Texas Divorce Attorney Blog
In a high net worth divorce, the parties may want to reach an amicable resolution of property division. In a recent Texas divorce case, a husband challenged the final divorce decree that upheld the parties settlement agreement without giving him notice and a hearing.
The parties got married in March 2021 and stopped living together in January 2023. The entered into a Mediated Settlement Agreement (“MSA”) shortly thereafter.
Proceedings
The wife petitioned for divorce in 2023, asking the court to divide the estate according to the terms of the MSA. The MSA was signed by both parties and notarized. Additionally, both parties had initialed each page. The MSA addressed the division of the community property and liabilities, including personal property, real property, business interests, and debt.
The husband alleged the wife had committed adultery and requested a just and right division of the estate. The husband acknowledged he was party to and signed the MSA, but argued it was not binding under the Texas Family Code and attached a document in which he had purportedly repudiated the MSA. He moved for the MSA to be set aside, and the wife amended her petition to add an anticipatory breach of the MSA claim.
The trial court ultimately entered an order to uphold the MSA. The wife then filed a proposed final decree and a letter asking the court to sign the proposed decree if it did not receive an objection within 10 days. The husband did not file any objection and the court entered the divorce decree without notice or a hearing.
The Husband’s Appeal
The husband appealed, arguing the court erred by entering the final divorce decree without notice and a hearing, in violation of his right to due process.
A court may set contested cases with reasonable notice to the parties of at least 45 days from the first set of trial, or by agreement. The court may dispose of non-contested cases at any time, whether set or not. Tex. R. Civ. P 245.
Generally, when a party has filed an answer, he has made an appearance and the case is contested. A party may voluntarily, knowingly, and intelligently waive their due process right to notice. The wife argued that the husband waived his due process right to notice when he failed to object to her proposed decree. The appeals court concluded, however, that, regardless of the letter, the court was required to give the husband at least 45 days’ notice pursuant to Rule 245. The wife also failed to cite any case law or other authority supporting her argument that the husband’s failure to object constituted a knowing, intelligent, and voluntary waiver of his due process rights or notice pursuant to Rule 245.
The wife also argued that a presumption in her favor arose because the proposed decree her attorney drafted included a notation that both parties failed to appear. She argued that courts presumable only hear a case if notice has been given. The appeals court concluded, however, that the husband had successfully rebutted the presumption with a record that affirmatively showed judgment was entered without notice or a hearing.
The appeals court further concluded that the existence of an MSA did not change its analysis. The Texas Supreme Court has stated that the existence of an MSA does not mean that the proceedings are uncontested. A party may raise a number of defenses or argue that the MSA should be set aside. The husband in this case made a general denial and had filed a motion to revoke his agreement to the MSA. The case was therefore contested, so the husband was entitled to notice and a hearing.
The appeals court concluded that the failure to provide notice of setting trial violated the husband’s due process rights and he was entitled to a new trial. The appeals court reversed the judgment and remanded to the trial court with instructions to provide a new trial with proper notice.
Call McClure Law Group Today
There is a lot at stake in divorce involving a complex estate and division of business interests. In some cases, mediation and a settlement agreement may be appropriate. If you are facing divorce, an experienced Texas high net worth divorce attorney can help. Set up your consultation with McClure Law Group at 214.692.8200.