Kelly McClure, Author at Texas Divorce Attorney Blog

Real Estate Lost Separate Property Character When Transferred to LLC

Published on: August 22, 2025 | by Kelly McClure

Real estate investments can lead to complex issues for property division in a Texas divorce, especially if there are co-owners or business entities involved. A former husband recently challenged the property division in his divorce, which characterized certain property as his wife’s separate property and awarded his father-in-law a 50% interest in a piece of real estate.

The parties moved to Texas from the U.K., intending to purchase real estate in Austin. In 2018, the wife’s parents gave her about £250,000, documented as a gift in a letter. The wife put £214,000, which totaled a little over $248,000, into a joint account. The funds were used for 97.19% of the purchase price of a property identified by the court as “the Webberville property.” The purchase and deed were in only the husband’s name based on advice from an immigration attorney.

The parties purchased “the Gunter property” with the wife’s father in late 2019. They did not have a written contract regarding the co-ownership, but the wife’s father testified they agreed he would put 50% down and own 50% of the property. He had signed a letter in November of that year, however, stating the funds he put toward the purchase were a gift with no expectation of repayment. The husband told him having only the couple on the title would facilitate the purchase, but he would amend it to add the wife’s father. The father was not added, but the husband did give him property and loss statements for the property and pay him $14,000 as his share of the rental income.

Former Husband Failed to Trace Separate Property from Alleged Gift in High Asset Texas Divorce

Published on: August 13, 2025 | by Kelly McClure

Large inheritances, trusts, and gifts can complicate the property division in a Texas divorce. A spouse’s separate property includes the property they received during the marriage through gift, descent, or devise. Tex. Fam. Code § 3.001. In a recent case, a former husband challenged his divorce decree that characterized mineral rights he obtained from his mother’s trust as community property.

According to the opinion, when the husband’s mother died, she left a trust for the benefit of the husband’s father during his lifetime. The trust included mineral rights to certain property, which the husband’s father transferred to the husband and his siblings on November 1, 2009. The deed stated the grantor transferred the mineral rights to the husband and his five siblings “[f]or an adequate consideration paid and received.”

The husband testified his father gifted each sibling $12,000 from their mother’s estate to purchase the mineral rights. He presented a carbon copy check for $12,000 dated November 19, 2009, but it did not have an account number, payor name, or signature. A bank statement for the parties’ joint account reflected a $12,171 deposit on November 23 and a check for $11,130.50 on December 3. Those records did not indicate the source of the funds or who deposited them. They also did not show who wrote the check or who received it.

Wife Awarded Oncologist Husband’s Patent Rights and Stock Distributions Post-Divorce

Published on: July 29, 2025 | by Kelly McClure

Certain assets, especially stocks or assets related to a business, may be held in the name of just one spouse, even if they are community property. In a Texas divorce, a court may impose a constructive trust requiring the spouse to transfer property to the other spouse. Tex. Fam Code 9.011 provides that receipt by one spouse of certain installment or lump-sum payments that were awarded to the other spouse in a divorce decree gives rise to a fiduciary obligation and imposes a constructive trust on the property.

In a recent case, a former husband challenged the divorce decree that imposed a constructive trust on future payments to him as stockholder in a corporation, arguing that part of the payments should be considered his separate property.

The husband was an oncologist who was involved in the development of a drug to treat breast cancer. A corporation owned the patent rights for the drug and the husband acquired stocks equaling 30.33% ownership of the corporation with community funds.

Texas Divorce Involving Potentially Conflicting Tax Provisions in Agreement

Published on: July 15, 2025 | by Kelly McClure

Although not always an issue in a Texas divorce, tax matters can become a significant issue, especially in high net worth divorces or divorces involving the division of a business. A Texas appeals court recently decided a second appeal in a case involving a mediated settlement agreement (“MSA”) with potentially conflicting provisions related to the parties’ taxes.

According to the appeals court’s opinion, the parties’ MSA was divided into two parts. Part I was what the parties referred to as the “boilerplate” section and Part II included specific provisions addressing the children and the property division.

Federal tax liabilities were addressed in two provisions, one in each part. The provision in Part I, identified by the appeals court as the “indemnity term,” provided that the parties would equally share any income tax refund or federal tax liabilities from their taxes through 2019, with each holding the other harmless from half of the tax liabilities. The relevant section under Part II, identified by the appeals court as the “IRS regulations term,” stated, “Income Taxes due for 2018 and 2019: According to IRS rules and regulations.”

Acceptance-of-Benefits Doctrine May Preclude Appeal in Texas Divorce

Published on: June 30, 2025 | by Kelly McClure

A former spouse may want to appeal their Texas divorce decree, but in some cases, actions taken after the divorce decree is entered can preclude a party from appealing. In a recent case, a former wife was barred from challenging certain aspects of the divorce decree by the acceptance of benefits doctrine.

The wife filed for divorce in January 2018. The court rendered judgment in late December 2023 and signed the decree the following January. The wife appealed, arguing the trial court erred in admitting certain evidence, in finding that a condominium was the husband’s separate property, and in awarding the husband an equalization payment.

