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A 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.

The wife appealed, arguing the court could not modify, alter, or change the division of property in the decree.  The husband argued the court had only clarified an ambiguity.

The wife argued the trial court erred in finding the decree was ambiguous.  The appeals court found that the decree’s language and language on Exhibit A called for the property to be divided in accordance with Exhibit A, with an additional 26 acres to be awarded to the husband.  The map showed the additional 26 acres awarded to the husband within the part of the tract designated for the wife.

The metes and bounds descriptions allotted the 26 acres to the husband first, and then it divided the remaining property between the parties equally.  Rather than taking all of the additional shares from the wife, this method meant 13 acres would come from each party.

The appeals court found supporting language for each method in the decree, and it could be reasonably read to require either method.  Since the two methods would result in different awards and could not be reconciled, the trial court did not err in finding the decree was ambiguous.

The wife also argued that the trial court erred by adopting the map description rather than the metes and bounds.  The trial court had held a hearing on the motion, and both parties testified. The wife testified she had agreed that her husband get 26 acres, and then the rest of the ranch was to be divided.  The husband testified he understood that the property was first divided in half, and then he would receive an additional 26 acres from his wife’s half.  He testified the mediator had drawn the 26 acres off his wife’s share and told him that would be added to his share.  The wife pointed to the statements of the number of acres awarded to each party in the metes and bounds descriptions.  She also pointed to the husband’s execution of the divorce decree, his failure to object to the location of the surveyor’s stakes or a fence she had put up, his execution of a mineral deed incorporating the metes and bounds exhibits, and his contract to purchase some of the wife’s acreage that included a description of her acreage that was consistent with the metes and bounds description.

The husband testified he had objected to the survey results, but he had signed the decree because he relied on the surveyor’s description of the property.  He testified he had not paid attention to the property description in the mineral deed because they had only divided the surface rights and kept the mineral rights in undivided interest.  He further testified that he did not pay attention to the total acreage listed in the contract for purchase because he was more concerned with the acreage he was purchasing at the time.

The appeals court found no abuse of discretion here.  The appeals court noted there was evidence supporting the wife’s interpretation, and there was also evidence supporting the husband’s position.  The trial court was within its discretion as the fact finder to find Exhibit A more accurately stated the intent of the parties.

The wife also argued that the order was not a clarification or enforcement order because it changed the division of property.  The appeals court, however, found the order was ambiguous, and the trial court therefore had the authority to clarify it under the Texas Family Code.

The wife further argued the order violated her constitutional rights under Texas Constitution, art 16 § 15, since the awarded property had become her separate property, and the order divested her of it.  The appeals court found there was no divestment of separate property because the order merely clarified what was intended by the decree.

The appeals court also rejected the wife’s argument that res judicata precluded the clarification order.  The Texas Family Code specifically provides for clarification orders.

The appeals court affirmed the trial court’s judgment.

Although divorce decrees generally should be final, the court may clarify an ambiguity in the decree, as this case shows.  If you are facing divorce, an experienced Texas divorce attorney can help you.  Call McClure Law Group at 214.692.8200.

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A 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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In 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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In 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.

She filed for divorce and listed herself and the husband as parents of an unborn son. He denied paternity and asked for genetic testing. However, he didn’t ask in the counter petition for divorce that his child’s last name be changed to his own. The wife reported that in 2013, her husband asked her not to contact him anymore.

The son was born next month. The father wasn’t at the delivery.

When the mother was given paperwork to get her son’s birth certificate, she listed the husband as the father but noted the last name would be her own. Later, she would testify she gave her last name because the father walked out on the marriage and denied paternity at the time. A paternity test showed that the husband was, in fact, the biological father. The divorce progressed without the father asking for the child’s last name to be changed. The divorce was finalized when the baby was around nine months old.

Over a year later, the father tried to modify conservatorship to permit more access to his son. The mother counter-petitioned, asking for more child support. He changed his petition when the child was 2 1/2 years old to ask his last name be changed to his own.

The mother stated that the father had never mentioned wanting the son to carry his last name until he amended his petition, and after the son had accumulated over two years of experience using her last name. She argued it would be confusing for the child to change his name after he’d started identifying with her last name.

While the parents were able to resolve other issues, they couldn’t agree about his last name. The court held a hearing to determine which last name would be in the child’s best interest. The parents’ testimony contradicted each other. The lower court ruled that the child’s last name should be changed to the father’s last name and that this was in the child’s best interest.

