divorce

Texas Contractual Alimony Claim Barred by Contract Statute of Limitations

Published on: July 11, 2021 | by McClure Law Group

iStock-1183385986-scaled Texas divorce cases can involve multiple areas of law. Contract law applies to pre-marital and post-marital agreements. Contract law may also apply to agreements the parties enter into as part of a divorce. In a recent case, a portion of a wife’s claims for contractual alimony was barred by the contract statute of limitations.

When the parties divorced in 2012, they entered into a written agreement. Their divorce decree included a provision for “Contractual Alimony,” with the parties agreeing that the husband would pay the wife $4,000 per month, payable on the first of the month with a five-day grace period before the payment would be considered late. The contractual alimony was to be paid from June 2013 to May 2015. The decree further stated that the wife could accelerate the payments if the husband defaulted and failed to cure within 30 days of receiving notice of intent to accelerate.

Wife Moves to Enforce Contractual Alimony

The wife moved to enforce the alimony requirements on March 26, 2019. She alleged the husband had failed to make the payments starting in December 2013. She asked the court to order him to pay the past due payments, interest, and fees and costs.

Texas Appeals Court Finds Wife Did Not Commit Fraud by Nondisclosure

Published on: June 22, 2021 | by Kelly McClure

divorce-property-fraud In some cases, a party to a Texas divorce may agree to a settlement that seemingly has less-than-favorable terms. For example, a party may agree to their spouse receiving property with a higher monetary value to ensure they receive property that has personal value to them. In a recent case, a husband alleged the wife committed “fraud by nondisclosure” by entering into a Mediated Settlement Agreement (“MSA”) without disclosing that the FBI had possession of certain items that were to be awarded to him under that MSA.

Husband is Awarded Certain Items He Believes are in Wife’s Possession

The parties agreed to the MSA, which gave the wife the personal property in her possession with certain exceptions, including a laptop and cell phone. These items were explicitly given to the husband in the MSA. When the husband learned that the wife did not actually have possession of these items, he moved to set aside the MSA. The husband testified that the wife having those items was “a key factor” in his agreement to the MSA and the wife receiving so much joint property and custody of their child. He said the contents on those devices could have a negative effect on his military career. He had initially believed they were in the wife’s possession, because he had left them at the home and she had pictures and videos from the devices. He had previously petitioned for those items to be returned to him, and the wife had subsequently asked to keep all of the possessions in the marital home.

Husband Moves to Set Aside MSA – But is Denied

After he signed the MSA, the husband learned the FBI had both devices. He moved to set aside the MSA in May, arguing the wife committed fraud when she failed to disclose that she did not have the devices. The trial court denied the motion, and the husband appealed.

Texas Appeals Court Upholds Finding of Informal Marriage

Published on: June 20, 2021 | by Francesca Blackard

iStock-1270267953 Texas is one of the few states that still recognizes “informal marriage,” also sometimes known as “common law marriage.” A party who petitions for divorce from an informal marriage often must prove the existence of the informal marriage in the first place. To prove there was an informal marriage, the party must show the couple had an agreement to be married, subsequently lived as spouses together in Texas, and represented themselves as married. Tex. Fam. Code Ann. § 2.401. Furthermore, all of these elements must occur at the same time. Evidence of an informal marriage may include evidence the parties addressed each other as spouses, conducted themselves as married people, or lived together. Evidence that the parties lived together and represented themselves as married is not alone sufficient to establish the existence of an agreement to be married.

In a recent case, an alleged husband challenged the court’s finding of the existence of an informal marriage. The parties moved to Texas from Colorado with the alleged wife’s two children in 1985. They separated in early 2012. In 2015, the alleged wife filed a trespass to try title suit, claiming joint ownership in real property due to an informal marriage. That lawsuit was consolidated with her subsequent divorce action.

The trial court ultimately found the parties had been in an informal marriage. The court granted a divorce and divided their property. The husband appealed, arguing there was insufficient evidence to support the existence of an informal marriage.

Military Disability Cannot Be Divided by Texas Divorce Court

Published on: May 31, 2021 | by Kelly McClure

iStock-543681178 Under federal law, a court may not treat military disability benefits as community property for purposes of property distribution in a Texas divorce case. A husband recently challenged the property distribution in his divorce decree, arguing the court had improperly divided a portion of his military disability benefits.

Trial Court Divides Husband’s Military Retirement Benefits

The wife petitioned for divorce and sought a majority of the community assets. The court granted the divorce on grounds of insupportability and adultery. The decree gave the wife 55% of the husband’s disposable military retired pay, attorney’s fees, and conditional appellate attorney’s fees. The husband appealed.

The husband contended the 55% of his disposable military retired pay awarded to the wife erroneously included disability payments. The wife, however, argued the award did not include disability benefits and the decree had specifically awarded him his “VA Disability and Social Security Disability benefits” as separate property.

Trial or Contested Hearing Required to Determine Disputed Texas Property Division

Published on: May 24, 2021 | by Francesca Blackard

iStock-483613578 In a Texas divorce, a jury may decide issues regarding the characterization and valuation of property, but the judge is responsible for actually dividing the community property in a just and right manner. The court may consider a number of factors, including fault, education, ages and physical conditions, financial conditions, and the amount of separate property. Generally, the court must hold an evidentiary hearing or trial, unless the parties agree on the property division.

