Articles Posted in Divorce

Published on:

ranchA final unambiguous divorce decree that disposes of all of the marital property should be final.  Under Texas divorce law, such a decree generally cannot be re-litigated.  However, the trial court can issue additional orders to help implement or clarify a prior order if they do not alter the substantive property division.  The court may issue an order of clarification if the decree is ambiguous, as determined by using the rules of contract construction.  A contract is ambiguous if its meaning is uncertain or doubtful, or if it is reasonably subject to more than one meaning.  The court will consider the contract as a whole in light of the circumstances surrounding its formation, including parol evidence and the conduct of the parties.

In a recent case, a wife challenged an order clarifying the division of property.  The parties had signed a mediated settlement agreement.  The settlement included improved property that was described in two ways, a map in Exhibit A and a reference to the metes and bounds descriptions with separate exhibits describing each party’s share.

The parties agreed the husband would be awarded 26 additional acres because the improvements on the wife’s share were of a greater value.  The trial court granted the husband’s motion for clarification of the division of this property, finding the decree was ambiguous.  The clarification stated the map controlled, rather than the metes and bounds descriptions.  The court also entered findings of fact and conclusions of law supporting the order.

Continue reading →

Published on:

weddingA Texas divorce may be granted in favor of one spouse if the other committed adultery.  Adultery occurs when one spouse has voluntary sexual intercourse with someone other than their spouse.  Adultery may occur after separation.  Suggestion and innuendo are insufficient to support a finding of adultery, but the finding can be based on circumstantial evidence.  One recent case addressed sufficiency of evidence for a finding of adultery.

The couple married in 1996 in India and had a daughter in the following year.  The husband moved to the U.S. in 2003, and his wife and daughter followed in 2004.  In 2006, however, the wife and daughter moved back to India.  The wife testified that she had not stayed in India voluntarily, but she had to remain because her husband canceled her plane ticket and her visa.  The husband agreed to help the daughter come back to the U.S. for college in 2013, and she insisted her mother join her.

The husband filed for divorce in 2015.  The trial court granted the divorce on the ground of adultery.  The wife appealed both the finding of adultery and the property division.   The appeals court had to determine whether the trial court abused its discretion by making a decision that was not supported by sufficient legal or factual evidence.

Published on:

wedding ringsIn Texas spousal maintenance cases, the trial court has wide discretion in dividing the estate.  The court may divide the property unequally if there is a reasonable basis to do so.  It may consider a number of factors, including the capacities and abilities of each spouse, benefits the spouse who was not at fault would have received if the marriage had continued, their relative physical conditions, and their relative financial conditions and obligations.  Although the trial court may also consider fault in causing the divorce, it does not have to do so and cannot use property division to punish the at-fault spouse.

A recent case examined whether an equal division of property and an award of spousal maintenance were proper.  The couple married in 1999 and had two children together.  During the marriage, the husband developed a substance abuse problem and was incarcerated for six years.  In 2014, he was convicted of possession of a controlled substance with intent to deliver and was sentenced to 17 years.  The wife filed for divorce on the day of his conviction.

The husband had previously received a $900,000 settlement for personal injuries, netting him more than $400,000.  About $70,000 was used to pay household expenses and community debts, including mortgage payments and getting a car that was ultimately awarded to the wife.  At the time of the last divorce hearing, he still had more than $300,000 held in his attorney’s trust account.

Published on:

childIn a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.

About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.

The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.

Continue reading →

Published on:

poolAfter a Texas divorce, the husband appealed the lower court’s division of marital property. He argued that there wasn’t enough evidence to support the lower court’s finding that he’d wasted community assets in the amount of about $800,000.

The couple were married in 1968. The husband left the marital home in 2013, when the wife was disabled. She was not able to leave the home or take care of herself. Meanwhile, the husband went to live with his girlfriend from 2014-2015 and spent money while living with her. The wife sued for divorce in 2014 when the spouses were retired, and there was a bench trial on the issue of how to distribute property. The husband wasn’t represented by an attorney.

During the divorce, the husband said the money he’d spent while living with a girlfriend was for regular expenses, but he also testified he wouldn’t have had those expenses if he’d been living with his wife. He also testified his girlfriend and he had purchased a vacant lot in a planned development in Belize in 2010. He acknowledged that he’d established a bank account there and had sent money to that account. He also admitted that he withdrew about $703,000 from his retirement account and that he’d made withdrawals from other accounts. He said it was for bills and pleasure.

Continue reading →

Published on:

familyIn a recent Texas domestic violence decision, the plaintiff appealed from the lower court’s judgment granting his divorce petition. The couple had married in 1999 and had eight kids. After 15 years of marriage, the husband sued for divorce.

At the divorce trial, the primary issue was who should have conservatorship of the eight kids. The parents and a counselor who prepared a social study testified. The father argued there was credible evidence showing that the mother had a history of past or present physical abuse against him and that the lower court was prevented from appointing him and the mother as joint managing conservators. The father also argued the lower court should appoint him sole managing conservator. Alternatively, he argued the lower court should appoint him joint managing conservator with exclusive right to determine their primary residence.