The mother appealed. She argued that there wasn’t enough evidence changing the last name was in the child’s best interest. The appellate court explained that section 45.004 of the Texas Family Code stated that a court could order the name of a child changed if that change was in the child’s best interests. The parents’ interests weren’t relevant. Instead, the court should look at six non-exclusive factors:  (1) which name would best avoid anxiety or embarrassment when considering parental misconduct and community respect associated with the name, (2) the name that would best position the child’s identity within the family unit, (3) assurances by the parent whose last name a child will have that the parent won’t change his or her name at a later time, (4) the amount of time a child uses one last name and how much the child identifies with it, (5) the child’s preferences along with her maturity and age, and (6) whether either parent is motivated by something other than the child’s best interest.

The appellate court noted the inconsistent testimony and that they had both testified on the child’s best interests from their perspectives. The lower court had given weight to the testimony according to its perception of credibility, and generally, an appellate court is supposed to give deference to that weight.

The father argued that it wouldn’t disrupt the child’s life to change his name when he was so young. He also testified that sharing a last name would facilitate a better bond with him and the rest of his family. The mother argued it would be confusing for the child to change to the father’s last name, since she was the one who went places with him and faced the prospect of having mismatched names. The child already knew his name, and it was a name chosen when the father had refused contact and denied paternity.

The appellate court reasoned that the lower court had sole authority to make credibility determinations and resolve conflicting evidence. It found there was enough evidence to support the name change. The mother argued that the lower court improperly shifted the burden of proof to her to disprove it was proper to change the child’s last name. The appellate court overruled this issue. The mother also argued that the lower court had a bias toward traditional naming choices, and this issue too was overruled.

The lower court’s ruling was affirmed.

If you are concerned about paternity issues, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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After 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.

A CPA retained by the wife testified that she’d tried to trace the distributions and withdrawals. The husband stipulated the CPA was qualified as an expert and didn’t object to the report she’d authored and documents in support being admitted as evidence. The CPA believed that the financial documents were deficient and wanted to meet with the husband to fill in gaps, but he refused. Ultimately, she couldn’t account for more than $741,000 that had been withdrawn.

The husband’s sister testified that her brother left his wife because he couldn’t stand her and wanted to have sex. She also testified that the brother hadn’t been honest because the wife didn’t know what he was doing to her. She also told the court that the husband had tried to have himself declared the wife’s guardian after the wife sued for divorce, and the wife had spent thousands to oppose this until the probate court concluded she could make her own decisions.

The husband’s witnesses didn’t testify on withdrawals, and the husband had no financial expert witness.

The judge signed a divorce decree dissolving the marriage on the basis of adultery and insupportability. The property in another country, a minor bank account, an inactive business, a car, and other personal property were assigned to the husband. Meanwhile, two real property parcels, financial accounts, older vehicles, and other personal property were assigned to the wife. The lower court found that the husband had wasted $800,000 in community assets. The wasted funds were charged against the husband as part of the marital property division if the estate were reconstituted to include the wasted assets.

The husband appealed, arguing that there wasn’t enough evidence to support a finding of waste. The appellate court reasoned that the lower court’s division doesn’t need to be equal and has to take into consideration factors including the spouses’ abilities and capacities, benefits derived from continuing the marriage, education, relative physical conditions, business opportunities, disparity in age, size of the separate estates, and disparities in earning capacity.

When a lower court doesn’t sign factual findings, the court presumes the lower court made all necessary findings to support its judgment. The appellate court reasoned that a husband and wife have a fiduciary duty regarding the community property each one controls. Breaching this duty is a fraud on the community. Waste is a type of fraud on the community, and it happens if one spouse depletes marital assets without the other spouse knowing or consenting. There’s a presumption of waste if one spouse disposes of the other’s interest in the marital property without the other spouse consenting or knowing, and the court can make a waste finding if one spouse uses too many funds without the other’s permission. In this case, the husband admitted that he withdrew about $703,000 from retirement accounts and that the wife was disabled and unable to leave her home when he left her to live with his girlfriend.

The evidence supported the lower court’s finding that he’d disposed of the community funds without his wife knowing, and this created a presumption of waste. The burden was on the husband once there was enough evidence to support the waste finding to show that how he used the funds was fair. He didn’t meet that burden.

If your high-asset divorce involves matters related to property distribution, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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In 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.

The lower court granted the divorce and appointed the father and mother joint managing conservators. The lower court found there was no credible evidence that should lead it to do otherwise. The father had the right to designate the oldest child’s primary residence, while the mother had the right to designate the other seven kids’ residence. The lower court restricted the kids’ residence to a county in Texas. The lower court ordered an extended possession order and ordered the father to pay child support. It decided that the mother owed the father $200 for childcare expenses. The father appealed.

