Community Property

Texas Appeals Court Considers Equitable Division of Community Property in Recent Divorce Case

October 31, 2021 | by Robert Guest

A recent decision from a Texas appeals court consider whether a court equitably divided community property between a couple and also whether the wife was entitled to temporary spousal support. The husband and wife got married in 1991 and separated in 2017. After a trial, the court divided the community property of the couple. The court awarded to the wife a portion of the husband’s retirement benefits, including 100% of the account balance, a portion of another of the husband’s retirement benefits, including 50% of the balance of the account, and a totaled 2014 vehicle.

The court awarded to the husband the remainder of the retirement benefits and a 2016 vehicle and a 2017 motorcycle. The court also awarded the wife over $7,000 in reimbursements and $34,000 for unpaid temporary spousal support. In addition, a judge had previously found that the husband was required to pay temporary spousal support in the amount of $2,000 per month beginning on the date of separation and ending on the day the court signed the default divorce decree. The court later set aside the default decree.

The husband appealed, arguing that the division of community property was unjust and that the judgment for unpaid spousal support was unjust because he did not realize he was supposed to pay spousal support after the default decree was set aside.

Texas has two types of marriage, ceremonial and common law

January 4, 2021 | by Robert Guest

So you want to get married? Or you think you are married? If you are in Texas, there are two different ways to be married. The first is called a ceremonial marriage. It’s what you think of when you picture a traditional wedding or a couple saying their vows in front of a justice of the peace.

What is a ceremonial marriage in Texas?

The last thing you want to do is have a wedding and not be married. To make sure that doesn’t happen let’s go over the rules for a ceremonial marriage. In Texas, a valid ceremonial marriage requires four things.

Appealing The Division of Property in a Divorce Case

September 25, 2020 | by Robert Guest

Appealing a Court’s Ruling on the Division of Property in a Divorce Case

Upon granting a divorce, a trial court must order the division of the parties’ community property and determine any claims for reimbursement by any of the martial estates in a manner it deems “just and right.” TEX. FAM. CODE ANN §§ 7.001, 7.007; see also Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). The party claiming the right of reimbursement bears the burden of pleading and providing the expenditures were made and are reimbursable. Chavez v. Chavez, 269 S.W3d 763, 768 (Tex. App.—Dallas 2008, no pet.). For purposes of the division of the parties’ community estate, community property consists of property, other than separate property, acquired by either spouse during marriage. TEX. FAM. CODE 3.002. Separate property consists of property owned or claimed by either spouse before marriage.

In the case below, I go over what the law is for the division of property challenges on appeals and why the court affirmed the trial court’s decision.

Fiduciary Duty in Family Law Cases

August 18, 2020 | by Robert Guest

The Obligations of a Fiduciary

Simply put, a fiduciary duty is the responsibility to place someone’s interest ahead of your own. So important is this responsibility that it requires the highest degree of honesty and loyalty. Key-word there, loyalty.

You can be responsible for a breach of fiduciary duty only if you owed that duty. To prevail on a claim, you must establish that a duty existed between yourself and another party. Now, we tend to see fiduciary relationships in business. Whether it’s an agent and the client he or she represents, or attorneys and their clients. Even an employer/employee relationship. But, family dynamics also play a role in establishing and maintaining fiduciary relationships. Fiduciary issues arise out of family law, particularly between spouses.

Can I Make a Marital Property Agreement in Texas?

February 20, 2018 | by Guest and Gray Law Firm

Can I Make a Marital Property Agreement?

There has been a lot of discussion about pre-marital agreements in media and it is something most people are probably somewhat aware of. Follow this link: Premarital Agreements in Texas for more information on premarital agreements. So, what about after you are married, are you stuck with all of your property acquired after marriage becoming community property if you didn’t execute a pre-marital agreement? Of course not! I probably wouldn’t have dedicated an entire blog post to this subject if that was the case.

Why Does it Matter?

What are the Requirements for a Valid Premarital Agreement in Texas?

September 13, 2017 | by Robert Guest

Pre-nuptial agreements, called premarital agreements under Texas law, are frequently in the news and even in pop culture references (shout-out to Kanye West). You may think that living in Dallas, Kaufman, or Rockwall County that you don’t need to worry about a premarital agreement, but they can be a very valuable tool. No one likes to think about divorce at the beginning of their marriage, but with the amount of marriages that end in divorce it can be extremely helpful to get an agreement in writing ahead of time to make sure that a divorce can be as painless as possible.

What are the requirements for a premarital agreement in Texas?

In Texas, a premarital agreement must be in writing and signed by both parties. It is pretty much that simple. There are many things that may be contracted for in a premarital agreement but one major thing that is NOT allowed to be modified in certain ways in a premarital agreement is child support. You can’t completely get rid of (the statute says, “adversely affect”) child support. It makes sense because it seems like bad policy to have a child suffer because of an agreement of the parties that was possibly made before they were even born.

Spousal Maintenance for Disabled Spouse Post-Divorce: What if I Still Need It?

