Articles Posted in Divorce

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Premarital agreementIn a Texas divorce, a premarital agreement is generally enforceable.  Although they are presumptively valid, they may not be enforceable if they are unconscionable or were not voluntarily signed.  There is no definition of “voluntary” in the Family Code, so courts have looked to the law governing enforcement of commercial contracts.  In determining if a premarital agreement was voluntarily signed, the court considers whether the party had advice of counsel, misrepresentations made in procuring the agreement, the amount of information provided, and whether any information was withheld.  Additionally, the court may consider evidence of duress or fraud in determining if the agreement was voluntary, but duress and fraud alone are not defenses to a premarital agreement.  A court recently considered whether a Texas premarital agreement was voluntary.

The couple signed a premarital agreement the day before they got married in Las Vegas.  The agreement set out the separate property of each of them and stated community property could not be acquired during the marriage.

The wife filed for divorce after ten years.  The trial court granted a partial summary judgment in favor of the husband on the wife’s claims for a Separate Property Agreement, including reimbursement, maintenance, and her challenge of the premarital agreement.  Following a trial, the court found the only community property accumulated during the marriage was a travel trailer.  It awarded the trailer to the wife.  The wife appealed, arguing the court had erred in granting the partial motion for summary judgment because there was a genuine issue of material fact as to whether she had voluntarily signed the agreement.

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signingTexas is a community property state, and property acquired during a marriage is generally distributed equitably at the time of a Texas divorce.  However, couples may enter into premarital agreements, also known as prenuptial agreements, that alter the way property will be identified and distributed if a divorce should occur.

A premarital agreement played a significant role in one recent case.  Before marriage, the couple executed a premarital agreement that identified the separate property belonging to each party and precluded the acquisition of community property during the marriage.  They had two children together.  The wife filed for divorce after seven years.

The parties agreed to a joint managing conservatorship.  They stipulated there was a premarital agreement, and neither challenged its enforceability.  The trial court ultimately entered a final decree.    The court also confirmed certain real property was the wife’s separate property.  It also found the husband had breached the premarital agreement by raising a claim against that property and awarded attorney’s fees to the wife.  The court modified the standard possession order by not allowing overnight visits with the father on Thursdays and Sundays. The husband ultimately appealed.

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TaxWhen one spouse controls the finances, he or she has the opportunity to use community assets to the benefit of separate property.  The other spouse may challenge the disposition of those funds during a Texas divorce.  The spouse in control of the finances has a fiduciary duty to the other spouse during the course of the marriage.

A Texas appeals court recently considered whether a husband was required to reimburse the community estate for certain expenditures.  The trial court awarded the wife the majority of the community estate and ordered the husband to reimburse it for certain expenditures.  The husband appealed, arguing the evidence did not support the disproportionate division and some of the amounts he was ordered to reimburse.

The husband had entered the marriage a wealthy man with several businesses.  The wife alleged he allowed his separate companies to keep funds he should have received.  Since his businesses were S corps, he was personally responsible for paying taxes on the funds, even if they were not distributed.  The wife sought reimbursement for the undistributed funds and for the income taxes paid from the community estate.  Each party presented expert testimony.  The wife’s expert calculated that the estate had paid $1,000,742 in taxes for the separate companies and was entitled to reimbursement.  The husband’s expert said he did not agree the wife had a valid claim for reimbursement and presented his own calculations, showing $841,108 was paid.  The jury found the community estate had paid $841,108 in income taxes for the husband’s separate businesses.  The trial court included that amount in the valuation of the reconstituted community estate.

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handicap parkingIn a Texas divorce, the court may, in its discretion, award spousal maintenance to a spouse who will not have enough property after the divorce to provide for his or her own minimum reasonable needs and meets one of the other enumerated conditions in the statute.  One of those conditions is the inability to earn sufficient income to provide for minimum reasonable needs due to an incapacitating physical or mental disability.  The determination of disability may be supported solely by the spouse’s testimony if it is sufficient and probative to establish there is a disability that prevents the spouse from becoming gainfully employed.

In a recent case, a husband challenged a spousal maintenance award by arguing there was insufficient factual and legal support for the award.  The husband filed for divorce after about 14 years of marriage.  The wife filed a counter petition and sought a disproportionate share of community property and spousal maintenance.  The husband had agreed to pay $1,875 per month in spousal maintenance temporarily as part of the mediated settlement agreement.

At trial, the wife testified about a number of health conditions, including deteriorated discs in her back and neck, vertigo, diabetes, depression, and arthritis.  She testified that she was 64 years old and had not worked in almost 20 years, since her neck surgery.  She further testified she was unable to go back to work due to back and neck conditions.  She submitted medical records from her treating neurologist documenting some of her conditions, symptoms, and medications.

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calendarParties to a divorce often have to cooperate to complete the property division.  Texas divorce attorneys know, however, that parties are not always willing to cooperate.  A Texas appeals court recently considered whether a husband sufficiently complied with an order that he make a payment to the wife when he contacted the wife to make payment arrangements.

The parties came to a mediated settlement agreement and signed off on the proposed agreed final divorce decree.  The final decree ordered the husband to pay the wife $10,000 for the marital residence within 90 days of May 13, 2014.  Another section, under a subheading titled “Division After Full Payment of $10,000…,” provided that after the husband paid the $10,000 in full, he would be awarded the marital home.

Another section stated if the payment was not made in full within two years of May 13, 2014, the marital residence would be awarded to the wife, and the husband would be divested of all right, title, interest, and claim in the marital residence.

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writingTexas divorce attorneys know that even when a divorcing couple reaches a settlement agreement, there still may be issues that are in dispute.  Settlement agreements sometimes include provisions that the parties waive the right to appeal.  In a recent case, a husband attempted to appeal a final divorce decree despite a waiver of appeals in the settlement agreement.

When the couple filed for divorce, they owned several piece of property.  They had two parcels of the wife’s family ranch, one that she owned as separate property.  They purchased the second parcel from the wife’s brother and financed it through a loan secured by her separate property parcel.  They also took out a second loan on the wife’s property to pay for divorce attorney’s fees.

The parties eventually entered into an “Informal Settlement Agreement.”  Pursuant to this agreement, the husband would receive the family homestead and the wife would receive both parcels of her family ranch, with the husband paying the two loans. As part of the agreement, the parties waived their right to appeal or move for a new trial. The parties also agreed to submit any disputes regarding the language for the final decree to the trial court.

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gavelA Texas trial court is limited in revisiting the division of property once a final divorce decree has been issued.  A trial court may only order a post-divorce division of property if that property was not divided or awarded to a spouse in the final divorce decree.  The court may not alter a division of property that was in the final divorce decree.  It may only clarify or enforce the division of property that was addressed in the divorce decree.  It is therefore extremely important that all assets are fully addressed in the divorce.  If the parties agree upon the property division, they should each be sure the proposed decree accurately reflects their agreement.

The wife in a recent case sought a post-divorce division of property to allow her to receive a share of her husband’s retirement benefits.  The parties used a pre-printed divorce decree and were not represented by attorneys in their divorce.  Each party approved the form before it was presented and approved by the court.

After the court entered the divorce decree, the wife petitioned for a post-divorce division of property.  She asked the trial court to rescind the divorce decree and award her a share of her husband’s military retirement.  In the agreed decree, the trial court had awarded the husband all of his employment benefits and individual retirement accounts.

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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.

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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.

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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.