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Articles Posted in Divorce

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In some Texas divorce cases, the parties are able to reach an agreement on property division.  Such an agreement is treated as a contract, even when it is incorporated into a final agreed divorce decree.  If there is an ambiguity, the agreement may be reformed to correct a mutual mistake or reflect the parties’ intent.  An ambiguity exists if the meaning is uncertain or could reasonably be interpreted in more than one way.  To show there was a mutual mistake, a party must prove there was a definite agreement that was misstated in the contract due to a mistake of both parties.

In a recent case, a wife moved for clarification to correct the trial court’s omission of the amount of her portion of the husband’s military retirement. The couple divorced in 2000.  The agreed final divorce decree awarded the wife an amount of the husband’s Navy disposable retired pay, and 50% of all increases.  The amount was supposed to be “determined under the formula set forth below,” but the decree did not contain a provision setting forth a specific portion or calculation.  The decree awarded` the portion of the retirement pay “not awarded to [the wife]” to the husband.

The husband started receiving his military retirement benefits in 2015.  When the wife contacted the Defense Finance and Accounting Service to get her share of the benefits, she was told she could not be paid because the decree did not include a formula awarding her a portion of the retirement.

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As a result of his illustrious career, Dr. Dre’s net worth currently sits at a whopping $820 million – but maybe not for long. After 24 years, Dr. Dre’s wife, Nicole Young, is filing for divorce from the producer, rapper, and hip-hop icon. Reports indicate that the couple did not execute a premarital agreement prior to their 1996 marriage, which opens up Dr. Dre to significant financial exposure. In the absence of a premarital agreement, California – a community property state much like Texas – provides that property accumulated during marriage is owned by the community estate. Put simply, all of Dr. Dre’s income during the marriage, from his royalties as a solo rapper to his profits from Beats by Dre, is up for grabs. This means that Dr. Dre could see his hard-earned fortune be split in half right before his eyes in the coming months. Continue reading →

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Whether a celebrity or not, we all worry about many of the same core issues when facing a divorce – How do I protect my stuff (money, investments, real property, personal property) and how do I protect the kids.

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As states begin to emerge from months of lockdown resulting from the COVID-19 pandemic, will there be an increase in divorce filings? This question is of particular interest in Texas, where state and local officials have started the process of easing quarantine restrictions. However, with much uncertainty as to the pandemic in the months ahead, the answer to this question remains unclear at the moment. So, should a potential increase in divorce filings effect your decision-making regarding your own divorce? Perhaps, an even more important consideration is not how many divorces there will be, but rather how filing for divorce changed since the pandemic began. Continue reading →

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When a party wants a judgment corrected, he or she generally has to challenge it directly within a specific time frame.  In some cases, however, a person may seek to avoid the effect of the judgment through a collateral attack.  A voidable judgment becomes final unless it is attacked directly in accordance with applicable procedural rules, but a void judgment may be challenged at any time.  In a recent case, a Texas appeals court had to determine if a provision in a Texas divorce decree ordering a father to pay the mother’s attorney’s fees was void or voidable.

The divorce decree included a fee provision that ordered the father to pay the mother’s attorney’s fees related “to issues concerning the suit affecting parent-child relationship [“SAPCR”] and the safety and welfare of the children.”

The father moved to modify the decree about a month after it was signed.  He asked for increased possession and decreased child support.  He also challenged the fee provision.  The court’s order increased his possession. In its Findings of Fact and Conclusions of Law, the court found there was not a sufficient change in circumstances of either parent or the children to support a change in the father’s child support obligations or the fee provision.  The court ordered him to continue to pay all of the mother’s attorney’s fees related to the SAPCR.

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Divorce can be complicated when the parties are citizens of different countries.  Each party may feel a divorce in the other’s country may be unfair to them.  There may be issues regarding jurisdiction.  Furthermore, even after one country issues a divorce, the other country may not recognize it.  A husband recently challenged a Texas divorce after a Mexican court had already granted a divorce.

The parties married in 1986 in Texas.  The husband is a Mexican citizen and the wife is a U.S. Citizen.  They had residences in both countries during their marriage.  Their business was in Mexico, but the wife and daughter lived in Texas at the time of the Texas divorce proceedings.

The husband filed for divorce in Mexico in 2015.  The wife challenged jurisdiction, arguing jurisdiction was in Texas because that is where the parties lived.  The Mexican court granted the divorce in April 2016.

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Although courts are still open and conducting Zoom hearings, there is no doubt that many court cases are moving along more slowly than otherwise desired as a result of the COVID-19 pandemic. A potentially more practical and expedient method of divorce is collaborative law. Continue reading →

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A court generally may not amend or change the property division made in a Texas divorce decree.  The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation.  If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007.  Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets.  They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.

In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized.  The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.

The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …”  The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce.  The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts.  The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO.  It also said it would become an integral part of the divorce decree.

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In a Texas divorce, the division of community property must be just and right.  The goal is an equitable, but not necessarily equal, division. A party may not get the specific items that he or she wants, but that does not necessarily mean that the division of property is not just and right. In a recent case, the wife challenged the specifics of the property division.

According to the court’s opinion, the husband’s retirement annuity was worth $234,000 when he retired from his job. There was evidence that he withdrew funds from the account and hid them from the wife. There was evidence that he used the funds for household expenses and expenses related to the couple’s horses.  The retirement account was worth approximately $50,000 at the time of trial.

The husband admitted that he did not report the withdrawals on the joint tax returns for several years, resulting in a $20,000 liability to the IRS. After the separation, the wife hired a CPA to seek innocent spouse status for her. She testified that she wanted the husband to pay the $3,000 for the CPA’s services.

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Parties sometimes realize they have different understandings of a Texas divorce decree.  The trial court may issue a clarifying order if the decree is ambiguous.  In some cases, the decree may be facially unambiguous, but have a latent ambiguity when read in context of the surrounding circumstances.  In a recent case, a husband challenged a clarification order.

The final divorce decree included a provision setting forth the amount of his bonuses the husband would pay to the wife.  It further provided he would provide her a 1099 tax statement for each payment if allowed by his employer.  If he could not provide the 1099, “then the payments made to [the wife would] be the amounts above net of taxes paid in [his] tax bracket.”

The wife later petitioned for enforcement, arguing the husband was not dividing the bonuses “net of taxes paid in [his] bracket,” but was instead dividing them after the tax withholding by his employer.  She requested a clarifying order if the court found the decree was not specific enough to enforce by contempt.

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