Articles Posted in Divorce

The characterization of funds received for personal injuries can be a complex issue in a Texas divorce.  Texas family law presumes that property possessed by a spouse during or on dissolution of the marriage is community property.  When a spouse claims certain property is separate, that spouse must prove by clear and convincing evidence that the property is separate.  Tex. Fam. Code § 3.003.  Pursuant to Tex. Fam. Code 3.001, recovery for personal injuries sustained during the marriage is separate property.  There is an exception, however, for recovery for lost earning capacity during the marriage.  Because a spouse claiming separate property has the burden of proof, that spouse must show by clear and convincing evidence what part of a personal injury settlement is separate property.  Recently, a husband appealed the trial court’s ruling which characterized his personal injury recovery as community property.

Personal Injury Settlement

According to the appeals court, the husband and wife married in 1994 and lived separately at various times during the marriage. In December 2014, husband was injured as the result of an automobile accident in the scope of his employment.  The parties were separated when the accident occurred, but subsequently reconciled.

The husband settled for the other driver’s policy limits of $30,000.  He also received net proceeds of $710,724.25 from a settlement with his employer’s under-insured motorist coverage.  Thereafter, his attorneys transferred those funds into the parties’ joint checking account on October 8, 2019.  The parties then separated that month and the wife filed a divorce petition on November 1.

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Businesses can be difficult to accurately value in a Texas divorce.  A wife recently challenged a property division involving two businesses, arguing the court had insufficient evidence to make the just and right division.

When the husband filed for divorce, each party pleaded the marriage was insupportable.  The wife also pleaded the husband had committed adultery.

According to the appeals court’s opinion, the significant assets were a business operated by the wife, an interest in a pool-installation business operated by the husband, the houses each party lived in, two rental properties, a house in Mexico, an interest in two lots where the pool installation business was located, several vehicles, and several bank accounts and a CD.

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Fertility treatments and assisted reproductive techniques can be a miracle for many families.  They may also, however, lead to complicated family law issues.  A former wife recently appealed a judgment awarding frozen embryos to her former husband in the divorce.

According to the appeals court’s opinion, the parties utilized IVF treatment and still had three embryos in cryogenic storage at the time of the divorce.

The parties signed a “Consent Form Cryopreservation of Embryos” (“Agreement”) that addressed the storage of the embryos and made them subject to the disposition of the husband if the parties divorced.

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iStock-1287431987-300x200Parties to a Texas divorce may choose to pursue alternative dispute resolution to avoid litigation. They may resolve part or all of their disputes through mediation.  A mediated settlement agreement (“MSA”) is binging on both parties if it prominently states that it is not subject to revocation, is signed by both parties, and is signed by the party’s attorney, if present.  Tex. Fam. Code Ann. § 6.602.  In some cases, an MSA may include an arbitration provision, requiring the parties to arbitrate disputes arising from the MSA.  A wife recently appealed the divorce decree, arguing it did not comply with the parties’ MSA and that the judgment based on the arbitrator’s award should be overturned.

Mediation and Arbitration

The husband and wife entered into a mediated settlement agreement (“MSA”), agreeing to use a specific realtor to sell their properties. According to the appeals court’s opinion, the husband obtained a new realter after the wife informed him the chosen realtor “declined” to sell their properties.  That realtor found errors in the deed and recommended referred them to real estate attorneys.

The parties did not agree on which realtor to use or if they should have the documents corrected by an attorney.  Arbitration had been scheduled, with the arbitrator being the same person who had served as the parties’ mediator.  The wife obtained new counsel, who objected to the arbitrator due to concerns about impartiality.  He also expressed an intention to move for a new trial or set aside the MSA. He alleged the husband’s attorney failed to disclose a working relationship with the mediator before the mediation occurred.  However, there were emails showing the husband’s attorney had disclosed to the wife’s previous attorney that she previously had been an intern with the mediator and the wife’s attorney had no objection to the mediator.  Additionally, she disclosed the same information to the wife’s second counsel by phone, and the mediator stated before the mediation started that the husband’s attorney had been an intern, and there were no objections.

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Atlanta-Property-Division-Attorneys-2-300x198Pursuant to the Inception of Title doctrine, a property’s character is determined when the party acquires their interest in it. This means that property acquired before the marriage will generally be characterized as that spouse’s separate property in a Texas divorce.  In a recent case, however, the court determined that a house purchased solely in the name of the husband before the marriage was the separate property of both spouses.

According to the appeals court’s opinion, the parties started dating in late 1999.  The wife moved in with the husband and his grandfather in 2003 or 2004.  The husband bought a house from the wife’s parents in 2004 as “a single man,” according to the Deed of Trust and Note and both parties moved into it.  They deposited their paychecks into a joint account from which the mortgage and property taxes were paid.  They got married in July 2005 and lived together in the house until 2020.

Divorce Trial

The wife petitioned for divorce and ultimately requested reimbursement to the community estate. She asked for 50% of the community estate and 50% of the husband’s separate property. She argued the house was both parties’ separate property because they had lived together and both paid for it.  The husband argued it should be his separate property.

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iStock-178756342-300x199Under Texas family law, property acquired by a spouse during the marriage is community property, unless it meets the requirements of separate property.  Pursuant to Tex. Fam. Code § 3.001, personal injury recoveries are the separate property of the injured spouse, but recovery for lost earning capacity is community property.  Property possessed by a spouse during or on dissolution is presumed to be community property, so a spouse claiming a personal injury recovery is their separate property must prove by clear and convincing evidence what portion is separate.  A wife recently challenged the property division in her Texas divorce after the court concluded monthly payments from a personal injury settlement were the husband’s separate property.

