Divorce

Proving Separate Property Interests in Texas

Published on: January 1, 2018 | by McClure Law Group

In a recent Texas property division case, an ex-husband appealed a final divorce decree on the basis of five issues. The case arose when a couple married in 1992. The wife filed for divorce in 2013, claiming the husband had cheated on her. She asked for a disproportionate share of the marital estate due to fault for the marriage breaking up, as well as a disparity in the spouses’ earning power and their ability to support themselves.

The husband filed a general denial and counterclaim and also asked for a disproportionate share of the marital estate. The lower court granted the divorce on the ground of adultery. The husband was awarded as separate property an undivided interest in a funeral home business, the land on which it was located, and two adjacent tracts. The wife was also awarded an undivided interest in the funeral home, the land, and the adjacent land. The lower court awarded her the marital home and an insurance check as well. The husband asked for findings of fact and conclusions of law. None were filed, and he didn’t file a notice of past due findings.

He appealed. The appellate court explained that during a divorce, the court must order a division of the estate in a way that is just and right with due respect to each party’s rights under Texas Family Code section 7.001. The appellate court found it should reverse a property division ruling only if the mistake materially affected the lower court’s just and right division of property.

Default Judgment in a Texas Divorce

Published on: December 9, 2017 | by McClure Law Group

In a recent Texas divorce decision, a woman appealed from a no-answer default divorce judgment that concluded her marriage. The couple had married in 2002 and had two kids. In 2013, the father petitioned for divorce and asked for a disproportionate percentage of the marital estate. He wanted to be appointed the sole managing conservator of the kids with the mother being ordered to pay him child support and obtain a life insurance policy on herself, naming him the sole beneficiary.

A return of service was filed that showed the mother was personally served. However, the mother didn’t answer or appear. The record was minimal until the father got a hearing to obtain a default judgment. Only he appeared. He testified as to what he believed had happened in connection with the separation. He claimed the mother had moved to another state, and she hadn’t seen the kids since moving but called the kids on the phone. He testified he had no insurance for the kids. He didn’t offer further evidence by testimony or through documentary proof.

Afterwards, the court signed a divorce decree that divided the marital property and appointed the father sole managing conservator for both kids. It ordered the mother to pay child support and awarded her retroactive child support. Additionally, retroactive medical support was ordered, and the mother was required to buy a life insurance policy on herself in which the father would be named sole beneficiary.

Partitioning a Marital Home After an Ex-Spouse’s Death

Published on: October 16, 2017 | by Francesca Blackard

In a recent Texas divorce case, a couple was divorced in 2006. The wife initiated divorce proceedings, and the couple went to mediation. They agreed on a divorce decree and split a house and lot 50-50. The order included a procedure for selling the property, which was that the property was to be listed with a realtor. The realtor would select a price that was at least $77,000. The sale price would be reduced below $77,000 only by written agreement. If there was an offer that met the $77,000 threshold, both parties still had to accept it.

The husband had the right of first refusal of a bona fide offer by paying the woman half of the offer, minus the mortgage amount and 6% realtor fee. Either of the spouses could ask the court to appoint a receiver. The agreement also stated that if the husband failed to pay his wife half of the equity in the house within 30 days of an offer being made, the house would be sold for the offer made, with the couple splitting the funds remaining equally after the costs of the sale were paid.

When the ex-husband died in 2016, the ex-wife sued to enforce the divorce decree. She alleged that the husband had died, and the executrix of his estate had deeded the property to herself as an individual. The independent executrix of the ex-husband’s estate responded. She argued that the ex-wife wasn’t entitled to the relief she sought because the trial court didn’t have jurisdiction, and the claim was barred totally or partially by the statute of limitations or laches.

Protective Order as a Result of Family Violence During Texas Divorce

Published on: October 9, 2017 | by McClure Law Group

A recent Texas divorce appeal arose after a wife filed for a protective order against her husband. She asked for the protective order after her husband and her father had a physical fight at a pet cemetery when the group was trying to bury a dead family dog. Divorce proceedings had commenced by then.