Wife Argues Trial Court Did Not Hear Property Issues

In a recent case, a wife appealed a property division, arguing the court failed to hold a hearing on the property division.

The parties married in 2003 and the husband filed for divorce in 2017. The jury did not hear the property division issues, which were reserved for the trial court. The court stated that it would try those issues during the jury deliberations if there was time or would otherwise schedule a date after the verdict on the issues related to the children.

Wife Entitled to Share of Husband’s Military Retirement in Texas Divorce

Published on: May 7, 2021 | by Francesca Blackard

retire Retirement benefits can be a complex and contentious issue in a Texas divorce case. Generally, any income earned during marriage is considered community property unless proven to be separate property, including funds contributed to a retirement account or earned as pension benefits. In a recent case, a husband challenged a court’s order awarding a portion of his military retirement benefits to his ex-wife.

According to the appeals court’s opinion, the wife petitioned for enforcement of property division by contempt, alleging the husband had not paid her the retirement benefits awarded to her in their divorce decree. The husband argued the military benefits had either been awarded to him or had not been divided at the time of the divorce.

The wife filed an amended motion to clarify, asking the court to enter a clarifying order if it found any part of the previous order was not specific enough for enforcement through contempt. She specifically asked the court to clarify the order to reflect the length of the marriage and the husband’s dates of military service. She also asked the court to sign a Military Qualified Domestic Relations Order.

Texas Appeals Court Finds Property Was Separate Despite Use of Community Funds

Published on: April 25, 2021 | by Kelly McClure

images In a Texas divorce case, property acquired during the marriage is presumed to be community property. A spouse claiming property is their separate property must show that it is separate by clear and convincing evidence. Separate property is generally property that is owned before the marriage, property that the spouse acquired as a gift or inheritance, or property recovered as damages in a personal injury case. Community property is generally property acquired after the marriage that is not characterized as separate property.

In a recent case, a wife challenged the court’s characterization of certain property as the husband’s separate property. The wife filed for divorce. The parties agreed they had married in India in 1976, but disagreed on the date they stopped living together as husband and wife.

Husband and Wife Enter into Settlement – But Leave One Issue for Trial

The case went to trial, but, before trial, the parties entered into a Mediated Settlement Agreement (“MSA”). In the MSA, the parties agreed their community property located in India would be divided by Indian courts. The parties agreed to the characterization and division of everything except two pieces of land in India, referred to as the “Fifteen-Cent” property and the “One-and-a-half-Acres” property. The MSA stated they would “defer to characterization and confirmation of separate property” of those two parcels to the trial court.

Arbitration Provisions in Texas Premarital Agreements

Published on: April 18, 2021 | by Francesca Blackard

Premarital agreement

Some Texas premarital agreements may include a binding arbitration clause. A party may compel arbitration when the claims at issue are within the scope of a valid and enforceable agreement to arbitrate. If the claim falls within the agreement’s scope and there is no defense to enforcing it, the court must compel arbitration. Fraud may be a defense against compelled arbitration, but the party must show that the fraud was specifically related to the arbitration provision.

A husband recently appealed a denial of his motion for arbitration in his divorce proceeding. The parties signed a premarital agreement that included an arbitration clause. The wife filed a petition for divorce in July 2014. In 2016, she filed an amended petition. Neither petition mentioned the premarital agreement. The husband filed an answer in 2016, but did not mention the premarital agreement either.

In a second amended petition, the wife stated there was a premarital agreement and requested it be set aside and vacated. She alleged she entered into it involuntarily and that it was unconscionable.

Default Judgment in a Texas Divorce Case

Published on: March 22, 2021 | by McClure Law Group

When a spouse petitions for a Texas divorce, the other spouse must file an answer. If the other spouse fails to do so, the court may render a default judgment. Under certain circumstances, however, the other spouse may get the default judgment overturned. In a recent case, a husband sought to overturn a default judgment entered against him.

According to the Texas Supreme Court’s opinion, the wife filed for divorce. The trial court granted her motion for alternative service at the home of her husband’s mother. The trial court ultimately entered a no-answer default judgment the following January.

Property Division in Texas Default Divorce Judgment

Published on: March 7, 2021 | by Francesca Blackard

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In some Texas divorce cases, a party fails to file an answer to the divorce petition or otherwise participate in the divorce proceedings in any way. When a court divides property in a Texas divorce, it must do so in a “just and right” manner. TEX. FAM. CODE ANN. § 7.001. However, to do so, the court must have sufficient evidence of the value of the community estate, even if one of the parties does not participate in the proceedings. Even if their spouse fails to file an answer, the petitioner in a divorce case must present evidence supporting the material allegations in the petition. If a trial court divides the property without sufficient evidence of the value of the assets to make a just and right division, the division may be subject to reversal on appeal, even if the appealing spouse failed to respond and the court issued a default judgment.

In a recent case, a husband challenged a default judgment granting his wife a divorce and dividing their property, arguing there was insufficient evidence to support the property division.