According to the appeals court’s opinion, the wife had primarily been a homemaker during the marriage, but she sometimes worked part-time.

The husband was seriously injured at work in 2006.  He was found to be incapacitated and the wife acted as his guardian in the resulting lawsuit.  In the personal injury settlement agreement, the wife agreed, on behalf of her husband and herself, to release all claims against the defendants.  The defendants’ insurance companies agreed to immediate cash payments and monthly payments for the rest of the husband’s life.  The settlement provided that $1,150,000 of the cash payments was for the husband’s benefit and $50,000 would go to the wife. The settlement agreement also stated the monthly payments were for the husband’s benefit.  The monthly payments were secured through the purchase of an annuity pursuant to the settlement agreement. The agreement also stated that funds were “damages on account of personal physical injuries or sickness” pursuant to the Internal Revenue Code. It also provided that the husband and wife were responsible for paying their attorney’s fees, court costs and case expenses, and any medical bills and liens.

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Texas spousal maintenance is intended to be temporary and rehabilitative. A trial court can only award spousal maintenance if the party seeking it meets certain requirements, which depend on the parties’ circumstances. A husband recently challenged a trial court’s award spousal maintenance to the wife for 81 months.

According to the appeals court, the parties got married in 2012 and had three children together.  The husband worked primarily in law enforcement, while the wife was a homemaker.  They separated in February 2021 and the husband moved out.  He petitioned for divorce in March.  The wife requested a disproportionate share of the community estate and spousal maintenance.

The trial court awarded the wife the home and a disproportionate share of the assets.  It also ordered the husband to pay her $1,200 in monthly spousal maintenance for 81 months.  The husband appealed the order for maintenance.

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In some situations, a Texas premarital agreement can be used to protect the parties’ assets.  To be valid, a premarital agreement must be signed by both parties.  A wife recently challenged a trial court’s finding there was no enforceable agreement when neither party was able to produce a signed copy of the agreement.

Premarital Agreement

The appeals court’s opinion stated parties started their relationship around six months before the marriage.  The wife raised the issue of premarital agreement a month or two before the wedding.  The wife signed in front of the notary, but the notary refused to notarize the husband’s copy because he signed it before he arrived at the store and did not have his ID with him.

The wife testified she forgot what she did with the signed copies.  She said she thought she had an electronic copy on the husband’s computer, but he had taken the computer.

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iStock-483613578-300x204A court in a Texas divorce must divide the marital estate in a just and right manner.  A just and right division does not necessarily mean an equal division. Courts may consider a variety of factors in determining the property division, including fault in the break-up, income disparity, the relative earning capacity of the parties, education, age, physical condition, and financial condition of the parties.  A husband recently appealed a disproportionate division of property.

The appeals court’s opinion stated the parties established a common-law marriage in 2015 after living together for 18 years.  They separated in 2018 and the wife petitioned for divorce in 2019, claiming insupportability and cruelty.  In his counter-petition, the husband also alleged insupportability and cruelty and adultery on the part of the wife.  They each requested a disproportionate division of the marital estate.


They reached a settlement on the issues related to the children, so the final hearing addressed only the property division.  The community estate included bank accounts, the husband’s retirement benefits, vehicles, and debt.  The parties had also purchased two homes as tenants in common before they were married.  They each lived in one of the homes after the separation.

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iStock-1331374129-300x200Texas spousal maintenance is intended to give temporary support to a spouse whose ability to support themselves has diminished and whose assets are insufficient to support them.  After 10 years of marriage, a spouse who shows they lack sufficient property or the ability to earn sufficient income to provide for their “minimum reasonable needs” may be entitled to spousal maintenance.  Tex. Fam. Code § 8.051(2)(B).  They must, however, overcome the rebuttable presumption that maintenance is not warranted by showing they have exercised diligence in earning sufficient income to provide for their reasonable needs or developing the necessary skills to do so during separation and the pendency of the divorce case.  Tex. Fam. Code 8.053. In a recent case, a wife appealed a trial court’s denial of her request for spousal maintenance.

The appeals court’s opinion stated the parties got married in 2009 and separated in 2018.  The husband lived in Texas and the wife lived in a vacation condominium they bought in Illinois in 2018.  The husband petitioned for divorce in 2019 and the final hearing occurred in February 2021.

The husband requested an equal property division and no spousal maintenance.

The wife asked for a 60/40 split of the assets and $5,000 per month in spousal maintenance for five years. She had not worked during the marriage or during the divorce case.  Her mother testified she loaned her $37,500 during the separation.  The husband had also transferred about $50,000 worth of assets to the wife during the case.  The wife testified her monthly living expenses were about $12,000.  She had last worked as a medication aide in 2008.  She testified she previously worked as a certified nursing assistant but did not want to do so again.  She testified her dental assistance certification did not transfer to Illinois. She also testified she had photography certifications but had not tried to earn income from them.  She started a real estate course in 2019, but had not passed part of the test.  She also admitted she had “not done anything” to become employed since the divorce case commenced.  She said businesses were closed due to the pandemic and she did not have time to seek employment due to the divorce case.

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