Texas Divorce Attorney Blog

Texas Divorce Involving Adultery

Published on: April 19, 2024 | by Francesca Blackard

Although Texas has recognized no-fault divorce since 1970, it also still recognizes fault-based divorce on grounds including adultery, cruelty, and conviction of a felony. Proving an at-fault ground for divorce can affect property division, spousal maintenance, and other matters in a divorce.

A spouse seeking divorce based on adultery must prove by “clear and convincing” evidence, beyond just suggestion and innuendo, that the other spouse had sexual intercourse with someone else during the marriage. Evidence may include text or email messages, phone records, photos, or financial records. Adultery can occur at any point during the marriage, even after the spouses stop living together.

Property Division

The court in a Texas divorce must divide the community estate in a “just and right” manner. A court has broad discretion in formulating a just and right division, and may consider a number of factors in doing so. One of those factors is fault in the breakup of the marriage. A spouse alleging the other committed adultery may therefore seek a disproportionate share of the community property based on the alleged affair.

How Substance Abuse Affects Parental Rights and Custody in Texas

Published on: April 19, 2024 | by Kelly McClure

Substance abuse can be devastating to families. Texas family law recognizes the risk to children from parental substance abuse and seeks to protect them.

Termination of Parental Rights

One of the most severe potential consequences of substance abuse is termination of parental rights. The court may terminate the parental rights of a parent who is the cause of a child being born addicted to alcohol or an illegal controlled substance. Additionally, a court may order termination of parental rights if it finds by clear and convincing evidence that the parent used a controlled substance in a way that endangered the child’s health or safety and either failed to complete a court-ordered treatment program or continued to abuse a controlled substance after completing a court-ordered program. Tex. Fam. § Code 161.001.

Custody and Visitation

Even when parental substance abuse does not result in termination of parental rights, it can still have a significant result on custody and visitation. The Texas Family Code includes a stated public policy to both ensure that children have frequent contact with parents who act in their best interest and to provide children with a safe, stable and nonviolent environment. The primary consideration in custody matters is the child’s best interest.

Agreement Regarding Real Property During Texas Divorce

Published on: April 14, 2024 | by Francesca Blackard

Parties to a Texas divorce may enter into an “agreement incident to divorce” regarding property division, liabilities, and spousal maintenance. If the court finds the agreement’s terms are just and right, they become binding and the court may set forth the agreement or incorporate it by reference in the final divorce decree. Tex. Fam. Code Ann. § 7.006. A former husband recently appealed a postdivorce property division order that found the marital home was the wife’s separate property, based on an agreement between the parties.

According to the appeals court’s opinion, the agreement signed by the parties during the divorce proceedings stated that the marital home was community property, but that the parties agreed the wife would become its owner and assume the mortgage. It further stated the husband granted, conveyed, and gave his interest in the property to the wife and agreed to executed any documents needed to effectuate and document the conveyance. The husband moved out.

The final divorce decree did not address the home’s ownership. The husband subsequently petitioned for postdivorce property division. The trial court found the home was the wife’s separate property. The husband requested findings of fact and conclusions of law. The findings identified the home as the wife’s separate property. The husband asked for additional findings and conclusions, but the trial court did not file any additional or amended findings. He appealed.

Texas Appeals Court Reverses Restitution and Reconstitution of Community Estate

Published on: April 7, 2024 | by Francesca Blackard

A party to a Texas divorce is entitled to reimbursement to the marital estate when community time, labor, or skills are used to benefit the other party’s separate estate beyond what is needed for maintenance of the separate property. The trial court has broad discretion to apply equitable principles. A former wife recently challenged a divorce decree that granted her former husband’s requests for reimbursement and reconstitution of the community estate.

According to the appeals court’s opinion, the husband requested a disproportionate share of the community property and reimbursement to both the community estate and his separate estate. He argued the wife’s separate estate had benefited from both the community and his separate estate. He also alleged the wife conspired with her daughter “to accomplish an unlawful purpose and/or to accomplish a lawful purpose by unlawful means” to dispose of the proceeds from the sale of a house. He sought actual and exemplary damages as well as attorney’s fees.

The wife also requested a disproportionate share of the community estate. She argued the civil conspiracy claim was barred by both the statute of limitations and the statute of frauds. She also argued that the parties freely granted their interest in the property to her daughter and that the husband had agreed to and ratified her actions.

Division of Military Retirement in a Texas Divorce

Published on: March 31, 2024 | by Kelly McClure

A Domestic Relations (“DRO”) is often used in divorce to address the rights of the former spouse as an alternate payee to receive some or all of a participant’s benefits under a retirement plan. A trial court generally does not have the authority to render orders after expiration of its plenary power over a final judgment. If a Texas divorce decree becomes final and unappealable without rendering a DRO, then the trial court only has the authority to render a valid DRO upon a petition and service pursuant to the Texas Rules of Civil Procedure. A judgment is rendered when the trial court officially announces its decision orally in open court or in a filed memorandum. An oral rendition must indicate the trail court’s intent to render the full, final, and complete judgment.

A husband recently appealed a DRO. The parties entered into a mediated settlement (“MSA”) that was memorialized in the agreed final divorce decree. The decree included provisions related to the husband’s military retirement and stated they would be more particularly described in a Domestic Relations Order (“DRO”). The husband his attorney signed the decree. The husband moved for the signing of the DRO in June 2022, stating he believed the proposed DRO accurately reflected the parties’ agreements. The court and the parties’ attorneys signed the DRO.

After the husband got a new attorney, he moved to vacate the DRO, arguing the divorce decree was not a rendition of judgment on the DRO and the DRO had been rendered outside the court’s plenary power. He argued, in the alternative, for modification of the DRO because the calculation used to determine the wife’s share was not in compliance with federal law. The trial court denied the motion.

