Divorce

Successful Restricted Appeal Based on Lack of Evidence in Texas Divorce Proceeding

Published on: March 4, 2019 | by Kelly McClure

When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce. However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed. The petitioner must present evidence that supports the material allegations. If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree. The husband did not answer the divorce petition. Only the wife appeared and testified at the final hearing. The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate. To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames. Furthermore, he must also show that there is an error apparent on the record’s face. The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal. He had timely filed his restricted appeal. He had not answered the petition or participated in the hearing. Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal. Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences. The appeals court found the trial court had made factually based decisions without supporting evidence. The trial court made decisions relating to conservatorship and visitation. It ordered the husband to pay child support. The court also divided the community estate. The appeals court therefore found there was error apparent on the face of the record.

Texas Appeals Court Upholds Finding of No Informal Marriage

Published on: February 18, 2019 | by Francesca Blackard

Usually, in a Texas divorce case, both parties know and agree that they were married. In some cases, however, the parties may disagree as to whether there has been an informal marriage. An informal marriage can be proven by showing that the couple agreed to be married, subsequently lived together in Texas as spouses, and represented themselves as married. TEX. FAM. CODE ANN. § 2.401. Texas courts have held that evidence that the parties held themselves out as married must be particularly convincing and be more than occasional references to each other as husband or wife.

A mother recently challenged a court’s finding that she had not been informally married to the father of her children. The couple had two children together, one who was six and the other who was 21. The mother petitioned for divorce, arguing that she and the father married on or about 1996. In his answer, the father stated there was no existing marriage.

At the hearing, the mother testified that she believed she and the father had agreed to be informally married when they moved in together. She said the father introduced her to his friends and family as his wife. She admitted, however, that she always filed her taxes as single. She also conceded that her name was not on the deed to the house, and it instead named the father and his father as the owners.

Personal Injury Recoveries in Texas Divorce

Published on: January 21, 2019 | by Kelly McClure

When a court divides property in a Texas divorce, it presumes all property possessed by either spouse during the marriage or upon the divorce is community property. Community property is all property acquired by other spouse during the marriage, other than separate property. Separate property is either property owned or claimed by the spouse before the marriage or acquired by one spouse during the marriage by gift, devise, or descent. Personal injury recoveries are separate property, but the community estate may recover for medical expenses , lost earning capacity, and other expenses the community estate incurred due to the injury. The spouse asserting that the property is separate has the burden of showing which part of the settlement is separate property. Language in a settlement agreement identifying the basis for the payment may displace the presumption of community property and create a new presumption that the funds are separate property. In such cases, the spouse claiming the property is community property must provide evidence to rebut the presumption that it is separate.

A husband recently challenged the trial court’s property division, partly because it denied his reimbursement claim related to funds from a settlement. He had settled a discrimination claim against his employer during the marriage. The settlement included mental anguish, pain and suffering, and physical injuries, but did not include back pay or front pay. He agreed to resign as part of the settlement. He deposited the funds into a savings account.

Funds from the savings account were used to make a down payment on the couple’s home, the monthly mortgage, and the final payment. The mortgage was in the husband’s name, but the deed was in both names.

Texas Appeals Court Reverses Property Division Due to Lack of Evidence

Published on: January 7, 2019 | by Francesca Blackard

Property division in a Texas divorce must be just and right. The property division may be “just and right” in a case where one party does not participate, but the court must have sufficient information to use its discretion in dividing the property fairly. A spouse recently challenged the property division following a proceeding in which he did not participate.

One spouse petitioned for divorce in July 2017, alleging insupportability, which is the “no fault” ground for divorce in Texas. He alleged, however, that the respondent had committed fraud on the estate and asked the court to reconstitute the community estate. He also asked the court to confirm certain property as his separate property.

He claimed the respondent was a nonresident of Texas, but the marital residence had most recently been in Texas and he had filed the petition within two years of the date the marital residence ended (which would allow for Texas to have personal jurisdiction over the nonresident respondent). The process server swore in an affidavit that the respondent had been served with the petition in Miami, Florida.

Texas Appeals Court Finds Property Division in Divorce Was Just

Published on: December 24, 2018 | by McClure Law Group

Property in a Texas divorce must be divided in a “just and right” manner. The trial court has broad discretion in dividing the estate. To successfully challenge a property division, a party must show that it was so unjust as to constitute an abuse of the trial court’s discretion.

A husband recently challenged the property division in his divorce. The husband appealed the trial court’s ruling, arguing it erred in awarding the wife what he claimed was “75% of the Community Estate.” He argued that the court had awarded her 75% of the community estate by awarding her the home the couple had lived in for most of their marriage and the surrounding property. He also argued the court had improperly characterized real estate owned by his son as community property. Additionally, he argued the court had not considered that community work and assets had been used to enhance the wife’s separate property, that the wife damaged the business awarded to him, that she removed funds from community bank accounts, and committed adultery and domestic violence.

Fault

The appeals court first addressed the issue of fault. The trial court had granted a no-fault divorce. The appeals court noted that the alleged domestic violence and adultery had happened several years before the separation, and the trial court could have reasonably found they were not relevant to the property division.

Findings of Fact and Waiver in Texas Divorce

Published on: October 27, 2018 | by Francesca Blackard

In a Texas divorce case, failure to follow the required procedures can result in the loss of property. Parties should take care to identify all of the property that needs to be divided. Additionally, if the court fails to address certain property in its findings, then the party must follow the appropriate procedures or may risk waiving that issue, as occurred in a recent case.

