Texas Divorce Attorney Blog
Property divisions in Texas divorces are intended to be final. Although a party may appeal or seek to enforce a property division, they generally cannot relitigate it in a separate lawsuit. Sometimes, however, the divorce decree does not adjudicate all of the parties’ property. A former spouse may file suit to divide property that was not divided in the decree. Tex. Fam. Code § 9.201.
In a recent case, a former husband filed suit to divide property that he alleged had not been divided in the parties’ 2009 divorce.
According to the ex-husband’s pleading, the parties got married in 1981. He alleged the ex-wife bought property in Colorado while they were married, but that property was not addressed in the 2009 decree because they “agreed to divide the property among themselves later.” He also alleged the ex-wife notified him she would not comply with the agreement in 2023 and transferred the property to someone else. The ex-husband requested clarification that the property in Colorado was community property and asked for a one-half interest in it, along with fees and costs.
The ex-wife moved to dismiss on the grounds the ex-husband “failed to state a claim upon which relief can be granted.” She also argued Colorado was “not a community property state” so the property was her separate property. Her motion was granted and the ex-husband appealed.
Pleading
A party may move to dismiss a cause of action under Rule 91a.1 if it has “no basis in law or fact.” In determining if the claim has a basis in law, the court takes the allegations as true and determines if they, along with reasonably-drawn inferences, would entitle the party to the relief they seek. In determining if there is a basis in fact, the court considers whether a reasonable person could believe the facts alleged.
The ex-wife argued the ex-husband had failed to state a claim upon which relief could be granted and had not cited statutes supporting his claim.
The appeals court pointed out that pleadings do not have to cite law. A pleading is sufficient if it gives fair notice of the claim such that an opposing attorney of reasonable competence could ascertain the nature of the claim and issues by reviewing the pleadings. See Huff Energy Fund, L.P. v. Longview Energy Co.
The appeals court noted that property omitted from the final divorce decree may be divided under Chapter 23 of the Property Code and Chapter 9 of the Family Code. The ex-husband argued the Colorado property could be divided pursuant to Tex. Fam. Code § 9.201. That statute allows a former spouse to file suit “to divide property not divided or awarded to a spouse in a final decree of divorce or annulment.” The appeals court found an attorney of reasonable competence could ascertain the claim’s nature and basic issues based on the pleading and statutes.
Characterization
The ex-wife had argued in her motion that the property was not subject to division because it was her separate property. She argued on appeal the trial court did not have jurisdiction to divide the property.
The appeals court noted that Texas courts do not have jurisdiction to adjudicate the title of land outside Texas, but can order a party to convey such land. Additionally, Texas courts characterize out-of-state property acquired during the marriage as community property if it would have been community property if the spouse was domiciled in Texas when it was acquired. If the allegations in the pleading were true, the property in Colorado would be community property. Additionally, the court could order the ex-wife to sign any documents necessary to divide the property, even if it did not have jurisdiction to adjudicate the property’s title.
Statute of Limitations
The appeals court also concluded the statute of limitations did not bar the ex-husband’s claim. The two-year period to file suit for a post-decree property division starts when the ex-spouse “unequivocally repudiates” the other former spouse’s ownership interest and communicates the repudiation to the former spouse. Tex. Fam. Code § 9.202. According to the facts alleged in the ex-husband’s pleading, he filed the lawsuit in the same year that the ex-wife unequivocally repudiated his ownership interest.
The ex-wife had not pleaded res judicata as an affirmative defense to the trial court, so the appeals court concluded the trial court erred if it granted the motion based on res judicata. The appeals court further pointed out, however, that the ex-husband pleaded the decree had not divided the property in Colorado. The ex-wife did not dispute this allegation. Res judicata does not bar a claim for post-decree division of property if it was not adjudicated in the divorce decree.
The appeals court concluded the trial court erred in dismissing pursuant to Rule 91a. The appeals court reversed the judgment and remanded the case to the trial court.
Contact a Dallas Divorce Lawyer
This case illustrates that it may be possible to pursue a division of property years after the divorce. To avoid subsequent litigation, it’s important to address all property that should be divided in the property division, especially for complex high-net-worth estates with multiple real estate investments. An experienced Dallas, Texas divorce attorney can ensure that when you sign your final decree of divorce it is not subject to future litigation. Set up a consultation with McClure Law Group by calling 214.692.8200.