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no-description-1246185-e1489525943395In a recent Texas appellate case, a husband and wife filed cross petitions for divorce. The husband argued that the trial court had erred in awarding the wife $5000 each month in spousal maintenance. The wife argued that the trial court had made a mistake in not appointing her as managing conservator of their two children and for failing to grant her a divorce based on cruel treatment under Texas Family Code section 6.002. She also argued that the lower court had made a mistake in not reconstituting the community estate based on fraud.

On appeal, the husband’s sole issue was a challenge to the spousal maintenance award under Texas Family Code section 8.001(1). The appellate court explained that the purpose of spousal maintenance was to give temporary support to a spouse who has a lowered ability for self-support or whose ability to self-support has worsened during a period as a homemaker.

Under Family code section 8.051(2)(B), a spouse can receive maintenance if he or she doesn’t have the ability to earn enough money to provide for his or her minimum reasonable needs. There’s a rebuttable presumption that maintenance isn’t appropriate unless the person asking for maintenance has used diligence to try to develop necessary skills during separation and during the time the divorce is pending.

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scottish-cow-1365844-e1490131408410In a recent Texas appellate case, the court considered the lower court’s division of a marital estate. The couple was married in 1990 and bought two businesses while married, one an insurance agency operated by the wife and the other a livestock auction house operated by the husband. The wife sued for divorce in 2010.

At a bench trial in 2013, the lower court admitted the wife’s testimony, inventory of assets and exhibits related to their value. She offered two experts to testify about their appraisal of property, including the livestock auction house. The experts were supposed to testify on the value of the assets as well as the wife’s theory that the husband had committed fraud on the estate by arranging the sale of cows through the auction house and concealing the proceeds from her.

The husband objected, and the court agreed with him. The court prevented one expert from testifying and found that the other’s testimony wasn’t credible. The wife didn’t challenge these rulings when she appealed. The husband’s exhibits were mostly not admitted. The court deferred judgment after trial and asked the couple to go to mediation.

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grandparentIn a recent Texas appellate case, paternal grandparents wanted the court to order a mother to give them access to their grandchild. The case arose after a couple married in 2004 and had two children in the subsequent years. The father died, and at the time of his death, the kids were three and two years old.

Before the father died, his parents had regular visits with the kids. The paternal grandmother cared for one of the kids for 15 months, while the mother prepared for a teaching career. The two kids started daycare after the second was born, but the grandparents transported them to activities. During the week, the grandparents had dinner with the parents and the older child. After the second child was born, the grandmother made them dinner, including special foods due to the older child’s food allergy.

After the father died, the grandparents and the mother had a conflict. The mother testified she thought the house where the father and kids lived was a gift. She learned after the father’s death that a deed of trust securing a note that the grandmother held encumbered the house. There may have been a disagreement about who owned a vehicle. The grandparents sued the mother in connection with the property disputes, but the kids had continued having visits after the father’s death until the holidays of 2012. The grandmother later testified that after they gave each other Christmas gifts, the mother told the grandparents they wouldn’t see their grandchildren again. The mother denied this.

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Yes, step-parents could have standing to bring a claim under Texas Family Code Section 102.003(11), often referred to as the “step-parent” statute.  Under this statute, a custody suit may be brought by “[a] person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.”  In other words, if the biological parent who is married to the step-parent dies, then the step-parent might have standing to pursue conservatorship, possession, of and access to the child.

This statute specifically gives rights to a step-parent who has helped raise one or more children of the parent who dies so long as the children have resided with the step-parent and deceased parent for at least six months ending not more than 90 days prior to the date of the filing of the petition. In determining whether or not the step-parent has standing, the court must determine whether the child’s principal residence was with the step-parent and deceased parent.  The Court will look at the following factors when determining whether the residence was a “principal” residence of the child: (1) whether the residence is a fixed place of abode, (2) whether the residence was occupied or intended to be occupied consistently over a substantial period of time, and (3) whether the residence was permanent rather than temporary. In re Kelso, 266 S.W.3d 586, 590 (Tex.App.—Fort Worth 2008, orig. proceeding); Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex.App.—El Paso 2002, no pet.). If the court reviews these three factors and determines that the child does have a principal residence with the step-parent and that such residency existed for a period of at least six months ending not more than 90 days before the date of filing of the petition, then standing is established for that step-parent.

After standing is established, there could be an addition hurdle for the step-parent if he or she is filing an original conservatorship suit, and that hurdle is known as the “parental presumption.” On the other hand, while the Texas Family Code imposes a “parental presumption” in original suits for parents over third parties seeking conservatorship, no such presumption applies to a modification suit filed by relatives or third parties, such as step-parents, who make a request to modify conservatorship, possession, or access. See In re V.L.K., 24 S.W.3d 338 (Tex. 2000).  Therefore, depending on the type of claim that is brought, a step-parent could have a higher burden.  If the step-parent is filing an original suit – then he or she may have to overcome the “parental presumption” and prove that the surviving parent is unfit in order to have certain rights.