The mother argued that the lower court wasn’t prevented from appointing her and the father as joint managing conservators. The mother also argued that the lower court should appoint her the joint managing conservator with exclusive right to decide the primary residence.

Continue reading →

Published on:

childIn a recent Texas child custody decision, the court considered a situation in which the mother was given the exclusive right to designate the daughter’s primary residence within Tarrant County, Collin County, or a contiguous county to the latter. In a modification order, the court gave the father the exclusive right to designate her primary residence within Dallas County or a contiguous county.

The child was born to a married couple in 2008, and they later divorced. The father asked the court to modify the parent-child relationship. The judge issued a memorandum on the same day as the trial but didn’t sign a written order for about a month. The order granted the father’s requested remedy by providing that the daughter’s residence could be established in Tarrant County, Collin County, or a contiguous county to the latter and setting an expanded standard possession order.

The mother appealed this order. Subsequently, the father tried to enforce the order. He claimed the mother hadn’t established their daughter’s home in the appropriate county and inappropriately kept him from the daughter on 17 occasions. At the enforcement hearing, the mother and father told the court they’d come to an agreement. They had agreed the parents would stay joint managing conservators, with the father having exclusive rights to designate the daughter’s primary residence within Dallas or a county contiguous to it. The mother was going to get standard visitation for parents whose own homes are 100 miles from their child’s.

Continue reading →

Published on:

ringsIn a recent Texas alimony decision, an ex-husband appealed the granting of spousal maintenance to his ex-wife. The couple had married in 2005. The man sued for divorce 10 years later. The woman claimed that the formal marriage had occurred in 2005, but they had married in 1999 when she was 16. They had two kids.

Around age 16, she lived with the man and his son. She was prevented from working, and he paid all of the bills and paid for food, while she cleaned and cooked and went to parent-teacher meetings for her stepson. She did finish high school and took classes to become a surgical technologist, even though she claimed she wasn’t allowed to work outside the house. She almost finished the program but was stopped from finishing by her husband. She testified later she couldn’t go back and finish the program because students weren’t allowed to re-enter after dropping out.

Once the husband sued for divorce, she worked as a waitress and then in retail. She got under $2,000 in monthly income, and her expenses were almost twice that. She didn’t have enough money, even with child support being paid, to cover her reasonable needs. She also said she didn’t have the education necessary for a better job. She estimated that getting the education she needed while caring for two kids would take five or six years, due to clinical hours.

Continue reading →

Published on:

sitting roomIn a recent Texas property division case, an ex-husband appealed a final divorce decree on the basis of five issues. The case arose when a couple married in 1992. The wife filed for divorce in 2013, claiming the husband had cheated on her. She asked for a disproportionate share of the marital estate due to fault for the marriage breaking up, as well as a disparity in the spouses’ earning power and their ability to support themselves.

The husband filed a general denial and counterclaim and also asked for a disproportionate share of the marital estate. The lower court granted the divorce on the ground of adultery. The husband was awarded as separate property an undivided interest in a funeral home business, the land on which it was located, and two adjacent tracts. The wife was also awarded an undivided interest in the funeral home, the land, and the adjacent land. The lower court awarded her the marital home and an insurance check as well. The husband asked for findings of fact and conclusions of law. None were filed, and he didn’t file a notice of past due findings.

He appealed. The appellate court explained that during a divorce, the court must order a division of the estate in a way that is just and right with due respect to each party’s rights under Texas Family Code section 7.001. The appellate court found it should reverse a property division ruling only if the mistake materially affected the lower court’s just and right division of property.

Continue reading →

Published on:

wedding ringsIn a recent Texas divorce decision, a woman appealed from a no-answer default divorce judgment that concluded her marriage. The couple had married in 2002 and had two kids. In 2013, the father petitioned for divorce and asked for a disproportionate percentage of the marital estate. He wanted to be appointed the sole managing conservator of the kids with the mother being ordered to pay him child support and obtain a life insurance policy on herself, naming him the sole beneficiary.

A return of service was filed that showed the mother was personally served. However, the mother didn’t answer or appear. The record was minimal until the father got a hearing to obtain a default judgment. Only he appeared. He testified as to what he believed had happened in connection with the separation. He claimed the mother had moved to another state, and she hadn’t seen the kids since moving but called the kids on the phone. He testified he had no insurance for the kids. He didn’t offer further evidence by testimony or through documentary proof.

Afterwards, the court signed a divorce decree that divided the marital property and appointed the father sole managing conservator for both kids. It ordered the mother to pay child support and awarded her retroactive child support. Additionally, retroactive medical support was ordered, and the mother was required to buy a life insurance policy on herself in which the father would be named sole beneficiary.

Continue reading →