Property

Texas Divorce Abated Upon Husband’s Death

Published on: March 20, 2022 | by Kelly McClure

iStock-1270267953-300x200 When a party in a Texas civil lawsuit dies, the case may proceed if the cause of action survives the death of the party. Tex.R.Civ.P. 150. Generally, when the defendant in Texas civil lawsuit dies, the plaintiff may petition for a “scire facias” to require the administrator, executor, or heir to defend the lawsuit. Tex. R. Civ. P. 152. Pursuant to case law, however, Texas divorce cases are not subject to this rule because they are personal actions that do not survive the death of a party if judgment has not yet been rendered. Generally, heirs do not take over a divorce case prior to final judgment. Instead the divorce case abates when a party dies. This means the court will dismiss the case.

Husband Dies During Divorce Suit

A wife recently challenged a trial court’s determination that her divorce petition abated upon her husband’s death. The parties had married for about seven years when they divorced in 2000. In 2018, they got married again. The parties did not have any children together, but the husband had children from a previous marriage. The wife petitioned for divorce in May of 2020. The husband filed an answer, but passed away the following January. The wife sought to have the husband’s children defend the divorce on the husband’s behalf as his heirs.

The trial court found it did not have subject-matter jurisdiction to proceed, because a divorce petition, as a personal action, abates upon the death of either party. A judgment rendered by a court without subject-matter jurisdiction is void.

Ex-Wife Entitled to 50% of Community Portion of Pension Benefits in Texas Divorce

Published on: March 16, 2022 | by Francesca Blackard

iStock-1132277483-300x200 Property division in a Texas divorce is intended to be final, and a court generally is not allowed to change the division set out in the final decree. Tex. Fam. Code Ann. § 9.007. The court may, however, issue orders to clarify or enforce the property division set out or incorporated by reference in the decree. Issues related to retirement benefits are often addressed in a Qualified Domestic Relations Order (“QDRO”) for private employees or a Court Order Acceptable for Processing (“COAP”) for employees of the federal government, which may be incorporated into the decree. Courts may therefore correct or clarify a QDRO or COAP to achieve the property division set out in the decree.

An ex-husband recently challenged an order allowing his ex-wife half of his entire monthly federal pension. The husband started working for the federal government in 1989. The parties got married in 2000 and divorced in 2011.

Language in the decree seemed to award the wife half of the community share of the husband’s federal government pension benefits, but another provision seemed to award her half of all of those benefits. The decree stated the “community portion” of the pension benefits would be identified in a COAP. The court rendered the COAP in January 2012, but it indicated the wife was awarded 50% of all of the federal pension benefits.

Texas Appeals Court Finds Wife Did Not Convert Inheritance to Community Property

Published on: March 2, 2022 | by Francesca Blackard

2018_10_agreement-300x165 In Texas, separate property can be converted to community property by a written agreement signed by both spouses that identifies the property to be convert and specified it is being converted to community property. Tex. Fam. Code § 4.203. In a recent case, a former husband challenged the property division in his divorce decree, arguing certain assets had been improperly characterized as the wife’s separate property.

The wife was beneficiary of three irrevocable trusts set up by her grandparents. The income from the trusts was to be distributed to the wife at least annually starting when she turned 21. The trustee was also authorized to distribute principal for the wife’s care, comfort, support, and education if the trustee deemed it necessary. When she turned 32, the trustee had the discretion to distribute the balance. After the wife’s thirty-second birthday, which occurred during the marriage, the trustee terminated the trusts and put the accounts in her name. They were worth about $2.3 million at the time.

The parties hired an estate-planning attorney. They both signed an engagement letter, stating they told the attorney they considered the current assets, specifically including the funds inherited by the wife, to be community property. The trust agreement stated that the trustors contemplated that all assets that would be transferred to the trust would be community property. However, it also included a provision allowing either party to modify, revoke, or terminate the agreement with respect to any of their own separate property held in the trust. They subsequently transferred the assets from the grandparents’ trusts to the new trust account.

