A Texas Appellate court recently had to decide how to characterize the money a couple received from a personal injury settlement. In the case, the husband and wife sued a nursing home for negligence in caring for the husband. They asked for damages for past and future mental anguish, past and future pain and suffering, past and future disfigurement and impairment, past and future medical expenses, and exemplary damages. The wife also sought damages for loss of consortium. The husband and wife later settled the personal injury case.

Initial Presumptions

When the husband died and his trust had to be distributed a dispute among the beneficiaries required the Court to determine if the personal injury settlement was separate property or community property. The proceeds from the personal injury case were received during the marriage and are therefore presumed to be community property. In addition, the personal injury settlement did not itemize the damages being paid for each of the several claims which would have gone a long way to determining what portion was community property and what portion was separate property. The one important feature of the settlement agreement was that it did separate the damages paid to each spouse.

The Family Code

The Family Code explicitly characterizes personal injury recoveries as separate property except for damages paid to compensate for loss of earning capacity during the marriage. The courts have interpreted additional items that are treated as community property based on the logic of representing recovery for expenses associated with injury to the community estate such as medical expenses. Punitive damages had been labeled as community property in a previous case involving a contract dispute, but there is no statute that explicitly characterizes damages in contract cases as separate property like there is for personal injury cases. The Court relied on this distinction to determine that punitive damages in a personal injury case are not community property and do qualify for the special protections available to separate property.

Protect Your Rights

If you or your spouse received a personal injury settlement do you know how much of it is separate property and how much of it is community property? Work with an experienced Woodlands Divorce Lawyer and protect your rights.

One ex-wife recently found herself in court again ten years after her divorce was finalized. The reason: her divorce decree was flawed and a piece of property worth $69,594.06 that she thought was hers was paid out to her ex-husband’s second wife. Let’s take a look at the details.

Husband and ex-wife divorced after forty years of marriage. The divorce decree awarded husband and ex-wife each one-half of the yearly payments from husband’s pension savings plan. Following the divorce, husband met and married second wife. After husband‘s death ten years later, the balance remaining in the pension savings plan was paid to second wife as the designated beneficiary of the account.

Ex-wife filed suit against second wife claiming that, pursuant to the divorce decree, one-half of the plan’s balance was hers. The Court noted that although the decree distributed the pension plan’s yearly payments, it did not provide for the plan‘s balance. Thus, the effect of the defective decree’s language left the balance as undivided community property. As a result, ex-wife became a cotenant of her one-half share of the undivided balance, and sued second wife to obtain her half of the property.

A Costly Mistake

In this case the ex-wife successfully recovered the one-half of the retirement account that she believed was hers. She had to incur additional legal fees and the uncertainty of going to court to do it, however. In addition, the second wife made a critical mistake and accidentally waived a legal argument that may very well have resulted in the court deciding the case in her favor. Keep this in mind if you find yourself having to choose between the $299 legalzoom divorce and an experienced Woodlands Divorce attorney. Contact us today at (832) 592-7913 if you need experienced legal help with your Montgomery County divorce case.

If you would like additional information, check out our free Woodlands Divorce Guide.

The previous maximum amount of alimony was $2,500 per month. Now, the maximum is $5,000 per month. The minimum amount remains at 20% of the average monthly income. This change impacts spouses that earn more than $12,500 per month because their amount of alimony payments just went up. For example, under the old system if the spouse earned $15,000 per month the maximum alimony payment was still $2,500. Now, the maximum alimony payment is $3,000 which is 20% of monthly income.

The duration of alimony and spousal maintenance payments was also increased. The previous limit was three years, no matter what. Now a sliding scale is in place.

1. If the marriage lasted at least 10 years but not more than 20 years, the court can order alimony and maintenance payments to continue for five years;
2. If the marriage lasted at least 20 years but not more than 30 years, the court can order alimony and maintenance payments to continue for seven years;
3. If the marriage lasted more than 30 years, the court can order alimony and maintenance payments to continue for ten years.

