Articles Posted in Divorce

When retirement accounts are an issue in a Texas divorce, the court will generally issue a Qualified Domestic Relations Order (“QDRO”).  A QDRO is an order that creates, recognizes, or assigns rights of an alternate payee to receive benefits from another person’s retirement plan.  Although a QDRO is often issued during the divorce, in some cases, a court may enter a post-judgment QDRO.  A former wife recently challenged a post-judgment QDRO, arguing it was void.

The parties had been married around nine years when the wife petitioned for divorce.  The trial court awarded the wife all sums, increases, proceeds, and other rights related to her employee retirement accounts, except $10,000 from her Teacher Retirement System (“TRS”) account went to the husband.  The divorce decree was signed on March 27, 2019 and the divorce was effective October 31, 2018.

Husband Seeks QDRO

The husband filed a proposed order on June 3 in the divorce case seeking a QDRO but did not serve the wife.  The court entered an order a few days later designating the husband alternate payee of the wife’s TRS plan and stating he was not to “receive more than a total of $10,000 plus interest. . ..”

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Although Texas has recognized no-fault divorce since 1970, it also still recognizes fault-based divorce on grounds including adultery, cruelty, and conviction of a felony. Proving an at-fault ground for divorce can affect property division, spousal maintenance, and other matters in a divorce.

A spouse seeking divorce based on adultery must prove by “clear and convincing” evidence, beyond just suggestion and innuendo, that the other spouse had sexual intercourse with someone else during the marriage.  Evidence may include text or email messages, phone records, photos, or financial records.  Adultery can occur at any point during the marriage, even after the spouses stop living together.

Property Division

The court in a Texas divorce must divide the community estate in a “just and right” manner.  A court has broad discretion in formulating a just and right division, and may consider a number of factors in doing so.  One of those factors is fault in the breakup of the marriage.  A spouse alleging the other committed adultery may therefore seek a disproportionate share of the community property based on the alleged affair.

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A party to a Texas divorce is entitled to reimbursement to the marital estate when community time, labor, or skills are used to benefit the other party’s separate estate beyond what is needed for maintenance of the separate property.  The trial court has broad discretion to apply equitable principles.  A former wife recently challenged a divorce decree that granted her former husband’s requests for reimbursement and reconstitution of the community estate.

According to the appeals court’s opinion, the husband requested a disproportionate share of the community property and reimbursement to both the community estate and his separate estate.  He argued the wife’s separate estate had benefited from both the community and his separate estate.  He also alleged the wife conspired with her daughter “to accomplish an unlawful purpose and/or to accomplish a lawful purpose by unlawful means” to dispose of the proceeds from the sale of a house. He sought actual and exemplary damages as well as attorney’s fees.

The wife also requested a disproportionate share of the community estate. She argued the civil conspiracy claim was barred by both the statute of limitations and the statute of frauds.  She also argued that the parties freely granted their interest in the property to her daughter and that the husband had agreed to and ratified her actions.

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A Domestic Relations (“DRO”) is often used in divorce to address the rights of the former spouse as an alternate payee to receive some or all of a participant’s benefits under a retirement plan.  A trial court generally does not have the authority to render orders after expiration of its plenary power over a final judgment.  If a Texas divorce decree becomes final and unappealable without rendering a DRO, then the trial court only has the authority to render a valid DRO upon a petition and service pursuant to the Texas Rules of Civil Procedure.  A judgment is rendered when the trial court officially announces its decision orally in open court or in a filed memorandum. An oral rendition must indicate the trail court’s intent to render the full, final, and complete judgment.

A husband recently appealed a DRO.  The parties entered into a mediated settlement (“MSA”) that was memorialized in the agreed final divorce decree.  The decree included provisions related to the husband’s military retirement and stated they would be more particularly described in a Domestic Relations Order (“DRO”).  The husband his attorney signed the decree.  The husband moved for the signing of the DRO in June 2022, stating he believed the proposed DRO accurately reflected the parties’ agreements.  The court and the parties’ attorneys signed the DRO.

After the husband got a new attorney, he moved to vacate the DRO, arguing the divorce decree was not a rendition of judgment on the DRO and the DRO had been rendered outside the court’s plenary power.  He argued, in the alternative, for modification of the DRO because the calculation used to determine the wife’s share was not in compliance with federal law.  The trial court denied the motion.

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Appeals of a Texas divorce can be lengthy and may sometimes result in a significant delay in a party receiving the assets they were awarded in the decree.  In some cases, courts may award postjudgment interest on a money judgment.  In a recent case, a Texas appeals court considered whether an award of a brokerage account in a divorce property division authorized postjudgment interest.

Case History

According to the appeals court’s opinion, the parties got married in the early 1990s and divorced in 2018.  The decree awarded the wife two investment accounts, together valued at $548,177.25.  The decree also awarded her the equivalent value of $1,062,242.20.  The accounts were invested and therefore fluctuated in value.  The decree provided that the accounts were to be divided as “more particularly defined in a Qualified Domestic Relations Order signed by the Court.” The decree did not state the amounts of cash or securities held in the accounts, but did include “interest, dividends, gains, or losses” on the awards.

