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In 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.

The husband argued the divorce was governed by the premarital agreement and that the agreement negated the wife’s claims for reimbursement and maintenance following the divorce.  He argued the wife had failed to provide evidence the agreement was unenforceable and that her testimony had established it was valid.  The wife had provided an affidavit stating she had not signed it voluntarily.

The wife testified that she had not been threatened with violence and was not intoxicated when she signed the agreement.  She stated she was represented by counsel, had made changes to the proposed agreement, and understood what she was signing.  She further stated that the husband had adequately disclosed his assets.

In her affidavit, she stated the couple had lived together prior to marriage.  She stated her husband had provided the majority of the financial support while she was responsible for the care of the home.  She stated she was marginally employed and could not have provided financially for herself and her children at the time she signed the agreement.  At her deposition, she testified her husband paid for her lawyer because she could not afford one.  She stated her husband would not have married her if she had not signed the agreement.

The appeals court found the wife’s affidavit was conclusory and insuffient to defeat traditional summary judgment.  An affidavit that does not provide underlying facts to support its conclusions is insufficient summary judgment evidence.  The appeals court also noted that under Texas law, there cannot be duress unless there is a threat to perform an act the threatening party does not have a legal right to do.

The appeals court noted that the husband did not have a legal duty to marry the wife.  There was no evidence that he had used extortive measures or improper demands.  There was no evidence she was not adequately represented by her attorney.  The appeals court found no error in the trial court granting partial summary judgment and affirmed.

The court here found insufficient evidence to support the wife’s claim that the premarital agreement had been involuntary.  This case shows that threats or fear that the other party will refuse the marriage without the agreement are insufficient to make the agreement involuntary.  The other party must threaten to do something they do not have a legal right to do.

If you are getting married and need a pre-marital agreement, or if you are facing a divorce, a skilled Texas family law attorney can help.  Our team of experienced attorneys can handle any family law matter.  Call McClure Law Group at 214.692.8200.

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Texas 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.

He argued the trial court erred in finding the property was the wife’s separate property.  He argued the court abused its discretion by ignoring evidence the wife had sold him a half-interest in the property.  He argued there was a sales contract, a hand-written note acknowledging his interest, and a payment to the wife.

The trial court found the wife had acquired the property while she was single.  It found the property was identified as her separate property in the premarital agreement, and the parties had not modified that portion of the agreement.  The court also found the parties had not made any agreements regarding the property after the marriage.  The court further found they had not conveyed or transferred ownership of the property during the marriage under the terms of the premarital agreement.

The appeals court found the trial court could have determined the $50,000 the husband gave the wife was a gift.  The trial court could have found credible the wife’s testimony that she had not executed a sales contract for the property.

The appeals court found the evidence supported the trial court’s findings and conclusions.  The property was identified as the wife’s separate property.  The agreement stated that separate property would maintain that character and that no community property would be created.  Additionally, it provided that separate property would not be comingled.  Furthermore, the agreement provided that property held by title could only be conveyed to the other party by a written instrument indicating the intent to transfer.  The appeals court found no evidence of a deed, instrument of conveyance, or other written agreement to convey the property.  Nor was there any evidence of a written agreement to modify the premarital agreement’s terms.  The premarital agreement also stated that any money used for the benefit of the other party would be presumed to be a gift.

The appeals court found no abuse of discretion in the award of attorney’s fees because the evidence supported the trial court’s findings and conclusions that the husband had asserted an unsuccessful claim against the wife’s separate property.  The premarital agreement provided for attorney’s fees in such circumstances.

The appeals court also found the trial court had not abused its discretion in denying the father overnight visitation on school nights.  The appeals court found the evidence supported the court’s findings and conclusions.  There was “ample evidence” of the husband’s use of profane language in front of the children and calling the mother vulgar names.  There was also evidence that his behavior on school mornings caused stress to the children and affected their education environment. There was evidence the mother could handle school-morning routines.

