Articles Posted in Divorce

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A trial court in a Texas divorce must divide community property in a just and right manner.  Property can be somewhat broadly defined as it relates to property division in a divorce case.  Many people do not realize that a lease of someone else’s property is subject to division in a divorce, unless the lease is shown to be separate property.

In a recent case, the wife challenged a property division that did not include a recreational lease held by the husband.  The wife appealed the property division, arguing error in the trial court’s division of property.  She argued the court failed to include a recreational lease in the community estate and that the court unfairly allocated the husband’s tax debt.  The court had allocated all of the tax debt to the husband, but the wife argued the court erred in using it to offset the value of the assets awarded to the husband.

At trial, there was evidence the husband signed a written lease for a ranch during the marriage.  The husband’s friend owned the property and testified the husband had helped him build or enhance some of the improvements on the property.  The owner testified he would sell the ranch to the husband for a significant discount and indicated he would extend the lease to the husband indefinitely as long as he paid the rent.

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Retirement can be a complex issue in Texas divorce cases.  In some cases, retirement accounts may not be fully vested.  In others, retirement income may be subject to periodic increases.  When retirement income is subject to increases, the spouse required to make ongoing payments should be sure he or she understands how to calculate those payments in light of the increases.

A former couple recently ended up back in court more than a decade after their divorce due to a dispute over how to calculate retirement increases.  The couple married in 1976 and divorced in 1998, after the husband’s retirement from the military.  The wife was awarded $754.80 per month of the husband’s retirement, and 60% of all increases “due to cost of living or other reasons…”  The husband was ordered to name the wife beneficiary under the Armed Services Survivor Benefit Plan (SBP).  The wife was ordered to pay 40% of the cost of the SBP, which was to offset the retirement award the wife received.

In 2012, the wife informed the husband he had underpaid her.  His new attorney told him he had been calculating his payments incorrectly. He had been calculating the payment using a method that resulted in payment of 60% of all cost of living increases cumulatively.  After receiving advice from counsel, he began paying his wife 60% of the increases only in the first year they were received.

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Generally, a trial court in a Texas divorce case has the discretion to divide marital assets.  A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling.  An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property.  They each pled and testified that they had separate property and submitted documentation showing they had separate property.  Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property.  Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial:  how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions.  The husband moved for reconsideration, and the wife filed a short response in opposition.  The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.

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Adultery can have a devastating effect on the wronged spouse and on a marriage.  When adultery leads to a Texas divorce, the wronged spouse has the option of raising the issue of adultery in the divorce or allowing the divorce to be granted without fault.

Texas recognizes no-fault divorce, but also still has fault-based grounds for divorce.  A Texas divorce court may either grant a no-fault divorce upon a finding that the marriage is insupportable due to discord or conflict or it may grant a divorce based on fault for certain reasons, such as cruelty or adultery.  The court has the discretion to determine whether the divorce will be granted on insupportability or fault-based grounds.  Even if there is uncontroverted and sufficient evidence of adultery, the court has the discretion to grant a no-fault divorce.  The presence of adultery in the marriage, therefore, does not necessarily mean that the divorce will be granted based on adultery.

Although divorce can be granted without fault, there can be benefits to obtaining a divorce based on the other party’s fault.  A finding of fault can have a significant impact on property division and in some cases can also affect custody.

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Courts will not generally grant a Texas divorce during the pregnancy of a spouse.  Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce.  Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence.  The paperwork can be filed and the process initiated during the pregnancy.  The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree.  If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways.  First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father.  This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father.  Otherwise, the presumption may only be rebutted by an adjudication of paternity.

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Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved.  Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples.  In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents.  The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective.  In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child.  Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together.  While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.

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Many couples facing a Texas divorce seek alternative dispute resolutions, such as arbitration or mediation.  Parties to an arbitration are entitled to an impartial arbitrator.  The Texas Arbitration Act requires a court to vacate an arbitration award on the application of a party if that party’s rights were prejudiced by “evident partiality” of an arbitrator.  The award should be vacated if the arbitrator does not disclose information that might give an objective observer a reasonable impression that the arbitrator is partial.  The requirement to disclose applies whether the conflict arises before or during the proceedings.  The nondisclosure itself establishes evident partiality, regardless of whether there is actual partiality or bias.  Texas courts have acknowledged that extensive experience in the area of law related to the dispute will result in a need for the arbitrator to disclose prior dealings with parties or attorneys.  However, the parties should be informed and have the opportunity to evaluate the potential bias ahead of time.

In a recent case, a wife challenged an arbitration award based on the arbitrator’s failure to disclose his connection to the husband’s attorney.  The parties agreed to arbitration pursuant to their pre-marital agreement. In the initial status conference, the arbitrator said he did not have a material relationship with either party or their attorneys beyond normal professional relationships. He did not supplement his disclosures after a new attorney filed a notice of appearance on behalf of the husband as co-counsel.

When the arbitrator failed to issue an award within the time frame set by the court, the husband’s attorney requested a ruling.  In her email, she stated, “You know how much I think of you as a friend and a lawyer . . .”   The arbitrator issued the award several days after the email, ruling in favor of the husband and against most of the wife’s claims.

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In a Texas divorce, there is a presumption that property possessed by either spouse during the marriage or at the time of the divorce is community property, unless there is clear and convincing evidence otherwise.  Separate property is property that is owned or claimed by one spouse prior to the marriage.

A wife recently challenged a court’s finding that certain property, the couple’s residence, was the husband’s separate property.  The property was conveyed to the couple from the husband’s son and daughter-in-law by warranty deed.  The husband and wife both testified the conveyance was a trade of real property and there was no additional consideration given.  The husband testified he traded a tract of land he owned before the marriage.  The wife argued, however, that the husband did not establish that he owned the tract prior to the marriage.

If property is acquired in exchange for separate property, the acquired property also becomes separate property. Thus, if the husband established that the tract was his separate property, then the residence would also be his separate property.

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Property division in a Texas divorce must be equitable.  In dividing the property, the court may consider amounts from the community estate that a party has dissipated or wasted.  In a recent case, a husband appealed the divorce decree arguing that there was insufficient evidence to support the division and that the division was manifestly unjust and unfair.

The couple had been married for about 40 years when the wife filed for divorce.  An associate judge issued a final divorce decree in 2015. The wife filed a motion for a new trial, which was granted.

The couple lived in a trailer home on an undivided tract of land.  The husband ran his electrician business from the trailer and stored the heavy equipment he used for the business in the barn.  This real property was awarded to the husband in the original trial.  After the second trial, the property was partitioned into two tracts.  The property division awarded Tract A with the trailer to the husband and Tract B with the barn to the wife.

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Sometimes courts make mistakes.  When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days.  If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.

A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error.  The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only.  The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife.  The divorce decree did not reflect this award.

The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division.  The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous.  The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.