The parties married in 2007 and the husband filed for divorce in 2014. He had been in the dairy business for many years and owned several properties at the time of the marriage. The dairy sold milk and the court entered a temporary order granting the wife the proceeds from the “milk store” instead of spousal support. She received a total of about $27,000 while the divorce was pending. The wife agreed the husband bought some of the properties, including the dairy, before the marriage.

The wife appealed the property division. She sought reimbursement for half of the value of taxes the community estate allegedly paid for the husband’s separate property during the marriage, the value of loans allegedly paid by the community to acquire goods and improvements for the dairy during the marriage, and the value of her separate property 401k used to improve the dairy.

Domicile and Jurisdiction in Texas Divorce and Custody Cases

Published on: October 14, 2018 | by Kelly McClure

Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations. A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period. TEX. FAM. CODE ANN. § 6.301. Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent. For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.

The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding. According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record. Both parties testified that they and the children had lived in North Carolina continuously for the previous six years. The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.

The wife argued Texas did not have subject-matter jurisdiction. The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas. The trial court also found the father was not a resident of Kendall County, Texas. The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce. The husband appealed. The appeals court identified two separate issues in this case: the divorce and the custody.

The Fifth Amendment and Death Penalty Sanctions in Texas Divorce

Published on: October 1, 2018 | by McClure Law Group

The Fifth Amendment to the U.S. Constitution prevents anyone from being “compelled in any criminal case to be a witness against himself.” A party in a Texas civil case can “plead the Fifth” during discovery to avoid answering questions in a deposition if the party reasonably believes the answer might incriminate him in a criminal case. A plaintiff cannot, however, use the Fifth Amendment to prevent the other party from obtaining information they need to prepare a defense. A trial court can impose sanctions when a party uses the Fifth Amendment privilege offensively, but the court must consider whether remedial steps could solve the issue. The court may also impose sanctions when a party wrongfully invokes the Fifth Amendment.

In a recent Texas divorce case, the husband faced serious sanctions after raising the Fifth Amendment during his deposition. In June 2015, the wife filed for divorce and the husband filed a counterpetition. The wife alleged the husband had assaulted her and committed adultery. She also alleged he hid community assets, wrote fraudulent checks to third parties and cashed them himself, and conveyed community property to his sister. The husband alleged the wife also secreted assets and filed false charges against him for family violence assault.

When the wife’s attorney sent notice of the date of the husband’s deposition, his attorney responded it would be “futile” because the husband’s criminal attorney was likely to advise him to “plead the fifth” due to the pending criminal charges. During deposition, the husband refused to answer many questions on the grounds his answer might incriminate him in the pending criminal case, including some that would not be covered by the Fifth Amendment privilege. He repeatedly asserted his Fifth Amendment privilege regarding “anything that has to do with financials…” He refused to answer questions regarding his income, assets, and a list of property. He also refused to identify documents. There was no record of either the wife’s or the husband’s attorney explaining to him why he could not invoke his Fifth Amendment privilege in response to many of the questions asked.

Texas Common Law Marriage after Divorce

Published on: September 7, 2018 | by Francesca Blackard

Texas recognizes common law marriages. To have a common law marriage, the parties must have agreed to be married, must have lived together as spouses after that agreement, and presented themselves as married. When most people think of common law marriages, they consider couples who were never formally married. However, in a recent case, a man sought a Texas divorce from his ex-wife, alleging there was a common law marriage after their original divorce.

The parties married in 2000 and divorced in 2005. They lived together until at least 2006 and had children together in 2006 and 2007. They worked together. Although they agreed that the relationship changed in 2012, they did not agree as to what happened later. The husband claimed they moved back in together by the end of 2013 and continued their relationship until late 2014.

The husband filed for divorce in 2015. The wife moved for summary judgment on the grounds that they were not married. She argued they did not meet the requirements of a common law marriage. She offered affidavits the parties signed in 2013 indicating they were not married, did not live together, and had not held themselves out as married. In her deposition, she had denied living with the husband. She also pointed out the husband was unable identify the exact date of an agreement to be married. She also relied on documents in which the husband indicated he was divorced and not married, including a bankruptcy petition filed under oath.

Proving Separate Property in a Commingled Account in Texas Divorce

Published on: August 15, 2018 | by McClure Law Group

Property possessed by either party at the time of a Texas divorce is presumed to be community property. To show that property was instead separate, the presumption must be rebutted by clear and convincing evidence. If the assets were not maintained separately from community assets, they must be traced back to separate property by showing the origin of the property. Income earned during the marriage is also community property.

A wife recently challenged a court’s finding that a down payment made from her savings account was made with community funds. After six years of marriage, the parties filed for divorce. In the wife’s counter petition, she sought reimbursement to her separate estate for assets she alleged were spent for the benefit of the community estate.

At the hearing, the husband sought half the equity in the marital home and community funds he alleged the wife had deposited into her checking account and given to her adult child. The parties agreed on the value of the home and the amount of the down payment. The husband admitted the down payment had come from the wife’s savings account, but argued that it came from community property funds that had been commingled into the wife’s savings account. He testified that she deposited her paychecks into her checking account and transferred funds to the savings account. He testified the savings account had $162,168.61 at the time of the marriage. The bank records showed $282,847.69 was in the account before the withdrawal for the down payment. The husband also testified he had given his wife cash to pay the utilities and half of the mortgage payment.