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houseIn a recent Texas appellate decision, a wife appealed a judgment dividing a community estate between her and her husband. She argued that the trial court should have ordered the husband to reimburse her for certain expenses.

The couple had married in 2004 and divorced in 2013. The lower court awarded the wife a community residence as separate property. The appellate court court held that this residence was improperly included in the community estate, and it sent the matter back down for a new property division trial.

After that, the wife asked the court to reimburse her for money she’d spent on a house in Fort Worth, as well as what she’d paid to satisfy the husband’s premarital debts and premiums she’d paid on his insurance policies. She asked to be named the beneficiary of the husband’s life insurance policy if she weren’t awarded reimbursement for premiums she’d already paid. The lower court held a hearing on the reimbursement issue.

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Downs syndromeIn a recent Texas appellate decision, a father raised four issues related to a lower court’s provision of child support for his adult disabled child, among other things. The couple was married in 1992 and had two kids, TWG and a minor daughter, EAG. In 2008, the father left the mother to move in with his girlfriend, only to move back in a few months later, claiming the other relationship was over. The mother and father signed a lease with a term of one year, but in another few months, the father left for his girlfriend again, which saddled the mother with $4,000 for the remainder of the lease.

The father had a child with his girlfriend and didn’t pay child support to either of his minor children with the mother until 2011, when the mother asked for child support through the Attorney General’s Office. The father began paying monthly child support but provided no other financial assistance and eventually sued for divorce. The mother counter-petitioned, asking for child support for both kids, a disproportionate share of the community estate, and damages from the father’s girlfriend.

The mother explained to the court that her adult son, TWG, had agenesis of the corpus collosum, a condition in which the fibers linking the right brain to the left brain had never developed. The son lived with his mother and would need support his whole life. He’d never gone to college and wasn’t employed. He saw a doctor every year and spent the night with the father in 2015 2-3 times in total. He required adult care, which cost $500 per month, and got a certain amount in SSI and SNAP benefits.

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Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.

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briefcaseA recent Texas appeal concerned property division in a divorce. The case arose when a couple got married in 2004 and then separated in 2011. The wife filed for divorce in 2013, and the husband countersued, alleging fraud, breach of fiduciary duty, conspiracy, and other claims against the wife, some business entities, and the wife’s three adult daughters.

Certain business entities were operated by both the husband and the wife. However, the husband claimed that some of the other business entities were created by the wife in the name of her daughters, using community funds, in order to defraud the community estate.

The daughter asked for summary judgment before trial, and this motion was granted. After a bench trial, the court entered a final divorce decree dividing the marital estate between the parties. The wife appealed. She argued that the husband had been awarded a disproportionate share of the marital estate and that this was an abuse of discretion.

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In a recent Texas Supreme Court case, the Court considered a mediated settlement agreement related to a discretionary employee bonus. The issue was whether the agreement partitioned a discretionary employee bonus that the husband got nine months after the divorce was granted. The husband argued that it was future income and earnings that the agreement partitioned to him, but the wife argued it was earned during the marriage and should be considered undivided community property.

The couple in question married in 1980. The husband worked at an energy and commodity trading company starting in 1992. As part of his employment, he was eligible for an annual discretionary bonus. This wasn’t guaranteed but would be awarded based on performance. While married, he got a bonus every year.

The wife sued for divorce in 2008, and the couple agreed to divide $10 million of community assets with $5 million to each spouse. However, since they couldn’t resolve other differences, they entered into mediation from which they developed a mediated settlement agreement. This agreement partitioned other property, including retirement plans and jewelry. The husband claimed that the bonus he’d gotten in 2010 before the finalizing of the mediation settlement agreement went into an account awarded to his wife.

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childIn a recent Texas appellate case, the court considered an appeal of a divorce decree. The father challenged the part of the trial court’s order that determined deviating from a standard possession schedule was in his children’s best interest. The trial court had ordered he have access to the kids on Saturdays from 10-6 every other week.

The case arose from a couple’s second marriage to each other. They were first married in an arranged marriage in India and then moved to the United States. Before their first child was born, the father left. The father wasn’t a United States citizen and went back to India during their separation. He communicated with the baby through Skype.

The mother got a default divorce, and a standard possession order was put in place. She later testified she didn’t mind this because the father was in India anyway. He visited in 2012 and gave his child a birthday gift. The couple got remarried. The father claimed he remarried the mother because he loved the child and felt he had to remarry her if he wanted to be in his daughter’s life. The mother testified she’d remarried him because he’d promised not to leave her again.

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statueIn a recent Texas appellate decision, a wife appealed from an order that denied her petition to enforce and to clarify the divorce order. The husband and wife had divorced in 1990 and stipulated to the divorce decree. At that time, the husband had retired from the United States Army and got retirement pay on a monthly basis. The divorce decree determined that the community interest in the monthly retirement benefit was 80%, and the cost of living-related increases would be made periodically and would likely need to occur in the future.

The wife was awarded a portion of the retirement benefit. The wife was entitled to 50% of the cost-of-living increases (COLA) to which the husband would become entitled from the date of the divorce to the death of the husband. In 2000, the wife asked the court to clarify the divorce decree and enforce her part of the COLA.

The judge decided she was entitled to $774.02 as her portion of COLA benefits that hadn’t already been paid by the husband. She appealed. The referring court adopted the judge’s finding that she could get clarification of the divorce decree and that she should be given 50% of the COLA benefits. It reversed the exact amount that should be awarded. Specifically, it ordered that she would be entitled to $391 each month of the retirement pay plus half of any COLAs when they were received. She was awarded $7,628 for all of the past COLA payments that the ex-husband had not paid. Nobody appealed this award.

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wedding ringIn a recent case, a Texas appellate court considered a motion by an ex-wife to compel her former husband to produce financial records. The husband petitioned for divorce from the wife in 2008. He was employed by a limited liability company and also participated in other limited liability partnerships with his employer, from which he received income.

During the divorce, the court addressed how the husband’s interest and income derived from the limited liability partnerships would be divided. Both parties submitted their proposed divisions to the court. The court divided the marital estate in 2009 and adopted the husband’s proposed division. This gave the wife more than $3.2 million and other property, as well as 50% of the estimated income from one limited liability partnership for 2008.

The husband got the entire interest in both limited liability partnerships other than what was expressly awarded to the wife. The appellate court affirmed the divorce decree and found that the wife was estopped from challenging the division on appeal because she’d accepted the benefits of the property division. There was further litigation about the income from the partnerships, as well as other post-divorce litigation to modify various aspects of the judgment.

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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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