Articles Posted in Divorce

How-to-Improve-Your-Mental-Health-300x200In some Texas divorce cases, how a party requests something can determine if they are successful.  A wife recently challenged part of the property division and the court’s denial of her name change after a second trial.

The appeals court’s opinion states the wife informed the court the parties had agreed two pensions would be divided with “a 50 percent shared interest per each party as of the date of divorce.”  The husband’s attorney agreed that was their understanding of the agreement.

In a memorandum ruling, the trial court granted the divorce and accepted the parties’ agreement as to the fifty-fifty division of pensions.

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iStock-531351317-300x200A couple may choose to enter into a Texas pre-marital agreement to protect their respective assets in the event of a divorce.  A pre-martial agreement allows the parties to agree on use, control, and transfer of property, characterization of property or income, disposition of property in a divorce, and a number of other issues.  In some cases, pre-marital agreements may lead to results that the parties did not consider.

Parties Signed Premarital Agreement

In a recent case, a husband challenged an award of attorney’s fees to the wife because their pre-marital agreement provided for property to remain separate.  According to the appeals court’s opinion, the parties signed the pre-marital agreement which provided that their pre-marital separate property and property acquired during the marriage would stay separate.  They married in 2016 and had a child the next year.

When the wife petitioned for divorce in 2018, she requested attorney’s fees.  She indicated she sought fees “[t]o effect an equitable division of the estate” and for the services she provided related to support and conservatorship of the child.  The trial court entered a final divorce decree in November 2019.  The husband was ordered to pay $14,900 in attorney’s fees, with $10,000 of that being paid directly to the wife’s attorney.

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iStock-545456068-300x184A Texas court may award spousal maintenance in certain circumstances, including when a spouse lacks sufficient property to provide for their reasonable minimum needs and is unable to earn enough income to provide for those minimum reasonable needs due to an incapacitating disability.  Tex. Fam. Code § 8.051.  Spousal support is generally limited based on the length of the marriage, but may be indefinite while the spouse is unable to support himself or herself because of a disability.  Tex. Fam. Code § 8.054(b).

A husband recently challenged a spousal maintenance award.  According to the appeals court’s opinion, the parties had been married for about eight years and had a child together when the husband filed for divorce.  The wife requested spousal maintenance.

Evidence Presented at Trial Regarding Spousal-Maintenance Request

The wife, the husband, and the husband’s mother all testified at trial.  The wife testified about her work history, educational background, and health issues.  She testified that she received daily dialysis, which required her to be connected to a machine for as much as 10 hours.  She could, however, do the dialysis at home where she could move around the house and care for the child.

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iStock-1187184203-300x200TEX. CIV. PRAC. & REM. CODE § 34.001(a) provides that a judgment becomes dormant if a writ of execution is not issued within 10 years of its rendition.  A judgment is dormant, execution may not be issued unless it is revived.  A dormant judgment may be revived within two years of becoming dormant.  TEX. CIV. PRAC. & REM. CODE § 31.006.  A former wife recently argued that her ex-husband could not enforce a payment obligation contained in their divorce decree because the judgment had become dormant.

2008 Divorce – $30,000 Judgment Awarded to Husband

According to the appeals court’s opinion, the parties divorced in 2008.  The decree awarded the husband $30,000, with interest beginning 12 months after the judgment, secured by a lien on the home where the wife lived.  The unpaid principle and accrued interest were to be paid upon the earliest of: the sale of the home, the youngest child’s emancipation, the wife’s remarriage or cohabitation with a romantic partner, the wife’s death, or the home ceasing to be the primary residence of the children.

The husband filed an application for turnover and appointment of a receiver in 2021.  His counsel stated that the earliest of the listed events happened in May 2014, when the youngest child turned 18 and graduated high school.  The wife argued that the judgment had become dormant.  The trial court signed a turnover order and appointed a receiver to possess and liquidate the wife’s non-exempt property to satisfy the judgment.  She appealed.

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property-division-300x110Property in a Texas divorce does not have to be divided equally, but instead must be divided in a just and right manner.  There can be a number of ways to achieve a just and right division, especially when the property is a large piece of real estate.  In a recent case, a husband asked the court to award the wife a smaller portion of the parties’ ranch, which he claimed was more valuable than the rest of the ranch.

Wife Precluded from Presenting Testimony about Value of Ranch

The parties married in 1995.  When the wife petitioned for divorce, the parties owned a ranch together.  Before the trial, the husband moved to compel discovery and subsequently for discovery sanctions.  The trial court granted the motions and ordered that the wife would not be allowed to testify about the community property’s value.

