issued an agreed order in 2013 following a mediated settlement agreement between the parties. The parties agreed the father’s child support would be $1,000 per month, because he would pay all of the travel costs when the mother moved to Virginia (which she did shortly after the agreement).

In 2017, the mother sought an increase in child support by filing a modification suit. Since the original agreed order, the father’s income had increased dramatically. The trial court ordered an increased monthly payment, but the appeals court reversed the order and remanded for a new trial, finding insufficient evidence supporting the amount ordered.

Child Interviews and Extracurricular-Activity Expenses in Texas Custody Case

Published on: December 5, 2021 | by Francesca Blackard

5thingsdivorcecourt_header-300x163 Tex. Fam. Code § 153.009(a) requires the court in a Texas custody case to interview a child who is at least 12 years old to determine their wishes regarding custody, “on the application of a party. . . “ A father recently challenged a court’s failure to interview the children in a custody case.

The mother petitioned to increase child support for the parties’ three teenage children and require the father to pay their extracurricular expenses. The father asked to be named the primary managing conservator with the exclusive right to designate the children’s primary residence.

The parties stipulated that $2,760 was the amount the father should pay under the Texas Family Code’s “guidelines.” The trial court ordered the father to pay not only $2,760 monthly, but also half of the children’s extracurricular expenses. The trial court also denied his request to have the exclusive right to designate the children’s primary residence. Continue Reading ›