Acceptance-of-Benefits Doctrine

Texas Appeals Court Reverses Wife’s Intentional Infliction of Emotional Distress Judgment Against Husband

Published on: June 30, 2025 | by Kelly McClure

Sometimes parties to a Texas divorce can get embroiled in litigation beyond standard divorce claims. A spouse may file a tort claim for intentional infliction of emotional distress (“IIED”) in a Texas divorce case. To succeed on an IIED claim in Texas, a plaintiff has to show intentional or reckless conduct that was extreme and outrageous and caused emotional distress that was severe. Hersh v. Tatum. The Supreme Court of Texas has stated that IIED is intended to allow recovery in unusual circumstances where the victim does not have another remedy. Moser v. Roberts. In a recent case, a wife pursued an intentional infliction of emotional distress (“IIED”) claim against the husband, as well as a separate lawsuit against his alleged affair partner, who had been an employee of their business.

The parties owned a plastic recycling company. The wife petitioned for divorce based on adultery in 2019 and made a claim for IIED against the husband.

IIED Claim

The jury awarded the wife $1.5 million for past and future physical pain and mental anguish pursuant to her IIED claim. The husband ultimately appealed.

Texas Appeals Court Affirms Order for Partition and Sale of Property after Divorce

Published on: June 30, 2025 | by Kelly McClure

Ideally, after a Texas divorce, the parties will cooperate and take any actions needed to sell or transfer property and resolve outstanding issues, but that does not always happen. A Texas appeals court recently considered a case in which a former wife alleged the former husband was preventing the sale of jointly-owned property.

Divorce Case

The parties divorced in March 2020. According to the appeals court’s opinion, the final divorce decree found that a particular piece of real property was community property and awarded each party 50% as their separate property, leaving them tenants in common. The decree did not address sale or partition of the property.

Second Lawsuit

A couple of months after the decree was signed, the former wife filed suit against the former husband, seeking an order for the sale of the property and partition of the proceeds. She also requested attorney’s fees, expenses, and interest. This lawsuit was ultimately consolidated into the divorce case. The court held a bench trial and signed an order finding the parties were co-tenants and that the property was not subject to partition in kind. The order required the property be listed by June 1, 2022 and that the parties to take all necessary steps and execute any necessary documents to facilitate the sale. The court also ordered that any proceeds after payment of any encumbrances on the property be split equally between the parties. It did not address the wife’s request for fees, expenses, and interest.

Texas Appeals Court Upholds Father’s Custody in International Custody Dispute

Published on: June 30, 2025 | by Kelly McClure

International marriages can lead to complex divorces, especially in regards to child custody. In a recent Texas divorce case, a mother appealed a decree that awarded the father the exclusive right to designate the child’s primary residence.

According to the appeals court, the parties married while the father was stationed in Germany with the U.S. Army. The child was born in Germany after the father was sent to San Antonio. A few months later, the mother and baby joined him in Texas.

The mother and child visited Germany. The father told the mother the marriage was over, and she decided to stay there. She did not bring the child back when he asked her to do so. He sued her for child abduction and went to Germany for Hague Convention proceedings. They ultimately reached an agreement and the mother and child returned to Texas.

Court Determines Wife’s Spousal Maintenance Should Be Considered

Published on: May 21, 2025 | by Kelly McClure

Tex. Fam. Code § 6.001 allows a court to “grant divorce without regard to fault” if it finds the marriage has become insupportable without “any reasonable expectation of reconciliation. A court may also grant a divorce in favor of one spouse if it finds cruel treatment or adultery by the other spouse. Tex. Fam. Code §§ 6.002 – 6.003. In a recent case, a former wife appealed the divorce decree granting divorce based on insupportability when she argued she had presented sufficient evidence of her husband’s cruel treatment of her. She also challenged the court’s denial of her request for spousal maintenance.

According to the appeals court’s opinion, the parties got married in March 2019 and separated about a year later. The wife accused the husband of choking her and he was arrested. An emergency order of protection prohibited him from going within 200 yards of the parties’ home. A district court ultimately entered a final protective order and found the husband had “committed family violence.” Due to that order, the wife had exclusive use of the home and the husband was ordered to pay the expenses for the home in addition to paying the wife monthly support.

The wife petitioned for divorce. She asserted insupportability and cruelty as alternative grounds for the divorce.

Texas Appeals Court Upholds Award of Husband’s Retirement Despite Premarital Agreement Terms

Published on: May 8, 2025 | by Kelly McClure

Spouses can agree to change their rights and obligations with regard to property by signing a Texas pre-marital agreement. Premarital agreements, also known as prenuptial agreements, are often used in circumstances involving a high net worth or where one spouse enters the marriage with significantly more assets than the other. While prenuptial agreements can be valuable tools to protect a spouse’s assets, they can also be contentious in the event of a divorce.

A husband recently challenged the property division in his divorce decree, arguing the trial court had not followed the premarital agreement in dividing the parties’ property.

Before the marriage, the parties executed a premarital agreement the husband bought online.