Divorce

When Business and Pleasure Become Commingled

Published on: February 6, 2017 | by McClure Law Group

If your business partner is also your life partner, you need to consider a recent Texas high court decision. (read more)

Gonzalez v. Maggio, 500 S.W.3d 656 (Tex. App. – Austin 2016) is a Texas case that illustrates the complexities of ending a business partnership along side of ending a personal partnership. The Texas Court of Appeals reviewed how a husband and wife, who were also law partners, would divide their clients, fees, and remaining clientele.

The case arose out of a divorce in which the husband and wife had also formed a law partnership during their marriage. There was no written partnership agreement but it was undisputed that they shared in the capital, profits and losses 50/50.

Mediated Settlement Agreements in Texas Divorces

Published on: November 15, 2016 | by Kelly McClure

In Araujo v. Araujo, an ex-wife appealed from an order denying her motion to revoke and set aside a mediated settlement agreement for her divorce. The ex-wife argued on appeal that the agreement lacked consideration and therefore wasn’t enforceable, her own attorney coerced her to sign it, and there was an invalid provision that made it unenforceable.

The case arose when a husband and wife entered into a mediated settlement agreement in August 2014. It awarded the wife certain property in two Texas cities and required her to pay $27,000 to the husband by a certain date. The agreement stated that each party had made a fair, reasonable disclosure of finances and property to the other. The wife was represented by an attorney, who withdrew from representation in October 2014.

Her second attorney filed a motion to revoke and set aside the agreement. She argued that the agreement resulted in an unjust estate division, due to the husband’s fraud. She claimed that the only property she got under the agreement was separate property, that she was entitled to half of the community property awarded to her ex-husband, that the agreement didn’t address the retirement in the amount of about $22,000, and that it didn’t address or divide the couple’s two vehicles. A trial court denied her motion.

Case Law Update on Invasion of Privacy in Texas

Published on: November 7, 2016 | by McClure Law Group

According to a recent case from the Texas Court of Appeals in Dallas, a spouse’s secret recording of the other spouse at a time when the other spouse believed he or she was in a private setting can support a tort claim for invasion of privacy. Continue Reading ›

Who Keeps the Engagement Ring if the Wedding is Called Off?

Published on: November 2, 2016 | by Kaitlin Capetillo

What happens to the engagement ring if someone calls off the wedding?

Unfortunately, before some engaged couples can make it down the aisle to say “I do”, someone says “I don’t”. The issue of who gets to keep the engagement ring often surfaces during this heartbreaking time.

An engagement ring is a gift and the law requires three elements to constitute an irrevocable gift:

Valuation of Separate Property and Reimbursement in a Texas Divorce

Published on: October 30, 2016 | by Kelly McClure

In Maher v. Maher, a husband challenged the court’s final divorce decree. He argued, among other things, that the trial court had mischaracterized and misvalued certain assets of the marital estate. The wife had sought the divorce on the grounds that they had discord or personality conflicts. She asked for a division of community property, confirmation of her separate property, reimbursement, and attorneys’ fees. The husband asked for a division of community property in which he received a disproportionate share, confirmation of his separate property, reimbursement, and attorneys’ fees.

The matter went to trial. The wife testified they had a son who was over 18 years old. The couple didn’t have a close marital relationship, and the wife claimed the husband’s drinking threatened their relationship. In 1995, her parents started giving her monetary gifts, and when her mother died, she became the beneficiary of a bypass trust that her mother created.

When her father died, she received distributions from his estate too. From her parents, she’d received over $1.2 million, which she claimed was separate property. She also explained that they’d given her husband monetary gifts of about $68,000, which she said was his separate property.

Defrauding the Marital Community in Texas

Published on: October 25, 2016 | by Kelly McClure

Often times, before commencement of or during a suit for dissolution of marriage, one spouse will commit fraud against the couple’s community estate. Texas law recognizes two types of fraud: (1) constructive fraud; and (2) actual fraud.