Enforcement of Unpaid Obligations in Texas Divorce Decree

Published on: March 27, 2024 | by Kelly McClure

If a parent does not comply with a Texas custody or child support order, the other parent may seek enforcement of the court order and, in some cases, request the parent be held in contempt. A father recently challenged an order granting the mother’s motion to enforce the divorce decree.

When the parties divorced, one of their two children was still a minor. Pursuant to the divorce decree, the parties were required to equally share health care costs, the cost of a vehicle, and college fund for the minor child. The decree also ordered the father to pay for the minor child’s phone plan until she finished high school, and then that expense would also be split. The decree incorporated an agreement incident to divorce that required the mother and father to share the other child’s healthcare costs.

Both parties moved to enforce the decree in 2019, each seeking contempt, or clarification if the court found the decree was not sufficiently specific. The trial court’s subsequent order required the parties to communicate and exchange expense sharing exclusively through MyFamilyWizard. The court’s order also clarified that the father was required to pay full cost of the minor child’s phone.

Texas Appeals Court Reverses Dismissal of Grandmother’s Petition for Visitation

Published on: March 20, 2024 | by Kelly McClure

Pursuant to Tex. Fam. Code § 153.432, a grandparent who meets certain requirements has standing to file suit for possession or access to their grandchild. The grandparent must sign an affidavit “on knowledge or belief” that alleges that denial of possession or access would significantly impair the physical health or emotional well-being of the child and provides supporting facts. The trial court then has to determine if those allegations would be sufficient to grant possession or access under Section 153.433. If not, the trial court must dismiss the grandparent’s suit.

Parents have a fundamental right to make decisions about their children’s care, custody, and control. The law presumes that a fit parent acts in their children’s best interest. Once the grandparent establishes standing, they must overcome the fit-parent presumption by proving denying them possession or access would significantly impair the child’s health or well-being. The grandparent must allege “specific, identifiable behavior or conduct,” such as severe neglect, physical abuse, abandonment, abuse of drugs or alcohol, or immoral behavior, that would likely cause significant impairment to the child. Rolle v. Hardy. Prior cases have held that illegal drug use by a mother during pregnancy may support a finding of significant impairment and illegal drug use after the birth may impair the ability to parent. A grandparent does not have standing just because the child wants to see them or because they would be a better custodian. A grandmother recently challenged a court order dismissing her petition for possession or access to her grandchild.

The Grandmother’s Petition

The child’s father died before the child was born. His mother then petitioned for grandparent possession of or access to the child shortly after the birth. The grandmother alleged the mother had abused drugs and alcohol while she was pregnant with the child. She claimed denying her access to the child would significantly impair his health and well-being.

Texas Appeals Court Upholds Order Making Ex-Husband Liable for Salary Payments

Published on: March 11, 2024 | by Francesca Blackard

A court may render orders to enforce or clarify the property division in a Texas divorce decree, but generally may not render an order that makes substantive changes to the property division once it is final. A former husband recently challenged a clarification order, arguing it improperly modified the decree.

Divorce Decree

According to the appeals court, the parties were married for more than 15 years when they got divorced in 2018. The agreed divorce decree referenced a “privately held compan[y]” that employed them both. The decree awarded all ownership interest in the company to the husband as separate property. It also awarded him the intellectual property he created used in connection with that ownership and the cash in two bank accounts in the company’s name beginning November 1, 2018.

Those bank accounts had been included in a list in the decree for which the husband would have the “sole right to withdraw funds” or “subject to [his] sole control[.]”

Texas Appeals Court Affirms Spousal Maintenance Modification

Published on: March 4, 2024 | by Kelly McClure

A spouse paying Texas spousal maintenance may seek modification if there has been a material and substantial change in circumstances, which may include significant change in their income. In a recent case, a former husband challenged a modification award based on the modified amount of maintenance as well as the court’s denial of his request to apply the modification retroactively.

The parties’ 2011 Agreed Final Divorce Decree ordered the husband to pay $1,150 in monthly spousal maintenance until the wife remarried or died or until her disability was removed or the trial court otherwise rendered a new order. The husband earned about $80,000 per year at the time.

Motion for Modification

The husband petitioned for modification in November after he retired the previous June. The court granted the modification in an order signed in June 2019, although the hearing occurred in May 2016. The court granted the husband’s motion for reconsideration and vacated the order.

Texas Appeals Court Concluded Father Did Not Have Sufficient Notice for Contempt Order

Published on: February 28, 2024 | by Kelly McClure

Parents sometimes have difficulty getting their child’s other parent to comply with a Texas custody or visitation order. If a parent fails to comply with requirements to exchange the child, the other parent may seek enforcement of the court’s order, sometimes through contempt. In a recent case, a father challenged a court’s contempt order.

According to the appeals court’s opinion, the trial court entered a standard possession order in 2012 that set forth where the exchanges were to occur. When the mother’s possession ended, the exchange occurred at her home. When the father’s possession ended, it occurred at either his home or the mother’s home, depending upon circumstances set forth in the order. The trial court signed a modification order on the mother’s motion in March 2017 that changed the exchange location to the police department parking lot. The modification order also allowed the parties to change the location in writing. In August 2017, the parties entered a Rule 11 agreement moving the exchange location to a different police department parking lot and the court signed and the court signed an order adopting their agreement.

The mother filed a motion for enforcement by contempt in 2023. She relied on the original 2012 order and the 2017 modification order. The father moved for a directed verdict because the mother did not plead “the date, the time, and the place of the alleged violations,” but the motion was denied.