The court in a Texas divorce case must divide property in a just and right way. This does not necessarily mean that property is divided equally between the parties, but the division must be just. What happens, though, when only one party participates in the divorce proceedings? A Texas appeals court recently found that the trial court had to have sufficient evidence of the property values to divide the property justly.
The husband petitioned for divorce, but the wife did not answer or appear at the hearing. The husband testified that there were two vehicles and a mobile home in the community estate. He asked the court to award all of the property to him, but allow the wife to keep the property in her possession. He did not testify or provide evidence of the value of the property. The court granted the divorce and awarded the husband the vehicles, the mobile home, furnishing, and other goods and cash in his possession and control. The court did not award any property to the wife.
The wife filed notice of a restricted appeal. To succeed on a restricted appeal, she had to show that she filed the notice within six months of the decree, she was part to the lawsuit, she did not participate in the hearing or file post-judgment motions or requests for findings of fact and conclusions of law, and error is apparent on the face of the record. She clearly met the first three requirements, so the appeals court had to determine if there was error.
Property is presumed to be community property, and the court is to divide the community property in a “just and right” way. Division does not necessarily have to be equal, but there must be a reasonable basis if it is not equal. The court may consider earning capacities, education, business opportunities, physical condition, financial condition, age, the separate estates, nature of the property, and benefits the party not responsible for the break-up would have enjoyed if the marriage continued.
The wife argued there was insufficient evidence to support the award. There was no evidence supporting the court’s decision to award 100% of the community to the husband. The husband offered no evidence supporting the presumption that the property was community property, nor did he offer any evidence that support the factors to be considered in unequal division.
The appeals court found there was no reasonable basis for unequal division. Additionally, the trial court could not properly exercise its discretion in making a just and right distribution without evidence of the valuation of the property. The appeals court found there was insufficient evidence for the court to divide the property fairly and equitably, and that the error was apparent on the face of the record.
This case suggests that, even when the other party is not participating in the proceedings, the party who is participating should present evidence of the value of the property to support the division. If you are facing divorce, our experienced Texas divorce attorneys can help you protect your rights. Call McClure Law Group us at 214.692.8200 to discuss your case.
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