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Adultery can have a devastating effect on the wronged spouse and on a marriage.  When adultery leads to a Texas divorce, the wronged spouse has the option of raising the issue of adultery in the divorce or allowing the divorce to be granted without fault.

Texas recognizes no-fault divorce, but also still has fault-based grounds for divorce.  A Texas divorce court may either grant a no-fault divorce upon a finding that the marriage is insupportable due to discord or conflict or it may grant a divorce based on fault for certain reasons, such as cruelty or adultery.  The court has the discretion to determine whether the divorce will be granted on insupportability or fault-based grounds.  Even if there is uncontroverted and sufficient evidence of adultery, the court has the discretion to grant a no-fault divorce.  The presence of adultery in the marriage, therefore, does not necessarily mean that the divorce will be granted based on adultery.

Although divorce can be granted without fault, there can be benefits to obtaining a divorce based on the other party’s fault.  A finding of fault can have a significant impact on property division and in some cases can also affect custody.

Property Division

A spouse may seek a disproportionate share of the community estate when the other party is at fault for the divorce due to adultery. In all divorce cases, the court must divide the estate in a “just and right” manner.  The court has broad discretion in dividing the estate and may consider fault in determining what is equitable.  As long as there is substantive and probative evidence supporting the decision, the trial court does not abuse its discretion in awarding a disproportionate share of the estate to the spouse who was not at fault.  If the adultery was not recent, however, the court may find it is not relevant to the property division.

The wronged spouse may also have a claim for waste of the community assets or fraud on the community estate if funds from the community estate were used in support of the affair, such as to pay for trips or presents.  In the event of fraud or waste, the court may reconstitute the marital estate to account for those funds that should have been part of the estate but were not available due to one spouse’s wrongdoing.  A spouse alleging waste or fraud will need evidence showing community assets were given to or spent on the other person without the wronged spouse’s knowledge or consent.  Obtaining this evidence may require discovery and an in-depth investigation of the marital finances.

The property division will be based on the specific facts of the case.  In some cases, especially where there is cruelty in addition to adultery, the wronged spouse may be awarded a disproportionate share of the estate.

Custody

A court’s primary concern in a custody determination is the best interests of the child.  In many cases, adultery will not have a significant effect on custody or visitation. However, if the adultery has had a negative impact on the child in some way, especially if the child has been aware of the infidelity and introduced to the romantic partner, it may affect custody or visitation.  Additionally, in some cases, the court may issue orders addressing if and when the child may be introduced to or spend time with the parents’ romantic partners, based on the child’s best interest.

Act Now

If you are facing divorce from a cheating spouse, an experienced Texas divorce attorney can help you protect yourself. Call McClure Law Group at 214.692.8200 to schedule an appointment to talk about your case.

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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.

Unless an exception applies, a challenge to the paternity of a presumed father, by the father, the mother, or another individual, must be commenced by the child’s 4th birthday.  This limitation does not apply if the couple did not live together or have sexual intercourse during the probable time of conception or if the presumed father was precluded from filing to adjudicate paternity before the time limit expired because he believed he was the biological father based on misrepresentations.  If a court finds either of these conditions is present, it may allow the paternity proceeding at any time.

If the child is born during the marriage or within 300 days of the divorce, the husband will be recognized as the father with all of the associated rights and responsibilities unless a court orders otherwise or the husband files a valid denial and someone else files a valid acknowledgement of paternity. It is therefore important to address any paternity concerns prior to the divorce being finalized, or the court will address issues involving the child, including custody, visitation, and child support, under the presumption that the husband is the father.

Divorce is always a stressful process, and even more so when there is a child on the way.  If you believe you are facing this situation, the skilled Texas divorce attorneys at McClure Law Group will help you through the process with kindness and sensitivity.  Call us at 214.692.8200 to schedule a meeting.

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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.

Although there is a presumption in Texas family law that a husband is the father of any children born during the marriage, the language of that law is gendered and applies to a man who “is married to the mother of the child and the child is born during the marriage.”  The plain language of the statute will not apply to same-sex marriages.  Furthermore, the presumption may be rebutted by genetic evidence that the husband is not the father or that someone else is the father.  Thus, there is no guarantee under Texas law that a same-sex parent will be afforded the benefit of this presumption.  Instead, that spouse may be treated legally as a step-parent.  This could mean that that spouse is not required to contribute child support, or that that spouse is not awarded any rights to custody or visitation of the child.

Because of these issues, same-sex couples should strongly consider ensuring that both spouses are legal parents of the children if that is their intention.  Doing so will protect both the child and the spouse not only in the case of a divorce but also in the event of the death of the legal parent.