At the graveyard were the husband and wife, their children, the wife’s father, and his wife. While the husband and father were digging with their shovels, the father’s shovel touched the husband’s scalp. He apologized to the husband and said it was an accident. However, the father didn’t believe the apology, and a fight broke out. The father was hit and kicked by his son-in-law, who later claimed he acted in self-defense. The trial judge determined that the husband had perpetrated family violence and would likely do so again. The wife was awarded a protective order and attorney’s fees.

The husband argued that there wasn’t enough legal or factual evidence to support the order and appealed. He argued it should be reversed. The appellate court explained it would need to decide whether the evidence submitted would allow a reasonable fact finder to get to the same conclusion. If it would, the evidence was enough to support the finding. In looking at whether the evidence was factually sufficient, it didn’t need to defer to the evidence that supported the decision. Instead, it had to consider all of the evidence in a neutral light and decide whether the finding cut so far against the preponderance of evidence as to be manifestly unjust or wrong.

Deviation from Standard Possession Order in Texas

Published on: October 2, 2017 | by Kelly McClure

It is crucial to retain an experienced Texas child custody attorney and obtain a clear record at the lower court level. In a recent Texas appellate decision, a mother appealed from a court’s decision in a lawsuit to modify the parent-child relationship. She argued that she and the father shouldn’t have been named joint managing conservators with her access being supervised. She also argued that the access the trial court gave was below the minimum access established by the Family Code’s standard possession order. She further argued that evidence wasn’t identified.

The case arose when a child’s parents divorced in 2011. The court appointed the parents as joint managing conservators. The mother had the right to decide the primary residence of the child, while the father simply had the right to visit. Three years later, the father petitioned for a modification, wanting the exclusive right to decide the child’s primary residence. He asked the court to deny the mother access or that her visits be supervised on the grounds that she physically abused the child, smoked and drank too much around the child, and moved around the city and had pulled the child out of school multiple times. The father also claimed the child was terrified of the mother’s new husband.

The lower court granted the father’s request. The mother appealed. She didn’t file a reporter’s record or follow the proper procedure, but she presumed the proof submitted supported the order. The appellate court explained that the child’s best interest is the lower court’s main consideration when deciding conservatorship under Tex. Fam. Code Ann. § 153.002. The lower court can modify possession or access only when it’s in the child’s best interests, and the child’s circumstances have materially and substantially changed.

Temporary Spousal Maintenance in Texas

Published on: September 25, 2017 | by Kelly McClure

In a recent Texas spousal maintenance case, a husband appealed from a final divorce decree. He claimed the court made a mistake by awarding the wife $1,500 in spousal maintenance, awarding temporary spousal support of $2,500 each month, ordering him to pay $20,000 in delinquent temporary spousal support payments, failing to issue appropriate factual and legal findings, and failing to award him property he believed was solely his separate property.

In 2014, the parties agreed in court that the husband would pay the wife $2,500 each month before the divorce as temporary alimony. The wife asked for the entry of an order reflecting that. However, the husband filed a proposed rule 11 agreement, claiming an error in calculating his income. He asked for a modification of the agreement.

Another hearing was held related to the temporary orders. There, the husband’s attorney told the court that there had been an error in the first agreement. The wife’s attorney said he understood that the husband’s income was around $5,000. The husband’s attorney claimed he’d withdrawn money from his 401K, and the monthly income of about $1,400 wouldn’t be available.

Texas Final Divorce Decree Includes Error But Stands

Published on: September 4, 2017 | by Francesca Blackard

In a recent Texas divorce case, the plaintiff appealed from a trial court order related to property division in a divorce. The case arose when a couple signed a mediated settlement agreement that indicated a particular brokerage account would be awarded to the wife. The husband’s attorney drafted the divorce decree, and both parties signed it. Both parties had the opportunity to review the decree and signed it freely. The final divorce decree awarded the brokerage account to the husband, but it otherwise matched the mediated settlement agreement.

The husband’s attorney proved up the divorce, and the decree was signed by the lower court. The wife’s attorney asked the husband’s attorney for the file-stamped copy of the final decree, but it wasn’t provided.

After the expiration of the court’s plenary power, the wife went to the courthouse and procured a copy of the decree. She realized that it awarded the brokerage account to her ex-husband. When the ex-husband refused to agree that the account was hers, she filed a petition for a bill of review.

