Posts

Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Originally published by Francesca Blackard.

By

A court generally may not amend or change the property division made in a Texas divorce decree.  The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation.  If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007.  Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets.  They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.

In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized.  The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.

The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …”  The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce.  The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts.  The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO.  It also said it would become an integral part of the divorce decree.

 

The ex-wife received the funds from the QDRO.  In 2015, the ex-wife petitioned for another QDRO and the court signed it, with a valuation date of July 15, 2015.  The husband said he was not given notice of the hearing and that neither the petition nor the QDRO were on file with the court before the hearing.

The ex-wife did not receive the funds from the 2015 QDRO.  She filed an amended QDRO in April 2016 with a 2015 valuation date, but the trial court did not sign it.  She filed a petition to enter an amended QDRO the following month, with the 2015 valuation date and amount.

In April 2017, the husband filed a petition for bill of review of the divorce decree.  He asked the court to clarify that the retirement benefits were to be divided as they existed on the date of the divorce.  He argued the court did not have jurisdiction to sign the 2015 QDRO because it conflicted with the divorce decree and the 1995 QDRO. The ex-wife then filed another amended petition to enter a QDRO.  After a hearing, the trial court granted the bill of review, modified the decree, and set aside the 2015 QDRO.

The ex-wife filed a response, arguing the bill of review had been untimely.  The court then signed a “Court’s Rendition,” in which it denied the bill of review, set aside the reformed decree and QDRO, and reinstated the original decree.

The ex-wife then filed another proposed QDRO, but the trial court did not enter it due to a missing signature.  She filed a “Motion to Sign QDRO.” The docket entry indicated that the motion was not properly served, and the hearing was rescheduled.  The husband’s attorney argued the 1995 QDRO divested the ex-wife of all interest in the fund.  The trial court denied the motion, finding the 1995 QDRO awarded the wife half the funds as of the date of divorce and that she was not entitled to anything else from the fund.

The trial court denied the wife’s motion for a new trial. She appealed, arguing the divorce decree had awarded her half of the fund through the ex-husband’s last date of employment.  The ex-husband argued that the proposed QDRO was an impermissible collateral attack on the 1995 QDRO.

The appeals court noted that a QDRO is a final, appealable order.  A party who does not appeal a QDRO may not collaterally attack it through a separate proceeding.  The appeals court found that the ex-wife’s motion to enter a new proposed QDRO filed so many years after the divorce was such a collateral attack.

The court also noted that the 1995 QDRO awarded the ex-wife half of the fund as it was valued on the date of the divorce and divested her of any further interest.  The QDRO she sought to have entered would have awarded her a share of all amounts contributed on behalf of the ex-husband “in the past, present, and future.” The ex-wife received the funds she was awarded in the 1995 QDRO in 1995.  Her proposed QDRO sought to avoid the effect of the decree and the 1995 QDRO, making it a collateral attack.

The appeals court also rejected the ex-wife’s argument that she was entitled to QDROs awarding her half of the ex-husband’s other benefits and employer-based savings plans through his past, present and future employment.  The court found she was also barred from collaterally attacking the division as to these benefits as well.

The appeals court affirmed the trial court’s denial of the motion to sign the QDRO.

Although this case is procedurally complex, it illustrates the importance of addressing issues promptly through the appropriate procedures.  If you think your marriage may be ending, a skilled Texas divorce attorney can help you through the difficult process.  Schedule an appointment with McClure Law Group by calling 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Originally published by Robert Epstein.

By

Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children.  In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent.  In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage.  The mother moved to another town and filed for divorce.  The decree required the father to use a Soberlink alcohol monitoring device before and during visitation.  The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits.  She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity.  She also alleged the father failed one of his alcohol tests.

 

The father filed a counter petition, asking for standard visitation with exchange of the children occurring about midway between the parents’ homes in Alice.  He claimed the modifications were in the children’s best interests and that there was a material and substantial change in circumstances since the divorce decree.

The trial court ordered a mental evaluation of the father, and based on that evaluation, allowed him unsupervised overnight visitation. The trial court issued a final order granting standard unsupervised visitation, omitting the Soberlink requirement, and requiring the parents to meet in Alice to exchange the children.

The mother appealed, arguing the trial court abused its discretion in ordering the parents to exchange the children in Alice.  Pursuant to Tex. Fam. Ann. § 153.316, the court must order the parents to surrender the children at one of their homes.  The appeals court noted, however, that this section only applies to the original possession order, and this case involved a modification.  Modifications are governed instead by § 156.101, which allows modification of a possession order if it is in the children’s best interest and the circumstances have changed.  The mother had alleged a change of circumstances in her own petition to modify.  Under Texas case law, that allegation of changed circumstances constituted a judicial admission for purposes of the other father’s similar pleading.

The mother argued exchanging the children in Alice was not in their best interest.  The appeals court noted, however, that there was evidence supporting a conclusion that meeting in Alice was in the children’s best interests.  The father testified he had not exercised his right to communicate with his children electronically because the mother had stated she would not allow them to communicate through video-teleconference or Skype.  He claimed she was trying to prevent him from having a strong relationship with his children.  He asked the court to have them meet in Alice if standard visitation was granted.  He said it was a little more than halfway for him and he thought it was in the children’s best interests for him to be in their lives.

