Recent Blog Posts in November 2009 |
| November 22, 2009 |
| Presumption Of Community Property At Dissolution |
| Posted By Elias Lorenzana |
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How is property classified in Texas at the time of dissolution of the marriage?
All property on hand at the dissolution of marriage is presumed to be community property. Long v. Long, 234 S.W.3d 34, 37 (Tex.App.--El Paso 2007, pet. denied); Tex.Fam.Code Ann. § 3.003(a) (Vernon 2006).
Althoug, this is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Long, 234 S.W.3d at 37; Tex.Fam.Code Ann. § 3.003(b).
Separate Property.
Property owned before marriage, or acquired during marriage by gift, devise, or descent, is separate property. Long, 234 S.W.3d at 37; Tex.Fam.Code Ann. § 3.002. An example of this would be if the parent of one spouse were to give a cash lump sum gift to that spouse.
Where an asset is purchased during marriage with monies traceable to a spouse's separate estate, the asset may appropriately be characterized as separate property. Long, 234 S.W.3d at 37. If said funds were used in the purchase of an asset or property for the marital estate, then said spouse would also have a claim for reimbursement of his or her separate property, so long as the funds utilized for the marital estate could be traced back to the spouse' separate property. |
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| November 22, 2009 |
| Reimbursements in Texas Divorce Litigation |
| Posted By Elias Lorenzana |
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In Texas divorce cases, reimbursements come into play when one spouse contributes property, funds or assets to the community estate or for the benefit of the other spouse. In such cases, when the parties a marriage separate or divorce, the other contributing spouse may have a claim for equitable reimbursement.
The rule of reimbursement is purely an equitable one. Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex. 1982); Lucy v. Lucy, 162 S.W.3d 770, 776 (Tex.App.--El Paso 2005, no pet.). It is not an interest in property or an enforceable debt, per se, but an equitable right which arises upon dissolution of the marriage through death, divorce, or annulment. Lucy, 162 S.W.3d at 776. An equitable right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Id. A claim for reimbursement includes payment by one marital estate of the unsecured liabilities of another marital estate. Tex.Fam.Code Ann. § 3.408(b)(1)(Vernon Supp. 2008). The trial court resolves a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset if the court determines it to be appropriate. Tex.Fam.Code Ann. § 3.408(c). Benefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate on property that does not involve a claim for economic contribution to the property. Tex.Fam.Code Ann. § 3.408(d). The party seeking reimbursement has the burden of pleading and proving that the expenditures and improvements were made and that they are reimbursable. Vallone, 644 S.W.2d at 459.
The Lorenzana Law Firm, P.C. - Family lawyers and Divorce Attorneys. |
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| November 11, 2009 |
| Does Texas Recognize Common Law Marriage? |
| Posted By Elias Lorenzana |
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A common-law or informal marriage can be established by showing the parties
(1) entered into an agreement to become husband and wife;
(2) cohabitated as husband and wife; and
(3) held each other out publicly as husband and wife.
TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).
However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).
In order to constitute a valid informal marriage, it must be established that the parties:
(1) entered into an expressed or implied agreement to become husband and wife,
(2) that such agreement was followed by cohabitation as man and wife, and
(3) that they held each other out professedly and publicly as husband and wife.
TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).
There is, of course, one additional fundamental rule, that in order to establish a valid marriage, the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract. Franklin v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.--Corpus Christi 1981, no writ); Howard v. Howard, 459 S.W.2d 901, 904 (Tex. App.--Houston [1st Dist.] 1970, no writ); Esparza v. Esparza, 382 S.W.2d 162, 166 (Tex. Civ. App.--Corpus Christi 1964, no writ). Villegas v. Griffin Indus., 975 S.W.2d 745, 749-750 (Tex. App. Corpus Christi 1998)
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| November 11, 2009 |
| Writ of Mandamus in Family Law Cases |
| Posted By Elias Lorenzana |
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On occasion a trial court may abuse its discretion with respect to rulings on family law cases so as to warrant an immediate review by a higher court. This process is called a writ of mandamus against the trial court judge making the incorrect ruling or abuse of discretion.
To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam). Therefore, the relator must establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence supports the trial court's decision. IKB Indus. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).
Appellate courts do not generally overrule trial court rulings, especially when conflicting evidence are submitted by opposing parties. Such was the case in the recent ruling by the 14th Court of Appeals last February in the case of In Re John W. Small who asked the higher court to compel the presiding judge of County Court at Law No. 1 of Galveston County, to set aside her October 31, 2008 order finding relator in contempt for failing to pay court-ordered temporary spousal support to real party in interest, Murriah S. McMaster, and to to reverse her November 1, 2005 order awarding temporary spousal support to McMaster. Because the trial court did not abuse its discretion, writ of mandamus was denied.
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