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“Separate” Versus “Community” Property in a Texas High Asset Divorce

Posted on in Complex Property Litigation

TX divorce lawyerThere are two questions that often come up in high asset divorce cases: First, how does a court properly characterize “community” versus “separate” property? Second, to what extent does the other party's fault in causing the divorce affect the court's division of community property?

Court: Judge Allowed to Award Ex-Wife Greater Share of Community Property Based on Ex-Husband's Infidelity

To give you some idea of how the courts address these questions, here is a recent decision from the Texas 1st District Court of Appeals. In this case, a former husband appealed a divorce judgment that awarded most of the couple's community property to the former wife. On appeal, the husband challenged both the unequal distribution and the overall characterization of some of the property.

The couple was previously married for 10 years. The former wife filed for divorce on grounds of infidelity and cruel treatment. The former husband apparently did not challenge these allegations. The trial court ultimately granted the divorce on grounds of infidelity and cruel treatment.

The judge also warded the former wife sole possession of the marital home, which was actually two properties in Houston. After the judgment was entered, the former husband asked for a new trial. He maintained the two properties were actually his sole property and were thus “mischaracterized.” The judge declined to order a new trial, prompting the former husband's appeal.

Unfortunately for the former husband, the Court of Appeals proved no more sympathetic to his arguments. As the appeals court explained, under Texas law any property in the “parties' possession during or on the dissolution of their marriage” is presumed to be community property. The former husband, therefore, had the legal burden to prove by “clear and convincing evidence” that the property in question was actually his separate property.

Not only did the former husband fail to meet this burden during the initial trial–where, it should be noted, he acted without the assistance of a divorce attorney–but the evidence he attempted to introduce after the fact was not “clear and convincing.” Specifically, the former husband said he paid “earnest money” as a deposit on the properties prior to the date of marriage. But as the Court of Appeals observed, the written contract the former husband presented was actually dated “after the date of the marriage.”

The Court of Appeals also said the trial court did not abuse its discretion in awarding a greater share of the community property to the former wife. There are a number of factors a trial court may consider when making such a division, which includes a spouse's “fault in the breakup of the marriage.” The trial court could, therefore, take the former husband's infidelity and cruelty into account.

Contact a Qualified Austin, TX High Asset Divorce Lawyer today

Before entering into a divorce proceeding, it is critical to take proper inventory of all property belonging to either spouse. It is far easier to properly characterize property as community or separate before you head into court than after the court has issued its final judgment. So if you need assistance from an experienced Austin high asset divorce attorney who can properly advise you on these issues, contact Powers and Kerr, PLLC, at 512-610-6199 today to schedule a consultation.




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