The mother’s attorney argued she was working on her master’s degree in clinical psychology and was required to be at a facility all day and could not get from work to Alice at the scheduled time.  The father offered to change the time, but pointed out it would only be once a month.  The court agreed to order the weekend visitation exchange to occur in Alice.

The appeals court found there testimony that seeing their father more often was in the children’s best interests and found no abuse of discretion in the court ordering the exchange to occur in Alice.

The mother also argued the court abused its discretion in eliminating the Soberlink requirement.  The divorce decree required sobriety testing before and during the father’s time with the children for five years after the divorce.  The mother argued the father had not requested the removal of the condition and the judgment had to conform to the pleadings. The appeals court noted, however, that the best interests of the children are the most important issue in custody cases, and technical rules should not interfere with acting in their best interests.  The appeals court found that the trial court did not abuse its discretion in not conforming to the pleadings if it did not do so arbitrarily.

The mother argued the Soberlink requirement was in the children’s best interests.  The father testified he used a breathalyzer twice a day for another court and did not have any violations.  The mother offered evidence of an alleged positive Soberlink test result, but the father testified it was a false positive and another test six minutes later was confirmed at 0.000.  The trial court found the first test was a false positive. The court further stated the father testified he was receiving psychological and psychiatric treatment.  The appeals court found no abuse of discretion in the trial court’s elimination of the Soberlink requirement because there was some evidence it was no longer in the children’s best interests.

The mother also argued the trial court erred in granting overnight visitation to the father.  The children’s counselor testified that “It would be very difficult and traumatic for them to be away from their mother at night.”

The father argued the original divorce decree granted him unsupervised overnight visits.  The father’s psychological evaluation resulted in a recommendation the father have full access to his children with standard visitation.  The appeals court found the trial court had sufficient evidence to exercise its discretion and did not abuse its discretion.  There was evidence it was in the children’s best interests to have unsupervised, overnight visits with the father.

The appeals court affirmed the trial court’s judgment.

If you are seeking or fighting a modification of a custody order, an experienced Texas custody attorney can help you fight for your children.  Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

Can A Court Order for Post-Divorce Spousal Maintenance Be Modified?

Originally published by San Antonio, TX Family Law and Military Divorce Blog.

Yes, it can.  The Petitioner or Movant must file a Motion to Modify Post-Divorce Spousal Maintenance in the Court that made the initial order.  Procedures for filing an original suit apply, which means the former spouse receiving maintenance must be served with citation.

At an evidentiary hearing, the Movant bears the burden of proving that a material and substantial change has occurred such that the Movant no longer can longer afford to pay the Court-ordered amount.  In proving that a material and substantial change has occurred, the Movant must prove the facts and circumstances that existed at time of the original order and the facts and circumstances that exist now.

Whether the comparison proves to be “material and substantial” is determined at the judge’s discretion.  If proved, the amount of reduction is at the judge’s discretion.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firm specializes in Federal Civil Service and Military Divorce matters.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

Let’s Talk Divorce: 4 Ways The Family Court Fails To Protect Women During High Conflict Divorce

Let’s Talk Divorce: 4 Ways The Family Court Fails To Protect Women During High Conflict Divorce



 

We hear a lot about how women are favored during divorce but, in my opinion, the opposite is true. No one can hold onto resentment and anger like a man and nothing proves that more than the outrageous behavior by some during a high conflict divorce.

A woman’s only recourse is the protections afforded her by the Family Court and, bless our hearts, there aren’t many protections there.

I know a woman who has been divorced for over 12 years and still has legal issues with her ex. He constantly files a petition or motion with the court. It can be for something as simple as extracurricular activities her children are involved with to not liking the therapist her children are seeing. He makes NO attempt to negotiate and settle issues with the mother of his children. There is no emailing back and forth over a certain situation. He goes straight to the courts.

A woman has no defense against such a man. She is vulnerable to such a man’s whims because the Family Court allows the nonsense to continue year after year.

She has NO protection!

4 Ways The Family Court Fails to Protect Women During High Conflict Divorce

1. Failure to Protect Against Defiant Exes

If a woman is divorced from a man who defies court orders, she has no recourse via the Family Court. She can file a contempt of court motion but that’s like pissing into the wind. She will spend money on an attorney only to get a new order and listen to a judge tell her ex to “get it done or else,” and the or else never happens. The problem with contempt of court is this, a new court order means nothing to a man with a history of defying court orders.

2. No Protection from Crushing Financial Expense of Divorce

Most women going through the divorce process are stay-at-home Moms or the lower income earner in the marriage. They start the divorce process in a one-down position because they don’t have access to the best attorneys and experts to advocate for them. The Family Court takes none of this into consideration during the process and there is an old saying that is true, “the one with the money wins in Family Court.”

3. No Protection for Victims of Domestic Abuse

Victims of domestic violence are especially vulnerable in the Family Court system. Their main concern is naturally protecting their children from a violent man and with the courts’ main focus on not separating a child from a parent, the domestic abuse victim has to have substantial evidence of abuse to protect their children via the court.