Constructive fraud claims are based on a breach of fiduciary duty by one spouse against the other. Puntarelli v. Peterson, 405 S.W.3d 131, 2013 Tex. App. LEXIS 1458, 2013 WL 561484 (Tex. App. Houston 1st Dist. 2013) If someone owes a fiduciary duty, they have a legal obligation to act in the best interest of another. When a constructive fraud claim is being alleged, the argument is that one spouse has a fiduciary duty to act in the best interest of the other spouse regarding the protection and management of the community estate, and that duty was breached by a spouse who misappropriated assets from the community estate. A constructive fraud claim can also be pursued under the theory of waste, where one spouse disburses community assets for noncommunity purposes without the other spouse’s knowledge or consent. Connell v. Connell, 889 S.W.2d 534, 1994 Tex. App. LEXIS 3020 (Tex. App. San Antonio 1994)

What to Expect When You’re Expecting (& Divorcing)

Published on: August 30, 2016 | by Kaitlin Capetillo

Can a married couple get divorced in Texas while the wife is pregnant?

It is highly unlikely.

Most Texas courts will not grant a divorce to a married couple if the wife is pregnant. Instead, the couple will have to wait until after the baby is born to finalize their divorce, oftentimes causing significant delays to the already lengthy divorce process. This is the case even if the husband and wife both want the divorce and are in agreement on all issues.

Dissolution of an Informal Marriage in Texas

Published on: August 1, 2016 | by Kelly McClure

In In re Interest of JJFR, a man appealed from the denial of his motion for summary judgment, arguing there was insufficient evidence to prove his partner and he had entered into an informal marriage. In Texas, an informal (or common law) marriage under Texas Family Code §2.401(a)(2) can be proven by using evidence that a man and woman agreed to be married and after agreeing lived in Texas as husband and wife and told others they were married.

Informal marriages exist only if all three elements are present. Whoever wants to establish that there is an informal marriage needs to prove these elements by a preponderance of the evidence.

In the current case, the woman claimed there was an informal marriage and carried the burden of proof. The appellate court explained they could overturn an order on the ground of insufficient evidence only if the findings were so contrary to the overwhelming weight of the evidence they were obviously unfair and wrong.

Right to Reimbursement in Texas Divorce

Published on: July 15, 2016 | by Kelly McClure

In McCoy v. McCoy, a Texas husband appealed from a divorce decree, arguing that the lower court should not have denied his claim for reimbursement. The couple started dating in 2009. In the following year, they got engaged, and the husband moved to start law school. His fiancée joined him there in a rental house. They married in 2011. The wife worked full time during the husband’s first year in law school but then started going to law school as well. They both relied on student loans to cover their expenses and tuition.

Later, the husband claimed they had an agreement that the wife would pay him $700 every month and also pay for groceries and gas. He argued that she budgeted poorly and only sometimes paid this part of the expenses, and as a result he had to get supplemental student loans to cover her portion. They kept separate checking accounts related to their different law school loans.

In 2013, after the husband graduated, the wife filed for divorce. The husband responded by claiming he was entitled to reimbursement from his wife because he’d had to use his separate property to pay for her necessary living expenses. A bench trial was conducted, and the trial court divided the marital estate by awarding each of them the property they possessed and by ordering each spouse to pay his or her loans and debts solely in his or her name. The trial court also found that the husband’s request for reimbursement wasn’t supported by a preponderance of the evidence.

Divorce and Taxes – What to do if your ex-spouse botched your joint tax return

Published on: May 31, 2016 | by Adam Mundt

In many families, one spouse takes primary responsibility for all the family finances, including the preparation of the joint income tax return. A joint income tax return may provide tax benefits to families that would not be available from filing two separate returns. However, in order to file a joint income tax return, both spouses are required to sign the return. The result of filing a joint tax return is that each spouse is joint and severally liable for any reported tax liability, along with any additional tax, interest, and penalties assessed on the return by the IRS. Even if the couple is later divorced, both spouses remain joint and severally liable for the total liability associated with the joint return. But is this fair to the spouse who did not handle any of the family finances? What if the spouse was also the victim of abuse or domestic violence and was prevented from accessing any of the family financial records?

Congress and the Department of Treasury have created Innocent Spouse Relief, which gives the innocent spouse the ability to request relief from the IRS for the joint liability associated with any additional tax, penalties, or interest assessed on the joint return. To qualify for Innocent Spouse Relief, the innocent spouse must meet all of the following conditions: