Recent Posts in Property Division Category
| 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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| October 26, 2009 |
| Texas Pre-Marital or Prenuptial Agreement |
| Posted By Elias Lorenzana |
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In Texas pre-marital or pre-nuptial agreements are enforceable so long as it is in writing and is signed by both parties. The agreement is enforceable even though without consideration, unlike a deed where consideration is necessary. Under Section 4.001 of the Texas Family Code, a 'Premarital Agreement" is a written agreement between prospective spouses in contemplation of marriage and is effective upon marriage.
The parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
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| August 21, 2009 |
| Mediated Settlement Agreements On Child Custody and Marital Property |
| Posted By Elias Lorenzana |
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Contested divorce cases frequently revolves around spousal disputes about the custody of the child or children of the marriage and or the proper division of the marital estate. In lieu of an all out contested divorce cases where the parties battle each other in open court, an alternative option is for the parties to enter into mediation, whose outcome is genreally the mediated settlement agreement. However, the question posed is, what happens if there is a mediated settlement agreement, however, one spouse decides to cancel the agreement and go to court instead?
This is what happened in the case of Brooks v. Brooks. Generally speaking in Texas and under Texas Family Code Section 6.602(b), and 153.0071(d), mediated settlement agreements are binding in suits affecting the parent-child relationship, as well as suits involving only marital property. Id, 6.602(b)B(c), 153.0071(d)B(e); Boyd, 67 S.W.3d at 402; Spinks v. Spinks, 939 S.W.2d 229, 230 (Tex. App.- Houston [1st Dist.] 1997, no writ). Tex. Fam. Code Ann. '' 6.602(b), 153.0071(d) (Vernon 2002 & Supp. 2007).
Texas has a public policy of encouraging the peaceful resolution of disputes, particularly those involving the parent-child relationship, and the early settlement of pending litigation through voluntary settlement procedures. See Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.- Fort Worth 2002, no pet.).
Trial and appellate courts are charged with the responsibility of carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d at 402; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 715 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (op. on reh'g).
The Texas Family Code also furthers this policy by providing that a mediated settlement agreement is binding on the parties if the agreement :
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.
Ordinarily, settlement agreements arising from mediation are not binding when one party timely withdraws consent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a contract that complies with rule 11 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. ' 154.071(a) (Vernon 2005); Padilla v. LaFrance, 907 S.W.2d 454, 461B62 (Tex. 1995); Boyd, 67 S.W.3d
at 402. Unilateral withdrawal of consent does not, however, negate the enforceability of a mediated settlement agreement meeting the requirements of 6.602(b), and a separate suit for enforcement of a contract is not necessary. Boyd, 67 S.W.3d at 402; Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.- Eastland 1997, writ denied). Rather, section 6.602 creates a procedural shortcut for the enforcement of mediated settlement
agreements in divorce cases. Boyd, 67 S.W.3d at 402; Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.- Houston [14th Dist.] 2000, pet. denied). Thus, a mediated settlement agreement that meets the requirements of section 6.602(b) is binding, and a party is entitled to judgment on the agreement notwithstanding rule 11 or another rule of law. Tex. Fam. Code Ann. § 6.602(b) (c); Boyd, 67 S.W.3d at 402.
Contact an experienced divorce attorney in Austin, Texas before entering into a mediated settlement agreement.
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