Property

Texas Appeals Court Upholds Divorce Decree with No Payment Mechanism or Schedule for Owelty Lien

Published on: May 15, 2023 | by Francesca Blackard

BSgavelx1200-768x432-1-300x169 In dividing property in a Texas divorce, the court must effect a just and right division. If the marital residence is part of the community estate and one party will keep it, the court must address the other spouse’s share of the equity. The court may do this by placing an owelty lien on the property. An owelty lien creates an encumbrance on the property that follows it upon a sale. The lien must be paid before the net proceeds of the sale are distributed to the spouse. In a recent case, a mother challenged a divorce decree that did not include a payment mechanism or schedule for her owelty lien, while the father challenged the specifics of the geographic restriction imposed on the primary residence of the child.

The father asked the trial court to appoint both parents joint managing conservators of their child. He asked neither parent be given the exclusive right to determine the child’s primary residence and that the court impose a geographic restriction. He requested the trial court to divide the estate in a just and right manner. He asked that the mother receive a lien on the marital estate for half of the net equity of the home.

The mother asked for the right to designate the child’s primary residence. She also asked the trial court to award her half the market value of the home.

Marital Home Built on Gifted Lots Retains Separate Property Characterization in Texas Divorce

Published on: May 13, 2023 | by Francesca Blackard

iStock-483613578-300x204 The characterization of property in a Texas divorce is generally determined by the property’s character when the spouse acquired it. Separate property is property a spouse owned before the marriage or acquired during the marriage through gift, devise, or decent. Improvements made to separate property are generally also separate property because they are not divisible from the land. Community property is property acquired by either spouse during the marriage that is not separate property. In a recent case, a wife challenged a court’s characterization of the marital home as community property.

Home Built During Marriage

According to the opinion of the appeals court, the parties got married in 1995. In 2000, the husband’s mother transferred two lots to both of the parties by a gift deed. They built the marital home on those two lots during the marriage. The wife moved out of the home when the parties separated in 2015. The husband had stayed there and paid the household bills and property taxes.

The trial court ordered the home to be sold. It awarded 75% of the net proceeds from the sale of the home to the husband and the other 25% of the net proceeds to the wife.

Texas Appeals Court Upholds Separate Property Characterization

Published on: April 27, 2023 | by Francesca Blackard

2018_10_agreement-300x165 Property possessed by either spouse at the time of a Texas divorce is generally presumed to be community property, but that presumption can be rebutted by clear and convincing evidence. A number of other rules and presumptions may affect the characterization of property during the property division. A husband recently appealed characterization of property purchased by the wife before the marriage as her separate property.

HISTORY OF THE PROPERTY

The wife bought a residential property before her relationship with the husband. After the parties got married, the husband and his children moved in with the wife. Both parties testified they frequently argued about money and finances. When they argued, the wife would say the house was hers.

Texas Appeals Court Affirms Disproportionate Property Division in Divorce

Published on: April 25, 2023 | by Kelly McClure

iStock-483613578-300x204 A court in a Texas divorce must divide the marital estate in a just and right manner. A just and right division does not necessarily mean an equal division. Courts may consider a variety of factors in determining the property division, including fault in the break-up, income disparity, the relative earning capacity of the parties, education, age, physical condition, and financial condition of the parties. A husband recently appealed a disproportionate division of property.

The appeals court’s opinion stated the parties established a common-law marriage in 2015 after living together for 18 years. They separated in 2018 and the wife petitioned for divorce in 2019, claiming insupportability and cruelty. In his counter-petition, the husband also alleged insupportability and cruelty and adultery on the part of the wife. They each requested a disproportionate division of the marital estate.

FINAL HEARING ON PROPERTY DIVISION

They reached a settlement on the issues related to the children, so the final hearing addressed only the property division. The community estate included bank accounts, the husband’s retirement benefits, vehicles, and debt. The parties had also purchased two homes as tenants in common before they were married. They each lived in one of the homes after the separation.

How Do Texas Courts Value a Medical Practice During Divorce Proceedings?

Published on: February 17, 2023 | by Kelly McClure

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Valuing a closely-held medical practice during a divorce in Texas requires a complex understanding of the measures of value, methods of valuation, and Texas statutes. Although business valuations do not adhere to precise mathematical processes, general methods, procedures, and principles exist. In Texas, determining the value of medical practice is often a critical and hotly contested aspect of divorce proceedings. Understanding how a court will incorporate the value of medical practice to come to a “just and right” division of property is crucial to securing a favorable outcome in a divorce.

TEXAS ASSETS DURING A DIVORCE

Texas is a community property state, meaning only property created or accrued during the marriage is subject to division during a divorce. Community property may include real estate, businesses, medical practices, cars, money, and retirement accounts. Under the law, courts must make divisions that are “just and right.” It is important to note that “just and right” does not necessarily equate to a 50 percent division.

OWNERSHIP OF MEDICAL PRACTICE AFTER A DIVORCE

Medical practices fall under an important caveat of Texas’ property division laws. The Corporate Practice of Medicine (CPOM) doctrine prohibits non-physicians, entities, or corporations from practicing medicine. Thus, a court cannot divide the ownership of a medical practice to a non-physician spouse; instead, the court can only determine and divide the value of the practice.