Enforcement of High Net Worth Texas Divorce

Published on: February 20, 2022 | by Kelly McClure

iStock-1139699594-300x200 When a couple has complex and high-value assets, the actions required to achieve the property division may drag out long after their Texas divorce. The parties may need to refinance or liquidate certain assets. These ongoing transactions can result in additional disputes and possibly enforcement actions by one or sometimes both parties.

A husband recently challenged a court’s order in favor of the wife in dualling enforcement motions. The trial court entered an Agreed Final Decree of Divorce in March 2019. The decree awarded the wife a business, but required her to pay the husband a $770,000 equalization judgment secured by her primary residence and rental properties. She was also ordered to make monthly payments with 3% interest starting in February 2019. She defaulted in 2020, triggering an acceleration clause.

The decree also addressed the parties’ 2017 tax return and liability. The wife would pay $60,000 of the approximate $199,000 liability and any penalties and interest “arising solely out of the failure to previously make the $60,000 payment to the Internal Revenue Service.” The parties would split the remaining tax liability, penalties, and interest equally. The wife consented to filing the tax return in June of 2019, but the husband asked to review certain documents before he consented. There was evidence he received the documents in the summer of 2020 and notified the wife and accountant he had identified additional medical expenses within a week of receipt. He ultimately gave his consent to file the day before the enforcement hearing.

Ex-Wife Entitled to Ongoing Interest in Ex-Husband’s Defined Benefit Retirement Plan

Published on: January 31, 2022 | by Kelly McClure

iStock-1187184203-300x200 Retirement benefits are often subject to property division in a Texas divorce. In some cases, calculating the community interest is straight forward; however, in other cases, it can be somewhat more complex. In a recent case, a former wife challenged a trial court’s handling of the former husband’s retirement benefits after it concluded she had already received all of the benefits to which she was entitled.

The parties had been married 22 years when they divorced. The wife was awarded 50% of the husband’s Civil Service Retirement Benefits accrued as of the date of the decree’s entry. The trial court signed a Qualified Domestic Relations Order (“QDRO”) authorizing payment of an interest in the husband’s monthly annuity payments to the wife and stating that she was entitled to a survivor annuity.

Trial Court Enters Original QDRO

The parties began receiving the monthly annuity payments pursuant to the QDRO after the husband retired at the end of 2011. In March 2016, the husband moved to vacate the QDRO, arguing the wife was not entitled to a survivor’s benefit under the decree but a premium was being deducted from his monthly benefit. He asked the court to amend the QDRO to match the property division in the divorce decree.

Former Spouse Cannot File New Suit for Division of Property Disposed of in Texas Divorce

Published on: December 22, 2021 | by Francesca Blackard

iStock-545456068-300x184 A trial court may order a post-divorce division of community property that was not divided or awarded to either spouse in a Texas divorce decree. Tex. Fam. Code § 9.201. The court may not, however, order a post-divorce division of property that was already divided in the divorce. The legal doctrine of res judicata prevents a party from re-litigating issues such as categorization of assets or improper division in a new case. Parties must instead address such issues through direct appeals. In a recent case, a wife sought a post-divorce division of certain bonuses the husband received after the divorce.

The parties married in 2014, and the wife petitioned for divorce the next year. The husband included several bonuses in his asset inventory. He listed a $0 value for the bonuses that would only be payable after the divorce if he remained employed on the designated date. He testified they had no value because they were conditional on future events.

The wife argued the future bonuses were deferred compensation for work performed during the marriage and estimated their value at more than $4 million.

Evidence of Separate Property in Texas Divorce Cases

Published on: November 29, 2021 | by Kelly McClure

iStock-1214358087-300x169 Texas law presumes that property possessed by a spouse during or on dissolution of the marriage is community property. Tex. Fam. Code § 3.003. The presumption can only be rebutted by clear-and-convincing evidence the property is separate. In a recent case, a husband challenged the characterization and distribution of property in his divorce.

The parties got married in 2008 and separated in 2018. The wife moved into her own apartment and filed for divorce in March 2018.

The wife submitted an inventory and appraisement, a copy of her student-loan activity, and a proposed property division. The husband also submitted an inventory and appraisement, as well as account statements and receipts.

