Divorce

Texas Appeals Court Affirms Disproportionate Property Division

Published on: November 29, 2023 | by Francesca Blackard

The court in a Texas divorce must make a just and right division of the marital estate. The estate does not have to be equally divided if there is a reasonable basis in the record for an unequal division. A former husband recently challenged, for the second time, the property division in his divorce.

The First Appeal

In his first appeal, the husband argued the trial court erred in its property division by including the value of a condominium that he claimed belonged to his father. The appeals court concluded the condominium belonged to the husband, wife, and the husband’s father and that the trial court had erred in including its total value in the community estate. The appeals court determined including only the two spouses’ interest in the valuation of the community estate would materially affect the property division, it remanded to the trial court for a just and right division.

The trial court signed an order on remand that stated its original community property division was just and right. Furthermore, the trial court awarded the wife appellate attorney’s fees.

Parties to a Texas Informal Marriage Must Represent Themselves as Married

Published on: November 20, 2023 | by Kelly McClure

When a person seeks divorce from an informal marriage, they often must prove the informal marriage existed. To prove a Texas informal marriage, the party must show by the preponderance of the evidence that the couple agreed to be married, subsequently lived together in Texas as spouses, and held themselves out to others as married. Tex. Fam. Code § 2.401. A man recently appealed summary judgment in his divorce case on the ground he had not raised an issue of fact as to the existence of an informal marriage.

Divorce Case

The petitioner filed for divorce in November 2021, alleging the parties had been married on or about March 18, 2002.

In her answer, the respondent asserted a verified defense that they parties were not married. She filed a motion for summary judgment, attaching tax returns, deeds, and other exhibits that she argued showed the parties had not represented themselves as married “to the general public or others.” She also averred that the petitioner had never presented her as his wife to his children, that his children had not socialized with her or her family because they knew she was not the petitioner’s wife, and that he lived with another woman.

Texas Appeals Court Reverses Spousal Maintenance Award

Published on: November 6, 2023 | by Francesca Blackard

Trial courts are permitted to award Texas spousal maintenance in only limited circumstances. If the spouse meets the eligibility requirements for maintenance, the court must consider a number of factors to determine the nature, amount, and duration. Tex. Fam. Code § 8.052. Spousal maintenance is limited to the lesser of $5,000.00 or 20% of the spouse’s average monthly gross income. Certain items are excluded from “gross income,” including service-connected Veterans Affairs disability payments, supplemental security income (“SSI”), social security benefits, or disability benefits. Tex. Fam. Code § 8.055. A husband recently challenged an order requiring him to pay spousal maintenance.

Wife Seeks Spousal Maintenance

According to the appeals court’s opinion, the parties got married in 2006 and the wife filed for divorce in 2019. The wife sought spousal maintenance pursuant to Chapter 8 of the Texas Family Code and based on “contractual alimony.” She testified she was unable to work due to medical issues. She said she lived with her daughter and did not have any income.

The wife testified the husband received $3,809.02 monthly from the Department of Veterans Affairs (“VA”) and $816 per month in social security. She also testified that he also earned income by performing in a band. She said he was paid under the table and was unable to estimate how much he earned.

Texas Appeals Court Vacates Appointment of Receiver as Improper Modification of Property Division

Published on: October 27, 2023 | by Kelly McClure

A trial court may not amend, modify, alter or change the substantive property division in a divorce decree after expiration of its plenary power. The court retains jurisdiction, however, to enforce or clarify the property division in the divorce decree. A former husband recently appealed a trial court’s appointment of a receiver for the marital residence, arguing it constituted an improper modification of the property division set forth in the divorce decree.

Divorce Proceedings

The parties got married in 2009 and separated in October 2020, according to the appeals court’s opinion. The wife petitioned for divorce in November 2020, and the husband filed a counterpetition. In its written ruling, the trial court indicated the marital home would be sold with the proceeds equally divided. The ruling stated the husband was allowed to stay in the house until the sale.

No Violation of Due Process Based on Emails with the Court after Texas Divorce Trial

Published on: October 20, 2023 | by Kelly McClure

Both the Fourteenth Amendment to the U.S. Constitution and the Texas Constitution prohibit the state from depriving a person of a liberty interest without due process of law. Case law has established that parental rights are fundamental liberty interests. Due process generally requires that a person be given a meaningful opportunity to be heard. A mother recently appealed her divorce decree, arguing she was deprived of her due process when the court accepted evidence after trial but before entering the final decree.

According to the appeals court, the child was born in March 2020 and the father filed for divorce the following August. In its ruling, the trial court named the parties joint managing conservators and awarded the father the exclusive right to designate the child’s primary residence within two counties. The final decree divided the marital estate, awarding the father $104,738.93 and the mother $69,825.95 from the sale of the home.

Due Process Claims

The mother appealed, arguing the trial court violated her due process rights by accepting certain evidence after the trial.

Texas Court May Clarify Ambiguous Property Division

Published on: October 6, 2023 | by Kelly McClure

Once its plenary power has expired, a trial court cannot change the substantive property division stated in a final Texas divorce decree. It does, however, retain the power to clarify or enforce that property division. A Qualified Domestic Relations Order (“QDRO”) is a post-divorce enforcement order and therefore cannot change the property division. A QDRO can, however, specify how the property division can be carried out, without altering the substantive property division. If the QDRO substantively alters the property division, then it is void and may be amended to comport with the division in the decree. A wife recently challenged a clarification order addressing the division of the husband’s 401(k).