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One of the best ways to protect your assets during marriage is to enter into a premarital agreement (also known as a prenuptial agreement or prenup) prior to getting married that details all the assets and liabilities of both parties prior to marriage and details each party’s rights and obligations to the other’s income earned during marriage.

You might be thinking that a premarital agreement may cause strain on the marriage before it even begins so you instead plan to protect your assets by setting up separate bank accounts for your separate property and ensuring no community assets are ever commingled into the account during marriage. While this may seem like a suitable alternative, these measures may be insufficient to protect your fortune. Since interest accrued during the marriage, salary earned during the marriage, and cash dividends distributed the marriage will all be community property without a premarital agreement stating otherwise, a premarital agreement will often be necessary.

So how do you ask your fiancé to sign a premarital agreement without causing strain on the engagement? The answer lies in the actual terms of the premarital agreement. The words ‘prenuptial agreement’ are too often associated with misconceptions about one-sided deals with the non-monied spouse getting nothing. In reality, prenups are simply agreements to define the rights and obligations of couples who are about to marry. Additionally, the future spouse who is wealthier should know that the more one-sided the agreement, the more likely it is to be attacked upon divorce. As such, the wealthier future spouse has an incentive to make the agreement attractive to his or her fiancé.

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daughtersA pattern of family violence can have a significant impact on custody issues in Texas. In Interest of DM, a Texas appellate court considered the impact of family violence in determining who should be managing conservator for children.

The father and mother appealed from the trial court’s order related to their parent-child relationship to three of their four children. They argued there was insufficient evidence to support a finding that having a joint managing conservatorship over the three children would impair their emotional development or physical health.

The couple’s first child was born in 1998, and the second was born two years later. When they were six and eight, their parents started using methamphetamine, sometimes while the kids were in the house and on a daily basis. The mother was diagnosed with bipolar disorder and tried to kill herself six times, blaming the father and wanting the kids to know this.

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Rising Stars Robert Epstein and Francesca Blackard

McClure Law Group, PC is proud to announce that both partners, Robert Epstein and Francesca Blackard have been voted by their peers as Texas Rising Stars for 2017 in Super Lawyers Magazine and Texas Monthly Magazine. Only 2.5% of attorneys in Texas receive this noteworthy distinction of a Texas Rising Star.

The attorneys are nominated by other attorneys in the state, making this an exceptional designation as they are recognized by their legal peers. At McClure Law Group, PC we strive for excellence and are proud to have both partners applauded for their hard work and dedication to our clients.

For more information on these two partners, you can access their bios by clicking here: Robert Epstein :: Francesca Blackard

 

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boy holding flowersIn Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

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wheelchairIn a recent Texas divorce case, an appellate court considered a spousal maintenance order in a case involving a disabled spouse. The couple were divorced in 2012, and their divorce decree found the wife was eligible for spousal maintenance (also known as alimony), and it ordered the husband to pay her $400 per month until one of the following four events happened:  a review of the order in three years, death, the remarriage of the wife, or a further court order.

In the summer of 2015, the ex-wife asked that her spousal maintenance be continued. The husband asked for a dismissal, claiming that it was untimely, since she was supposed to ask for review in January, six months prior to the date on which she actually sought review. The trial court denied the ex-wife’s petition but also denied the motion to dismiss.

The wife argued that there was an error in denying her request for continued maintenance because she’d shown she received Social Security Disability, and the trial court couldn’t disregard her testimony about disability. Section 8.054 of the Texas Family Code is the code section that covers the duration of spousal maintenance orders. As long as you continue to satisfy the eligibility criteria, the maintenance may continue. The trial court can conduct periodic reviews.

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weddingIn Texas, all property possessed by either spouse at the time of divorce is presumed to be community property under Texas Family Code § 3.003. A recent appellate case arose out of the divorce of a Texas couple who had been married in Mexico in 1999. In Mexico, they got their civil marriage application, which required them to choose between two marriage property systems, separate property or community property, in order to regulate ownership of their items of property. They chose to have separate property.

In 2015, the wife sued for divorce. She asked for the community property to be divided disproportionately. The husband counterclaimed and stated that he and his wife had to have separate property. He attached a facsimile of the couple’s marriage certificate that included the agreement to have separate property during the marriage, but the certificate wasn’t signed.

At trial, an expert testified for the husband and provided the opinion that in Mexico, a marriage application is treated as a prenuptial agreement. The husband testified that the couple signed the application, but the wife testified she didn’t remember signing the application. She claimed only the husband handled the paperwork, and she didn’t even remember talking about choosing a property regime before the wedding.

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