Although it can be very difficult for a person who is not a legal parent to get custody or visitation if the legal parent does not agree, that does not mean it is impossible.  In a case involving a child’s grandparents, the Texas Supreme Court held that non-parents who had been the child’s primary caretakers and providers had standing to pursue a lawsuit affecting the parent-child relationship.  The court held the statute conferring standing on non-parents who had “actual care, control, and possession of the child for at least six months” did not require the non-parent to have “ultimate legal authority to control the child.”  It also did not require the parents to be unfit or to have wholly ceded or relinquished their parental rights and responsibilities.  Although this case involved grandparents, and the Supreme Court only addressed standing, it does show that non-parents “who have served in a parent-like role over an extended period of time” have standing to seek custody or visitation, even if the parent objects.

If you are facing a same-sex divorce, an experienced child custody attorney can help you navigate through the divorce process.  Due to the complications and uncertainties regarding custody, it may be preferable to reach an agreement with your spouse on issues related to the children.  Whether you want to try to reach an agreement or find yourself needing to litigate your case, the attorneys at McClure Law Group can assist you.  Call us at 214.692.8200 to schedule a consultation.

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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.

The wife moved for a continuance, stating she had evidence of an undisclosed social relationship between the arbitrator and the husband’s attorney.  She asked to conduct further discovery and moved to vacate the arbitration award on the grounds she was prejudiced by the arbitrator’s partiality.

The husband filed an affidavit signed by his attorney.  The attorney stated she had known the arbitrator for more than 30 years.  She stated they both practiced in the same area of law and were both active in state bar activities and CLE programs.  She stated she and other family law attorneys had attended three or four cookouts associated with the state bar at the arbitrator’s home.  They had each spent the weekend at a mutual friend’s ranch, along with their respective significant others and other Houston attorneys.

The trial court found the motion for continuance was not filed timely and signed a final decree pursuant to the arbitration award. The wife moved for a new trial, or, in the alternative, to vacate, modify, correct or reform the decree.

The husband’s attorney testified the arbitrator had mediated her cases five or six times and arbitrated an issue in one case several years ago.  She also testified she had arbitrated a case he was involved in but did not remember the details.  She said she had gone to the ranch as the guest of her significant other.

The arbitrator testified he had known the attorney for about 30 years.  He said he had been mediator in her cases “maybe five” times and had been “clean up arbitrator” in a telephone arbitration.  He said he only remembered one cookout.  He also testified there were six to eight couples at the ranch that weekend.

The trial court denied both motions.  The wife appealed, arguing the failure to disclose the personal and professional relationship with the husband’s attorney showed partiality that warranted vacating the award.  She pointed to the attorney’s presence as a guest at cookouts at his home, the weekend both spent at the ranch, and the previous arbitration and mediations.

An arbitrator does not have to disclose trivial relationships.  The appeals court found, however, these were not trivial interactions and the two did in fact have a social relationship.  Furthermore, the arbitrator had previously been mediator and arbitrator for the attorney in multiple cases.  The husband argued the interactions were limited and they had merely a trivial social relationship. The appeals court it must review the facts from the perspective of an objective but found these connections could give an objective observer the reasonable impression that the arbitrator was partial.

The husband argued the trial court had resolved any questions of fact regarding evident partiality in his favor.  The appeals court noted the issue was a matter of law, not fact.  A trial court can resolve conflicts in the evidence, but there were no material conflicts requiring a factual finding.  There were some differences in the recollections of the attorney and arbitrator, but the appeals court ultimately found the differences were not material.

The appeals court also rejected the husband’s argument the wife waived the partiality complaint by not raising it earlier.  The appeals court found the email from the husband’s attorney did not constitute a full disclosure of the relationship.

The appeals court found the arbitrator’s failure to disclose the relationship constituted evident partiality.  The court affirmed the portion of the decree granting the divorce, but reversed the rest of the decree and remanded.

If you are facing a divorce, a skilled Texas divorce attorney can assist you.  The attorneys at McClure Law Group are experienced in both arbitration and litigation.  Call us today at 214.692.8200 to discuss your case.

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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.

The husband did not have a deed or other documentation that showed he owned the tract.  However, he testified that he bought the tract from his brother several years before the marriage.  When the brother died, he still had not transferred the title to the husband, though the husband paid the property taxes for several years. He and his brother’s widow both understood that the property was owned by the husband.  The widow conveyed the property directly to the husband’s son at the time of the trade.

The appeals court noted that separate property is not limited to property owned by the spouse prior to the marriage, but also includes property claimed by the spouse prior to the marriage.  Tex. Fam. Code Ann. § 3.001.  The evidence showed the husband had claimed the property before the marriage.