This case shows that a couple wishing to change the status of property included in a premarital agreement should make sure they do so in accordance with the terms of the agreement.  If a premarital agreement requires a written conveyance, the party receiving the property should ensure that there is a written document that meets the requirements of the agreement.  If you are planning to get married, a Texas premarital agreement attorney can help you protect your assets.  Call McClure Law Group at 214.692.8200.

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When 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.

The husband argued that the tax burden was his, rather than the companies’, since it passed through to him.  He argued that payment of the taxes did not benefit the companies.  The appeals court agreed that the tax liability was a community debt.  The appeals court noted that there is generally no right to reimbursement to the community estate when its funds are used to pay a community debt.

Under the family code, the estate may be reimbursed for “inadequate compensation for the time, toil, talent, and effort of a spouse by a business entity under the control and direction of that spouse.”  Although the wife framed her request for reimbursement of the retained funds in this way, the jury was only asked whether the income taxes benefited the separate property.  The trial court included the finding in its valuation of the reconstituted estate, so the appeals court found it had based the reimbursement award on the income taxes, instead of retained earnings or inadequate compensation. The trial court erred in ordering reimbursement for the payment of income taxes by the community estate because the estate owed those taxes.

The husband also challenged the reimbursement for his political contributions.  The jury had been instructed to consider the relationship between the husband and the recipients of the contributions, any special circumstances justifying the contributions, and whether the contributions were reasonable in proportion to the total community estate.  The jury found $305,200 was unfairly depleted from the estate due to the contributions.

A spouse in control of community property has a fiduciary duty to the other spouse.  The controlling spouse has a duty not to engage in fraud, and the disposition of the community property must be fair to the other spouse.  There is a presumption of constructive fraud when the controlling spouse disposes of community property without the other spouse’s knowledge or consent, and sometimes even with knowledge if there was no consent.  In determining if constructive fraud occurred, the court will consider the amount contributed as compared to the total community estate, the adequacy of the remaining estate, the relationship between the donor and the recipient, and whether any special circumstances justify the gift.

The husband argued the contributions were an exercise of his First Amendment rights.  He claimed they were reasonable as related to a $3 million community estate.  He argued he had made political contributions throughout the marriage, and his wife had been involved in his political activities.  He argued the contributions were not unfair to the estate.

The wife testified, however, that they had fought about the donations.  She said she had not been aware of the amount contributed and was “appalled” when she learned the amount during the divorce proceedings.

The husband argued his contributions benefitted the estate by leading to political action favorable to the companies.  The appeals court noted that the jury had only found the contributions made after the divorce filing were unfair.  The jury could have found that the increased donations at that time primarily benefitted the husband’s separate estate.  The appeals court found sufficient evidence to support the jury’s finding that the contributions were unfair to the estate.

The husband argued that even if some of the contributions were waste, it was an error for the jury to find all of those made after the divorce filing were waste.  He argued that the waste should be limited to the amount of the contributions that exceeded the annual average for the prior four years.  He argued the wife may not have been aware of how much he had been giving, but she had implicitly consented to that amount.

The appeals court found, however, that the wife did not have any control over the finances.  She had also testified to ongoing arguments regarding the contributions.  The jury could have determined there was no implicit consent even to the amounts contributed before the divorce.

The trial court had awarded the wife approximately 70% of the community estate.  The husband argued this division was an abuse of discretion.  The appeals court found the errors in the reconstitution calculations due to the erroneous inclusion of the income tax payments could have affected the division.  The appeals court therefore remanded to allow the trial court to make a new determination and division of property.

This case shows that taxes owed by a spouse, rather than a separate business, are considered a debt of the community estate.  Those taxes, therefore, may be paid by the community without reimbursement.  If you are considering a divorce involving complex assets, an experienced Texas divorce attorney can protect your rights.  Call McClure Law Group at 214.692.8200.

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In 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.

She testified she had not applied for disability because her husband was able to provide for her needs.  She said she did not have another source of income and would not be able to afford health insurance.  She stated her conditions were incapacitating.  She also stated she did not provide a medical opinion regarding her limitations because she could not afford to pay for a doctor.  She asked for about $2,000 per month indefinitely.