February 28, 2014 | by Guest and Gray Law Firm

You are divorced and in your final orders you were awarded spousal maintenance on the basis of your disability and inability to earn sufficient income. So, you went through all of the stages of proving your disability and proving that you could not earn the money that you need to meet your minimum reasonable needs and the judge ordered that your ex-spouse a certain amount per month to you for a certain period of time. As you know, spousal maintenance is governed by Chapter 8 of the Family Code and with respect to a disabled spouse, it does state that maintenance can be ordered for as long as the disability persists (longer than the statutorily limited period of time). If it is nearing the ending date of your receipt of the monthly spousal support payments, you are becoming worried because you do not know what you are going to do at this point. Can you seek further maintenance from the Court because you are still disabled and need the money to survive?

This question was directly addressed in Stephanie Ann Novick v. Andrew A. Shervin by the Fifth District Court of Appeals in Dallas. There, the trial court held that the wife was “presently disabled” and ordered that the husband should pay her “$2000 per month for 24 months.” When the time was drawing near for the husband’s payments to cease, the wife filed a motion to modify to continue the support payments and the trial court dismissed that claim to which the wife appealed. Therefore, the Dallas Court of Appeals had to determine whether or not the trial court erred in failing to honor the wife’s request in continuing the spousal support payments. In doing do, the Court reviewed a few other appellate cases involving this particular issue to seek guidance which led the Court to render a bright line rule to determine whether or not the support payments could be continued.

The Court held, “An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuance only if the decree indicates the trial judge intended to make the award pursuant to section 8.054(b) rather than 8.054(a).” Section 8.054(b) allows a trial court to find the spouse disabled (giving guidance as to how and what it means) and in finding the spouse to be disabled, the trial court will make an award of maintenance. This award can be made subject to periodic request based upon the request of either party and also subject to a motion to modify. However, Section 8.504(a) places a duration limit on how long the court can award the maintenance for (5 years) and states that a trial court must render the shortest period possible unless the spouse’s ability to earn income is totally diminished by physical or mental disability. The key for this Court was that you can seek continuance of the maintenance if the award was under Section 8.054(b). An example of this type of award would be where a spouse is found to be permanently disabled, awarded spousal maintenance for longer than 5 years, and the Court also order that the spouse receiving support can seek continuance beyond the court-ordered termination date.

What are the grounds for divorce in Texas?

November 7, 2013 | by Guest and Gray Law Firm

When pleading for a divorce in Texas, you have to consider—aside from the emotional aspect—why exactly you are getting a divorce. Did your spouse cheat on you? Did your spouse abandon you and what does abandonment mean? Or, do you and your spouse argue often and have you grown into separate people rather than being the one person united on the date of your marriage? To answer this question, it is important to discuss your options and what could be included in your pleadings. Reason being, Texas has two separate statutory grounds for divorce—fault or no-fault.

Fault grounds of divorce are specifically outlined in Texas Family Code Chapter 6, Subchapter A. They are listed as follows: cruelty (you are a victim of cruel treatment at the hands of your spouse and you cannot continue to live with him/her); adultery; conviction of a felony (and they have been imprisoned for at least a year and not pardoned); abandonment (your spouse left you and has remained away for at least a year without an intent to return); living apart (you and your spouse have not lived together for at least three years); confinement in a mental hospital (spouse has been confined to a mental hospital for at least three years and their mental state is so severe that a relapse is probable). Therefore, the Texas legislature has carved out why you could ask for a fault divorce and what exactly those faults entail. As you can see, the grounds are very specific and most are uncommon. Most often, we see cases under the fault grounds of cruelty or adultery.

So, now you are wondering why, if you qualify under any of these grounds, would you plead a “fault” ground—what would be the benefit? Basically, pleading for a fault ground leads to a request for a disproportionate share of the community estate. The court can consider one of the spouse’s “fault” when deciding how to divide community property between the two parties. The Texas Family Code mandates that the court make a “just and right division” of the community estate. Most people believe that this means an outright 50/50 split, but that is incorrect. The judge has a lot of determination and leeway in determining which spouse gets what property and/or debt. So, if you would like for the court to consider giving you more than what would be given absent the fault it is important to discuss this with your attorney and consider your options.

I bought our house before we got married, is that separate property?

October 11, 2013 | by Guest and Gray Law Firm

You brought some property into your marriage, accumulated some property along the way, and now you are facing a divorce. You need advice about what is really yours, hers, and in between. You are not alone to have commingled property—many people have concerns about property and what ultimately happens to it, especially if it is a house or some other large asset.

Many people get confused and think that whatever is in their name is their property and same goes for their spouse. Unfortunately, that is not how it works in Texas. We are a community property state and the character or nature of the property depends upon its inception of title—when did you acquire that piece of property. Community property is anything acquired during marriage, no matter whose name it is in. Separate property is anything acquired prior to marriage or by gift, devise or descent during marriage. Therefore, if you bought your home prior to marriage then it is your separate property.

But, now you are concerned because you deeded the home to both of your names after you were married. However, that is not enough to convert separate property into community property under Texas Family Code Section 4.202. In fact, subsection (a) states that you must have an agreement to convert separate into community property and that agreement must “(1) be in writing; be signed by the spouses; identify the property being converted; and specify that the property is being converted from separate property into the spouses’ community property; (2) and it is enforceable without consideration.”