He represented himself and argued that the lower court had put unreasonable time limits on presenting evidence, which denied his fundamental due process rights. The lower court has the inherent power to control how cases are disposed. The court’s inherent power gives it broad discretion in the handling of trials. Under the Texas Rules of Evidence, the court is supposed to use reasonable control over witness examination to avoid time wastage. In this case, the lower court told the lawyers they’d only have 30 minutes to put on their cases. The father hadn’t used all of the time and didn’t object to the time allocated to himself, so he hadn’t preserved his complaint for appellate review.

The father also argued that the lower court had abused its discretion by finding no credible evidence of a history or pattern of past or present physical abuse by the mother against him. He argued that in light of evidence shown at trial, the lower court was prevented from appointing joint managing conservators and was required to appoint him sole managing conservator.

The main consideration in deciding conservatorship is the child’s best interests under Texas Family Code section 153.002. The lower court has broad discretion over this because it’s in the best position to look at the witnesses and determine their credibility. Unless evidence shows that both parents being appointed as joint managing conservators is not in a child’s best interest, the court is supposed to presume it is. The father pointed to evidence of the police being sent to the home, where the father claimed that the wife had physically abused him. She’d, in fact, pled no contest to a charge of felony assault. The appellate court noted that the facts and circumstances of the incidents were disputed, and the lower court was entitled to believe the mother’s account of what happened.

For these and other reasons, the lower court’s judgment was affirmed.

If your divorce involves matters related to child custody, call the Texas attorneys at the McClure Law Group at 214.692.8200.

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In 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.

The attorneys for the parents represented this would be a new final order. The judge made that the order of the court. Four days later, the father petitioned for a modification, asking that the father have the right to determine the daughter’s primary residence. The mother filed a denial and then filed a combined motion to withdraw consent to the agreement and to move to modify an order arising out of the agreement. She provided a declaration in which she claimed to have signed the earlier agreement as a result of the father’s duress.

The parents testified at a hearing on the father’s motion. The judge decided she hadn’t revoked the agreement. The court’s order named both parents as joint managing conservators and provided the father with the exclusive right to decide the daughter’s primary residence in specific counties. The mother was given possession for one weekend a month, which is standard for a parent living more than 100 miles from a residence. The judge’s factual findings and legal conclusions explained that the child’s circumstances as well as her parents’ had significantly changed since the date of the prior order, and the agreed-upon plan was in the child’s best interests.

The mother appealed the modification order, arguing that there was no jurisdiction, insufficient evidence of a material and substantial change in circumstances, and insufficient proof that the father should have the exclusive right to select the daughter’s primary residence.

The appellate court explained that the trial court did have jurisdiction to render a new order. The lower court found there was a material and substantial change in the parents’ and daughter’s circumstances, and the appellate court explained that the family code had at least four independent grounds for modifying child custody:  the parents’ agreement, the child’s preference, voluntary relinquishment, and a substantial, material change of circumstances. The appellate court found that the written agreement supported the lower court’s order. It also explained that the lower court had broad discretion to decide which conservator had the exclusive right to determine a child’s primary residence. To modify the order, the lower court had to find that a modification was in the child’s best interests.

The court identified factors that would go into a best-interest decision and noted that the state’s policy was to make sure that kids would have frequent, continuing contact with parents who show the capacity to act in the child’s best interests. In this case, the parents had testified about best interests, and the appellate court found that the evidence was enough to support the lower court’s finding. The mother had moved outside the geographic limits of the order, and the father testified he didn’t even know the location. Based on the evidence, the lower court could reasonably conclude that providing the father with the exclusive right to pick the child’s primary residence would promote her having contact with both parents often enough and was in the child’s best interest.

If your divorce involves matters related to child custody, call the Texas attorneys at the McClure Law Group at 214.692.8200.

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In 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.

Meanwhile, CPS had required her to get a full-time job that stopped her from retraining herself, and to stop working in retail would violate the CPS service plan. She eventually clarified that she’d had to drop out of school because she’d missed too many classes, and she made some ambiguous remarks in connection with whether her husband had stopped her from finishing the program.

The husband disagreed that she cooked for him or that he prevented her from finishing school. He claimed that she missed classes due to drunkenness and that he’d never stopped her from getting a job. The lower court ordered spousal maintenance in an amount under $1,500 per month. The husband appealed.

The appellate court conducted a factual sufficiency review. The husband had argued that the wife hadn’t rebutted the presumption against alimony. She’d tried to find better work only once. The appellate court explained that the lower court could award spousal maintenance at its discretion when someone asking for alimony meets the eligibility criteria found in Texas Family Code section 8.051. This section found that in a divorce, the spouse seeking maintenance has to be married for 10 years or longer and have an inability to get enough income to provide for their minimum reasonable needs.

