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A Texas custody order may only be modified in certain circumstances.  The parents may agree to change the order.  The court may order modification if the child is at least twelve years old and wants to change which parent has primary custody. Otherwise, the parent seeking the modification must generally show that there has been a material and substantial change in the circumstances of the child or a parent since the current order was rendered.  The court must consider the facts and circumstances of the specific case to determine if there has been a material and substantial change in circumstances.…
The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires.  Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power. In a recent case, a mother challenged the court’s authority to reform the judgment.  According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child.  Both the mother and the alleged father sought…
Retirement benefits can be a complex and contentious issue in a Texas divorce case.  Generally, any income earned during marriage is considered community property unless proven to be separate property, including funds contributed to a retirement account or earned as pension benefits.  In a recent case, a husband challenged a court’s order awarding a portion of his military retirement benefits to his ex-wife. According to the appeals court’s opinion, the wife petitioned for enforcement of property division by contempt, alleging the husband had not paid her the retirement benefits awarded to her in their divorce decree.  The husband argued the…
A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care. According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning…
In a Texas divorce case, property acquired during the marriage is presumed to be community property. A spouse claiming property is their separate property must show that it is separate by clear and convincing evidence.  Separate property is generally property that is owned before the marriage, property that the spouse acquired as a gift or inheritance, or property recovered as damages in a personal injury case.  Community property is generally property acquired after the marriage that is not characterized as separate property. In a recent case, a wife challenged the court’s characterization of certain property as the husband’s separate…
Premarital agreement Some Texas premarital agreements may include a binding arbitration clause. A party may compel arbitration when the claims at issue are within the scope of a valid and enforceable agreement to arbitrate.  If the claim falls within the agreement’s scope and there is no defense to enforcing it, the court must compel arbitration. Fraud may be a defense against compelled arbitration, but the party must show that the fraud was specifically related to the arbitration provision. A husband recently appealed a denial of his motion for arbitration in his divorce proceeding.  The parties signed a premarital agreement that…
In a Texas divorce, the court must divide the property in a just and right manner.  The requirement is that the division be equitable, but not necessarily equal. The Texas Supreme Court identified several factors courts should consider in Murff v. Murff. These factors include the parties’ physical conditions, education, financial condition, abilities, and ages.   A husband recently challenged a trial court’s division of the marital property following a mediated settlement agreement between the parties. The parties married in 1999 and the wife initiated divorce proceedings in 2017.  Pursuant to a temporary order, the marital home was sold and about…
When a court considers Texas child custody and visitation, the child’s best interest is the primary concern.  The court considers certain factors, including what the child wants, the child’s current and future needs, any danger to the child, the parents’ respective abilities, programs available, the parents’ plans for the child, stability, any acts or omissions indicating the relationship between the parent and child is not proper, and any excuse for those acts or omissions. A father recently appealed a denial of his petition for modification and grant of the mother’s counterpetition.  At the time of the divorce, the trial court…
In Texas custody cases, it can be very difficult for a non-parent to obtain custody or visitation of a child over the objection of a parent.  In some circumstances, however, a non-parent (such as a grandparent) has the right to file suit seeking custody or visitation.  One such circumstance is when the person has recently had care, custody, and control of the child for at least six months. In a recent case, a grandmother sought custody of her son’s child after her son’s death.  According to the appeals court’s opinion, the child was born in 2014.  From 2014 to…
When a spouse petitions for a Texas divorce, the other spouse must file an answer.  If the other spouse fails to do so, the court may render a default judgment.  Under certain circumstances, however, the other spouse may get the default judgment overturned.  In a recent case, a husband sought to overturn a default judgment entered against him. According to the Texas Supreme Court’s opinion, the wife filed for divorce.  The trial court granted her motion for alternative service at the home of her husband’s mother.  The trial court ultimately entered a no-answer default judgment the following January. The husband…