Divorce

Defrauding the Marital Community in Texas

Published on: October 25, 2016 | by Kelly McClure

Often times, before commencement of or during a suit for dissolution of marriage, one spouse will commit fraud against the couple’s community estate. Texas law recognizes two types of fraud: (1) constructive fraud; and (2) actual fraud.

Constructive fraud claims are based on a breach of fiduciary duty by one spouse against the other. Puntarelli v. Peterson, 405 S.W.3d 131, 2013 Tex. App. LEXIS 1458, 2013 WL 561484 (Tex. App. Houston 1st Dist. 2013) If someone owes a fiduciary duty, they have a legal obligation to act in the best interest of another. When a constructive fraud claim is being alleged, the argument is that one spouse has a fiduciary duty to act in the best interest of the other spouse regarding the protection and management of the community estate, and that duty was breached by a spouse who misappropriated assets from the community estate. A constructive fraud claim can also be pursued under the theory of waste, where one spouse disburses community assets for noncommunity purposes without the other spouse’s knowledge or consent. Connell v. Connell, 889 S.W.2d 534, 1994 Tex. App. LEXIS 3020 (Tex. App. San Antonio 1994)

What to Expect When You’re Expecting (& Divorcing)

Published on: August 30, 2016 | by Kaitlin Capetillo

Can a married couple get divorced in Texas while the wife is pregnant?

It is highly unlikely.

Most Texas courts will not grant a divorce to a married couple if the wife is pregnant. Instead, the couple will have to wait until after the baby is born to finalize their divorce, oftentimes causing significant delays to the already lengthy divorce process. This is the case even if the husband and wife both want the divorce and are in agreement on all issues.

Dissolution of an Informal Marriage in Texas

Published on: August 1, 2016 | by Kelly McClure

In In re Interest of JJFR, a man appealed from the denial of his motion for summary judgment, arguing there was insufficient evidence to prove his partner and he had entered into an informal marriage. In Texas, an informal (or common law) marriage under Texas Family Code §2.401(a)(2) can be proven by using evidence that a man and woman agreed to be married and after agreeing lived in Texas as husband and wife and told others they were married.

Informal marriages exist only if all three elements are present. Whoever wants to establish that there is an informal marriage needs to prove these elements by a preponderance of the evidence.

In the current case, the woman claimed there was an informal marriage and carried the burden of proof. The appellate court explained they could overturn an order on the ground of insufficient evidence only if the findings were so contrary to the overwhelming weight of the evidence they were obviously unfair and wrong.

Right to Reimbursement in Texas Divorce

Published on: July 15, 2016 | by Kelly McClure

In McCoy v. McCoy, a Texas husband appealed from a divorce decree, arguing that the lower court should not have denied his claim for reimbursement. The couple started dating in 2009. In the following year, they got engaged, and the husband moved to start law school. His fiancée joined him there in a rental house. They married in 2011. The wife worked full time during the husband’s first year in law school but then started going to law school as well. They both relied on student loans to cover their expenses and tuition.

Later, the husband claimed they had an agreement that the wife would pay him $700 every month and also pay for groceries and gas. He argued that she budgeted poorly and only sometimes paid this part of the expenses, and as a result he had to get supplemental student loans to cover her portion. They kept separate checking accounts related to their different law school loans.

In 2013, after the husband graduated, the wife filed for divorce. The husband responded by claiming he was entitled to reimbursement from his wife because he’d had to use his separate property to pay for her necessary living expenses. A bench trial was conducted, and the trial court divided the marital estate by awarding each of them the property they possessed and by ordering each spouse to pay his or her loans and debts solely in his or her name. The trial court also found that the husband’s request for reimbursement wasn’t supported by a preponderance of the evidence.

Divorce and Taxes – What to do if your ex-spouse botched your joint tax return

Published on: May 31, 2016 | by Adam Mundt

In many families, one spouse takes primary responsibility for all the family finances, including the preparation of the joint income tax return. A joint income tax return may provide tax benefits to families that would not be available from filing two separate returns. However, in order to file a joint income tax return, both spouses are required to sign the return. The result of filing a joint tax return is that each spouse is joint and severally liable for any reported tax liability, along with any additional tax, interest, and penalties assessed on the return by the IRS. Even if the couple is later divorced, both spouses remain joint and severally liable for the total liability associated with the joint return. But is this fair to the spouse who did not handle any of the family finances? What if the spouse was also the victim of abuse or domestic violence and was prevented from accessing any of the family financial records?

Congress and the Department of Treasury have created Innocent Spouse Relief, which gives the innocent spouse the ability to request relief from the IRS for the joint liability associated with any additional tax, penalties, or interest assessed on the joint return. To qualify for Innocent Spouse Relief, the innocent spouse must meet all of the following conditions:

Division of Property in Texas

Published on: April 11, 2016 | by Brandon Joseph

Alex Graves, award-winning director of “The West Wing” recently finalized his divorce from his wife of 19 years. Pursuant to the final order, the spouses’ property was divided evenly. Does the State of Texas mandate a fifty-fifty division of property upon divorce? The short answer is “no.” Continue Reading ›

It’s Not Too Late to Get a Prenup!

Published on: March 15, 2016 | by Kate Mataya

I know what you’re thinking…. “I’m already married; how is it not too late?” Don’t worry; the solution is a postnup! The Texas Family Code allows for couples to enter into a postnuptial agreement (or marital property agreement), which will offer many of the same protections and advantages that a prenuptial agreement offers.

Current Property. At the time of marriage, both spouses often have separate property interests and liabilities that were acquired prior to marriage. Without a prenup, the spouses’ separate property estates often become commingled and indistinguishable from the community estate of the spouses that begins upon marriage, especially if the spouses have been married for a substantial period of time. For example, during marriage, a spouse may inherit a large estate from a relative, gifts, buy a house, sell or trade property, or put separate property money in the same bank account. Although you and your spouse did not execute a premarital agreement, it is not too late to distinguish your separate property in a marital property agreement.

Chapter 4 of the Texas Family Code, Subchapter B, outlines the statutory requirements and guidelines for a marital agreement. Section 4.102 states:

Protective Orders: Who is Protected from Family Violence Under the Texas Family Code?

Published on: February 28, 2016 | by Bryce Hopson

As a family law attorney, we are involved in a wide array of domestic issues ranging from a husband and wife who have simply fallen out of love and grown apart over the years, to situations involving infidelity and the very real emotional damage that echoes for years to come even after the divorce is finalized, to situations involving children—who will take the kids to baseball practice? Who will be responsible for paying for their health insurance? How will their expenses be handled?

But above all of the complications and struggles that pervade the separation and dissolution of a family unit, there is one issue that the parties, their attorneys, and the Courts place a priority on addressing, and that is family violence. Continue Reading ›

Protect Yourself with a Prenuptial Agreement Before You Wreck Yourself with a Divorce

Published on: February 21, 2016 | by McClure Law Group

Wedding season will be upon us soon, and if you or somebody you care about will be getting married this summer, now is the time to strongly consider getting or recommending a premarital agreement Continue Reading ›

To Move Out or Not To Move Out – That is the Question

Published on: January 12, 2016 | by Bryce Hopson

When it comes to divorce, we have all heard that timeless adage that is passed between friends, co-workers, neighbors, and the rowdy crowd of stampers that amass for Saturday-night Bingo – “Never voluntarily move out of the marital residence.” A majority of the time, people are not exactly sure why they need to stay in the family residence, they just know that somewhere along the way, this sage proverb was firmly engrained into their psyche and should never be challenged.