Additionally, the wife testified that the residence was acquired in a trade with the husband’s son.  She testified that, to her knowledge, no money was exchanged and there was only a direct trade.  The wife was asked whether the husband had 20 acres of land before the marriage, and she responded, “Correct.”  She was then asked if half that acreage and the improvements on it were traded for the residence, and she responded, “Yes.”

The appeals court found the wife had admitted the husband had the tract before the marriage, and therefore could not argue on appeal that he had not established that he had the tract prior to the marriage.  There was uncontroverted evidence that the tract was traded for the residence without any additional consideration.  The appeals court found there was clear and convincing evidence that the residence was traceable to the husband’s separate property, and therefore found no abuse of discretion in the trial court’s finding that the residence was the husband’s separate property.

This case shows that deed or title is not necessarily required to show that property is separate.  Although ideally people transfer title or deed to ensure proper documentation of a sale or conveyance, sometimes deals between friends or family members are not formalized.  This case shows that such arrangements do not necessarily prevent a spouse from claim property as separate.  If you are anticipating a divorce, an experienced Texas divorce attorney can help you protect your assets.  Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.

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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.

The wife argued that money was not “tangible property” to which the time bar applied.  The appeals court noted, however, that it had previously held funds did constitute tangible property and that decision was binding precedent.  The part of the enforcement order requiring the husband to pay the wife to enforce the division of tangible property was reversed.

The wife moved for en banc reconsideration, arguing the precedent was inconsistent with decisions from other Texas appeals courts and the Texas Supreme Court.  The en banc court noted that the briefs in the precedential case did not cite to authority on this issue and if they had, the court likely would have considered those other decisions.

The en banc court first looked at the Texas Supreme Court case, which held money and stock shares were “intangible” personal property for the purpose of taxation.  Another Texas Court of appeals also found that money was “not a ‘tangible chattel…”  Since this court’s previous decision, two other Texas appeals courts also found money is not “tangible personal property.”  There were similar holdings in other states.

After reviewing the other cases, the en banc court found money and stock shares are not tangible personal property under section 9.003. The two year statute of limitations therefore did not apply to bar the wife’s claim for enforcement.

The husband also argued the trial court erred in modifying the property division in the decree, but the en banc court found the order did not modify the property division.

The en banc court vacated the previous appeals court opinion and affirmed the trial court.

In this case, the statute of limitations did not apply. It would, however, bar enforcement for tangible personal property.  Property division should occur promptly after the divorce.  If your former spouse fails to transfer the property that has been awarded to you within a reasonable amount of time, you should talk to an experienced Texas divorce attorney to determine if you should take action to enforce the property division.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

More Blog Posts:

Maintenance Seized From Retirement Account in Texas Enforcement Lawsuit

Attempted Compliance with a Texas Divorce Decree

 

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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.

The mother’s oldest son testified he thought the couple was married because they had a relationship and two children together.  He testified that the father had introduced him as his wife’s son once.

The father testified that he lived with the mother more than 20 years.  They had two children.  He testified they had not agreed to be married, however, and the mother had not introduced him as her husband.  He testified that he stayed with her because his father told him to and he did not want a stepfather to raise his child.  He also testified that they had never filed a tax return together as a married couple.

The father’s father testified that the couple lived with him for three years. He said they did not have an agreement to be married and his son had represented the mother as his wife.  He also said the mother told him she was in charge because she did not have a husband and that she and the father did not have a commitment.

The trial judge expressed “great concerns” over the father’s credibility, but found the mother had not met the burden to show the couple agreed to be informally married.  The court therefore found the home they lived in to be the father’s separate property.

The mother appealed.  She pointed to the length of the relationship, cohabitation, and their children in common.  She also raised the issue of the trial court’s concerns about the father’s credibility.  The mother testified the father “always” introduced her as his wife, but she did not provide evidence that their reputation in the community was that of a married couple.  Her son had not provided sufficient evidence to support either an agreement or holding out as a married couple.  The father and his father both testified that the couple had not held themselves out as married.

There was conflicting testimony before the trial court.  The court had expressed concerns about the father’s credibility, but had not questioned the credibility of the father’s father.  It is the trial court’s role to determine the credibility of the evidence.

The mother had the burden of proving by a preponderance of the evidence that she and the father had an informal marriage.  To succeed on appeal, she would have to show that the trial court’s finding was against the great weight and preponderance of the evidence so as to be clearly wrong and unjust.  The trial court found she had not met this burden and affirmed the trial court’s order.

If you are facing a separation from a potential informal marriage, an experienced Texas family law attorney can help you protect your rights and assets.  Contact McClure Law Group at 214.692.8200 to discuss your case.

More Blog Posts:

Proving Informal Marriage in Texas

Dissolution of an Informal Marriage in Texas

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