Articles Posted in Property

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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.

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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.

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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.

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houseIn a recent Texas divorce case, a couple was divorced in 2006. The wife initiated divorce proceedings, and the couple went to mediation. They agreed on a divorce decree and split a house and lot 50-50. The order included a procedure for selling the property, which was that the property was to be listed with a realtor. The realtor would select a price that was at least $77,000. The sale price would be reduced below $77,000 only by written agreement. If there was an offer that met the $77,000 threshold, both parties still had to accept it.

The husband had the right of first refusal of a bona fide offer by paying the woman half of the offer, minus the mortgage amount and 6% realtor fee. Either of the spouses could ask the court to appoint a receiver. The agreement also stated that if the husband failed to pay his wife half of the equity in the house within 30 days of an offer being made, the house would be sold for the offer made, with the couple splitting the funds remaining equally after the costs of the sale were paid.

When the ex-husband died in 2016, the ex-wife sued to enforce the divorce decree. She alleged that the husband had died, and the executrix of his estate had deeded the property to herself as an individual. The independent executrix of the ex-husband’s estate responded. She argued that the ex-wife wasn’t entitled to the relief she sought because the trial court didn’t have jurisdiction, and the claim was barred totally or partially by the statute of limitations or laches.

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briefcaseIn a recent Texas divorce case, the court examined a divorce decree that named a husband as constructive trustee of property decreed to the wife. The property at issue was a 50% undivided interest in the shares of an LLC. The dispute in the case was whether the constructive trustee had to give the wife documentation showing the status of the shares and the LLC’s tax returns and financial statements.

The case arose when the couple divorced and a mediated settlement agreement was incorporated into their divorce decree. The couple had agreed that any shares of the LLC that had been awarded to the wife would still be managed by the husband, who also had the exclusive right to control, manage, possess, and exercise the rights associated with shares of the LLC held in his name. The decree also stated that the husband was the constructive trustee for the wife’s benefit with regard to any of the LLC’s shares to the extent he was obligated to pay her under that provision of the agreement. It also ordered him to pay her 1/2 of the sum of all of the monies he received due to selling shares of the LLC.

The wife wanted assurance that the husband was properly maintaining the values of the LLC shares when he didn’t answer her questions. She sued him and moved for the appointment of a Rule 172 auditor. Through several procedural mechanisms, she asked for an accounting of the LLC’s finances from 2011 to the present. She also wanted him to produce the tax returns and K-1 forms that were related to her ownership interest. To support her claims, she claimed that the husband owed her statutory and common law duties, including a duty to give her an accounting, as a constructive trustee.

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wedding ringA recent Texas appellate decision arose from the appeal of a divorce. The husband argued that the evidence was not enough to support the jury’s finding of an informal marriage and that it was improper for the trial court to admit hearsay evidence, as well as that an “Agreement in Contemplation of Marriage” should be enforced as a post-marital agreement.

The couple had been married in 2003 and had triplets. The husband sued for divorce in 2010. He claimed that the couple had married in a 2003 ceremony and asked that an Agreement in Contemplation of Marriage entered into in July, before the ceremony, be enforced. The agreement stated that the couple wouldn’t have community property during their marriage. The husband also argued it wasn’t in the kids’ best interests for them to be joint managing conservators of them, and he should be appointed as the sole managing conservator.

The wife counter-sued for divorce, claiming that the agreement in question had been executed after the couple had informally married and couldn’t be construed as a prenuptial agreement that prevented a community estate from being created. The wife asked that she be appointed as the sole managing conservator.

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coupleIn a recent Texas appellate case, the court considered a divorce arising from a common law marriage. The husband argued that the lower court had made a mistake in mischaracterizing parcels of real property as community property and failing to reimburse him.

The couple started their common law marriage during the spring of 2013. No children came of the marriage, and there were differences about the precise beginning. Two pieces of real property were acquired that spring. The husband claimed he got one parcel, including the main house, by himself as a single person.

Two days later, the couple acquired an adjacent parcel as a married couple. There were five or six houses on it. According to the wife, both properties were gotten during the marriage and thus should be considered community property. The husband claimed both were separate property because their marriage didn’t start until after the first property was purchased. He claimed that the second property should still be characterized as separate property because title was taken by tracing back to an earnest money contract predating the marriage.

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suitcase

In a recent Texas Supreme Court case, the Court considered a mediated settlement agreement related to a discretionary employee bonus. The issue was whether the agreement partitioned a discretionary employee bonus that the husband got nine months after the divorce was granted. The husband argued that it was future income and earnings that the agreement partitioned to him, but the wife argued it was earned during the marriage and should be considered undivided community property.

The couple in question married in 1980. The husband worked at an energy and commodity trading company starting in 1992. As part of his employment, he was eligible for an annual discretionary bonus. This wasn’t guaranteed but would be awarded based on performance. While married, he got a bonus every year.

The wife sued for divorce in 2008, and the couple agreed to divide $10 million of community assets with $5 million to each spouse. However, since they couldn’t resolve other differences, they entered into mediation from which they developed a mediated settlement agreement. This agreement partitioned other property, including retirement plans and jewelry. The husband claimed that the bonus he’d gotten in 2010 before the finalizing of the mediation settlement agreement went into an account awarded to his wife.

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