Divorce

Spouse May Be Required to Reimburse Community Estate in Texas Divorce

Published on: June 12, 2018 | by McClure Law Group

When one spouse controls the finances, he or she has the opportunity to use community assets to the benefit of separate property. The other spouse may challenge the disposition of those funds during a Texas divorce. The spouse in control of the finances has a fiduciary duty to the other spouse during the course of the marriage.

A Texas appeals court recently considered whether a husband was required to reimburse the community estate for certain expenditures. The trial court awarded the wife the majority of the community estate and ordered the husband to reimburse it for certain expenditures. The husband appealed, arguing the evidence did not support the disproportionate division and some of the amounts he was ordered to reimburse.

The husband had entered the marriage a wealthy man with several businesses. The wife alleged he allowed his separate companies to keep funds he should have received. Since his businesses were S corps, he was personally responsible for paying taxes on the funds, even if they were not distributed. The wife sought reimbursement for the undistributed funds and for the income taxes paid from the community estate. Each party presented expert testimony. The wife’s expert calculated that the estate had paid $1,000,742 in taxes for the separate companies and was entitled to reimbursement. The husband’s expert said he did not agree the wife had a valid claim for reimbursement and presented his own calculations, showing $841,108 was paid. The jury found the community estate had paid $841,108 in income taxes for the husband’s separate businesses. The trial court included that amount in the valuation of the reconstituted community estate.

Proving Disability for Texas Spousal Maintenance

Published on: June 5, 2018 | by Kelly McClure

In a Texas divorce, the court may, in its discretion, award spousal maintenance to a spouse who will not have enough property after the divorce to provide for his or her own minimum reasonable needs and meets one of the other enumerated conditions in the statute. One of those conditions is the inability to earn sufficient income to provide for minimum reasonable needs due to an incapacitating physical or mental disability. The determination of disability may be supported solely by the spouse’s testimony if it is sufficient and probative to establish there is a disability that prevents the spouse from becoming gainfully employed.

In a recent case, a husband challenged a spousal maintenance award by arguing there was insufficient factual and legal support for the award. The husband filed for divorce after about 14 years of marriage. The wife filed a counter petition and sought a disproportionate share of community property and spousal maintenance. The husband had agreed to pay $1,875 per month in spousal maintenance temporarily as part of the mediated settlement agreement.

At trial, the wife testified about a number of health conditions, including deteriorated discs in her back and neck, vertigo, diabetes, depression, and arthritis. She testified that she was 64 years old and had not worked in almost 20 years, since her neck surgery. She further testified she was unable to go back to work due to back and neck conditions. She submitted medical records from her treating neurologist documenting some of her conditions, symptoms, and medications.

Attempted Compliance with a Texas Divorce Decree

Published on: April 26, 2018 | by Kelly McClure

Parties to a divorce often have to cooperate to complete the property division. Texas divorce attorneys know, however, that parties are not always willing to cooperate. A Texas appeals court recently considered whether a husband sufficiently complied with an order that he make a payment to the wife when he contacted the wife to make payment arrangements.

The parties came to a mediated settlement agreement and signed off on the proposed agreed final divorce decree. The final decree ordered the husband to pay the wife $10,000 for the marital residence within 90 days of May 13, 2014. Another section, under a subheading titled “Division After Full Payment of $10,000…,” provided that after the husband paid the $10,000 in full, he would be awarded the marital home.

Another section stated if the payment was not made in full within two years of May 13, 2014, the marital residence would be awarded to the wife, and the husband would be divested of all right, title, interest, and claim in the marital residence.

Waiver of Appeal in Texas Divorce Cases

Published on: April 19, 2018 | by McClure Law Group

Texas divorce attorneys know that even when a divorcing couple reaches a settlement agreement, there still may be issues that are in dispute. Settlement agreements sometimes include provisions that the parties waive the right to appeal. In a recent case, a husband attempted to appeal a final divorce decree despite a waiver of appeals in the settlement agreement.

When the couple filed for divorce, they owned several piece of property. They had two parcels of the wife’s family ranch, one that she owned as separate property. They purchased the second parcel from the wife’s brother and financed it through a loan secured by her separate property parcel. They also took out a second loan on the wife’s property to pay for divorce attorney’s fees.

The parties eventually entered into an “Informal Settlement Agreement.” Pursuant to this agreement, the husband would receive the family homestead and the wife would receive both parcels of her family ranch, with the husband paying the two loans. As part of the agreement, the parties waived their right to appeal or move for a new trial. The parties also agreed to submit any disputes regarding the language for the final decree to the trial court.

Texas Court Denies Post-Divorce Property Division

Published on: April 12, 2018 | by Kelly McClure

A Texas trial court is limited in revisiting the division of property once a final divorce decree has been issued. A trial court may only order a post-divorce division of property if that property was not divided or awarded to a spouse in the final divorce decree. The court may not alter a division of property that was in the final divorce decree. It may only clarify or enforce the division of property that was addressed in the divorce decree. It is therefore extremely important that all assets are fully addressed in the divorce. If the parties agree upon the property division, they should each be sure the proposed decree accurately reflects their agreement.