The husband didn’t argue on appeal or at trial that she wasn’t eligible under this code section, but he did disagree about whether she overcame the rebuttable presumption that maintenance wouldn’t be warranted except when a spouse used diligence to get enough income for minimum reasonable needs or for developing skills needed to provide for those needs during a period of separation.

An eligible spouse can rebut the presumption by showing diligence in earning income or developing necessary skills. In this case, there was conflicting evidence about whether the husband had allowed the wife to work. She’d testified about her jobs and tried to find a better job but didn’t have the education.

Based on the evidence, the appellate court couldn’t say there was an abuse of discretion at the lower level. The evidence showed she’d tried to develop skills but had been stopped by the CPS requirement. The lower court had ordered alimony that would terminate in five years. The husband argued that this was too long. The appellate court overruled this issue on the basis that the lower court had heard evidence it would take her five years to finish an educational program while also having a job and taking care of kids. It affirmed.

It is important to secure legal representation for divorce proceedings to make sure your rights are protected. If you need to get a divorce, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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In 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.

The husband argued that it was improper for the lower court to refuse to prepare findings and conclusions. However, the appellate court found he waived his right to complain by not raising this issue and reiterating the request.

The husband also argued it was an abuse of discretion for the lower court to award the marital home and insurance check to his wife, since they were community property due to be equally divided. He also argued it was inappropriate for his wife to get an undivided interest in the funeral home and land, since they were his separate property.

The appellate court reasoned that the lower court wasn’t required to divide it equally but could order an unequal division when there was a reasonable basis to do that. Factors to be considered included the parties’ abilities, benefits, education, physical conditions, the separate estate’s size, the nature of the property, and their disparity in earning abilities. The court could also consider the fault of the cheating spouse if fault was pled.

The appellate court reasoned that property possessed by either spouse during a divorce is presumed to be community property under Texas Fam. Code section 3.003 (a). If there are doubts about the character of property, they are supposed to be resolved in favor of the community estate. When divorcing, the characterization of property is determined by time and circumstances. To overcome the presumption that property is community property, the spouse who is claiming it’s separate property needs to trace and identify which property is claimed to be separate.

In this case, the husband claimed his father gave him the funeral home and land tracts as gifts. Both him and his father testified it was a gift during trial, and the wife testified she didn’t have personal knowledge about their discussions. However, the husband didn’t submit documents to show his acquisition of the funeral home or its incorporation, which he claimed was evidence that it was a gift.

The appellate court found that the husband’s testimony about the funeral home and real property wasn’t enough to be considered clear and convincing evidence rebutting the community presumption and establishing the characterization of the property as separate.

The appellate court determined that evidence showed that the funeral home, land, marital home, and insurance check were community property. It also found that the lower court had broad discretion to consider the husband’s commission of adultery. Therefore, it determined that the lower court hadn’t abused its discretion in awarding the marital home and insurance check to the wife.

The judgment was affirmed.

If your divorce involves matters related to property distribution, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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Grandparents Seek Court-Ordered Visitation in Texas, April 20, 2017

Texas Spousal Maintenance for a Disabled Spouse, March 17, 2017

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In 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.

There was a clause stating that the parties warranted there were no obligations not mentioned in the decree, and they agreed to indemnify each other. Another clause stated they’d both read the judgment and found it to be a just and right division of their joint property. It said they both signed voluntarily, but the mother’s signature wasn’t there.

The mother appealed. She argued there was insufficient evidence to support the property distribution, the attorneys’ fees award, and the other orders against her.

The appellate court explained that under section 6.701 of the Texas Family Code, a petition can’t be taken as confessed when the other spouse doesn’t file a formal answer. The father had to give evidence to support his major claims, even though she hadn’t answered. The appellate court reviewed under an abuse-of-discretion standard with two parts. One was whether the lower court had enough evidence upon which to use its discretion and the other was whether the lower court had made a mistake in applying its discretion to the facts.

The mother argued that the lower court abused its discretion because there wasn’t any evidence on which it could base its division of the marital estate, and the appellate court agreed. Under Section 7.001 of the Texas Family Code, the lower court was supposed to make a just and right division of community property in which it paid attention to the parties’ rights and those of the children of the marriage.

Although it had wide latitude, dividing the property was an abuse of discretion if there wasn’t enough evidence to support the decision. It also reversed the child support award because this award could be materially influenced by how the marital estate was divided. The appellate court also agreed with the mother there was no evidence to support the indemnification clause.

It is important to secure legal representation for divorce proceedings to make sure your rights are protected. If you need to get a divorce, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

More Blog Posts:

Grandparents Seek Court-Ordered Visitation in Texas, April 20, 2017

Texas Spousal Maintenance for a Disabled Spouse, March 17, 2017

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