What professionals fail to realize is that women in abusive situations don’t call attention to their abuse. Doing so can only lead to more abuse. So, instead of going to the emergency room so they’ve have a record of injuries or filing police reports, they stay quiet out of fear of inviting more abuse upon themselves and their children.

If a woman doesn’t have substantial evidence of abuse and brings up accusations of abuse in court she can be viewed as making false allegations of abuse and attempting to alienate a father from his child. Women all over the country are losing custody rights to violent men due to the lack of protection abuse women received in the Family Court.

4. Failure to Protect Children from Harm

If you’re divorced from a bully hell-bent on using your child as a pawn to punish you, the “best interest” doctrine, flies right out the window. A Family Court judge will NOT hold a man harming his children emotionally, accountable. I think they believe that a bad father is worse than no father so, purposely put children in harm’s way so they can tell themselves “at least the child still has 2 parents.” And, as someone who raised her children alone, with no contact from their father, I can say that, that belief is straight up BS!

The post Let’s Talk Divorce: 4 Ways The Family Court Fails To Protect Women During High Conflict Divorce appeared first on Divorced Moms.

Read More –>

online dating profiles

Only Dating Profiles: How They Can Be Used In Divorce Court

online dating profiles

 

What was once considered fringe is now a full-fledged industry worth over $2 billion dollars. Dating apps like Tinder, OkCupid, Bumble, Hinge, and Coffee Meets Bagel have become a commonplace tool for those looking to find love.

They connect individuals to dozens of potential love interests to foster connections that otherwise may not have been made within the confines of everyday life. While the benefits of online dating are numerous, there are also downsides to the ease of access offered.

Online dating apps can foster choice overload, addiction, and make committing infidelity much easier. An uncommitted spouse could very easily download a dating app and gain instant access to a community of potential people to commit adultery with. Cheating on dating apps is an increasingly common cause of divorce.

If you’re in the midst of a contentious divorce and cheating was involved, you may be wondering what kind of evidence you can use against your spouse or what kind of evidence your spouse can use against you. The admittance of text messages and emails as evidence is now common in divorce cases, but what about dating apps? Can evidence from dating profiles be used as well?

Can Dating Profiles Be Used as Evidence in Divorce?

In short, dating profiles can be used as evidence in court, but there are certain requirements that must be met for the evidence to be admissible. In general, evidence is admissible in divorce court if it is relevant to the case and not confusing, misleading, overly prejudicial, superfluous, or a waste of time.

In terms of relevancy, evidence is considered relevant if it makes a material fact more or less probable than it would be without evidence. Of course, it must also be important to the case to determine if that fact is true or not.

In addition to being relevant, evidence must also be obtained legally and the party asking to admit a certain piece of evidence must be able to authenticate it (establish that the evidence is not fake or forged). If the evidence was obtained unlawfully or it is proven to be fake, it will not be admissible in court.

By this token, dating app profile evidence can be admitted to the court during a divorce if the evidence is lawfully obtained, relevant to the case, and can be authenticated.

On the matter of relevancy, a spouse could argue that dating profile evidence is relevant if accusations of adultery are made. On the other hand, a spouse accused of adultery could argue that dating profile evidence is irrelevant if the dating profile was created after separation, therefore having no bearing on the divorce.

It’s important to note that adultery is not necessarily considered materially relevant to a divorce case in no-fault divorce states. An affair would be considered materially relevant in a no-fault state if marital property was wasted in support of an affair. True no-fault divorce states include:

  • California
  • Colorado
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin

If dating profile evidence comes from friends or family members who screenshot the profile or any match messages from their own dating profiles, the evidence would be considered legally obtained. However, if you snuck onto your spouse’s phone without permission, any resulting evidence would not be admissible.

Last but not least is the matter of authenticity. Because screenshots don’t contain EXIF data, it can be hard to determine if a screenshot is real or photoshopped. A party will have to submit circumstantial evidence that would allow a reasonable judge to conclude the dating profile is real. If a spouse believes someone else is using their photos on a dating profile they did not create or that the screenshots aren’t real, they may be able to successfully defend against the admittance of fake and prejudicial evidence.

Dating App Activity Can Be Tracked

If you suspect your spouse has been cheating on a dating app, but haven’t been able to prove it, or you’ve been cheating on a dating app and aren’t sure if your exploits can be tracked, it’s important to know that there are ways to determine if someone is using a dating app.

Apps like cheaterbuster will scan through Tinder to determine if your spouse has a profile. With the input of name, age, and geographic location, anyone can be found in a matter of seconds if they’ve been using the app. Buzz Humble does the same thing for Bumble and there are many other apps for finding a cheater on other various dating apps. The use of these apps can verify whether or not a profile exists so you can set out to obtain evidence.

Using Dating Profiles as Evidence in a Divorce Case

If you’d like to use your spouse’s dating profile as evidence in divorce court, it’s best to work with your divorce lawyer to obtain the evidence. Again, if you use sneaky or suspicious methods to capture dating profile evidence in a way that violates your spouse’s rights, it will be omitted in a court of law. Your lawyer can help you obtain online or electronic information via a subpoena. With legally obtained dating profile evidence, you can prove your spouse committed adultery.

