Texas Divorce Attorney Blog

Separate Property and Tort Claims in Texas Divorce

Published on: April 7, 2022 | by Francesca Blackard

Divorce-property-fraud-300x273 Property in the possession of either spouse at the time of dissolution of marriage is presumed to be community property under Texas family law. A spouse may rebut this presumption by tracing and clearly identifying the separate property. That spouse must present evidence of the time and means of acquisition of the property. The property remains separate if the spouse can trace the assets back to separate property. Testimony is generally not enough to overcome the community-property presumption. The spouse must have clear and convincing evidence the property is separate. Tex. Fam. Code § 3.003.

An appeals court recently considered tort claims within a divorce case arising from the purchase of a business. When the parties married in 2014, the wife owned a 49% interest in her optometry practice. She offered to buy the remaining interest in 2015. Her husband and another attorney in his firm helped negotiate the deal.

Wife Brings Tort Claims in Divorce Suit

The wife petitioned for divorce in September 2018. She added claims of fraud, theft, and breach of fiduciary duty to her petition, arguing husband failed to structure that purchase as separate property and allowed her separate property to be converted to community property.

Texas Final Divorce Decree Constituted Consent Judgment after Revocation of MSA

Published on: April 3, 2022 | by Kelly McClure

“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas Mediated Settlement Agreement (“MSA”) must generally include language that it is not subject to revocation, be signed by each party, and be signed by the party’s attorney who is present at the time of execution. Tex. Fam. Code § 6.602(b). If the MSA meets these requirements, it is binding and the court must render a divorce decree adopting it. The judgment must be compliant with the agreement and must not substantively alter it. The parties may revise or repudiate the agreement before the divorce is rendered, unless the agreement is otherwise binding under another law. Tex. Fam. Code § 7.006.

In a recent case, a former wife appealed a divorce decree, arguing the court erred in rendering judgment on a settlement after she revoked her consent. The parties had reached an agreement at mediation and signed an MSA, but only the husband’s attorney’s signature was on the document.

Wife Revokes Consent to MSA

The wife filed a revocation of consent and an objection to the entry of a final divorce decree. She argued the agreement was not valid without her counsel’s signature and was therefore revocable.

Texas Jury Finds Same-Sex Couple Was Not Informally Married

Published on: March 27, 2022 | by Francesca Blackard

iStock-170042608-300x200 Texas is among the states that still recognize informal marriage, sometimes called “common-law marriage.” A couple may establish an informal marriage by signing a document entitled “declaration of informal marriage.” In the absence of a declaration, a party may also prove the existence of a Texas informal marriage through evidence that the couple agreed to be married, subsequently lived together as spouses in Texas, and represented to others that they were married. Tex. Fam. Code § 2.401. Although informal marriages are generally treated the same as formal marriages, the existence of an informal marriage can be far more difficult to prove.

Man Files for Divorce from Partner – No Marriage Found to Exist

A man, E.L., recently challenged a jury’s finding that he and his long-term same-sex partner, J.M., were not in an informal marriage. The parties started dating in 1997 and lived together from June 1998 until January 2017. They were not formally married, and there was no evidence they had ever filed a declaration of informal marriage. E.L. filed a lawsuit seeking a divorce from J.M. The jury found the parties were not married. E.L. appealed, arguing there was insufficient evidence supporting that finding and that the evidence conclusively proved the parties were married.

The jury was asked to determine if the parties were married.

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 Denies Grandmother Standing in Custody Case

Published on: March 13, 2022 | by Kelly McClure

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225 A fit parent generally has the right to determine who has access to the child. In some cases, however, people other than the parents may seek visitation or even custody of the child. When someone other than a parent seeks rights in a Texas case, they must meet certain conditions. In a recent case, a mother challenged a court’s orders granting possession and access to the child’s paternal grandmother.

According to the appeals court’s opinion, the trial court appointed the parents joint managing conservators and gave the father the exclusive right to determine the child’s primary residence. The teenage parents and child lived with the paternal grandmother for about two years. Several months after the father went to prison, the mother and child moved out.

Mother Files Suit; Grandmother Intervenes

The mother petitioned for modification, seeking sole managing conservatorship. The grandmother filed a petition in intervention, asking to be named joint managing conservator with the right to determine the child’s primary residence or possession and access in the alternative.

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.

Credibility and Evidence in Texas Child-Support Modification Proceeding

Published on: February 27, 2022 | by Kelly McClure

iStock-483611874-300x200 A modification of Texas child support requires the parent seeking the modification to show there has been a material and substantial change in circumstances since the current order was rendered. Tex. Fam. Code § 156.401. A change in income may be a material and substantial change. A court’s primary consideration should be the child’s best interest.

A father recently appealed the denial of his petition for modification of child support.

The parties divorced in 2018. The father agreed to pay $2,000 in monthly child support, to provide health insurance, to make monthly payments for a credit card balance that had been used for his business, and to pay the mother $50,000 in $1,500 monthly payments for her community interest in the business.

Texas Court Limits Visitation Due to History of Family Violence

Published on: February 23, 2022 | by Francesca Blackard

iStock-839381426-300x200 Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence. A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child. The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order. The mother was given a standard possession order and required to pay child support.

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.