Published on:

The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

Continue reading →

Published on:

Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

Continue reading →

Published on:

Texas law generally favors the freedom of contract.  This principle also applies to prenuptial agreements.  In Texas divorce cases, prenuptial agreements are generally valid and enforceable unless they were involuntarily signed or were unconscionable and signed without proper disclosures.

A wife recently challenged the enforceability of a prenuptial agreement. The couple met online while the wife lived in Vietnam.  When the husband visited Vietnam, he gave her a copy of the prenuptial agreement his attorney drafted.  The wife did not speak English, so she had it translated.  She requested a change to the agreement.

The wife came to the U.S. and told the husband she was pregnant a few months later.  He told her she needed to sign the agreement before they got married. The husband stated a paragraph was removed from the agreement based on the wife’s request.

Continue reading →

Published on:

Sometimes, a parent may face significant changes in his or her financial circumstances that affect the ability to pay a Texas child support obligation.  If the change in the parent’s financial circumstances is both substantial and material, the court may modify the obligation.

In a recently-decided case, a father sought to modify his child support obligation after he was determined to be disabled.  The original support order was entered in 2006.  The court entered an agreed order in 2012, ordering the father to make payments on the support he owed and increasing his monthly obligation based on his net resources.

Soon after the 2012 order was entered, the father had a stroke.  The Social Security Administration (SSA) found him to be disabled and awarded him Supplemental Security Income (SSI) benefits.  He moved to modify the support order on the grounds his circumstances had materially and substantially changed.

Continue reading →

Published on:

Under Texas family law, a child’s parents have certain rights and duties regarding their children, including the right of possession and the right to make certain decisions related to them.  Parents also have the duties to support, care for, and protect their children.  Though in some cases, the parent-child relationship must be established.

In a recent case, a child’s alleged biological father petitioned to establish paternity several years after the child was born. The child’s mother had been married to her husband since 2008.  The child was born in July 2010.  According to the appeals court’s opinion, the mother also had a sexual relationship with the petitioner for about four years, including the approximate period of the child’s conception. The mother told the petitioner he was the child’s biological father during and after the pregnancy.

The husband believed he was the child’s biological father during the pregnancy and for at least the first four years of the child’s life.  The child knows the husband as his father.

Continue reading →

Published on:

A court in a Texas divorce case may only order spousal maintenance if certain conditions are met.  The court must then consider relevant factors in determining the duration, amount, and manner of the payments.  The other spouse may challenge a maintenance award if there is insufficient evidence to support a finding of eligibility for maintenance or if the trial court abused its discretion in ordering the specific award.

In a recent case, a husband challenged a maintenance award and the property division in his divorce.

Under Tex. Fam. Code Section 8.051, a spouse may receive spousal maintenance if he or she cannot earn enough income to meet his or her “minimum reasonable needs” due to certain specified circumstances.  In this instance, the applicable provision of the statute provides that a spouse may be eligible for maintenance if he or she does not have the ability to make sufficient income to meet his or her minimum reasonable needs and has been married for at least 10 years.

Continue reading →

Published on:

In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue.  In other cases, however, one parent has moved away and there may be a dispute over jurisdiction.  Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody.  The family lived in South Carolina when the child was born, but moved to Texas a few months later.  They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then.  They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas.  He sought the exclusive right to designate the child’s primary residence.  The Texas court entered temporary orders. The father added a divorce petition.

Continue reading →

Published on:

In a Texas divorce case, a mediated settlement agreement (MSA) that meets the requirements set forth in the Texas Family Code is binding and cannot be revoked. Furthermore, the parties are entitled to judgment on such an MSA during the court’s plenary power.

In a recent case, a husband challenged a final decree nunc pro nunc issued by the court after the original final divorce decree failed to conform to the MSA.  The parties executed a binding MSA, which awarded the husband $50,000 of the wife’s 401(k).  However, when the court signed the agreed final decree, it awarded him $100,000 of the wife’s 401(k).  The decree noted the agreements were reached in mediation and it was “stipulated to represent a merger of a [MSA]…” No post-trial motion was filed and the court lost plenary power.

The husband later filed a Qualified Domestic Relations Order awarding him $100,000 of the wife’s 401(k).  The wife moved for a judgment nunc pro tunc on the grounds a clerical error in the final decree erroneously divided the estate in a way that was not compliant with the MSA.  She asked the court to correct that error.  The husband argued it was a judicial error that the court could not change.  The court signed a final decree of divorce nunc pro tunc awarding the husband $50,000 of the 401(k).  The husband appealed.

Continue reading →

Published on:

Texas divorce cases are never easy, but can become even more complicated when one or both parents have mental health problems.  Mental health problems may, but do not necessarily, affect a parent’s competence to testify or participate in the proceedings.  Depending on the nature of the mental health problems, they may also affect the parent’s ability to care for the child.

In a recent case, a mother challenged a trial court’s order appointing the father as sole managing conservator.  According to the appeals court’s opinion, the husband filed for divorce when the child was just eight months old.  The trial court issued a temporary order appointing both parents temporary managing conservators.  The father was working in Las Vegas at the time and was granted possession on weekends when he was in San Antonio, with the mother having the child the rest of the time.  Both parents were ordered to participate in psychological evaluations.

The court limited the mother’s contact with the child to supervised visits after receiving the psychological evaluations.  The child was to live with his paternal grandmother in San Antonio, but granted the father possession when he was in San Antonio.

Continue reading →

Published on:

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.”

Continue reading →