This article originally appeared on DivorceMag.com

The post Only Dating Profiles: How They Can Be Used In Divorce Court appeared first on Divorced Moms.

Read More –>

Interested in how a divorce court will value your home? Read this blog post to find out how

Interested in how a divorce court will value your home? Read this blog post to find out how

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Once you have hired a licensed real estate appraiser, real estate agent or done a comparable home search on the county appraisal website to determine a likely value for your home, you have done most of the work that is related to value your house for the purpose of selling it. The next thing you to do is consider whether or not you need to remove “incidental” costs associated with the sale of the home from that appraised value.

Incidental costs are things like closing costs and realtor fees. From my experience, these costs are way too speculative to include in the value of the house. Closing costs vary across properties and title companies. There are no specific cases that I am aware of in Texas that say one way or the other how this subject is to be treated. However, I would be willing to argue based on the previous couple points I made that they should not be deducted from the appraised value of the home.

Fair market value is what you are going after when looking for the value of your family home

Anyone of us who took high school economics is likely familiar with the term “fair market value.” This term can be defined as the amount that would be paid in cash by a willing buyer who desires to buy but is not required to buy, to a willing seller who desires to sell but is no under no necessity of selling. That definition is one that is pulled from something called the Texas Pattern Jury Charge. There is no mention of realtor charges or closing costs in that definition. Closing costs vary from transaction to transaction. Realtor costs may not even come into being if a realtor is not used or if the house is never actually sold.

Reimbursement claims and the family home

This is a subject that is near and dear to the heart of almost every person who goes through a divorce. Reimbursement claims can be a difficult subject to explain to clients because it is a concept that tugs at concepts of “fairness” and “equity.” If you contributed income to the separate property of your spouse, in a divorce you have a right to be reimbursed for those monies. However, it can be very difficult to calculate those kinds of claims.

There is nothing in the Texas Family Code that instructs a family court judge on how to calculate to proceed on a reimbursement claim made in conjunction with a divorce case. The judge has full discretion on determining how much reimbursement to award to a petitioning spouse or even whether or not to acknowledge the claim.

For instance, if your spouse has a separate property home with a mortgage on it that has been paid during the course of your marriage then you are in a position where you will need to prove how much of the principal of that mortgage has been reduced during the course of your marriage in order to proceed with a reimbursement claim. Mortgage statements pulled from the internet or requested directly from your lender are a means to do so. Many websites have amortization schedules that show how much of each mortgage payment goes towards principal, interest and escrow funds. Tax returns that show mortgage payments as well.

Finally, another relatively common reimbursement claim that we see in divorce cases is when community money is used to make improvements on a separate property home. An example could be if your spouse and you used your combined incomes to make an improvement on a home that you owned before you two got married. The value of your reimbursement claim would be how much the value of the home increased due to the improvements that were made.

As you could probably guess based on the time we devoted in yesterday and today’s blog posts to determining how to value your family home, this can be quite a difficult job. It is not readily apparent how much a new kitchen, pool, updated bathroom or solar panels on the roof actually added value to the home. A real estate agent can serve as an expert witness in this capacity if it were an issue brought up at trial.

How can your family home be divided in your divorce?

There are many options available to a judge when it comes to dividing up your family home in a divorce. Keep in mind that these options are only available to a judge if you and your spouse cannot come to an agreement on your own when it comes to valuing the home and then either dividing it in a sale or allowing one of you to remain in the home while the other has their community property interest bought out.

Option number one is the clearest cut and simple for a judge: he or she would simply determine that the home is the separate property of either you or your spouse. No muss, no fuss. Next, the house could be awarded to either you or your spouse. Along with this option, the judge could award you the house but allow your spouse to reside in the home for a specific period of time after the divorce. This option could be chosen in the event that your spouse showed that it would be difficult to locate suitable housing quickly after the divorce.

For those of you who reside in rural areas, your real estate could be partitioned by the judge. For instance, consider that if you were awarded the home, your spouse could be awarded the majority of the land surrounding the home to compensate him for the loss he would take in his community property interest in that residence.

Finally, your house could be ordered to be sold and the equity (after closing costs and realtor fees) would be split between you and your spouse based on a percentage.

What happens with the mortgage on your home after a divorce?

This is a very relevant subject to discuss in conjunction with a divorce case. Most of us reading this blog post live in a suburban/urban environment in a single family home. Whether or not you would consider your immediate surroundings to be a neighborhood or not, it is likely that you and your spouse own a home in a neighborhood-type environment where the mortgage on that home bears both your name and that of your spouse. What many attorneys fail to do in connection with a divorce is properly explain what can happen with the mortgage once your divorce is over with. I will seek to provide you with some clarification on this subject so you enter your own divorce with a bit more knowledge.

Let’s say, for example, that your spouse is awarded the family home in your divorce case. He is also ordered to pay the mortgage going forward- a mortgage that has both of your names on it. Here is what I would tell you if you were represented by our office. First, the divorce decree is a legal document that is binding upon you and your spouse but it does not affect your personal obligation under the mortgage contract. If you’re soon to be ex-spouse fails to make payments on time for the mortgage then your credit score gets dinged.

