McClure Law Group, Author at Texas Divorce Attorney Blog

The Fifth Amendment and Death Penalty Sanctions in Texas Divorce

Published on: October 1, 2018 | by McClure Law Group

The Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense. A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue. The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.

In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition. In June 2015, the wife filed for divorce and the husband filed a counterpetition. The wife alleged the husband had assaulted her and committed adultery. She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister. The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.

When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges. During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege. He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…” He refused to answer questions regarding his income, assets, and a list of property. He also refused to identify documents. There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.

Proving Separate Property in a Commingled Account in Texas Divorce

Published on: August 15, 2018 | by McClure Law Group

Property possessed by either party at the time of a Texas divorce is presumed to be community property. To show that property was instead separate, the presumption must be rebutted by clear and convincing evidence. If the assets were not maintained separately from community assets, they must be traced back to separate property by showing the origin of the property. Income earned during the marriage is also community property.

A wife recently challenged a court’s finding that a down payment made from her savings account was made with community funds. After six years of marriage, the parties filed for divorce. In the wife’s counter petition, she sought reimbursement to her separate estate for assets she alleged were spent for the benefit of the community estate.

At the hearing, the husband sought half the equity in the marital home and community funds he alleged the wife had deposited into her checking account and given to her adult child. The parties agreed on the value of the home and the amount of the down payment. The husband admitted the down payment had come from the wife’s savings account, but argued that it came from community property funds that had been commingled into the wife’s savings account. He testified that she deposited her paychecks into her checking account and transferred funds to the savings account. He testified the savings account had $162,168.61 at the time of the marriage. The bank records showed $282,847.69 was in the account before the withdrawal for the down payment. The husband also testified he had given his wife cash to pay the utilities and half of the mortgage payment.

Court Must Have Evidence of Property Value to Distribute Property in Texas Divorce

Published on: August 1, 2018 | by McClure Law Group

The court in a Texas divorce case must divide property in a just and right way. This does not necessarily mean that property is divided equally between the parties, but the division must be just. What happens, though, when only one party participates in the divorce proceedings? A Texas appeals court recently found that the trial court had to have sufficient evidence of the property values to divide the property justly.

The husband petitioned for divorce, but the wife did not answer or appear at the hearing. The husband testified that there were two vehicles and a mobile home in the community estate. He asked the court to award all of the property to him, but allow the wife to keep the property in her possession. He did not testify or provide evidence of the value of the property. The court granted the divorce and awarded the husband the vehicles, the mobile home, furnishing, and other goods and cash in his possession and control. The court did not award any property to the wife.

The wife filed notice of a restricted appeal. To succeed on a restricted appeal, she had to show that she filed the notice within six months of the decree, she was part to the lawsuit, she did not participate in the hearing or file post-judgment motions or requests for findings of fact and conclusions of law, and error is apparent on the face of the record. She clearly met the first three requirements, so the appeals court had to determine if there was error.

Diligence and Spousal Maintenance in Texas Divorces

Published on: July 6, 2018 | by McClure Law Group

In a Texas divorce, the court may award spousal maintenance if the marriage lasted at least 10 years and the spouse seeking maintenance lacks sufficient property to meet his or her minimum reasonable needs and has insufficient earning capability to support herself or himself. A Texas court recently considered whether spousal maintenance was appropriate when the spouse receiving maintenance had maintained employment with the same organization for over 30 years.

The couple had been married for nearly 40 years when they divorced. The court ordered the husband to pay $650 per month for five years or until certain specified events occurred. She was also awarded a 100% interest in the joint and survivor’s annuity of his retirement pension.

The husband appealed, arguing there was insufficient evidence to support the spousal maintenance award. He argued the wife’s annual salary was more than sufficient to meet her minimum reasonable needs. He also argued she had requested the marital home and that put her in a worse financial situation.

Spouse May Be Required to Reimburse Community Estate in Texas Divorce

Published on: June 12, 2018 | by McClure Law Group

When one spouse controls the finances, he or she has the opportunity to use community assets to the benefit of separate property. The other spouse may challenge the disposition of those funds during a Texas divorce. The spouse in control of the finances has a fiduciary duty to the other spouse during the course of the marriage.

A Texas appeals court recently considered whether a husband was required to reimburse the community estate for certain expenditures. The trial court awarded the wife the majority of the community estate and ordered the husband to reimburse it for certain expenditures. The husband appealed, arguing the evidence did not support the disproportionate division and some of the amounts he was ordered to reimburse.

The husband had entered the marriage a wealthy man with several businesses. The wife alleged he allowed his separate companies to keep funds he should have received. Since his businesses were S corps, he was personally responsible for paying taxes on the funds, even if they were not distributed. The wife sought reimbursement for the undistributed funds and for the income taxes paid from the community estate. Each party presented expert testimony. The wife’s expert calculated that the estate had paid $1,000,742 in taxes for the separate companies and was entitled to reimbursement. The husband’s expert said he did not agree the wife had a valid claim for reimbursement and presented his own calculations, showing $841,108 was paid. The jury found the community estate had paid $841,108 in income taxes for the husband’s separate businesses. The trial court included that amount in the valuation of the reconstituted community estate.

Texas Child Support Modification

Published on: May 24, 2018 | by McClure Law Group

Sometimes a change in circumstances causes a parent to want to change the amount of child support they are paying or receiving. There are limitations on when a Texas child support order may be modified, however. When the parties had previously agreed to a child support order that is different from what would have been awarded under the child support guidelines, the court may only modify it if there have been material and substantial changes to the circumstances of the child or a person affected by the order. The trial court must look at the circumstances at the time of the order and compare them to the current circumstances. There must be relevant financial information for both periods in the record, as seen in a recent Texas appeal.