The husband testified that he thought his wife could work and that he should not have to support her.  He also stated he had trouble affording his own bills and could not afford maintenance.

The trial court found the wife had insufficient property to provide for her minimum reasonable needs and lacked the ability to earn sufficient income to do so, due to an incapacitating physical disability.  The court found the wife had been married for more than 10 years and had not exercised diligence in developing skills to provide for her needs during the separation.  The husband was ordered to pay $1,200 per month in maintenance for 60 months, or until the occurrence of certain events.

The husband moved for a new trial on the ground that there was insufficient factual and legal support for the judgment.  The trial court denied the motion, and the husband appealed.

The husband argued the wife had provided no expert testimony or medical evidence showing she had an incapacitating disability.  She had testified she was able to drive, bathe, attend church, and prepare meals for herself.  He argued that these activities contradicted her claim that her conditions constituted an incapacitating disability.

The appeals court noted that the wife had relied on her neurologist’s records and her own testimony.  She had testified she could neither sit nor stand for long periods, due to her neck and back conditions.  She also testified that her ability to write was limited by her arthritis and tremors.  The neurology records reflected diagnoses of vertigo, osteoarthritis in her ankle and foot, spinal stenosis, arthrodesis, and tremor.  The records also noted that her sleep and daily living activities were moderately affected.  The records included the results of MRIs and a nerve conduction study.

The appeals court found there was sufficient and probative evidence establishing that she had disabilities that kept her from becoming gainfully employed.  The appeals court found the trial court had not abused its discretion in awarding maintenance to the wife and therefore affirmed.

This case shows that a spouse can prove a disability for the purposes of spousal maintenance without expert testimony.  The experienced Texas divorce lawyers at McClure Law Group can help you protect your rights in a divorce action.  Call us at 214.692.8200 to discuss your case.

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Parties 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.

The husband did not pay the wife the full $10,000 within 90 days.  By May 12, 2016, he had paid $1,200. He contacted her on that day by email and text, telling her he had the money and wanted to arrange payments.  He asked for her account information so he could wire the money, but she refused to provide it the following day.  She instead demanded he pay the full amount in cash.  He agreed and tried to set up a meeting, but the wife refused.  The husband petitioned for enforcement of the decree.

The wife argued at the hearing that the husband did not have funds available on either May 12 or May 13, 2016.  She testified she wanted the property, instead of the money.  She had control of the property at the time of the hearing but had rented it out.

The husband argued he had the money in his bank account and had been trying to contact Julia since May 12 to make the payment.  The trial judge found the husband was willing and able to pay.  The court noted there were text messages as of May 5, 2016, in which the husband tried to negotiate half payment.  However, by May 12 or May 13, he had confirmed he would pay the full amount.  The wife testified she had in fact received the email in which he stated he had the money and requested her account information.

The trial court awarded the property to the husband and ordered him to deliver the money into the registry of the court.  The enforcement order, entered on June 17, 2016, also ordered the wife to vacate the premises by July 11.

The wife moved for a new trial and appealed on July 11.  She claimed she had been prevented from introducing testimony and evidence and had “unwittingly waived a record.”  The motion for a new trial was overruled, and the appeal moved forward.

The wife argued the trial court erred in failing to address the requirement the husband pay the $10,000 within 90 days.  The appeals court found the final decree was ambiguous.  The appeals court noted there was no remedy for failure to pay within the 90 days.  There was also a provision that he had two years to pay, and that provision included a remedy for his failure to pay.  The wife had acknowledged at a hearing he had two years to pay.  The appeals court also found that communications between the parties suggested they were both operating under the belief he had two years to pay.  The appeals court found the trial court did not err by not addressing the 90-day requirement in the enforcement order.

The wife also argued the court erred in holding strict compliance with the decree was unnecessary, and the husband’s willingness to pay after the deadline was sufficient.  She argued the court should have awarded the property to her in accordance with the decree.  The decree provided that if payment in full was not made and had not cleared the bank within the two-year deadline, the wife would be awarded the property.  The trial court had held a hearing and made its conclusions based on the testimony and evidence that was presented.  The appeals court deferred to the trial court’s determinations of credibility in its role as fact finder.  The appeals court found the trial court did not err in finding the husband’s attempt to pay the balance was sufficient compliance with the decree.