Texas Appeals Court Reverses Separate Property Characterization in Divorce Case

Published on: February 7, 2023 | by Francesca Blackard

In a Texas divorce, the trial court must divide the estate in a just and right manner, but the division does not have to be equal. Property possessed by either party during or on dissolution of the marriage is presumed to be community property. To rebut the presumption, a party must generally trace the property back to separate property. Without tracing, a party’s testimony they purchased the property with separate funds will generally not be sufficient to rebut the presumption. However, a presumption of separate property arises if a deed includes a separate property recital stating the property is transferred as separate property. If a spouse is party to a transaction, they may not contradict the deed’s express recitals with parol or extrinsic evidence without evidence of fraud, accident or mistake. If a spouse is not party to the transaction, however, they may use parol evidence to contradict the recitals.

A husband recently challenged the characterization of property in his divorce.

Both parties requested a disproportionate share of the community estate. The husband also requested reimbursement based on alleged waste and actual fraud by the wife.

Texas Court Denies Wife’s Request for Name Change in Divorce

Published on: January 20, 2023 | by Francesca Blackard

How-to-Improve-Your-Mental-Health-300x200 In some Texas divorce cases, how a party requests something can determine if they are successful. A wife recently challenged part of the property division and the court’s denial of her name change after a second trial.

The appeals court’s opinion states the wife informed the court the parties had agreed two pensions would be divided with “a 50 percent shared interest per each party as of the date of divorce.” The husband’s attorney agreed that was their understanding of the agreement.

In a memorandum ruling, the trial court granted the divorce and accepted the parties’ agreement as to the fifty-fifty division of pensions.

Documentary Evidence in Texas Divorce

Published on: December 31, 2022 | by Francesca Blackard

iStock-1214358087-300x169 Although testimony can be important evidence in a Texas divorce, documentary evidence is needed for some claims. A wife recently challenged a number of issues in her divorce based on insufficiency of evidence.

According to the appeals court’s opinion, the parties acquired several rental properties during their marriage. The husband petitioned for divorce in July 2020. The trial was originally scheduled for October 7, 2020, but the wife moved for a continuance and asked for mediation.

The trial date was reset for April 28, 2021, but the wife moved for another continuance the day before. The trial was rescheduled for May 6, 2021, and she again requested a continuance. The trial court denied the motion.

Texas Division of Real Estate in Divorce

Published on: December 15, 2022 | by Francesca Blackard

property-division-300x110 Property in a Texas divorce does not have to be divided equally, but instead must be divided in a just and right manner. There can be a number of ways to achieve a just and right division, especially when the property is a large piece of real estate. In a recent case, a husband asked the court to award the wife a smaller portion of the parties’ ranch, which he claimed was more valuable than the rest of the ranch.

Wife Precluded from Presenting Testimony about Value of Ranch

The parties married in 1995. When the wife petitioned for divorce, the parties owned a ranch together. Before the trial, the husband moved to compel discovery and subsequently for discovery sanctions. The trial court granted the motions and ordered that the wife would not be allowed to testify about the community property’s value.

According to the appeals court’s opinion, he husband testified that the tax appraisal for the ranch was $529,280, but that the ranch was only worth $400,000. He asked the trial court to award him the entire ranch, or alternatively to award the wife the “richest 10 acres” and give him the other 40. He testified the westernmost ten acres were the most beautiful and had the richest soil. The remaining 40 acres included several improvements, including a mobile home, a barn, and a pond.

Evidence Regarding Property Required in Texas Divorce

Published on: November 7, 2022 | by Francesca Blackard

iStock-1214358087-300x169 The division of property in a Texas divorce does not have to be equal, but should be “just and right.” Each party is responsible for providing evidence to show the value of the property so the court can make the division. A Texas appeals court recently considered what happens when parties do not provide information regarding the marital estate.

Conflicting Testimony Regarding Parties’ Relationship at Trial

According to the appeals court’s opinion, the husband was sixty and the wife was twenty-seven when they met and married. According to the husband, he met the wife on an online dating site and went to Monterrey, Mexico to meet her in person in October or November 2007. After spending time with her that night and the next day, the husband came back to the U.S. The wife denied meeting on a dating site and instead said they met at a hotel bar. They communicated via email and the husband visited the wife in Mexico a few more times. They married in February 2008 in Monterrey. The husband testified they did not have sexual relations or go on a honeymoon. He came back to Texas a few days later and the wife stayed in Mexico.

The husband obtained an attorney to get visas for the wife and her son. The visas were denied after an immigration interview in 2008. The husband claimed he had no further relationship or communications with the wife until late 2017 or early 2018 when she contacted him wanting to come to the U.S. He hired an attorney again. The wife obtained a visa in March 2018 and moved to Texarkana. There were substantial differences in the parties’ testimony regarding their relationship while they lived together and the reasons the wife moved to Dallas in 2018.