Articles Posted in Divorce

In a jury trial, the court must submit to the jury the instructions and definitions needed for it to render a verdict.  The court cannot comment directly on the weight of the evidence, but an incidental comment on the weight of the evidence may be acceptable.  Tex. R. Civ. P. 277. A husband recently appealed his divorce decree, arguing the trial court erred in failing to give a requested jury instruction and improperly commenting on the weight of the evidence.

The Trial

According to the appeals court, the husband petitioned for divorce in August 2019, seeking a disproportionate share of the marital estate and alleging the wife committed fraud on the marriage. He asked the court to confirm the marital residence was part separate property and set aside a 2019 gift warranty deed conveying it to the wife.  He alleged the deed was “done by mistake, undue influence, and under duress.”

The wife disputed the husband’s claims of mistake or fraud.  She also sought a disproportionate share of the property and requested exclusive possession and use of the residence.

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Spouses have a fiduciary duty toward each other with regard to the community estate and commit fraud on the community if they breach a legal or equitable duty in violation of the fiduciary relationship.  Fraud on the community often occurs when assets are transferred to a third party, but can also occur when it is unaccounted for.

If a court determines a spouse committed fraud, it must determine the amount the community estate was depleted and the total value it would have had absent the fraud.  The trial court then divides the reconstituted estate in a just and right manner, which may include awarding the other spouse a disproportionate share of the community estate, a money judgment, or both.  Tex. Fam. Code § 7.009.  A husband recently appealed the trial court’s finding of fraud, judgments, and property division in his Texas divorce.

The Marriage

According to the appeals court’s opinion, the husband owned a home when the parties married in 2002.

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A trial court in a Texas divorce retains subject matter jurisdiction to enforce a decree or to clarify ambiguity in the decree.  Texas strongly favors finality of judgment, so the court may not make substantive changes to the property division in a divorce decree once it has become final.  The court does not have the authority to “amend, modify, alter, or change” the final property division despite errors in characterizing the property or applying the law.   The court may, however, issue orders to clarify an ambiguous decree or to enforce the decree.  A court interprets a Texas divorce decree according to the plain language of the decree. The court must interpret the decree as a whole and give effect to all provisions.  A former wife recently challenged a court order purporting to clarify the final divorce decree, arguing it substantively changed the property division.

Divorce Decree and Subsequent Order

The trial court filed with the clerk and sent the parties a letter rendering the property division following the bench trial.  The letter awarded to the wife as separate property 50% of three specified accounts and 50% of any stocks, options, or retirement accounts that were not listed in the letter but had vested as of a specified date.  The court directed the husband’s counsel to draft a decree comporting with the letter rendition.

The husband’s attorney added details that were not expressly included in the letter. He specified the date when the balances would be calculated for the property division and included a dollar amount for each account.  The parties’ attorneys approved the draft divorce decree as to form.  The trial court signed the decree as drafted by the husband’s attorney.  The decree became final without either party appealing.

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A Texas divorce decree provision that was agreed upon by the parties is construed according to contract principles.  In interpreting the contract, the court considers the entire agreement.  Words are given their plain meaning unless there is an indication the parties intended something else.  A contract is not ambiguous if it can be interpreted with a definite legal meaning.  It is ambiguous if it is subject to more than one reasonable interpretation.  Generally, a court may only consider outside evidence to interpret an ambiguous contract.  A husband recently challenged a trial court’s denial of his petition for enforcement of the property division in his divorce decree.

The parties’ 2017 divorce decree included agreed property-division provisions that awarded the wife a 2.6 acre lot “as her sole and separate property.” The decree divested the husband of all right, title, interest and claim to the lot.  It also included a conditional provision that the wife “begin the process of building” a home on the lot, with the property reverting back to the husband if she failed to comply.  The decree did not include a time by which the wife had to comply nor did it define what was meant by “begin” or “the process of building.” The wife was prohibited from selling the lot for commercial purposes and was required to give the husband a first right of purchase option.

The wife did not complete building a house on the lot and the husband filed a petition for enforcement.  He alleged that the wife had not begun “the process of building a permanent, fixed home structure” on the lot. He asked the court to order her to execute a general warranty deed.

The trial court denied the petition after a hearing and the husband appealed. The husband argued on appeal that the decree was ambiguous and that the trial court erred in not clarifying it and enforcing the clarified decree.

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A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed.  Tex. R. Civ. P. 329b.  Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law.  The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree.  The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division.  It may specify the manner of the property division more precisely, but may not change the substantive property division.  A court may order delivery of specific property through its enforcement power.  If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.

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A court must order a just and right division of the marital estate in a Texas divorce.  Once the divorce is final and the property has been divided, the property division generally may not be re-litigated.  The trial court does, however, retain the power to clarify and enforce the division.  Tex. Fam. Code § 9.002; Tex. Fam. Code § 9.008. The court may not alter or change the substantive property division, but may render additional orders to enforce, clarify, assist in implementing, or specify the manner of effecting the property division. Tex. Fam. Code § 9.006.  A former husband recently challenged a trial court’s partial denial of his request for clarification and enforcement.

According to the opinion of the appeals court, the final divorce decree awarded the husband certain personal property, specifically including the outdoor furniture purchased from a particular person and any property the wife had removed from the homestead, including certain dining room furniture and two bronze statues.

Clarification and Enforcement Hearing

The husband petitioned for clarification and enforcement of the property division, alleging the wife had not turned over certain property awarded to him, including two bronze statues, certain patio furniture he had purchased from a specified individual, and certain dining room furniture.  He asked the court to order her to turn them over by a specified date, and to award him their replacement value if she did not.

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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.

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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.

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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.

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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.

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