The parents had previously entered into a mediated settlement agreement (MSA). The trial court signed an agreed order naming them joint managing conservators and setting forth visitation schedules and child support obligations. The father was required to pay $490 per month until the child turned 18. The father’s occupation and income were not identified in the MSA or the agreed order. The MSA stated the mother was self-employed but did not provide details.

The mother petitioned for a modification of the child support about five years later. The father did not file an answer or appear at the trial. At the trial, the mother submitted documents from the child’s doctors detailing his diagnoses. She attested that the child saw a psychiatrist every two weeks. She testified the child’s schedule on school days needed to be almost exactly the same each day. She stated he needed “a very high level of care.” She said she thought his disability would keep her from full-time employment.

Former Spouses Are Generally Not Fiduciaries in Texas

Published on: May 24, 2018 | by McClure Law Group

Divorcing parties sometimes agree to hang on to property for some time following the divorce. Sometimes, they want to allow the children to remain in the home. Sometimes, they want to make repairs to increase the property’s value. Texas divorce attorneys know that there can be a lot of conflict prior to the sale of the property. In a recent case, a Texas appeals court considered whether a former husband had a fiduciary duty to protect his former wife’s interest in the property they owned together.

The divorce decree ordered the parties to list the property for sale and to split the proceeds equally. The wife moved to enforce the decree nearly 12 years later. She claimed the husband failed to comply with the decree and failed to cooperate with selling the property. She asked for clarification of any part of the decree the court found was not specific enough to enforce by contempt. She also brought a breach-of-fiduciary-duty claim against him.

The wife argued the parties had agreed not to sell the property until the children graduated from high school. She alleged her husband had willfully withheld the proceeds of an insurance claim for damage to the house. She also claimed he had forged her name on an insurance check that was made payable to both of them and that she had to sue him to get half of the proceeds. She claimed she was unable to pay for repairs to the property because the husband had withheld the proceeds. The wife was ultimately charged for demolition of the house after the city condemned the property.

Waiver of Appeal in Texas Divorce Cases

Published on: April 19, 2018 | by McClure Law Group

Texas divorce attorneys know that even when a divorcing couple reaches a settlement agreement, there still may be issues that are in dispute. Settlement agreements sometimes include provisions that the parties waive the right to appeal. In a recent case, a husband attempted to appeal a final divorce decree despite a waiver of appeals in the settlement agreement.

When the couple filed for divorce, they owned several piece of property. They had two parcels of the wife’s family ranch, one that she owned as separate property. They purchased the second parcel from the wife’s brother and financed it through a loan secured by her separate property parcel. They also took out a second loan on the wife’s property to pay for divorce attorney’s fees.

The parties eventually entered into an “Informal Settlement Agreement.” Pursuant to this agreement, the husband would receive the family homestead and the wife would receive both parcels of her family ranch, with the husband paying the two loans. As part of the agreement, the parties waived their right to appeal or move for a new trial. The parties also agreed to submit any disputes regarding the language for the final decree to the trial court.

Evidence of Adultery in Texas Divorce

Published on: March 28, 2018 | by McClure Law Group

A Texas divorce may be granted in favor of one spouse if the other committed adultery. Adultery occurs when one spouse has voluntary sexual intercourse with someone other than their spouse. Adultery may occur after separation. Suggestion and innuendo are insufficient to support a finding of adultery, but the finding can be based on circumstantial evidence. One recent case addressed sufficiency of evidence for a finding of adultery.

The couple married in 1996 in India and had a daughter in the following year. The husband moved to the U.S. in 2003, and his wife and daughter followed in 2004. In 2006, however, the wife and daughter moved back to India. The wife testified that she had not stayed in India voluntarily, but she had to remain because her husband canceled her plane ticket and her visa. The husband agreed to help the daughter come back to the U.S. for college in 2013, and she insisted her mother join her.

The husband filed for divorce in 2015. The trial court granted the divorce on the ground of adultery. The wife appealed both the finding of adultery and the property division. The appeals court had to determine whether the trial court abused its discretion by making a decision that was not supported by sufficient legal or factual evidence.

When are Temporary Orders Changing Child Custody Appropriate in Texas?

Published on: February 1, 2018 | by McClure Law Group

In a recent Texas child custody decision, a mother petitioned complaining about temporary orders that kept her from removing her three youngest kids from the county or any contiguous county in order to establish the kids’ primary residence.

The father petitioned to modify the parent-child relationship in October, trying to modify the couple’s divorce decree signed in July. The final divorce decree approved and incorporated the couple’s mediated settlement agreement signed by the couple in January. At the time of divorcing, the couple had 15 kids, and six of the kids were minors.

The settlement agreement gave the mother the right to decide the primary residence of the three youngest kids and the father the right to determine the other three kids’ primary residence. The final decree also gave the mother the exclusive right to designate the three youngest kids’ primary residence without regard to geographic location and granted the same right to the father as to the other three minor kids. During this time, the father lived in Burnet County. When the couple entered into the mediated settlement agreement, the mother lived in Amarillo, but she moved to Temple in a county contiguous to Burnet prior to the signing of the final order. The final decree allowed access and possession on the statutory basis provided, due to the couple living within 100 miles of each other.