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Parties to a Texas divorce or a suit affecting the parent-child relationship may enter a mediated settlement agreement.  To be a binding mediated settlement agreement, the agreement must meet certain statutory requirements.  If it meets the requirements, the agreement is binding and the parties may obtain a judgment on it.

In a recent case, a father challenged a mediated settlement agreement.  After the divorce, the mother petitioned for modification of the parent-child relationship and the parties reached a settlement agreement in 2012.  They reached additional agreements in 2014 and sought to have the trial courts render those agreements into a judgment.  Each party moved to enter an agreed final order, but the proposed orders did not match.  The court signed the father’s proposed judgment, and the mother moved for a new trial.  Before the motion was decided, the parties signed a new mediated settlement agreement (MSA) following another mediation in 2015.  The mother filed a notice of settlement agreement.  A proposed order granting the mother’s motion for new trial and vacating the previous judgment was filed, but the trial court did not sign it.

A few months later, the mother petitioned to enforce the 2015 MSA.  The court granted the mother’s motion to compel arbitration and ultimately rendered the arbitrator’s award into a judgment.

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A parent can seek enforcement of the custody provisions of a court order through contempt of court.  Texas custody attorneys know, however, that contempt is only available if the original order is clear and specific enough to allow the other person to readily know what duties or obligations are expected of him or her.

In a recent case, a father sought contempt against his child’s mother.  The father moved for enforcement of possession or access to his child.  He asked that the court hold the child’s mother in contempt for violating his visitation rights in the divorce decree.  In the alternative, he requested that the court issue a clarifying order if it found the previous order was not specific enough to enforce through contempt.  The mother moved to dismiss the motion. The trial court granted the mother’s oral motion for dismissal of the father’s motion and the father appealed.

The appeals court noted that the trial court’s refusal to hold the mother in contempt was not appealable, but the dismissal of the father’s request for clarification was.

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In a Texas divorce, the parties are sometimes able to reach a mediated settlement agreement (MSA).  Texas Family Code Section 6.602 sets out the requirements for an MSA to be binding.  To be binding the MSA must include a “prominently displayed statement” that it is not subject to revocation.  It must be signed by each party and by the party’s attorney if the attorney is present at the time the agreement is signed.  Sometimes, however, after reaching agreement on the terms of an MSA, the parties do not agree on what those terms really mean.

A wife recently appealed an amended Qualified Domestic Relations Order (QDRO) on the grounds it did not accurately reflect the parties’ MSA.  The parties had agreed on a MSA and were divorced in 2012.  The MSA set forth distribution of the husband’s Texas Municipal Retirement System (TMRS) retirement plan.  It provided he would keep the retirement through his employment.  If the retirement exceeded $100,000 as of the date of the MSA, the excess was to be divided equally between the parties.

The divorce decree stated that if the amount exceeded $100,000 as of January 12, 2012, the excess was to be divided equally between the parties.  The trial court signed a QDRO on July 10, 2013, but TMRS rejected it.  The trial court signed an amended order that stated the wife was awarded a portion of benefits payable which the husband may become entitled to receive from the retirement plan through accumulated contributions or annuity.  The order set forth the calculation for determining the wife’s portion. The court subsequently amended the QDRO again, setting out a specific number for part of the calculation.  The husband moved to set aside the Second Amended QDRO, arguing it allowed the wife to receive payment of interest that was not included in the MSA.  He also argued that the wife’s share should not include municipal contributions.  The trial court changed the calculation to exclude municipal contributions and signed a Third Amended QDRO.

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In Texas divorce cases, understanding procedure is very important.  Missing a deadline can have serious and irreparable consequences.  In a recent case, an ex-husband attempted to challenge a clarification order more than four years after it was issued.

The trial court signed a final divorce decree in April, 2011.  The ex-wife moved for clarification of some of the divorce decree provisions.  In August 2011, the court signed a clarification order.  The court subsequently signed two orders of contempt and an income withholding order.

The ex-husband filled a bill of review more than four years after the clarification order was signed.  The ex-husband alleged the clarification order was void because it was an improper modification of the divorce decree pursuant to Texas Family Code Section 9.007.  The ex-wife argued the ex-husband’s position was barred because it was outside the statute of limitations and the clarification order was not void. The trial court denied the petition, and the ex-husband appealed. He argued that the trial court erred in denying the petition because he had shown the clarification order was void.

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In a Texas divorce case, failure to follow the required procedures can result in the loss of property.  Parties should take care to identify all of the property that needs to be divided.  Additionally, if the court fails to address certain property in its findings, then the party must follow the appropriate procedures or may risk waiving that issue, as occurred in a recent case.