Remember folks, there is no legal separation in Texas and you are still married for the purposes of calculating alimony and maintenance payments until the court enters your final divorce order. Dragging your feet just got potentially a lot more expensive. Contact us today at (832) 592-7913 if you are contemplating dissolving your marriage and have questions concerning your financial future and whether you could be eligible or liable for spousal support under the expanded provisions of the new law.

If you would like additional information, check out our free Woodlands Divorce Guide.

As we’ve discussed before, separate property is property acquired before the marriage. It is important to identify separate property because in a divorce case the judge does not have the authority to award your ex-spouse your separate property, the judge can only divide community property. As long as the name on the title of separate property does not change it will remain separate property. Unfortunately in a refinance transaction the lenders usually end up having people name their spouse as co-owners of the property. During the refinance process your lender may have told you that it would be quicker or easier to have both spouses on everything. That may be true for them, but it could have put you in great jeopardy.

If you accidentally made your spouse a co-owner of the home during the marriage then you have opened yourself up to a hornet’s nest of community property litigation in your Woodlands Divorce case which could have been avoided with some careful planning ahead of time. Contact us today at (832) 592-7913 if you need to protect your rights to separate or community property.

Check out our free Woodlands Divorce Guide if you need more answers.

Collaborative Divorce is your alternative to the destruction that accompanies a traditional litigated divorce. When you choose a collaborative divorce you are taking the first and biggest step towards moving on with your life rather than spending 9-12 months (or more) in front of a judge rehashing the past and assigning blame. This is something that many people feel is worth talking about as you can see below:

Divorce is a painful event, but if there was a way to lessen the pain, collaborative divorce is the way to go. My wife and I had decided to end our 10-year marriage. We wanted to do it as amicably, fairly and easily as possible. Traditional divorce creates barriers between the parties and advocates antagonistic behavior. In the end of a traditional divorce, a judge decides based on the evidence presented. Collaborative divorce lessens the adversity and puts the power to finish the relationship back in your hands. The process is legal and logical. Lawyers help you work out any legal issues, but all of the separation of property is decided by you and your ex-spouse. It truly is a revolutionary way to approach what is arguably the worst event besides death. – Director of System Engineering at Large IT Firm

Call The Shea Law Firm at (832) 592-7913 if you need to get a divorce without the destruction that goes along with litigation.

Has your spouse already filed for divorce and you are not sure how to protect yourself?

Are you wondering:

• How much child support is involved in your divorce?
• Is spousal maintenance going to be awarded in your divorce?
• How often will you see your kids after the divorce?
• What is separate property and what is community property?
• What happens to retirement accounts in a divorce?

To help answer some of the most common questions I am proud to announce the release of my Woodlands Divorce Guide available for free download. You can get your copy by clicking on the link below.

The Woodlands Divorce Guide

If you have a question that is not answered in this version of The Guide, post your question in the comments below or contact us and we will consider it for inclusion in future editions.

Who Must Prove What?

When a spouse receives a settlement from a lawsuit during marriage, some of which could be separate property and some of which could be community property, it is that spouse’s burden to demonstrate which portion of the settlement is his or her separate property. This is important to remember, the person claiming the personal injury award as community property does not have to prove a thing unless the other spouse is able to establish the award is separate property by clear and convincing evidence. Call (832) 592-7913 and speak with a Woodlands Divorce Lawyer about protecting your rights if you or your spouse settled a lawsuit during your marriage.

Background

Albert and Sophia began living together in 1987. One year later, Sophia gave birth to their only child. To help cover living expenses, Sophia’s educational expenses, and the expenses of Albert’s asbestos consulting business, Sophia applied for and received student loans totaling over $90,000. In February 1994, Albert and Sophia married, and in 2002, Sophia filed a petition for divorce.

The Trial

In a surprise ruling, the trial court ordered Albert to pay Sophia’s entire student loan debt. Albert’s divorce attorney quickly filed an appeal on this critical issue.

Student Loan Debt

Albert’s divorce attorney argued that the trial court was legally wrong when it ruled that he had to pay Sophia’s student loan because the loans were taken out before they were married.

Property owned or claimed by a spouse before marriage or acquired after marriage by gift, devise, or descent is that spouse’s separate property. A court may not decree that separate property of one spouse becomes the separate property of the other spouse because “the nature of separate property is determined by the Texas Constitution, rather than by what is ‘just and right.’”