Next, if you do well in the financial portions of your divorce and have a down payment ready to go for your next house you may have trouble qualifying for a mortgage. The reason for this is that your name is already on a mortgage to your former home. Your debt to income ratio will be skewed as a result of your technically owing money on another home. It is theoretically possible to not be able to qualify for a mortgage on your new house if your spouse is not current on payments on the “old” mortgage.

How can you get your name off the joint mortgage to your old house?

That discussion should lead you to ask the question of how, then, can you go about removing your name from the old mortgage to your former home?

One option that I have seen implemented in a final decree of divorce (the final orders for a divorce case in Texas) would be to order your spouse to refinance the home within X number of days from the date the divorce becomes final. No refinance is possible until the divorce is finalized since ownership of the home before that time is still in both your name and his. It is possible that your spouse, while able to be awarded the home in your divorce, does not qualify financially to be able to refinance the mortgage into their own name. A low income, low credit score, bad debt to income ratio or a combination of all of those factors could play into the reason why this is the case.

Another option to pursue could be that your spouse can sign documents that cause him to assume complete responsibility for the mortgage moving forward. The availability of this option depends on your lender. Your spouse should contact the mortgage lender as soon as he becomes aware that he is going to get the house in your divorce to see if this is an option that he can pursue. Again, however, your spouse needs to show that he can qualify for the process of assuming sole responsibility on the mortgage.

If neither of these two options is available then the home will likely be ordered to be sold by the judge. Most judges will not put you or your spouse in a position to fall behind in the mortgage payment and put both of you in a bad financial position. As a result, if no suitable arrangement can be made it is very likely that a sale of your home will commence.

Pulling equity out of your family home in a Texas divorce

Selling the home is by far the easiest method of pulling equity out of your home during a divorce. The equity can then be split between you and your spouse without much fuss, according to the terms of the judge’s orders or your mediated settlement agreement. Usually, if your spouse is awarded the home in your divorce then the equity can be pulled out in the following manners.

If your spouse gets the house, then you will be awarded a community property asset that equals the share of equity that would ordinarily be yours had the house been sold. Or, if there is insufficient community property to divide you may be able to get some portion of your spouse’s community property share as well as a separate property bank account of your spouse’s.

We will discuss the additional ways to cash out the equity stake in a family home in tomorrow’s blog post. We hope that you have enjoyed today’s blog and we will return tomorrow to finish up where we left off by talking more about cashing out equity in the family home.

Questions about divorce and dividing up the family home? Contact the Law Office of Bryan Fagan 

The attorneys with the Law Office of Bryan Fagan stand ready to assist you with any questions or concerns you have regarding your Texas family law case. Our attorneys have represented clients in every family court in southeast Texas and we do so with a great deal of pride.

To learn more about your case, our office or family law, in general, please do not hesitate to contact us today. We offer free of charge consultations six days a week. These consultations are a great opportunity for you to ask questions and receive feedback about your specific circumstances. Thank you for spending time with us today in reading our blog post.

And remember- the Law Office of Bryan Fagan is On Your Side!

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

Texas Court Grants Grandparents Visitation and Access to Grandchildren

Texas Court Grants Grandparents Visitation and Access to Grandchildren

Originally published by Francesca Blackard.

By

Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met.  First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child.  Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being.  Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child.  TEX. FAM. CODE ANN. § 153.433.

In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children.  The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California.  The grandparents supported the family so the parents could save up to buy the home.  After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight.  The grandparents would take the children to school and attend school functions.  The grandmother testified she felt she had assumed the role of parent.

The grandmother testified both parents were alcoholics.  The mother’s friend testified the parents had a tense and unhealthy relationship.  There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense.  The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies.  He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.

 

The mother sadly died in 2018.  The children stayed with their grandmother for several days and the oldest child told the grandmother they were going to live with their other grandparents in California.

The grandparents promptly filed suit seeking sole managing conservatorship.  Although they obtained a temporary restraining order to keep the father from moving the children from the county/ the children went to live with their paternal grandparents in California when it expired.

The grandparents amended their petition to seek possession and access to the children under the grandparent access statute.  Following a trial, the court found the grandparents had proved by a preponderance of the evidence that denying them possession or access would significantly impair the health or well-being of the children.  The court granted the grandparents possession for one weekend during the fall and spring semester and seven days during the summer.  The grandparents were also allowed phone, Skype, or FaceTime access.  They were also allowed to send cards, letters, and gifts.

The father appealed.  In this case, the only element at issue was whether the grandparents had overcome the presumption the father was acting in the children’s best interest.  The father argued the grandparents had not submitted evidence of any impairment to the children from denial of access.  He testified the children were doing very well and had not shown any need for psychological treatment or counseling.  They lived with his parents, where the oldest had her own room and the boys shared a room.  They were physically safe and doing well psychologically.

