Texas Divorce Attorney Blog
Parties to a Texas divorce may enter into an “agreement incident to divorce” regarding property division, liabilities, and spousal maintenance. If the court finds the agreement’s terms are just and right, they become binding and the court may set forth the agreement or incorporate it by reference in the final divorce decree. Tex. Fam. Code Ann. § 7.006. A former husband recently appealed a postdivorce property division order that found the marital home was the wife’s separate property, based on an agreement between the parties.
According to the appeals court’s opinion, the agreement signed by the parties during the divorce proceedings stated that the marital home was community property, but that the parties agreed the wife would become its owner and assume the mortgage. It further stated the husband granted, conveyed, and gave his interest in the property to the wife and agreed to executed any documents needed to effectuate and document the conveyance. The husband moved out.
The final divorce decree did not address the home’s ownership. The husband subsequently petitioned for postdivorce property division. The trial court found the home was the wife’s separate property. The husband requested findings of fact and conclusions of law. The findings identified the home as the wife’s separate property. The husband asked for additional findings and conclusions, but the trial court did not file any additional or amended findings. He appealed.
Findings
The husband argued the trial court erred in failing to issue additional facts. He has specifically requested an additional finding clarifying when the court found the home became the wife’s separate property. Generally, a trial court must file findings of fact and conclusions of law within 20 days of a timely request and file any additional or amended findings and conclusions upon a timely request for additional findings and conclusions. The appeals court concluded, however, that this request merely sought an explanation of the court’s reasoning, which the court was not required to provide.
Separate Property
The husband also argued the trial court abused its discretion in finding the home was the wife’s separate property at all because there was insufficient evidence to support the finding.
The husband argued the agreement had not been referenced or incorporated in the final divorce decree and the provision relating to the home was therefore unenforceable. The husband argued the home should have been divided as community property. The wife argued the agreement was enforceable as a partition agreement pursuant to Tex. Fam. Code § 4.102.
A partition agreement does not have to be approved by the court as just and right. In addition to being in writing and signed by both parties, a partition agreement must either specifically reference “partition” or show the parties’ intent to convert the property from community property to separate property.
The agreement bore the title “Agreement Incident to Divorce” and included a section titled “Court Approval” that stated the parties would submit the agreement, which had been made in accordance with Tex. Fam. Code §7.006, to the court. The appeals court noted that referencing the statute governing agreements incident to divorce was evidence the parties considered that the agreement needed court approval to be binding.
There was also evidence suggesting that portion of the agreement was a partition or exchange agreement. The appeals court concluded it met the requirements of a partition agreement, including showing a clear intent to convert the home from community property to separate property. The agreement identified the home as community property but said that the husband granted his rights in it to the wife who would possess it in “fee simple absolute.” There was no delay and no conditions were placed upon the conveyance. The agreement stated the husband “does hereby grant, convey, and give all his right title, equity and interest in the Marital Homestead to [the wife]” and that he would execute any documents needed. The appeals court also pointed out that the agreement stated the parties would submit it to the trial court but did not say it required approval to be enforceable.
There was testimony that the husband moved out after he signed the agreement and had not paid toward the taxes or mortgage in the nearly six years since. The appeals court noted that this evidence suggested the parties considered the agreement to be effective immediately without the approval of the court.
The appeals court also noted that the trial court’s conclusion the home was the wife’s separate property was consistent with a conclusion the agreement was considered to be a partition-or-exchange agreement.
There was conflicting evidence as to the nature of the agreement, so there was no abuse of discretion in finding the home was the wife’s separate property. The appeals court affirmed the trial court’s order.
Seek Advice from a Knowledgeable Texas Property Division Attorney
In this case, the appeals court found there was conflicting evidence regarding the nature of the agreement and that the trial court did not abuse its discretion in finding the home was the wife’s separate property. In this case, the language of the agreement was sufficient to meet the requirements of a partition agreement, but slightly different language could have led to a different result. If you are facing a potentially contentious divorce, an experienced Texas family law attorney can help you protect your assets. Set up a consultation with McClure Law Group at 214.692.8200.