Husband Asks for Marriage to be Declared Void in Texas

Published on: August 21, 2017 | by McClure Law Group

In a recent Texas divorce case, a husband appealed from a divorce decree. He and his wife married in 2014, and they had a son in the same year. In the following year, he petitioned the court to declare that their marriage was void, claiming that his wife’s prior marriage in Eritrea had never been properly concluded. Therefore, he argued, their marriage was void. She counter-petitioned for divorce.

The trial was bifurcated such that the court looked at whether the marriage was valid in one proceeding and decided the divorce-related concerns in a separate, later proceeding. During the first proceeding, the wife testified she married an Italian citizen in Eritrea in 2002, and she had two kids with him. They were legally separated in Italy, and her ex-husband was ordered to pay her child support. She also filed for divorce in Eritrea in 2013. The record included a decree from Eritrea in which the divorce was stated to be in 2013. The ex-husband didn’t appear in court, but a divorce was decreed, and the wife believed she was properly divorced.

The husband showed that the Italian legal proceedings were ongoing in 2013. The wife testified that the Italian proceedings were to get legally separated, but she’d asked for the divorce in Eritrea. Neither the wife nor the husband submitted information about Italian or Eritrean divorce law. At the end of the first proceeding, the husband’s request that his marriage be declared void was denied.

Death Penalty Sanctions in a Texas Divorce

Published on: August 5, 2017 | by Brandon Joseph

In a recent Texas divorce case, the lower court imposed so-called “death penalty sanctions” against the wife for litigation misconduct. The wife sued for divorce in 2016, and the husband counter-petitioned in the following month. In the counter-petition, the husband pled claims of misapplication of community property, fraud, breach of fiduciary duty, and forgery.

The wife didn’t cooperate with written or oral discovery, causing the husband to ask for sanctions. He also filed a motion to compel discovery, claiming she hadn’t responded to multiple requests for written discovery and had refused to answer questions at her deposition. The lower court set a hearing but, without holding the hearing, said it would consider the motion for sanctions. It ordered the wife to respond to the husband’s discovery requests. The husband and wife agreed to an order that addressed the motions for sanctions. It found the wife had again failed to answer the written discovery and ordered her to answer. She and her husband signed the agreed order.

Nonetheless, the wife didn’t answer the discovery requests, and he again moved for sanctions. He said she hadn’t provided answers to interrogatories. He claimed that she’d produced some documents, but they weren’t identified or categorized as responses to particular requests. He also claimed she hadn’t given an accounting she’d been ordered to give and hadn’t answered the deposition questions she’d previously refused to answer. He asked for severe sanctions, including a default judgment against her.

Duties Owed by Constructive Trustee for Property Awarded to A Spouse in Texas

Published on: July 21, 2017 | by McClure Law Group

In a recent Texas divorce case, the court examined a divorce decree that named a husband as constructive trustee of property decreed to the wife. The property at issue was a 50% undivided interest in the shares of an LLC. The dispute in the case was whether the constructive trustee had to give the wife documentation showing the status of the shares and the LLC’s tax returns and financial statements.

The case arose when the couple divorced and a mediated settlement agreement was incorporated into their divorce decree. The couple had agreed that any shares of the LLC that had been awarded to the wife would still be managed by the husband, who also had the exclusive right to control, manage, possess, and exercise the rights associated with shares of the LLC held in his name. The decree also stated that the husband was the constructive trustee for the wife’s benefit with regard to any of the LLC’s shares to the extent he was obligated to pay her under that provision of the agreement. It also ordered him to pay her 1/2 of the sum of all of the monies he received due to selling shares of the LLC.

The wife wanted assurance that the husband was properly maintaining the values of the LLC shares when he didn’t answer her questions. She sued him and moved for the appointment of a Rule 172 auditor. Through several procedural mechanisms, she asked for an accounting of the LLC’s finances from 2011 to the present. She also wanted him to produce the tax returns and K-1 forms that were related to her ownership interest. To support her claims, she claimed that the husband owed her statutory and common law duties, including a duty to give her an accounting, as a constructive trustee.