Family Matters
Latest rulings, news and developments from R. Shane McFarland and industry-wide experts.
Child Refusal to Go on Visits Excuses Parent in Enforcement Case
This is one of the most frequent questions I get. "What do I do if the children refuse to go with the other parent?" According to the Beaumont Court of Appeals, In re Miller, 09-18-00253-CV, the answer is you only have to make them available. In this matter the...
Unambiguous Deed Can’t Be Challenged in Community/Separate Property Dispute
Texas community property law states that property gifted to a spouse is the separate property of that spouse. Whether a transfer is a gift is often a hotly contested issues requiring the person who made the alleged gift to testify as such in Court. A recent case out...
Obergefell Does not Preclude Divorce on Religious Grounds
In Lecuona v. Lecuona (No 03-17-00138-CV) the Austin Court of Appeals has found that the Supreme Court's Obergefell decision does not invalidate no-fault divorce in Texas. The wife in this case contested the husband's no fault divorce on the grounds that they had...
Fraudulently Induced Marriage Invalidates Pre-Marital Agreement
In Re Ja D.Y., No. 05-16-01412-CV, Dallas Court of Appeals. This is a fun one. When Husband and Wife met, he informed Wife that he had multiple degrees, was a former marine, made $100,000 to $225,000 each year and had for years, and had been married once before. ...
So what would it take to show and Informal Marriage
Here's an amazing case out of Amarillo. As background, the Family Code allows for a Court to find that parties have entered into an informal marriage, frequently referred to as common law marriage, if a party shows among other requirements that there was an agreement...
Recovering a Child’s Money in a Divorce
The Family Code allows for a spouse to be reimbursed when another spouse improperly disposes of community property, but makes no allowance for when a spouse improperly disposes of a child's property. Furthermore, the Family Code does not codify how to divide a...
Immigration Status is Not Grounds to Void an MSA
The Houston Court of Appeals has found that the defense of illegality does not void a Mediated Settlement Agreement. As background, any contract or agreement may be voided if it's illegal. You can't for example enforce a contract to rob a bank. In In re Marriage of...
An Amicus Attorney May Not Also Be A Mediator
It's not uncommon for an Amicus Attorney or Guardian Ad Litem to assist in settling contentious divorce or child custody proceedings. This, however, does not allow them to take on the role of mediator per the Tyler Court of Appeals. In In re E.B. (Tyler Court of...
Admitting Electronic Evidence
The law often struggles to maintain pace with constantly changing technology, particularly when authenticating electronic evidence. Gadekar v. Zankar, (Tyler Court of Appeals) (12-16-00209-CV), demonstrates the pitfalls. In a final divorce trial the Husband,...
Standard of Proof to Modify Temporary Orders
A common situation litigants face in a complex divorce is multiple temporary orders hearings. The family code is not clear on what standard of poof is necessary to modify a prior temporary order. The 14th Court of Appeals has addressed the issue in In re McPeak. In...
New York Times Article about Tax Law Changes and Divorce
I've written about this previously, but this is a good article about how the new tax law affects the decision to divorce this year or next. Check out Should You Get a Divorce Now or Later?
Child Tax Deduction Eliminated
The child tax deduction has been eliminated by the Tax Cuts and Jobs Act of 2017. The child tax credit, however remains and has increased to $2,000 per qualifying child. A qualifying child is one who is under the age of 17 and has lived with the taxpayer for over...