Texas Divorce Attorney Blog
Under Texas family law, property acquired by a spouse during the marriage is community property, unless it meets the requirements of separate property. Pursuant to Tex. Fam. Code § 3.001, personal injury recoveries are the separate property of the injured spouse, but recovery for lost earning capacity is community property. Property possessed by a spouse during or on dissolution is presumed to be community property, so a spouse claiming a personal injury recovery is their separate property must prove by clear and convincing evidence what portion is separate. A wife recently challenged the property division in her Texas divorce after the court concluded monthly payments from a personal injury settlement were the husband’s separate property.
According to the appeals court’s opinion, the wife had primarily been a homemaker during the marriage, but she sometimes worked part-time.
The husband was seriously injured at work in 2006. He was found to be incapacitated and the wife acted as his guardian in the resulting lawsuit. In the personal injury settlement agreement, the wife agreed, on behalf of her husband and herself, to release all claims against the defendants. The defendants’ insurance companies agreed to immediate cash payments and monthly payments for the rest of the husband’s life. The settlement provided that $1,150,000 of the cash payments was for the husband’s benefit and $50,000 would go to the wife. The settlement agreement also stated the monthly payments were for the husband’s benefit. The monthly payments were secured through the purchase of an annuity pursuant to the settlement agreement. The agreement also stated that funds were “damages on account of personal physical injuries or sickness” pursuant to the Internal Revenue Code. It also provided that the husband and wife were responsible for paying their attorney’s fees, court costs and case expenses, and any medical bills and liens.
Texas spousal maintenance is intended to provide “temporary and rehabilitative” support for a spouse who does not have the ability or assets to support themselves or whose ability to do so has deteriorated while they were engaged in homemaking activities. Courts may award spousal maintenance only in limited circumstances if the parties meet the requirements under the Texas Family Code.
In dividing property in a Texas divorce, the court must effect a just and right division. If the marital residence is part of the community estate and one party will keep it, the court must address the other spouse’s share of the equity. The court may do this by placing an owelty lien on the property. An owelty lien creates an encumbrance on the property that follows it upon a sale. The lien must be paid before the net proceeds of the sale are distributed to the spouse. In a 
The characterization of property in a Texas divorce is generally determined by the property’s character when the spouse acquired it. Separate property is property a spouse owned before the marriage or acquired during the marriage through gift, devise, or decent. Improvements made to separate property are generally also separate property because they are not divisible from the land. Community property is property acquired by either spouse during the marriage that is not separate property. In a recent case, a wife 
There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents. Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Courts generally cannot interfere with these fundamental rights of a fit parent. The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.
When a party in a Texas custody case fails to respond or appear, the court may find they defaulted and enter a judgment in favor of the other party. For a court to enter a post-answer default judgment against a party, however, the pleadings must give the party fair notice of the claim. A mother recently challenged a custody modification, arguing that the father’s pleadings did not specifically request the rights awarded to him by the court.
A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence. The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence. The court’s primary consideration is the child’s best interest. The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs. Lenz v. Lenz.
Property possessed by either spouse at the time of a Texas divorce is generally presumed to be community property, but that presumption can be rebutted by clear and convincing evidence. A number of other rules and presumptions may affect the characterization of property during the property division. A husband recently