The wife in a recent case sought a post-divorce division of property to allow her to receive a share of her husband’s retirement benefits. The parties used a pre-printed divorce decree and were not represented by attorneys in their divorce. Each party approved the form before it was presented and approved by the court.

After the court entered the divorce decree, the wife petitioned for a post-divorce division of property. She asked the trial court to rescind the divorce decree and award her a share of her husband’s military retirement. In the agreed decree, the trial court had awarded the husband all of his employment benefits and individual retirement accounts.

Evidence of Adultery in Texas Divorce

Published on: March 28, 2018 | by McClure Law Group

A Texas divorce may be granted in favor of one spouse if the other committed adultery. Adultery occurs when one spouse has voluntary sexual intercourse with someone other than their spouse. Adultery may occur after separation. Suggestion and innuendo are insufficient to support a finding of adultery, but the finding can be based on circumstantial evidence. One recent case addressed sufficiency of evidence for a finding of adultery.

The couple married in 1996 in India and had a daughter in the following year. The husband moved to the U.S. in 2003, and his wife and daughter followed in 2004. In 2006, however, the wife and daughter moved back to India. The wife testified that she had not stayed in India voluntarily, but she had to remain because her husband canceled her plane ticket and her visa. The husband agreed to help the daughter come back to the U.S. for college in 2013, and she insisted her mother join her.

The husband filed for divorce in 2015. The trial court granted the divorce on the ground of adultery. The wife appealed both the finding of adultery and the property division. The appeals court had to determine whether the trial court abused its discretion by making a decision that was not supported by sufficient legal or factual evidence.

Property Division and Texas Spousal Maintenance in a Divorce

Published on: March 19, 2018 | by Francesca Blackard

In Texas spousal maintenance cases, the trial court has wide discretion in dividing the estate. The court may divide the property unequally if there is a reasonable basis to do so. It may consider a number of factors, including the capacities and abilities of each spouse, benefits the spouse who was not at fault would have received if the marriage had continued, their relative physical conditions, and their relative financial conditions and obligations. Although the trial court may also consider fault in causing the divorce, it does not have to do so and cannot use property division to punish the at-fault spouse.

A recent case examined whether an equal division of property and an award of spousal maintenance were proper. The couple married in 1999 and had two children together. During the marriage, the husband developed a substance abuse problem and was incarcerated for six years. In 2014, he was convicted of possession of a controlled substance with intent to deliver and was sentenced to 17 years. The wife filed for divorce on the day of his conviction.

The husband had previously received a $900,000 settlement for personal injuries, netting him more than $400,000. About $70,000 was used to pay household expenses and community debts, including mortgage payments and getting a car that was ultimately awarded to the wife. At the time of the last divorce hearing, he still had more than $300,000 held in his attorney’s trust account.

Name Change of a Minor in Texas After Paternity Dispute

Published on: March 12, 2018 | by Kelly McClure

In a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.

About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.

The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.

Wasting of Community Assets in Texas

Published on: February 7, 2018 | by Francesca Blackard

After a Texas divorce, the husband appealed the lower court’s division of marital property. He argued that there wasn’t enough evidence to support the lower court’s finding that he’d wasted community assets in the amount of about $800,000.

The couple were married in 1968. The husband left the marital home in 2013, when the wife was disabled. She was not able to leave the home or take care of herself. Meanwhile, the husband went to live with his girlfriend from 2014-2015 and spent money while living with her. The wife sued for divorce in 2014 when the spouses were retired, and there was a bench trial on the issue of how to distribute property. The husband wasn’t represented by an attorney.

During the divorce, the husband said the money he’d spent while living with a girlfriend was for regular expenses, but he also testified he wouldn’t have had those expenses if he’d been living with his wife. He also testified his girlfriend and he had purchased a vacant lot in a planned development in Belize in 2010. He acknowledged that he’d established a bank account there and had sent money to that account. He also admitted that he withdrew about $703,000 from his retirement account and that he’d made withdrawals from other accounts. He said it was for bills and pleasure.

Divorce Involving Eight Kids and Domestic Violence Allegations

Published on: January 22, 2018 | by Kelly McClure

In a recent Texas domestic violence decision, the plaintiff appealed from the lower court’s judgment granting his divorce petition. The couple had married in 1999 and had eight kids. After 15 years of marriage, the husband sued for divorce.

At the divorce trial, the primary issue was who should have conservatorship of the eight kids. The parents and a counselor who prepared a social study testified. The father argued there was credible evidence showing that the mother had a history of past or present physical abuse against him and that the lower court was prevented from appointing him and the mother as joint managing conservators. The father also argued the lower court should appoint him sole managing conservator. Alternatively, he argued the lower court should appoint him joint managing conservator with exclusive right to determine their primary residence.

The mother argued that the lower court wasn’t prevented from appointing her and the father as joint managing conservators. The mother also argued that the lower court should appoint her the joint managing conservator with exclusive right to decide the primary residence.