The grandparents argued the father had not provided counseling for the children and planned to deny all access to the grandparents.  The appeals court noted that the leading cases overturning orders granting grandparent access involved evidence that the parent would not deny the grandparent all access to the child.  The father testified he would not allow any access or possession of the children unless ordered to do so by the court.

The appeals court found no evidence denying the grandparents access would significantly impair the physical health of the children, but there was sufficient evidence it would significantly impair their emotional well-being.  The grandmother testified denying them access would not be in the children’s best interest.  The mother’s friend and the father’s friend each testified they did not think the father was acting in the children’s best interest.  The grandmother testified the children had lost their mother, grandmother, and home, and had moved to live with grandparents they had rarely seen.  There was evidence regarding the father’s heavy drinking and potential alcoholism.

The father testified that the children did not exhibit any emotional turmoil.  He said they did not ask about their grandparents.  He testified they were healthy and doing well.

The appeals court found the trial court could have reasonably disbelieved the father’s evidence and found the grandparents overcame the parental presumption by a preponderance of the evidence.  The appeals court affirmed the order.

Although it can be difficult for grandparents to get access and possession of their grandchildren, it is possible under certain circumstances.  This case may have turned on the father’s intent to deny all access to the grandparents.  If you are seeking or fighting grandparents’ rights, a knowledgeable Texas custody attorney can advise you and fight for your rights.  Call McClure Law Group at 214.692.8200 to set up a meeting to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

Texas Court Orders Child’s Name Change to Include His Father’s Surname

Texas Court Orders Child’s Name Change to Include His Father’s Surname

Originally published by Robert Epstein.

By

Under Texas family law, a court may order a child’s name be changed if doing so is in the child’s best interest.  Neither parent is specifically granted the right to name the child under Texas law, but generally a child’s name will not be changed unless the party seeking the change shows a good reason for it.  In a recent case, a mother challenged a court’s order to change the child’s name to include the father’s last name.

The parties appeared to have a good co-parenting relationship.  According to the appeals court’s opinion, the child lived with the mother, but the father had always been a part of his life and assisted financially with his living expenses.  The father’s family was also significantly involved in the child’s life, helping the mother financially and with child care.

The mother had been adopted as a young child.  She grew up in Virginia and moved to Texas when she was 18.  She did not have any family other than her son in Texas.  Due to the distance, the child did not have the same amount of interaction with his mother’s family that he had with his father’s family.

 

The mother testified her surname was her adoptive family’s name.  She also testified it was important for her son to have her surname because he was the only biological relative she knew.  She also said it could help him be connected to “different pieces of himself and his history.” She did not believe having her surname instead of his father’s would have a negative effect on the child.

The father testified he thought a name change would help avoid confusion at places like doctor’s offices.  He also hoped the child would play sports and wanted the child to use the father’s name.

Both parents agreed the child was too young to know his name.  Each also said they would not change their surnames.

The father testified the mother did not give him a choice regarding the child’s name.  He also indicated he believed he did not have a choice with regard to signing the acknowledgement of paternity.  He testified he thought the child would have trouble when he got older if he did not have his father’s last name.  He said he did not know any children who did not use their father’s last name, though the children he knew had parents who were married to each other.

The father’s father testified to what he and his wife had done for the child and his mother.  He also testified that he was very close to the child.  He testified that they did things for the child and his mother because they loved them both.

The trial court found it was in the child’s best interest to change his name to include his father’s last name.  The mother appealed, arguing the evidence was legally and factually insufficient to support the finding.

In considering whether a name change would be in a child’s best interest, the court considers various nonexclusive factors, including whether it would avoid embarrassment, inconvenience, or confusion for the custodial parent or child, whether the present or potential changed name would be more convenient, how long the current name has been used, how the change affects the child’s bond with the parent or other family members, and whether the parent is trying to alienate the other parent by seeking the change.  Courts do not have to weight each factor equally.

The appeals court found there was little or no evidence that changing the child’s name would have a negative effect on the mother or child.  The appeals court found there was legally and factually sufficient evidence to support a finding the change would be in the child’s best interest.  The child was only 14 months old and therefore did not have meaningful attachment to his mother’s name.  He had not started school or been involved in extracurricular activities under his mother’s name.  The child was on the father’s health insurance, so the court found it could be beneficial for medical appointments and billing for the child to have his father’s name.

The appeals court acknowledged the mother was the primary caretaker, but also noted the father and his family were an important part of the child’s life.  The mother’s family was less involved in the child’s daily life due to distance. The appeals court found the father’s last name would better help identify the child with a family unit.  The mother and her family were not from the area and did not have the type of ties to the local community that the father’s family had.  The appeals court found having the father’s name would strengthen the child’s relationship with the community.

Finally, the appeals court found the father was not seeking the change to alienate the mother from the child. There was evidence that the father and his family cared for the mother and expected to continue doing so.

The appeals court found no abuse of discretion in the trial court’s finding that changing the child’s name to include his father’s surname was in the child’s best interest.  The appeals court affirmed the trial court’s judgment.

Sometimes unusual disputes arise in matters relating to children, even if both parents care for each other and want to work together.  If you are facing a dispute involving child custody or other matters relating to your children, an experienced Texas family law attorney can help.  Call McClure Law Group at 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Originally published by Kelly McClure.

