Texas Divorce Attorney Blog
In a recent Texas property division decision, a woman appealed from a final divorce decree. A couple had been married about 30 years when the husband petitioned for divorce. The wife was incarcerated. At a divorce hearing, she appeared without a lawyer and by telephone because of her incarceration. The lower court gave her 15 days to file exhibits and permitted the husband another 15 days to object. The wife sent copies of her exhibits and also sent a settlement offer to the husband’s attorney. There were no objections to the copy she filed with the court, or any of her exhibits submitted to the court.
Her divorce was granted, and the community real property and other assets were ordered to be sold with the proceeds split between the husband and the wife equally. The wife appealed, complaining of mistakes about how the property was divided.
The appellate court explained that the court can divide the community estate during a divorce under Texas Family Code section 7.001. It cannot divide separate property. The appellate court that reviews property distribution is supposed to look at whether there was enough evidence upon which the lower court could exercise discretion, and whether the lower court erred in applying its discretion.
The wife argued that the trial court had failed to dispose of a homestead and the land on which it sat, as well as bank accounts, a retirement account, burial plots, and 28 acres’ worth of mineral rights. The couple’s home sat on 3.06 acres of land. The wife testified that the parties had an additional acre, but no documentation was submitted to that effect. The appellate court found that the trial court was entitled to believe the evidence submitted by the husband and disregard her testimony. It had ordered the property described in the deed to be sold and the funds from the sale divided equally.
The husband testified that he had a bank account with $1,500 and that he had no other accounts. She argued that there were other accounts but didn’t provide documentation to support this claim. The appellate court again found the trial court could believe her husband.
The husband testified that he had two retirement accounts in one plan. The wife claimed there was another retirement account that was not disclosed, but she didn’t have evidence of another retirement account. The order awarded her 50% interest in her husband’s retirement savings plan and pension plan. The appellate court found that the lower court was entitled to believe the husband’s testimony that he didn’t have another retirement account.
The appellate court explained that the couple owned 28.02 acres of land. The wife testified there was money in escrow for mineral rights on the property, but she didn’t testify or present discussion of the disposition of the mineral rights, and she didn’t put the deed to the property in the record. The lower court ordered the sale of the property. Without clarifying language, the court interpreted that the decree ordered the sale of the mineral rights if any were reflected in the deed, as well as the land itself.
The wife claimed in her settlement offer that she’d paid for two burial plots. However, evidence about these plots wasn’t presented at the hearing. Under Texas Health and Safety Code sections 711.038-.039, a cemetery organization was required to give a certificate of ownership showing the conveyance of a burial right, which had to be filed and recorded in its office. Without evidence on the certificate of ownership in this case, the court presumed the two plots were community property. The divorce decree stated that any property that wasn’t divided by decree was awarded to whoever was in possession. The appellate court concluded whoever had the certificate of ownership would be considered the party in possession.
The wife also argued there was an abuse of discretion in that the lower court awarded her separate property to her husband. The appellate court explained there was a presumption that all property was community property, and to overcome that presumption, whichever spouse claimed specific items were separate property would have to trace and identify them. The wife argued that her dad had given her jewelry and sold her guns that were her separate property. There was no inventory of this separate property. She didn’t testify to substantiate the separate property claims, and her inventory in a settlement offer couldn’t be construed as the clear and convincing evidence needed to overcome the community property presumption.
The lower court’s judgment was affirmed.
If your divorce involves matters related to property distribution, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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