According to the appeals court’s opinion, the parties executed a mediated settlement agreement (“MSA”) that incorporated a spreadsheet dividing the marital estate. That spreadsheet indicated the parties would each receive half of $92,916.50 from the 401(k).

The final decree incorporated the MSA by reference and ordered the parties “to do all things necessary to effectuate” it. The decree awarded the husband the entire balance of the 401(k) “as reflected on [the spreadsheet]” except for the part awarded to the wife by the decree.

Court Has Broad Discretion in Determining Texas Custody

Published on: September 29, 2023 | by Kelly McClure

The court’s primary consideration in determining Texas custody is the best interest of the child. Tex. Fam. Code § 153.002. There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence. Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence. A father recently challenged the custody, child support, and property division in his divorce.

Custody

The parties separated after fourteen years of marriage. They had two children together. The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.” The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed. She testified she thought it was in the children’s best interest to live with her. She alleged the father drank too much around the children.

Texas Spousal Maintenance

Published on: September 25, 2023 | by Francesca Blackard

Pursuant to Texas Fam. Code § 8.051, the court may award Texas spousal maintenance to a spouse who lacks sufficient resources to provide for their own minimum reasonable needs if the other spouse was convicted of or received deferred adjudication for a criminal offense that constituted an act of family violence against the spouse or the spouse’s child and the offense occurred within two years before the divorce case was filed or while it was pending. Additionally, the court may award maintenance to a spouse who lacks sufficient resources to provide for their own minimum needs if they: are unable to earn sufficient income to provide for their minimum reasonable needs due to an incapacitating disability; lack the ability to earn sufficient income after being married to the other spouse for at least 10 years; or are the custodian of the parties’ child with a disability who requires substantial care and supervision that prevents the custodial parent from earning sufficient income. A husband recently appealed a spousal maintenance award, arguing there was insufficient evidence that the wife was eligible for maintenance.

Wife Seeks Spousal Maintenance

The husband petitioned for divorce after seven years of marriage, alleging insupportability. He requested the court to appoint the parties joint managing conservators of their child.

The wife also alleged the marriage was insupportable, but also alleged cruel treatment and “a history or pattern of committing family violence” by the husband. She alleged she would not have adequate resources to meet her minimum reasonable needs and sought spousal maintenance. She claimed she was eligible to receive spousal maintenance as a result of “domestic violence.”

Texas Appeals Court Concludes Stock Issued by Husband’s Employer Was Community Property

Published on: September 19, 2023 | by Kelly McClure

There is a presumption that property possessed by a spouse during or on Texas marital dissolution is community property. A party claiming separate property must prove its separate character by clear and convincing evidence. Tex. Fam. Code § 3.003. In a recent case a wife appealed the trial court’s characterization of stock shares granted to the husband by his employer.

Stock Shares

According to the appeals court’s opinion, the parties got married in December 2006. The husband started a new job in February 2015 and the next year received a million shares of the company’s stock. The husband stated he had entered into an agreement with the company when he received the stock, but could not find it and could not get a copy from the company. The stock certificates did not indicate why they were issued.

The husband’s employment contract provided that he would receive an annual salary of $100,000. Additionally, he would receive a signing fee, an additional payment upon the next fundraising event, and an annual payment for four years, as compensation for “assets, access to ‘[husband’s] IP,’ and inventory” the husband provided pursuant to the employment agreement. The company also agreed to take on certain debts and liabilities the husband owed. The contract indicated the husband would receive “a total compensation of over $750,000” for the use of the husband’s assets and intellectual property, without referencing the stock shares.

Characterization of Personal Injury Recovery in Texas Divorce

Published on: September 4, 2023 | by Francesca Blackard

The characterization of funds received for personal injuries can be a complex issue in a Texas divorce. Texas family law presumes that property possessed by a spouse during or on dissolution of the marriage is community property. When a spouse claims certain property is separate, that spouse must prove by clear and convincing evidence that the property is separate. Tex. Fam. Code § 3.003. Pursuant to Tex. Fam. Code 3.001, recovery for personal injuries sustained during the marriage is separate property. There is an exception, however, for recovery for lost earning capacity during the marriage. Because a spouse claiming separate property has the burden of proof, that spouse must show by clear and convincing evidence what part of a personal injury settlement is separate property. Recently, a husband appealed the trial court’s ruling which characterized his personal injury recovery as community property.

Personal Injury Settlement

According to the appeals court, the husband and wife married in 1994 and lived separately at various times during the marriage. In December 2014, husband was injured as the result of an automobile accident in the scope of his employment. The parties were separated when the accident occurred, but subsequently reconciled.

The husband settled for the other driver’s policy limits of $30,000. He also received net proceeds of $710,724.25 from a settlement with his employer’s under-insured motorist coverage. Thereafter, his attorneys transferred those funds into the parties’ joint checking account on October 8, 2019. The parties then separated that month and the wife filed a divorce petition on November 1.