Articles Posted in Divorce

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Courts will not generally grant a Texas divorce during the pregnancy of a spouse.  Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce.  Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence.  The paperwork can be filed and the process initiated during the pregnancy.  The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree.  If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways.  First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father.  This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father.  Otherwise, the presumption may only be rebutted by an adjudication of paternity.

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Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved.  Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples.  In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents.  The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective.  In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child.  Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together.  While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.

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Many couples facing a Texas divorce seek alternative dispute resolutions, such as arbitration or mediation.  Parties to an arbitration are entitled to an impartial arbitrator.  The Texas Arbitration Act requires a court to vacate an arbitration award on the application of a party if that party’s rights were prejudiced by “evident partiality” of an arbitrator.  The award should be vacated if the arbitrator does not disclose information that might give an objective observer a reasonable impression that the arbitrator is partial.  The requirement to disclose applies whether the conflict arises before or during the proceedings.  The nondisclosure itself establishes evident partiality, regardless of whether there is actual partiality or bias.  Texas courts have acknowledged that extensive experience in the area of law related to the dispute will result in a need for the arbitrator to disclose prior dealings with parties or attorneys.  However, the parties should be informed and have the opportunity to evaluate the potential bias ahead of time.

In a recent case, a wife challenged an arbitration award based on the arbitrator’s failure to disclose his connection to the husband’s attorney.  The parties agreed to arbitration pursuant to their pre-marital agreement. In the initial status conference, the arbitrator said he did not have a material relationship with either party or their attorneys beyond normal professional relationships. He did not supplement his disclosures after a new attorney filed a notice of appearance on behalf of the husband as co-counsel.

When the arbitrator failed to issue an award within the time frame set by the court, the husband’s attorney requested a ruling.  In her email, she stated, “You know how much I think of you as a friend and a lawyer . . .”   The arbitrator issued the award several days after the email, ruling in favor of the husband and against most of the wife’s claims.

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In a Texas divorce, there is a presumption that property possessed by either spouse during the marriage or at the time of the divorce is community property, unless there is clear and convincing evidence otherwise.  Separate property is property that is owned or claimed by one spouse prior to the marriage.

A wife recently challenged a court’s finding that certain property, the couple’s residence, was the husband’s separate property.  The property was conveyed to the couple from the husband’s son and daughter-in-law by warranty deed.  The husband and wife both testified the conveyance was a trade of real property and there was no additional consideration given.  The husband testified he traded a tract of land he owned before the marriage.  The wife argued, however, that the husband did not establish that he owned the tract prior to the marriage.

If property is acquired in exchange for separate property, the acquired property also becomes separate property. Thus, if the husband established that the tract was his separate property, then the residence would also be his separate property.

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Property division in a Texas divorce must be equitable.  In dividing the property, the court may consider amounts from the community estate that a party has dissipated or wasted.  In a recent case, a husband appealed the divorce decree arguing that there was insufficient evidence to support the division and that the division was manifestly unjust and unfair.

The couple had been married for about 40 years when the wife filed for divorce.  An associate judge issued a final divorce decree in 2015. The wife filed a motion for a new trial, which was granted.

The couple lived in a trailer home on an undivided tract of land.  The husband ran his electrician business from the trailer and stored the heavy equipment he used for the business in the barn.  This real property was awarded to the husband in the original trial.  After the second trial, the property was partitioned into two tracts.  The property division awarded Tract A with the trailer to the husband and Tract B with the barn to the wife.

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Sometimes courts make mistakes.  When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days.  If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.

A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error.  The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only.  The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife.  The divorce decree did not reflect this award.

The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division.  The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous.  The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.

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A Texas divorce case is not always over when the judge signs the final divorce decree.  The decree sets forth the property division, but the parties must take action to achieve the division.  If party fails to surrender property, the other party may need to file a motion to enforce the property division in the decree.  A former husband recently challenged an enforcement order, arguing that the motion had not been filed timely and the claim was time-barred.

The couple divorced in 2012.  The wife moved for enforcement of the agreed divorce decree in 2016.  She also petitioned for breach of alimony contract.  The court held a bench trial and subsequently signed an enforcement order, ordering the husband to make the payments to satisfy the funds transfers required by the decree, to make the unpaid alimony payments, to provide health insurance for the children and reimburse the mother for the premiums she had paid, add the mother to the custodial accounts for the children, and pay the mother’s attorney’s fees.  The husband appealed.

The husband argued the portions of the order awarding funds to the wife were barred by the statute of limitations.  Section 9.003 of the Texas Family Code requires a suit to enforce division of tangible personal property to be filed within two years from the date the decree was signed or becomes final after appeal.

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When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce.  However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed.  The petitioner must present evidence that supports the material allegations.  If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree.  The husband did not answer the divorce petition.  Only the wife appeared and testified at the final hearing.  The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate.  To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames.  Furthermore, he must also show that there is an error apparent on the record’s face.  The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal.  He had timely filed his restricted appeal.  He had not answered the petition or participated in the hearing.  Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal.  Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences.  The appeals court found the trial court had made factually based decisions without supporting evidence.  The trial court made decisions relating to conservatorship and visitation.  It ordered the husband to pay child support.  The court also divided the community estate.  The appeals court therefore found there was error apparent on the face of the record.

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Usually, in a Texas divorce case, both parties know and agree that they were married.  In some cases, however, the parties may disagree as to whether there has been an informal marriage.  An informal marriage can be proven by showing that the couple agreed to be married, subsequently lived together in Texas as spouses, and represented themselves as married.  TEX. FAM. CODE ANN. § 2.401.  Texas courts have held that evidence that the parties held themselves out as married must be particularly convincing and be more than occasional references to each other as husband or wife.

A mother recently challenged a court’s finding that she had not been informally married to the father of her children.  The couple had two children together, one who was six and the other who was 21.  The mother petitioned for divorce, arguing that she and the father married on or about 1996.  In his answer, the father stated there was no existing marriage.

At the hearing, the mother testified that she believed she and the father had agreed to be informally married when they moved in together.  She said the father introduced her to his friends and family as his wife.  She admitted, however, that she always filed her taxes as single.  She also conceded that her name was not on the deed to the house, and it instead named the father and his father as the owners.

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When a court divides property in a Texas divorce, it presumes all property possessed by either spouse during the marriage or upon the divorce is community property.  Community property is all property acquired by other spouse during the marriage, other than separate property.  Separate property is either property owned or claimed by the spouse before the marriage or acquired by one spouse during the marriage by gift, devise, or descent.  Personal injury recoveries are separate property, but the community estate may recover for medical expenses , lost earning capacity, and other expenses the community estate incurred due to the injury.  The spouse asserting that the property is separate has the burden of showing which part of the settlement is separate property.  Language in a settlement agreement identifying the basis for the payment may displace the presumption of community property and create a new presumption that the funds are separate property.  In such cases, the spouse claiming the property is community property must provide evidence to rebut the presumption that it is separate.

A husband recently challenged the trial court’s property division, partly because it denied his reimbursement claim related to funds from a settlement.  He had settled a discrimination claim against his employer during the marriage.  The settlement included mental anguish, pain and suffering, and physical injuries, but did not include back pay or front pay.  He agreed to resign as part of the settlement.  He deposited the funds into a savings account.

Funds from the savings account were used to make a down payment on the couple’s home, the monthly mortgage, and the final payment.  The mortgage was in the husband’s name, but the deed was in both names.

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