Is it Possible to Keep Your 401(k) in Your Divorce?

Published on: November 25, 2021 | by Kelly McClure

iStock-654702696-300x200 One asset that many Texans do not consider their spouse to have an interest in is their 401(k) or any other retirement fund that they have been slowly building during the course of their marriage. Having to divide up your retirement funds may throw a wrench into one’s retirement plans, but, where possible, courts often award retirement accounts to the spouse in whose name they are held. Provided the somewhat-ambiguous “just and right” standard is met, Texas divorce courts have wide discretion to divide up individual assets as they see fit. This may involve splitting each asset, such as 401(k), and dividing the funds therein between the spouses. However, more commonly, courts attempt to award whole assets to either party to avoid an overly complicated, and perhaps unnecessary, division of property.

With this in mind, it is important to focus aspects of your case at trial on why the court should award your 401(k) to you. Factors such as your role in contributing to it, your need for future support, the value of assets in your spouse’s control, your and your spouse’s relevant incomes, which spouse is appointed primary conservator of their children (if any), and many others can be useful to craft a compelling case to keep your 401(k) plan (or any other asset).

In addition, you can sometimes increase the likelihood that you keep your 401(k) post-divorce by entering into a settlement agreement with your spouse. In Texas, spouses are free to enter into settlement agreements to resolve one or more aspects of their divorce, such as the division of their community estate. Settlement is an important process in a Texas divorce, because it can often be the best way to ensure that you retain your hard-earned nest egg and any other assets that you consider important.

Texas Appeals Court Enforces Property Distribution Years After Default Divorce

Published on: November 23, 2021 | by Francesca Blackard

images Failing to respond to a Texas divorce petition can result in a default judgment with an unfavorable property division. What happens, though, if the spouse who received the default judgment fails to take action to enforce the property division for several years? A Texas appeals court recently considered a case involving that issue.

Wife Obtains Default Judgment

The husband bought a home before he met the wife. They refinanced it jointly twice during the marriage. The wife subsequently filed for divorce and obtained a default divorce decree in February 2011. The decree listed the home as community property and stated that the wife owned it alone as separate property and that the court divested “any interest, title, and claim the Husband may have to [it].” The court further ordered the husband to sign any deeds necessary to transfer the property to her. There was a remaining principal of $43,399.14 according to the bank statement for the next month.

The husband testified he had not been served and only found out about the divorce case and default divorce later that year. The wife moved out about four months after the divorce. She stated the husband did not want her to live there and tried to “kick [her] out in a very aggressive way. . .” She claimed “[t]here was a lot of violence. . .” The husband testified the wife would yell at him that the house was hers and she was going to take it from him. He then went to court to see the divorce decree and learned it awarded the house to the wife. He said he could not afford an attorney at the time.

Texas Divorce Court Must Compel Arbitration of Dispute Regarding Buyout Provision of Company Agreement

Published on: November 3, 2021 | by Kelly McClure

iStock-1287431987 A family business can complicate the property division in a Texas divorce. A recent case considered whether a husband could compel arbitration to enforce a buyout provision in a company agreement during the divorce proceeding.

The parties formed a limited-liability company together during the marriage, with each owning a 50% membership interest. The husband subsequently petitioned for divorce and the wife filed a counterpetition. Both attached the standing order required by the Travis County District Clerk to protect the parties and preserve their property while the case is pending. The standing order applies to all divorce suits filed in Travis County (and many other counties have similar standing orders, such as Dallas, Collin, Denton, Rockwall, and Tarrant Counties) and prohibits parties from taking certain actions that would harm or reduce the value of the property and from selling or otherwise alienating property belonging to either party.

Wife Seeks to Compel Arbitration on Business Disputes

The husband sought injunctive relief and temporary orders to address disputes relating to operation of the business. The wife asked for those disputes to be resolved according to the company agreement, which required any court proceeding brought by one owner against the other be submitted to mediation first and then to binding arbitration if not resolved. The parties were required to go to mediation and arbitration and the arbitrator entered an award regarding management and control of the business. The wife moved to enforce the arbitration award and the court entered temporary orders in accordance with that award.