By

The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders.  Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services.  The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him.  The father was ordered to pay child support beginning in December 1996.  The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers.  The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

 

The father filed a motion alleging the OAG violated provisions of the Texas Family Code because it failed to obtain a cumulative money judgment within 10 years of the child becoming an adult.  The OAG did not appear at the hearing.  The trial court lifted the driver’s license suspension, rescinded the writs of withholding, declared the child support liens void, and ordered no further wage withholding.

The OAG filed a restricted appeal.  The OAG argued the trial court did not have subject matter jurisdiction over the driver’s license suspension because the relevant statute required the father to file his petition for review in Travis County district court.  A proceeding regarding the suspension of a parent’s driver’s license for failure to pay child support is governed by the Administrative Procedure Act.  The Administrative Procedure Act requires a person seeking judicial review of a contested case to file the petition in a Travis County district court unless another statute provides otherwise.  TEX. GOV’T CODE ANN. § 2001.176.

The father did not file his petition in a Travis County district court.  The OAG argued that the trial court did not have subject matter jurisdiction over the issue.  The appeals court, however, found that that the statute did not grant Travis County district court with exclusive jurisdiction, but instead provided a mandatory venue.  Mandatory venue, the court noted, may be waived if a party fails to make a timely objection.  The OAG had not made a timely objection.

The OAG also argued the trial court had exceeded its subject matter jurisdiction in enjoining additional administrative writs of withholding.  Under TEX. GOV’T CODE ANN. § 22.002(c), only the Texas supreme court has the authority to issue a writ of mandamus or injunction against an officer of Texas’s executive departments to order or compel performance of a duty state law authorizes the officer to perform.  The appeals court noted  the OAG is an officer of the executive department and is authorized to enforce and collect child support through administrative writs of withholding.  Thus, only the supreme court could enjoin the OAG from issuing such writs in this case.  The appeals court found that the portion of the order stating that “no further wages be withheld in this cause…” constituted an injunction.

The appeals court vacated the part of the trial court’s order that enjoined the OAG from issuing additional administrative writs of withholding and affirmed the rest of the order.

The OAG will become involved in certain cases involving public assistance.  Although parents in other cases may seek the OAG’s assistance, parents should be aware of what OAG enforcement entails.  Once the OAG is involved, the parents are not able to choose which enforcement actions will be taken.  If you are facing a child support issue, an experienced Texas child support attorney can help you consider your options and protect your rights.  Call McClure Law Group at 214.692.8200 to set up an appointment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>

What court will hear issues about your child in relation to an international divorce?

What court will hear issues about your child in relation to an international divorce?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

What court will hear issues about your child in relation to an international divorce?

There is a great deal of uncertainty associated with divorce. For starters, you have no idea how long your case could last. You’ve probably heard horror stories about divorces that have taken years to complete and are worried about yours ending up the same way. Tied to that concern you may be wondering how you are going to afford to pay for the divorce. Attorney’s fees, court costs are just the tip of the iceberg from what you can tell.

What if you were also in a position where you didn’t even know where you would need to ask for a divorce? Many Texas residents know that all we would need to do in order to file for divorce was to submit some paperwork at the local county courthouse in order to start the process. You may not be in that same position, however. If you have resided outside of the State of Texas- or outside of the United States altogether- you may have questions about what court will be able to hear your case in the first place.

Beyond any immediate concerns about yourself, you are likely concerned with what outcome your children will encounter because of your divorce. Kids are the innocent by-standards in any divorce. Because you and your spouse are ending your marriage your children are now facing up to the effects of that choice. You want to do every possible to shield them from the brunt of the divorce but are unclear on some issues associated with your potential case. For starters, what will happen if your child has ties to more than one state- or more than one country?

Custody options that are available when a child has lived in multiple countries

Knowing what options are available to you as well as what courts are available to issue rulings regarding child custody matters ought to be one of the first issues that you explore as you prepare to file for a divorce.

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) has been adopted by all fifty states and seeks to address jurisdictional problems that are relevant in our country and across the globe. Asking and answering a few questions within the framework of the UCCJEA can tell you a great deal of information about what court is the appropriate venue to file your divorce or child custody case within.

For starters, you will need to determine where your child has been a resident for the past six months. Next, consider whether or not your child has a true home country. If you and your spouse have moved so frequently that it would not be fair to call one country or another their “home” for the purposes of a divorce then you would be going off of where your child has lived during the past six months.

If your child does have a home country where he or she has been raised and is attending school, the next question you need to ask yourself is whether or not a court in that country has already stated that jurisdiction is proper there. However, consider that if you now reside in the United States and have done so for at least six months it may be better suited for your family to file your divorce in the U.S. All of these considerations go out the window if an emergency arises that requires intervention by a court at a moment’s notice, such as when an abduction of your child occurs.

Jurisdiction in international child custody cases is far from simple

As we have seen in the past few blog posts on our website, determining child custody jurisdiction in international cases is not simple at all, unfortunately. You need to be able to balance complex issues with one another while balancing what is in the best interests of your child throughout the evaluation.

