Articles Posted in Property Rights

imagesIn a Texas divorce case, property acquired during the marriage is presumed to be community property. A spouse claiming property is their separate property must show that it is separate by clear and convincing evidence.  Separate property is generally property that is owned before the marriage, property that the spouse acquired as a gift or inheritance, or property recovered as damages in a personal injury case.  Community property is generally property acquired after the marriage that is not characterized as separate property.

In a recent case, a wife challenged the court’s characterization of certain property as the husband’s separate property.  The wife filed for divorce. The parties agreed they had married in India in 1976, but disagreed on the date they stopped living together as husband and wife.

Husband and Wife Enter into Settlement – But Leave One Issue for Trial

The case went to trial, but, before trial, the parties entered into a Mediated Settlement Agreement (“MSA”).  In the MSA, the parties agreed their community property located in India would be divided by Indian courts.  The parties agreed to the characterization and division of everything except two pieces of land in India, referred to as the “Fifteen-Cent” property and the “One-and-a-half-Acres” property. The MSA stated they would “defer to characterization and confirmation of separate property” of those two parcels to the trial court.

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does-adultery-affect-alimony-in-idaho-1080x600-1In a Texas divorce, the court must divide the property in a just and right manner.  The requirement is that the division be equitable, but not necessarily equal. The Texas Supreme Court identified several factors courts should consider in Murff v. Murff. These factors include the parties’ physical conditions, education, financial condition, abilities, and ages.   A husband recently challenged a trial court’s division of the marital property following a mediated settlement agreement between the parties.

The parties married in 1999 and the wife initiated divorce proceedings in 2017.  Pursuant to a temporary order, the marital home was sold and about $500,000 in sales proceeds were put into an escrow account.  The court signed an agreed order allowing disbursement of an equal portion of the proceeds to pay each party’s divorce attorneys.  The rest of the proceeds was left in the escrow account.

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When a spouse petitions for a Texas divorce, the other spouse must file an answer.  If the other spouse fails to do so, the court may render a default judgment.  Under certain circumstances, however, the other spouse may get the default judgment overturned.  In a recent case, a husband sought to overturn a default judgment entered against him.

According to the Texas Supreme Court’s opinion, the wife filed for divorce.  The trial court granted her motion for alternative service at the home of her husband’s mother.  The trial court ultimately entered a no-answer default judgment the following January.

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A Texas Mediated Settlement Agreement (“MSA”) that meets the statutory formalities is binding and the parties are entitled to a judgment upon it (i.e., the divorce decree must adopt it).  In a recent case, a husband challenged an order issued after the divorce decree that was intended to conform the decree with the terms of the MSA.

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parties executed an MSA. A couple of weeks after the court entered the final divorce decree, the wife moved for clarification of the MSA.  She alleged the final decree did not reflect the MSA, because it failed to confirm certain items as her separate property.  The trial court entered an order confirming those items as her separate property after a hearing.

The husband appealed.

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iStock-654702696For many Texans, their 401(k) plan is one of their largest assets – particularly for those who have made regular contributions throughout their career. On top of that, 401(k) plans often hold symbolic significance above and beyond their sheer dollar value. To some, they represent safety, security, and an end to the monotonous rat race. For others, they are a prize, a badge of honor earned after countless late nights at the office. However, no matter the role they play in your life, the thought of losing half of your hard-earned nest egg can be terrifying. This begs the question: how much of your 401(k) is actually at stake in a Texas divorce? Continue Reading ›

iStock-1215119911A Texas premarital agreement can help protect each party’s assets in the event a marriage ends in divorce. Premarital agreements may also include other provisions, including a requirement to submit certain issues to binding arbitration instead of for determination before a judge or jury. In a recent case, a husband attempted to vacate an arbitrator’s decision, arguing he had exceeded his authority.

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iStock-178756342When a divorcing couple reaches a Mediated Settlement Agreement (“MSA”) that meets the statutory requirements, the parties are entitled to a judgment on that MSA. Tex. Fam. Code Ann. §§ 6.602(c).  In some cases, however, things can change after the MSA is agreed upon. In a recent case, a wife challenged the way a court addressed changes arising after the MSA was executed, but before the final decree of divorce was entered.

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What is a Mediated Settlement Agreement?

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A mediated settlement agreement (“MSA”) in a Texas divorce is binding if it meets certain requirements.  It must state that it is not subject to revocation in bold letters, capital letters or underlined text.  It must also be signed by each party and the party’s attorney, if present. Tex. Fam. Code Ann. § 6.602.  Some Texas courts have held that an MSA may be unenforceable if it is obtained by fraud, duress or coercion.

A husband recently challenged an MSA, partly on the grounds that he allegedly signed it under duress.

The parties had been married since 1981.  Some of the property acquired during the marriage was held by a limited partnership in which the parties owned a 95% interest.  In August 2017, the husband was arrested after the wife reported he had threatened her with a firearm.  The wife filed for divorce the very next day.

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With an increasing number of couples having children in their 30s, or skipping having children altogether, pets are taking on a whole new role for many Texas couples: a temporary stand-in for children and sometimes even a permanent replacement. As a result, more Texas couples consider their pets to be members of the family now than ever before. Pets now accompany us to restaurants, sleep on memory-foam mattresses, and even have their own social-media accounts. However, when it comes to divorce, many Texas couples are understandably unsure what might happen to their “fur baby.” Will their pet be awarded to their soon-to-be ex-spouse, never to be seen by them again? Will the Court order shared possession of their pet, like it would a child? Is it possible to get court-ordered FaceTime sessions with a miniature poodle?

Pet Custody in Texas Divorce

While a few states, such as California, Alaska, and Illinois, have given legal recognition to the unique role that pets play within the family, Texas law still considers pets to be personal property in the divorce context. As a result, Texas divorce courts are unlikely to order shared possession of a pet like they would a child. In this regard, Texas divorce law creates a zero-sum game: either you are awarded the family pet or your spouse is. With this in mind, it is important to inform the Court to whom the family pet should be awarded and why.

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What is a Partition or Exchange Agreement?

In Texas, spouses can enter into agreements (often referred to as “partition or exchange agreements“) during marriage, partitioning community property between themselves. A partition or exchange agreement must satisfy several requirements to be valid and enforceable, including being signed by both spouses. However, when the stakes are high, some unscrupulous spouses may trick their unknowing partner into signing the partition or exchange agreement under false pretenses or, even worse, forge their partner’s signature. Recently, one husband did both.

Ninth District of Texas Court of Appeals

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