Texas Divorce Attorney Blog
Spouses sometimes convey property to each other during the marriage for various reasons. In some cases, those conveyances may become an issue if the couple divorces. In a recent case, a former husband challenged the property division awarding the former wife two pieces of property, even though he had executed deeds conveying those properties to her.
The wife petitioned for divorce in June 2021 after more than 14 years of marriage. She identified a home and a separate plot of land as her separate property. She presented copies of a Special Gift Warranty deed by which the husband’s parents gifted the home to him, a later General Warranty deed by which the husband conveyed the home to the wife, a General Warranty Deed conveying the land to the husband, and a subsequent General Warranty deed conveying the land from the husband to the wife. She identified both properties as her separate property in her Initial Disclosures. The husband did not identify those properties as property he currently owned, separate property, or property against which he had a claim in his discovery responses.
The wife moved for partial summary judgment, asking the court to hold that both properties were her separate properties. She alleged the husband received the home as a gift from his parents, and then conveyed it to her as her separate property. She alleged he bought the land during the marriage and signed a General Warranty Deed conveying it to her in 2020. She argued he conveyed his undivided one-half community interest in the land to her, raising the gift presumption.
The husband argued he did not have donative intent to gift the properties to the wife. He argued he intended to add his wife to the deeds, not transfer the properties to her as a gift. He argued the deeds did not include gift deed language like the Special Gift Warranty Deed from his parents did. He also alleged the wife tried to defraud him and the community estate because she had not paid consideration despite both deeds stating consideration had been paid.
The wife testified at the hearing that the husband’s father sold her and the husband the home for $37,000, paid in $500 monthly installments. She testified they signed a promissory note. She said the husband bought the land in 2019. She testified he conveyed both properties to her via general warranty deeds. She said she found out the husband had been unfaithful and he conveyed the properties to her. She said the tax bills were in just her name. She said the 2020 tax payment came from a joint account, but she had paid subsequent tax payments from her personal account after the parties separated.
The wife said she contacted the person who prepared the deeds about changing ownership of the properties. She said the purpose of the change was not because she was afraid the husband would divorce her, but because he wanted to give them to her.
The husband testified he had been dating a woman for probably more than a year, but he had never admitted to infidelity with her. He said he came to the U.S. at 11 years old. He said he did not read the deeds because he trusted that they were properly prepared by the notary. He said he did not realize his name was going to be removed from the deeds. He said he asked for copies but never got them.
The husband testified the wife had not requested sole ownership of the properties and he did not intend to give them to her. He said they discussed adding the wife to the deeds. He testified the wife selected the person who prepared the deed and provided her instructions. He requested both properties, or alternatively, a sale and split of the land. He thought when they separated that the wife would keep the home and he would get everything else.
The judge asked the husband why he signed the deed giving the wife the home, and he said he trusted the wife and thought he was adding her to the deed. He asked the wife why the husband signed that deed, and she said he suggested signing the deed so she would not think he was unfaithful. She said that he wanted to give her the properties and saw that only her name was on the deeds. She continued to pay bills related to the house from the joint account after the deeds were executed.
The trial court awarded the home to the wife as separate property and the land to her as community property.
No Mutual Mistake
The husband appealed, arguing the trial court abused its discretion in determining there was a valid conveyance and that the home was the wife’s sole and separate property.
The husband argued there was a mutual mistake because both parties were native Spanish speakers who did not have sufficient function reading comprehension in English or understanding of the legal concepts involved to understand. He argued the properties were intended to become community property, so there was a mutual mistake. He also argued the deeds were not delivered to him.
A mutual mistake may void an agreement when both parties share a misconception or ignorance of a material fact. The court considers the objective circumstances around the agreement’s execution, not each parties’ subjective intent.
The appeals court concluded that the evidence did not support a finding of a mutual mistake. The wife testified the husband wanted to give her the properties to show his faithfulness. The husband testified he did not know the wife alone would be listed as owner of the properties on the knew deeds, but said he had not read the deeds before he signed them. He also testified he had not asked to review them or consult with a lawyer before he signed.
The appeals court concluded if any mistake existed, it was a unilateral mistake based on the husband’s assumptions and failure to review the deeds.
Delivery of Deed
The husband also argued the properties were not properly conveyed because the deeds were not delivered to him. Pursuant to Tex. Prop. Code § 5.021, a real estate conveyance for more than a year “must be in writing and must be subscribed and delivered by the conveyor. . .” The court noted that case law has held that the deed does not have to be manual and delivery has occurred if the grantor gave control of the deed to the grantee.
The wife testified the notary gave them copies of the deeds, but they needed to be mailed to be recorded. She said she received them back in the mail and put them with her other important papers. The appeals court pointed out that the wife was the grantee and had exercised control over the deed. The statute does not require delivery of the deed to the grantor, just the grantee.
The appeals court held the trial court had not abused its discretion in determining the conveyances of the properties to the wife were valid.
Property Characterization
The husband also argued the characterization of the home as the wife’s sole and separate property was an abuse of discretion. He argued the wife had not shown the property was separate by clear and convincing evidence. He argued the deed did not include donative intent or separate property recitals.
The trial court was responsible for determining the credibility of the evidence and the weight of the testimony. The evidence in this case was conflicting, so the court could have reasonably concluded the husband had not rebutted the gift presumption.
The appeals court affirmed the judgment.
Call McClure Law Group
In this case, the parties claimed to have different understandings of what the deeds were intended to accomplish. That misunderstanding may have cost the husband his interests in the properties. If you and you spouse have a complex estate that involves real property that has been transferred between the spouses, a knowledgeable Texas divorce lawyer can advise you of your rights and zealously advocate for you. Set up a consultation with McClure Law Group at 214.692.8200.