Divorce

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.

Proving Informal Marriage in Texas

Published on: August 15, 2018 | by Kelly McClure

In Texas, an informal or common law marriage can occur if the couple executed an informal marriage agreement pursuant to Texas law or agreed to be married and subsequently lived together as married in Texas and represented to others that they were married.

A Texas court recently found that a couple did not have an informal marriage, despite filing their taxes as “married filing jointly.” The couple began dating in 2003 or 2004. The man proposed in 2005, and the woman accepted. They moved to Texas together in 2006. They wanted to build a horse clinic where the man would practice veterinary medicine and the woman would train horses. They purchased property together and built the clinic. They had joint bank accounts, but the bookkeeping for each business was kept separate.

They filed joint tax returns indicating they were “married filing jointly” from 2006 to 2013. They co-habitated until 2013. The woman filed for divorce in 2015. After a bench trial, the trial court found the couple did not have an informal marriage and dismissed the divorce case. The woman appealed.

Court Can Disproportionately Distribute Assets Due to Fraud in Texas Divorce

Published on: August 7, 2018 | by Francesca Blackard

A spouse who improperly spends large amounts of community assets without the other spouse’s knowledge or consent may receive a smaller share of the remaining community estate during a Texas divorce. A Texas appeals court recently considered whether a property division was just and right after the trial court found the husband had committed fraud on the estate by spending money on other women.The wife filed for divorce after learning her husband had been unfaithful. The husband testified to having affairs for the past 30 years. He took the other women on trips and shopping sprees, paid their rent and car payments, and hired some of them and gave some of them money for their own start-ups. He paid for these things through his business accounts, company credit cards, and petty cash from his pharmacy.

The wife hired a CPA to provide an accounting of the husband’s businesses. The CPA rendered an opinion that more than $7 million was either missing or spent in transactions that did not benefit the community estate.

The husband rejected the amount identified by the wife’s CPA, claiming a large portion of the amount identified did not exist. His expert opined that the wife’s accountant had made conclusions based on insufficient data. The husband’s employee testified the husband never took petty cash. She also stated some of the transactions identified by the plaintiff’s accountant were not fraudulent because they benefited either the business or the community estate. The trial court found the husband was not a credible witness, spoliated evidence, and committed a fraud on the community of nearly $4 million.

Court Must Have Evidence of Property Value to Distribute Property in Texas Divorce

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

The court in a Texas divorce case must divide property in a just and right way. This does not necessarily mean that property is divided equally between the parties, but the division must be just. What happens, though, when only one party participates in the divorce proceedings? A Texas appeals court recently found that the trial court had to have sufficient evidence of the property values to divide the property justly.

The husband petitioned for divorce, but the wife did not answer or appear at the hearing. The husband testified that there were two vehicles and a mobile home in the community estate. He asked the court to award all of the property to him, but allow the wife to keep the property in her possession. He did not testify or provide evidence of the value of the property. The court granted the divorce and awarded the husband the vehicles, the mobile home, furnishing, and other goods and cash in his possession and control. The court did not award any property to the wife.

The wife filed notice of a restricted appeal. To succeed on a restricted appeal, she had to show that she filed the notice within six months of the decree, she was part to the lawsuit, she did not participate in the hearing or file post-judgment motions or requests for findings of fact and conclusions of law, and error is apparent on the face of the record. She clearly met the first three requirements, so the appeals court had to determine if there was error.