The parties married in 2007 and the husband filed for divorce in 2014.  He had been in the dairy business for many years and owned several properties at the time of the marriage.  The dairy sold milk and the court entered a temporary order granting the wife the proceeds from the “milk store” instead of spousal support.  She received a total of about $27,000 while the divorce was pending.  The wife agreed the husband bought some of the properties, including the dairy, before the marriage.

The wife appealed the property division.  She sought reimbursement for half of the value of taxes the community estate allegedly paid for the husband’s separate property during the marriage, the value of loans allegedly paid by the community to acquire goods and improvements for the dairy during the marriage, and the value of her separate property 401k used to improve the dairy.

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A Texas custody order can generally only be modified if there has been a material and substantial change in circumstances and if the modification is in the child’s best interest.  Texas courts have developed a non-exhaustive list of nine factors to be considered to determine the best interest of the child.  In some cases, a parent seeks modification because of attempted alienation by the other parent.

In a recent case, both parents sought modification of the original custody order.  Under the original agreed  order, both parents were joint managing conservators, the child lived with the mother, and the father had visitation rights.  The mother had the exclusive right to determine the child’s domicile and direct his education.  The parents shared the right to direct the child’s medical and psychiatric care.  The child was to be transferred for visitation at a designated location.

According to the opinion, the mother began refusing to transfer the child unless a police officer was present.  The father filed suit to change the transfer location to a police department.  The mother petitioned for supervised visitation with the father and to be named the sole managing conservator.  The father sought the exclusive right to determine domicile.

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Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations.  A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period.  TEX. FAM. CODE ANN. § 6.301.  Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent.  For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.

The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding.  According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record.  Both parties testified that they and the children had lived in North Carolina continuously for the previous six years.  The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.

The wife argued Texas did not have subject-matter jurisdiction.  The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas.  The trial court also found the father was not a resident of Kendall County, Texas.  The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce.  The husband appealed.  The appeals court identified two separate issues in this case: the divorce and the custody.

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Chapter 8 of the Texas Family Code sets forth the circumstances under which a court in a Texas divorce case may order spousal maintenance.  Pursuant to section 8.051, the court may order maintenance if the spouse requesting it lacks sufficient property to provide for his or her minimum needs and meets one of the other enumerated conditions, related to family violence, disability, marriage lasting at least 10 years,  or a disabled child.  If a party disagrees with a maintenance obligation, it is best to challenge it immediately.  A Texas appeals court recently considered whether a trial court appropriately terminated a maintenance obligation the husband challenged in response to the wife’s enforcement petition rather than through a direct appeal.

According to the appeals court opinion, the couple divorced in 2014 and stipulated in an agreed divorce decree that the wife was eligible for maintenance under chapter 8 of the Family Code.  The trial court ordered the husband to pay spousal maintenance until either party’s death, the wife’s remarriage, or further orders of the court.  The husband was to provide his payroll statement to the wife on request.

Nearly three years later, the wife petitioned for enforcement of the maintenance.  She argued the husband had refused to provide his payroll statement. She asked the court to enter a clarifying order if it found any part of the decree to be insufficiently specific to be enforced.

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The Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense.  A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue.  The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.

In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition.  In June 2015, the wife filed for divorce and the husband filed a counterpetition.  The wife alleged the husband had assaulted her and committed adultery.  She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister.  The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.

When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges.  During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege.  He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…”  He refused to answer questions regarding his income, assets, and a list of property.  He also refused to identify documents.  There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.

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In Texas custody cases, the best interest of the child is to be the primary consideration.  In Texas, courts may consider a variety of factors in determining what is in the child’s best interest.  These factors include the child’s desires, the child’s current and future physical and emotional needs, any current or future physical or emotional danger to the child, parental abilities of those seeking custody, the programs available to each party, each party’s plans for the child, the stability of the home, any acts or omissions of the parent that could indicate the relationship with the child is not proper, and any excuse for those acts or omissions.  The court is not limited to these factors, nor does it have to consider all of them.

In a recent case, a father challenged a court’s finding that granting the mother the right to determine the children’s primary residence was in the children’s best interest.  The parents’ relationship ended shortly after their twin sons were born in 2011.  The trial court originally appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence.  A modification in 2014 gave the father the exclusive right to determine primary residence and allowed the mother access to the children under a schedule.  Pursuant to the order, the mother had the option to pick up the children on evenings the father was scheduled to work later than 10 pm.

The mother petitioned for the right to determine the primary residence in 2016.  She testified the father had his sister take care of the children when he was not available and prevented her from accessing them.  She testified she thought the children lived with their father’s sister.  She argued she could provide them more structure and stability than their father could.

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