Property

Texas Divorce Decree Must Adopt Terms of a Mediated Settlement Agreement

Published on: February 23, 2021 | by Kelly McClure

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.

Is My Spouse Entitled to Half of My 401(k)?

Published on: January 24, 2021 | by Spencer Page

iStock-654702696 For 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 ›

Arbitration Award Involving Texas Couple’s Business Entities Upheld on Appeal

Published on: January 20, 2021 | by Kelly McClure

iStock-1215119911 A 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.

Texas Divorce Decree Could Address Changes Arising from Hurricane Occurring after MSA

Published on: January 11, 2021 | by Francesca Blackard

iStock-178756342 When 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.

Cruel Treatment During Marriage Results in Disproportionate Division of Property

Published on: December 27, 2020 | by Kelly McClure

Fault in Divorce

iStock-1163040189 Divorces may be granted without fault, but Texas still allows divorce to be granted on fault-based grounds in certain situations. For example, a Texas divorce may be granted in one spouse’s favor if the other committed “cruel treatment” that makes the parties continuing to live together “insupportable.” Tex. Fam. Code Ann. § 6.002. Physical abuse can constitute cruel treatment, but physical abuse is not required for a Texas divorce court to find cruel treatment. When the court finds fault-based grounds for divorce, such as cruel treatment, the court may consider the fault in dividing the property. Specifically, the court can award a disproportionate share of the community estate to the spouse who is not at fault. A husband recently challenged such a disproportionate property division in his divorce.

The wife said the husband stopped paying attention to her after his business partnership went sour. She also said he had called her names and accused her of cheating, in addition to being violent against her around four or five times.

The wife alleged that, during one incident, the husband had closed a door on her arm after he had filed for divorce. She called the police, and the husband agreed to leave. The husband, however, claimed that he had simply closed the door after the wife left the room, but she forced it back open. He claimed the door hit him, then whipped back toward her and hit her elbow. He said he agreed to leave for a few hours after the police arrived, but ultimately decided to leave permanently so their child would not see them argue.

Texas Court Finds No Duress in Mediated Settlement Agreement

Published on: December 23, 2020 | by McClure Law Group

What is a Mediated Settlement Agreement?

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.

Fraudulent Texas Partition or Exchange Agreement Found Unenforceable

Published on: November 25, 2020 | by Spencer Page

divorce-property-fraud

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

Ex-Wife Not Required to Repay Ex-Husband for Mortgage Payments After Divorce

Published on: October 5, 2020 | by Kelly McClure

Sometimes, couples’ lives remain intertwined even after divorce. If the parties continue to mingle finances, own property together, or keep or take out loans together after the divorce is final, the divorce may not finally resolve all of their issues.

In a recent case, an ex-husband sued his ex-wife regarding property she had been awarded in the divorce years earlier. The parties purchased a vacation home during their marriage. The ex-wife was awarded the vacation home in the divorce decree, but a geographical restriction on where the children could live prevented her from living in it.

The ex-wife put the house up for sale after the divorce, but did not sell it after the husband offered to pay the mortgage. The ex-husband received the statements and made the payments. The ex-wife testified she was aware her ex-husband was paying the mortgage.

Threats of Criminal Prosecution Can Constitute Duress in Texas Divorce Case

Published on: August 17, 2020 | by McClure Law Group

Divorce is usually fraught with emotion, but in some cases, a party may be pressured to the point of duress. Duress exists when there have been threats that prevent a person from exercising their own free will. Although it is not duress when a person threatens something they have a legal right to do, duress may exist if they exhort or make improper demands of another person. An agreement signed under duress may be void. In a recent Texas divorce case, a husband alleged he was under duress when he signed the marital home over to the wife.

The parties married in 1994. During the marriage, they purchased the home. They separated in March 2017. They agreed the wife would take the home and the husband would not have to pay child support, but they never memorialized the agreement. The husband testified he changed his mind after finding out his wife was unfaithful.

The husband moved out in March 2017. The wife also filed her divorce petition that month. She testified that the husband came to the house in April, kicked in the door, and threatened to kill her, her boyfriend, and her grandmother. She reported the incident to the police.

Texas Appeals Court Finds Gift Property from Wife’s Parents Was Her Separate Property

Published on: July 29, 2020 | by McClure Law Group

In Texas divorce cases, property is presumed to be community property if either spouse possesses it during the marriage or at the time of the divorce. Tex. Fam. Code Ann. § 3.003. To rebut the presumption, a spouse must trace the property and clearly identify it as separate by clear and convincing evidence. How a property is characterized is generally determined based on the character it has at inception, or when the party’s title has vested.

In a recent case, a husband challenged the trial court’s characterization of property received as a gift from the wife’s parents. When he petitioned for divorce, the husband requested a disproportionate share of the marital estate, due in part to “fault in the breakup…” He also asked for reimbursement to his separate estate for funds he had expended for the community estate’s benefit.

He testified that the property where the couple lived had been gifted to them by the wife’s parents. The “Gift Certification” signed by the wife’s parents stated they “intend to give to [husband and wife] a gift . . .” of the lot. It also listed the relationship as “son in law to be and daughter.” Both the husband and wife signed in acknowledgement of receiving the gift.