According to the appeals court’s opinion, he husband testified that the tax appraisal for the ranch was $529,280, but that the ranch was only worth $400,000.  He asked the trial court to award him the entire ranch, or alternatively to award the wife the “richest 10 acres” and give him the other 40.  He testified the westernmost ten acres were the most beautiful and had the richest soil.  The remaining 40 acres included several improvements, including a mobile home, a barn, and a pond.

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iStock-1287431987-300x200Texas prenuptial agreements may include a provision requiring arbitration in the event of a divorce.  The Texas Family Code includes provisions making arbitration of divorce cases different from the arbitration of other types of cases.  A wife recently sought mandamus relief after the trial court ordered arbitration pursuant to a prenuptial agreement.

Parties Executed Islamic Premarital Agreement

According to the court’s opinion, the parties had executed an “Islamic Pre-Nuptial Agreement.” It included a provision requiring resolution of conflicts in accordance with Islamic law by either in a Muslim court or by a three-member Fiqh panel.

The wife denied knowing the contents of the agreement when it was executed.  She claimed she thought it was a second copy of the parties’ marriage contract.

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does-adultery-affect-alimony-in-idaho-1080x600-1-300x167Property possessed by a spouse during or upon dissolution of the marriage is presumed to be community property.  Clear and convincing evidence that the property is separate is required to rebut that presumption.

Wife Asserts Gift from Parties’ Son

A husband recently appealed a divorce decree, arguing the trial court erred in finding all accounts in the wife’s name in Bangladesh banks were the wife’s separate property.  The wife claimed the money in those accounts had been gifted to her by their son.  Property acquired by gift or inheritance is generally separate property.  TEX. FAM. CODE ANN. § 3.001.

According to the appeals court’s opinion, the parties’ son testified he had sent his mother $500 a month through an automatic deposit into her bank account since 2006.  He said the money was a gift only to his mother.  The wife testified she had transferred some of those funds into her accounts in Bangladesh.

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property-division-300x110The court in a Texas divorce must make a just and right division of the parties’ estate.  This does not necessarily require the court to award  the parties equal shares of the property.  Property acquired during a marriage is generally community property, but property acquired before the marriage or by gift, devise, or descent is separate property. A party claiming separate property must show that it is separate by clear and convincing evidence.  A husband recently challenged a court’s characterization of certain property as the wife’s separate property.

The parties got married in 1997 and the husband filed for divorce in 2019.  Each party sought a disproportionate share of the marital estate.

Wife Asserts Separate-Property Claim

According to the appeals court’s opinion, a significant issue in the divorce was property purchased by the wife in 1997 after the marriage.  She leased the building in 1990 and renewed the lease in 1995. After the marriage, she bought it.  She testified the written lease she signed in 1995 gave her an option to purchase, but she had lost the document.

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iStock-1270267953-300x200Even when parties seem to agree on issues related to Texas property division, disputes may still arise.  In a recent case, a husband challenged a trial court’s treatment of certain property after seemingly agreeing to that treatment during the hearing.

The husband petitioned for divorce in May 2019.  The husband and wife stipulated that a particular parcel of land was the husband’s separate property, but the mobile home on that property was the wife’s separate property.

The husband testified he wanted to purchase the mobile home or sell the parcel and mobile home together and equally divide the proceeds.  He expressed a preference to buy the mobile home himself but also said there were buyers interested in purchasing them as a single asset.  The wife testified she wanted to sell the mobile home to the husband for $15,000 or alternatively to sell both together and divide the proceeds equally.  The husband responded “Yes” when asked if he agreed to sell the parcel and the mobile home together and split the proceeds. When he was asked about division of another piece of property, he said he thought the parties had reached agreement on the five-acre parcel and mobile home and thought they could also reach agreement on the larger parcel.  The trial court specifically told the husband that he was “not going to have the five acres and the mobile home. . .”

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judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225While videoconferencing technology allowed certain court proceedings to occur and cases to move forward during the pandemic when in-person proceedings were not available, the technology is not without its problems in a court setting.  Some individuals, especially those living in rural areas, may not have access to a strong internet connection. Others may not have appropriate devices or know how to use the technology.  Another serious issue can be control of the courtroom, including technical issues, distractions, and disruptions by parties or non-parties. In a recent case, a wife challenged a divorce decree because judgment was rendered after the trial was stopped during the presentation of her case.

Divorce Trial Held Over Zoom – and Stopped Abruptly

The divorce case was held over Zoom without a jury.  The wife was the first witness, and the husband kept interrupting, often accusing the wife of lying.  The trial judge was unable to stop him and ultimately stopped the trial before the wife had finished presenting her case.  The trial judge stated she would grant the divorce and divide the property.

The final divorce decree was signed on January 29, 2021.  The decree granted the divorce and the wife’s name change. It also divided the assets and liabilities.  The wife moved for a new trial, arguing the trial had been stopped early.  The husband died less than two months after the decree was signed.  The wife subsequently appealed.

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