The appeals court found the enforcement order was appropriate and affirmed it.

As this case shows, a party should make an effort to comply with the decree, even if the other party is not cooperating.  Here, the email showing the husband tried to arrange payments supported the court’s conclusion that he was in sufficient compliance with the decree.  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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Texas 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.

The husband filed a motion seeking clarification of the provision in the settlement agreement regarding his obligation to pay the loans on the property awarded to the wife if she decided to sell the property.  He said he expected her to sell and argued he should not be required to pay the debt if she did.

The trial court found the settlement agreement did not provide the obligation to pay the loans extinguished upon sale.  The husband’s attorney expressed concern regarding a judgment against the husband for the debt.  The court signed a final decree that imposed an owelty lien against the property awarded to the husband to secure payment of the debt.  The court explained it imposed the owelty lien as an enforcement mechanism.

The husband did not sign the final decree, and the wife moved to compel him to sign.  The husband’s attorney explained his objections at the hearing.  He objected to the owelty lien and the division of household items.  The trial court ordered him to sign.

The husband appealed.  The husband argued the waiver of appeals in the agreement did not apply because there was a “gross mistake” in the final decree.  He also argued the final decree was not in “strict compliance” with the agreement because it imposed the owelty lien and the parties did not agree to the division of household items.

The appeals court found there was not an exception for “gross mistake” in the settlement agreement.  The only exception included was evidence of extrinsic fraud.  The husband had not alleged there was any fraud.

The appeals court also found nothing in the waiver provisions that required strict compliance with the settlement agreement.  The appeals court further found that the final decree did strictly comply with the agreement because it did not vary the material terms.  The owelty lien did not change the division of assets or debts, but served as an enforcement mechanism.  Additionally, the husband’s attorney indicated they could “live with” owelty lien” if no judgment was entered against the husband.

Furthermore, the parties were to submit their disputes to the trial court.  The husband filed a motion for clarification and the court heard the arguments and decided on the issue.  Furthermore, the husband’s attorney had agreed to the owelty lien.

The appeals court found the parties waived their right to appeal and affirmed the trial court’s judgment.

The parties to a divorce should be sure they clearly understand all aspects of a settlement agreement and attempt to resolve any issues prior to finalizing the agreement.  As this case illustrates, many settlement agreements include waivers of the right to appeal.  Our experienced Texas divorce attorneys can help you through all aspects of a divorce.  If you are facing divorce, call McClure Law Group at 214.692.8200.

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A 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.

The trial court denied the wife’s petition, and she appealed.  She alleged the husband had induced her to sign the decree by fraudulently misrepresenting an intent to share his military retirement benefits.  She argued she would not have signed it if he had not made that misrepresentation. The wife alleged the husband then told her at the time of his retirement that he would not give her any of the benefits.

The appeals court found the agreed decree awarded the retirement benefits to the husband.  That property division could not be re-litigated through a petition for post-divorce property division after the decree was final.  The appeals court therefore affirmed the trial court’s denial of the wife’s petition.  It did, however, note that a trial court could set aside a property division due to fraud under a bill of review.

This case shows the importance of ensuring that an agreed decree actually matches the agreement reached by the parties.  Whether there was an oversight, a misunderstanding, or a misrepresentation, the wife alleged she thought she would receive a share of the retirement benefits, even though the decree stated differently.  A party should not approve an agreed decree that does not match his or her understanding of the agreement or rely on a spouse’s representation of the terms of the decree. If you are facing a divorce, an experienced Texas divorce attorney can help you get your share of the assets.  An attorney can be helpful even if there is a general agreement on the division of property.  Call McClure Law Group at 214.692.8200.

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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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Valid Post-Marital Agreement in Texas?

Texas Post-Divorce Modifications of Property Division and Collateral Estoppel

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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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