Articles Posted in Divorce

What is a Partition or Exchange Agreement?

In Texas, spouses can enter into agreements (often referred to as “partition or exchange agreements“) during marriage, partitioning community property between themselves. A partition or exchange agreement must satisfy several requirements to be valid and enforceable, including being signed by both spouses. However, when the stakes are high, some unscrupulous spouses may trick their unknowing partner into signing the partition or exchange agreement under false pretenses or, even worse, forge their partner’s signature. Recently, one husband did both.

Ninth District of Texas Court of Appeals

Unfortunately, former spouses do not always comply with all of their obligations under a Texas divorce decree.  When that happens, the other party may need to take action to enforce those obligations.  A father recently challenged a court order charging his interest in certain business organizations with judgments the mother obtained following the divorce.

After the mother was unable to collect on two judgments against the father related to his obligations under the divorce decree, she filed an Application for Charging Order.  She alleged the he had “a position of authority” in five business entities.  She alleged he received distributions from one or more of the entities, through funds disbursed to him and funds paid by the entities for his personal living expenses.

In his response, the father acknowledged holding an ownership interest in one of the organizations, but denied having an interest in any of the other named organizations.

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Long term relationships that involve joint business dealings prior to marriage can lead to complicated divorces.  In a recent case, a wife challenged a trial court’s finding that she and her husband had formed a business partnership in 1995 and that properties purchased in her name belonged to the partnership.

The wife filed for divorce, alleging the parties married in 2009.  The husband alleged the parties had been informally married since 1984.  He also alleged, in the alternative, that they had entered into a farming and ranching business partnership in 1995.

The parties began a romantic relationship in 1984.  In 1995, the wife bought a property in her name and made all related payments. The husband moved into the property to work on the house.  The wife also worked on the house on weekends.

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Divorce is usually fraught with emotion, but in some cases, a party may be pressured to the point of duress.  Duress exists when there have been threats that prevent a person from exercising their own free will.  Although it is not duress when a person threatens something they have a legal right to do, duress may exist if they exhort or make improper demands of another person.  An agreement signed under duress may be void.  In a recent Texas divorce case, a husband alleged he was under duress when he signed the marital home over to the wife.

The parties married in 1994.  During the marriage, they purchased the home.  They separated in March 2017.  They agreed the wife would take the home and the husband would not have to pay child support, but they never memorialized the agreement.  The husband testified he changed his mind after finding out his wife was unfaithful.

The husband moved out in March 2017.  The wife also filed her divorce petition that month.  She testified that the husband came to the house in April, kicked in the door, and threatened to kill her, her boyfriend, and her grandmother.  She reported the incident to the police.

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The court in a Texas divorce case may grant a divorce in favor of one party if it finds the other party committed adultery.  There must be “clear and positive” evidence of adultery.  Adultery may occur after separation. In a recent case, a husband challenged the divorce on the grounds of adultery.

The wife petitioned for divorce on the grounds of insupportability and adultery, and cruelty.  She requested a disproportionate share of the community estate.  The trial court found the husband committed adultery.  It named the parents joint managing conservators, with the wife having the exclusive right to designate primary residence.  The possession order granted the husband access to the children on the first, third, and fifth weekends, but only from 10 a.m. on Saturday to 6 p.m. on Sunday.

The trial court denied the husband’s motion to reconsider, modify, correct, or reform its judgment and entered a final decree.  The husband appealed, arguing the trial court abused its discretion in granting the divorce based on a finding of adultery and that the court abused its discretion in “materially deviating” from the Standard Possession Order.

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In some Texas divorce cases, the parties are able to reach an agreement on property division.  Such an agreement is treated as a contract, even when it is incorporated into a final agreed divorce decree.  If there is an ambiguity, the agreement may be reformed to correct a mutual mistake or reflect the parties’ intent.  An ambiguity exists if the meaning is uncertain or could reasonably be interpreted in more than one way.  To show there was a mutual mistake, a party must prove there was a definite agreement that was misstated in the contract due to a mistake of both parties.

In a recent case, a wife moved for clarification to correct the trial court’s omission of the amount of her portion of the husband’s military retirement. The couple divorced in 2000.  The agreed final divorce decree awarded the wife an amount of the husband’s Navy disposable retired pay, and 50% of all increases.  The amount was supposed to be “determined under the formula set forth below,” but the decree did not contain a provision setting forth a specific portion or calculation.  The decree awarded` the portion of the retirement pay “not awarded to [the wife]” to the husband.

The husband started receiving his military retirement benefits in 2015.  When the wife contacted the Defense Finance and Accounting Service to get her share of the benefits, she was told she could not be paid because the decree did not include a formula awarding her a portion of the retirement.

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As a result of his illustrious career, Dr. Dre’s net worth currently sits at a whopping $820 million – but maybe not for long. After 24 years, Dr. Dre’s wife, Nicole Young, is filing for divorce from the producer, rapper, and hip-hop icon. Reports indicate that the couple did not execute a premarital agreement prior to their 1996 marriage, which opens up Dr. Dre to significant financial exposure. In the absence of a premarital agreement, California – a community property state much like Texas – provides that property accumulated during marriage is owned by the community estate. Put simply, all of Dr. Dre’s income during the marriage, from his royalties as a solo rapper to his profits from Beats by Dre, is up for grabs. This means that Dr. Dre could see his hard-earned fortune be split in half right before his eyes in the coming months. Continue Reading ›

Whether a celebrity or not, we all worry about many of the same core issues when facing a divorce – How do I protect my stuff (money, investments, real property, personal property) and how do I protect the kids.

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As states begin to emerge from months of lockdown resulting from the COVID-19 pandemic, will there be an increase in divorce filings? This question is of particular interest in Texas, where state and local officials have started the process of easing quarantine restrictions. However, with much uncertainty as to the pandemic in the months ahead, the answer to this question remains unclear at the moment. So, should a potential increase in divorce filings effect your decision-making regarding your own divorce? Perhaps, an even more important consideration is not how many divorces there will be, but rather how filing for divorce changed since the pandemic began. Continue Reading ›

When a party wants a judgment corrected, he or she generally has to challenge it directly within a specific time frame.  In some cases, however, a person may seek to avoid the effect of the judgment through a collateral attack.  A voidable judgment becomes final unless it is attacked directly in accordance with applicable procedural rules, but a void judgment may be challenged at any time.  In a recent case, a Texas appeals court had to determine if a provision in a Texas divorce decree ordering a father to pay the mother’s attorney’s fees was void or voidable.

The divorce decree included a fee provision that ordered the father to pay the mother’s attorney’s fees related “to issues concerning the suit affecting parent-child relationship [“SAPCR”] and the safety and welfare of the children.”

The father moved to modify the decree about a month after it was signed.  He asked for increased possession and decreased child support.  He also challenged the fee provision.  The court’s order increased his possession. In its Findings of Fact and Conclusions of Law, the court found there was not a sufficient change in circumstances of either parent or the children to support a change in the father’s child support obligations or the fee provision.  The court ordered him to continue to pay all of the mother’s attorney’s fees related to the SAPCR.

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