Under the UCCJEA a court in the United States may be required to apply the custody laws or another nation in enforcing a foreign court order or even creating a brand-new order for you and your child. As with anything associated with family law, it is strongly recommended that your attorney not only have experience handling child custody cases but also have experience in handling cases that involve the UCCJEA.

Be aware of child abduction issues in connection with international child abduction cases

It is not uncommon to encounter child custody cases wherein one parent attempts to ignore, brazenly, the child custody laws of one country in order to gain entry to a nation whose circumstances are more advantageous. If your child’s other parent believes the laws in their country of origin are “better suited” for him or her then it is not out of the question for him or her to attempt to remove your child without your permission from the United States or whatever country, you currently reside in.

I do not tell you all this in order to frighten or intimidate you. I mention it because it is a relevant consideration in an age where mobility has never been easier. Courts in the United States hear issues all the time of international child abduction cases. The goals of these courts are to quickly and correctly address the issues in that specific case with the goal of returning the children to their home country.

When courts are effective in addressing issues and returning children back to their parents, they not only help the family who is involved in the case but also discourage parents from taking matters into their own hands by attempting to create jurisdiction over a child by means of abduction. What these parents do not consider is that almost every country in the world has signed on to the UCCJEA and would apply the laws of the nation where the child just left in any custody case.

How you can present a case to have your child returned to you 

In the event that you are left behind by your child’s other parent, there are concrete steps that you can legally take in order to have your child returned to you. First, you must be able to establish that he or she was consistently a resident of that country. As a parent, you must next show that based on the laws of your home country you had parental rights. Keep in mind that if you are an absentee parent this could cause problems for you, given that those parental rights must be acted upon. If you do not have a minimal amount of contact with your child it will be difficult to convince a court to have your child returned home.

What can the “other” parent argue in a contested child custody hearing regarding abduction?

If you are in a position where your child has been removed from the United States and taken to another country, you may have some concerns about what your spouse or child’s other parent may be able to argue as far as why the abduction was justified under the law. As I just mentioned, one of the most effective means of legitimizing the actions of the abducting parent would be to argue that you as the non-abducting parent has not attempted to exercise your parental rights. Your not taking an active role in the life of your child could come back to haunt you if this is the case.

Next, if you agreed to the removal of your child from the United States at any point this could also hamper your argument that your child needs to be returned. An email from a few weeks ago where you and your child’s other parent outlined an agreement between the two of you to allow him to take your daughter to Saudi Arabia can diminish the strength of any arguments you have as to why your child needs to be returned to you.

At the very least, if the abducting parent can show a court that while you did not exactly endorse the move if you were not vociferous or took no action to prevent the abduction then it probably cannot properly be called an abduction at all.

Finally, your child’s other parent may attempt to present an argument that your child was facing a serious risk of harm by remaining with you in their “home” country. If there is an issue related to your family, or to the political climate of your home country this can be an effective argument to make. The best interests of your child are going to bee at the forefront of the decision making any court utilizes and showing that child abuse had been ongoing can be an effective tool to utilize.

The age of your child may be a relevant consideration, as well

Even if your spouse or child’s other parent cannot effectively present an argument such as the ones, we have just been discussing it is possible that if your child is old enough, his or her preference to remain in the new country could bolster the case of the abducting parent. The opinion and/or wishes of your sixteen-year-old are likely to be taken a lot more seriously than those of your six-year-old child, mind you.

Do not delay if you seek to challenge the abduction of your child to another country

Act quickly if your child has been abducted from the United States. Under the relevant international treaty, a case requesting the return of your child to this country must be filed within a year of the removal. Once you get beyond this one-year time-frame it is simpler for the abducting parent to make an argument that your child has become more familiar and comfortable in their surroundings. Finding a home, a place to go to school and friends will create a home-like atmosphere that will be tougher for you to counter with arguments of your own. Keep in mind that if you file your lawsuit to have your child returned to the United States within a year of their removal then the opposing party cannot present this argument.

The bottom line is that you need to have a sense of urgency when it comes to your actions that are taken in the time period immediately following the abduction of your child. I’m sure that this will not be difficult, as I can only imagine the fear and anger that would arise in me if this happened to one of my children. Do not let fear or the unknown or concerns about external issues weigh you down and prevent you from making a decision that could save your family from a great deal of hardship,

If you find yourself in a position where you need to hire an attorney to help you fight for you, make sure that you verify that the attorney has experience in international child custody matters. Family law experience is not good enough for one of these cases. When your relationship with your child is concerned you cannot afford to take any chances. Seek out representation that has had proven results in order to give yourself the best chance at a successful outcome.

Questions about international divorce or child custody cases? Contact the Law Office of Bryan Fagan

Thank you for your interest in this topic. If you have any questions about the material that we presented today or seek clarification on anything please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns in a comfortable and pressure-free environment. Our attorneys and staff take a great deal of pride in providing comprehensive, family law services to our clients.

No matter where you live in southeast Texas, we are here to serve you. From Baytown to Waller and up to Conroe, our attorneys will put your interests first and advise you to take steps that will seek to improve your family’s well-being.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



Read More –>