The husband appealed, but the appeals court affirmed the property division and the Texas Supreme Court denied review.  The appeal was not resolved until April 19, 2021, and the wife was denied access to the accounts while the appeal was pending.  She requested interest on their value, but the trial court concluded the awards were not “money judgments” and denied the request for interest.

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In a jury trial, the court must submit to the jury the instructions and definitions needed for it to render a verdict.  The court cannot comment directly on the weight of the evidence, but an incidental comment on the weight of the evidence may be acceptable.  Tex. R. Civ. P. 277. A husband recently appealed his divorce decree, arguing the trial court erred in failing to give a requested jury instruction and improperly commenting on the weight of the evidence.

The Trial

According to the appeals court, the husband petitioned for divorce in August 2019, seeking a disproportionate share of the marital estate and alleging the wife committed fraud on the marriage. He asked the court to confirm the marital residence was part separate property and set aside a 2019 gift warranty deed conveying it to the wife.  He alleged the deed was “done by mistake, undue influence, and under duress.”

The wife disputed the husband’s claims of mistake or fraud.  She also sought a disproportionate share of the property and requested exclusive possession and use of the residence.

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Spouses have a fiduciary duty toward each other with regard to the community estate and commit fraud on the community if they breach a legal or equitable duty in violation of the fiduciary relationship.  Fraud on the community often occurs when assets are transferred to a third party, but can also occur when it is unaccounted for.

If a court determines a spouse committed fraud, it must determine the amount the community estate was depleted and the total value it would have had absent the fraud.  The trial court then divides the reconstituted estate in a just and right manner, which may include awarding the other spouse a disproportionate share of the community estate, a money judgment, or both.  Tex. Fam. Code § 7.009.  A husband recently appealed the trial court’s finding of fraud, judgments, and property division in his Texas divorce.

The Marriage

According to the appeals court’s opinion, the husband owned a home when the parties married in 2002.

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A trial court in a Texas divorce retains subject matter jurisdiction to enforce a decree or to clarify ambiguity in the decree.  Texas strongly favors finality of judgment, so the court may not make substantive changes to the property division in a divorce decree once it has become final.  The court does not have the authority to “amend, modify, alter, or change” the final property division despite errors in characterizing the property or applying the law.   The court may, however, issue orders to clarify an ambiguous decree or to enforce the decree.  A court interprets a Texas divorce decree according to the plain language of the decree. The court must interpret the decree as a whole and give effect to all provisions.  A former wife recently challenged a court order purporting to clarify the final divorce decree, arguing it substantively changed the property division.

Divorce Decree and Subsequent Order

The trial court filed with the clerk and sent the parties a letter rendering the property division following the bench trial.  The letter awarded to the wife as separate property 50% of three specified accounts and 50% of any stocks, options, or retirement accounts that were not listed in the letter but had vested as of a specified date.  The court directed the husband’s counsel to draft a decree comporting with the letter rendition.

The husband’s attorney added details that were not expressly included in the letter. He specified the date when the balances would be calculated for the property division and included a dollar amount for each account.  The parties’ attorneys approved the draft divorce decree as to form.  The trial court signed the decree as drafted by the husband’s attorney.  The decree became final without either party appealing.

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A Texas divorce decree provision that was agreed upon by the parties is construed according to contract principles.  In interpreting the contract, the court considers the entire agreement.  Words are given their plain meaning unless there is an indication the parties intended something else.  A contract is not ambiguous if it can be interpreted with a definite legal meaning.  It is ambiguous if it is subject to more than one reasonable interpretation.  Generally, a court may only consider outside evidence to interpret an ambiguous contract.  A husband recently challenged a trial court’s denial of his petition for enforcement of the property division in his divorce decree.

The parties’ 2017 divorce decree included agreed property-division provisions that awarded the wife a 2.6 acre lot “as her sole and separate property.” The decree divested the husband of all right, title, interest and claim to the lot.  It also included a conditional provision that the wife “begin the process of building” a home on the lot, with the property reverting back to the husband if she failed to comply.  The decree did not include a time by which the wife had to comply nor did it define what was meant by “begin” or “the process of building.” The wife was prohibited from selling the lot for commercial purposes and was required to give the husband a first right of purchase option.

The wife did not complete building a house on the lot and the husband filed a petition for enforcement.  He alleged that the wife had not begun “the process of building a permanent, fixed home structure” on the lot. He asked the court to order her to execute a general warranty deed.

The trial court denied the petition after a hearing and the husband appealed. The husband argued on appeal that the decree was ambiguous and that the trial court erred in not clarifying it and enforcing the clarified decree.

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A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed.  Tex. R. Civ. P. 329b.  Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law.  The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree.  The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division.  It may specify the manner of the property division more precisely, but may not change the substantive property division.  A court may order delivery of specific property through its enforcement power.  If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.

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