Articles Tagged with divorce

iStock-1125625723-300x200When parties to a Texas divorce agree to a property division, the final judgment based on the agreement must strictly comply with it.  The trial court cannot add, change, or leave out material terms.  A final judgment based on a property division agreement  must be set aside if it is not in strict compliance with the agreement, unless the discrepancy is a clerical error.  An appeals court may modify a judgment to correct a clerical error.  A former husband recently challenged the property division in his divorce due to a number of alleged discrepancies.

Husband and Wife Submitted Proposed Property Division

According to the appeals court’s opinion, the parties agreed to a proposed property division, identified as “Exhibit A.” The wife testified the division was fair and just. She agreed to split funds in the husband’s IRA equally after he was credited $90,000 as separate property and to split the funds in his “Edge” and “Smart” retirement plans equally.

The husband initially disagreed with the property division in Exhibit A, but later asked the court to approve it. The trial court admitted the document into evidence, asked the parties to draft and sign an agreed final decree.

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iStock-545456068-300x184A party may challenge a judgment as void through either a collateral or direct attack. Generally, a Texas divorce decree is only subject to collateral attack if the court lacked jurisdiction over the parties or subject matter.  Other errors must be challenged through a direct attack.  A direct attack can be either a pleading filed in the original case while the trial court still has plenary power or a timely-filed bill of review under a new cause number.  A bill of review is generally the only appropriate method of direct attack after the trial court’s plenary power has expired.

Husband Seeks to Set Aside Divorce Decree

In a recent case, a husband filed a separate lawsuit seeking to have the divorce decree set aside, arguing the marriage and decree were both void due to the wife’s bigamy.

A trial court had denied the husband’s request for annulment based on fraud, but granted his petition for divorce in March 2019.  The court also awarded the wife certain assets.  The following month, the wife was indicted for bigamy.  The indictment alleged she had still been married to someone else when she married the husband in 2017. The husband was ordered to pay her attorney’s fees and spousal support in June 2019.  In July, the wife petitioned for enforcement.

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2018_10_agreement-300x165People commonly obtain life-insurance policies and name their spouse as the beneficiary. They do not always remember to update the beneficiary designation when they get divorced.  Under Texas law, designation of a spouse as beneficiary before a divorce will only remain effective after the divorce in certain circumstances.  Generally, either the court or the insured must designate the former spouse as beneficiary, or the former spouse must be designated to receive the proceeds in trust for a child or dependent’s benefit.  In a recent case, an ex-wife challenged a court awarding a life-insurance policy on the ex-husband to the ex-husband many years after the original divorce.

Insurance Policy Not Divided in Divorce

During the marriage, the parties obtained a life insurance policy on the husband with the wife named as beneficiary.  The policy was not addressed in the divorce decree in 2009.  The husband subsequently filed a bill of review, and the parties agreed to be co-owners of the policy.  They agreed the wife would receive half of the proceeds and the rest would go into a trust for their children. The court ordered the parties to split the policy into two, but the insurance company was unable to do so.

The husband then filed for declaratory judgment, seeking to be named the sole owner of the policy.  He also asked for a temporary restraining order against both the wife and the insurer. Alternatively, he sought to divide undivided property.  The wife’s counter-petition also sought a declaratory judgment that the policy was her separate property and to divide undivided assets.

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iStock-1125625723-300x200When parties to a Texas divorce reach an agreement, the agreement may place conditions on certain obligations.  A “condition precedent” is something that must occur before a party has a right to performance of an obligation by the other party. In a recent case, a mother challenged a trial court’s finding she had not met the condition precedent to receive certain payments from the father.

In the final divorce decree, the trial court approved and incorporated the parties’ Agreement Incident to Divorce (“AID”). The parties agreed the father would pay $11,500 in monthly Contract Support Payments to the mother to provide her and the two children an “alternative lifestyle.”  They would travel and live abroad so the children could learn other languages and cultures. The mother agreed to maintain this lifestyle and spend the Contract Support Payments to support it as a condition precedent to receiving the payments. The AID also included a provision that the father could send a notice if the mother failed to comply with a material term or condition. If she failed to cure the breach within 30 days, the Contract Support Payments would be abated until she complied.

Father Gros Concerned About Children’s Upbringing

The mother and children traveled within the U.S. and several countries abroad until July 2018. The father grew concerned about the children’s lack of structured education and their health and hygiene by the summer of 2018.

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Divorce-property-fraud-300x273Property 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.

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“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.

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iStock-1270267953-300x200When 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.

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iStock-1139699594-300x200When 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.

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iStock-1187184203-300x200Retirement 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.

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“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 marriage can end through either death or a court’s decree.  If a party dies before judgment is rendered in a divorce case, the divorce case abates. In a recent case, a husband challenged a divorce when the decree was signed after the death of the wife.

The wife filed for divorce in October 2018, alleging insupportability, abandonment, and cruel treatment.  In his counterpetition, the husband alleged insupportability, cruel treatment, and adultery.

Final Trial

At the trial on September 17, 2019, the court informed the attorneys that it needed time to make its rulings regarding the property.  The court said it would email the parties with the decision. The proceedings resumed after a break on the record and the court pronounced the parties divorced and said the entry of the final decree would be ministerial.

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