Sophia’s divorce attorney did not dispute that the student loans were acquired before marriage. At trial, Sophia testified as follows:

Q All right. Ma’am, you and your husband got married in 1994. Isn’t that a fair statement?

A Yes.

Q And these student loans that you made, you made long before 1994, didn’t you?

A I made them before 1994.

Q Okay. So, these are not even community debts, are they? These are your separate property debts?

A Yes, I guess you can say that.

When Sophia received the student loan proceeds, those proceeds constituted Sophia’s separate property. If the divorce court had awarded Albert part of the student loan proceeds, it clearly would have been in violation of Sophia’s separate property right to the proceeds. The appeals court relied on this point to characterize the pre-marriage student loan debt as separate debt which could therefore not be assigned to the other spouse.

Protect Your Rights

Don’t get stuck paying for a debt that is not yours. Call (832) 592-7913 and speak with a Montgomery County Divorce Attorney at The Shea Law Firm.

To find out more about divorce in Montgomery County take some time to review my free Woodlands Divorce Guide

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a Montgomery County divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 592-7913.

Background

Wife and husband married in 1990. In 2006, wife and children fled the family home alleging family violence by husband. The couple filed for divorce in 2007. During divorce proceedings, husband sold community property and used those assets to pay community debts and to purchase a home and an automobile for his personal use. Following trial, trial court awarded wife a disproportionate share of the community estate due to husband’s “wasting of community assets” in violation of a court order.

Husband appealed on multiple grounds including that trial court abused its discretion in finding that he wasted community assets and making a disproportionate property division and money damages award based on that finding.

Waste and Community Property Division

Under the family code, a trial court in a divorce proceeding is charged with ordering a division of the community estate in a manner that the court deems “just and right,” having due regard for the rights of each. In dividing the community estate, the trial court can consider several nonexclusive factors including whether one party wastes community property. Waste occurs when one spouse, dishonestly or purposefully with the intent to deceive, deprives the community estate of assets to the detriment of the other spouse. Waste requires disposal of community assets for non-community purposes or transfer of assets outside of the com-munity.

Is This Waste?

In this case, husband testified that he used the proceeds from selling community assets to pay community bills, including attorney’s fees for the divorce, to buy a new car, and to buy and furnish the new house. While husband’s actions may have been in violation of trial court’s orders and may have been done without wife’s knowledge, the evidence conclusively shows that husband’s actions either were done for community purposes or did not deplete the community assets. In fact, the evidence shows that the net balance of the community remained the same because the community debt was reduced and the community assets were simply transmuted, not lost. Thus, no waste occurred. Accordingly, trial court abused its discretion in finding husband wasted community assets and then basing its division of community property on that finding.

Protect Your Rights

If your husband or wife has used community property in a way that you are concerned about, or if you are accused of misusing community property protect your rights and get help today by calling (832) 592-7913 and speaking with a Montgomery County Divorce Attorney at The Shea Law Firm.

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a Montgomery County divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 592-7913.

Parents with children usually have the most to lose if they let their divorce slide down that out of control path. Property can be replaced, but restoring a child’s feelings of confidence and security with their parent can be a lot more difficult and sometimes impossible. How do you protect yourself and your children from The Downward Spiral?

Surround yourself with professionals that are focused on your future relationship with your children and helping you move on with life after divorce rather than the cliché divorce lawyer that wants to re-live every wrong thing your spouse may have done during the marriage while you pay him hundreds of dollars per hour to do so. In a litigated divorce you are working without a net and when your case is at the brink of turning into an ugly divorce your only adviser may be the one who stands to profit most from it turning ugly. In a Collaborative Divorce all of the professionals are committed to keep your case from heading down The Downward Spiral.

Part 2 of the Collaborative Divorce videos is below. In this discussion the couples mention how important the Collaborative Divorce team was to keeping their divorce from getting ugly. If they had chosen to work with a non-Collaborative divorce lawyer their case probably would have taken a very different road and they probably would not want to sit next to each other today. Which outcome do you want to see in your divorce case?

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a Montgomery County divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 592-7913.