San Antonio Divorce Lawyer Blog

Texas Divorce Agreements

Most of you know by now that I am an attorney in San Antonio, Texas who handles family law cases such as divorce, annulment, child custody, child support, adoption, enforcement and modification matters.  In the context of divorce, the subject of agreements incident to divorce, including their validity and enforceability often comes up.

This blog will focus on "agreements incident to divorce," which are different from, although in some ways similar to, pre-marital or post-marital agreements. Pre-marital and post-marital agreements are usually entered into to before or after the marriage create separate property interests in each spouse.  That is, those types of agreements are intended to divide property at the time of the agreement, so that when a divorce occurs, the property has already been legally transformed into each party's separate property according to the terms of the agreement.  Of course, the pre-marital or post-marital agreement may also contain provisions for other property transfers in the event of divorce, which makes it similar to an agreement incident to a divorce. 

However, a pre-marital agreement or post-marital agreement, if drafted properly and according to the rules in the Texas Family Code, should be completely enforceable at the time of divorce. That is the important difference between pre-marital/post-marital agreements and agreements incident to divorce.  An agreement incident to divorce may be repudiated at any time before rendition of the divorce. 

So:  there are some important definitions to know in these cases.  First, an "agreement incident to divorce" is any agreement the parties enter into regarding the division of property, child custody, child support, and any other matter which could be an issue in a divorce proceeding.  If that agreement meets the requirements of a premarital or postmarital agreement, as we talked about earlier, then the enforceability of the agreement is determined by the chapter of the Family Code dealing with those types of agreements.  However, if the agreement is not intended to be a premarital or postmarital agreement, but merely an agreement as to the terms of the divorce, it is a bare "agreement incident to divorce" which either party may revoke any time before rendition of the divorce.  "Rendition" means the time a judge pronounces the parties legally divorced in open court.

Actually, the Texas Family Code says that agreements incident to divorce may be revoked at any time before rendition of the divorce unless "enforceable under another rule of law."  This has generally been held by the appellate courts to mean that the agreement must either be enforceable as a contract, or as a premarital or postmarital agreement.  We already discussed premarital and postmarital agreements--they require all sorts of disclosures and/or waivers, notarized signatures, etc.  Discussing enforceability of a contract is beyond the scope of this post, but suffice it to say that it is very difficult to enforce as a contract any agreement entered into before the divorce becomes final.  For one, a contract must be enforceable at the time it is signed.  Agreements incident to divorce are usually not intended to be effective until after the divorce, so they are not usually enforceable as contracts before the divorce. 

When is a Marriage Not a Marriage?

As a San Antonio, Texas divorce lawyer, I find that many clients don't realize that annulment and divorce are NOT the only ways to end a marriage.  There are a number of situations which can result in a "Void Marriage" in Texas, meaning that for one reason or another, the marriage was invalid. 

Whenever discussing the subject of void marriage, I also have to explain the difference between a "void marriage" and a "voidable" marriage.  The general idea is that a void marriage is invalid and can NEVER become valid under any circumstances. For instance, a marriage between two close relatives, such as brother and sister, mother and father, etc., is a void marriage.  Such a marriage is void for all purposes and can never become a valid marriage.

By contrast, a marriage entered into when one of  the parties to the marriage is already married to someone else (bigany) is void only until the a divorce or annulment is obtained from the first spouse.  For instance, let's say a man starts divorce proceedings against his wife, believes the divorce is final, and then remarries someone else.  Later, he discovers that the first divorce was never finalized.  This makes his second marriage is voidable (void for the time being), but it will become a valid marriage if he goes back and finalizes the original divorce.  The second marriage will become a valid marriage as of the date that the first marriage is dissolved.   In other words, either spouse can go to court and have the second marriage declared void as long as he or she does so before the first marriage is dissolved.  There is one important exception to this rule:  if the man and 2nd wife in our example are not living together and not holding themselves out as being married at the time the first divorce becomes final, then the second marriage does NOT become a valid marriage.  This can get tricky legally, and may still result in litigation just to get a court order that says the second marriage is void.

Annulment is another example of a "voidable" marriage.  There are number of situations which are grounds for having an annulment, but the marriage remains valid until someone files for an annulment.  In many cases, the circumstances which constitute grounds for an annulment may go away, at which point an annulment is no longer possible. For example, the most common grounds for annulment is "fraud in the inducement of the marriage."  If one party uses fraud to induce someone into a marriage, then the defrauded spouse can get the marriage annuled if he or she does not voluntarily live with the fraudulent spouse as soon as the fraud is discovered.  However, if the spouses continue to live with one another after the fraud is discovered, annulment is no longer possible, and the marriage may only be dissolved by divorce.

A related topic of void and voidable marriages is the issue of a "putative marriage."  Going back to my bigamy example, the second-marriage spouse typically is unaware of his or her spouse's previous marriage (which is not yet dissolved).  The second-marriage spouse, therefore, thinks he or she is validly married and behaves as such.  He or she is then called a "putative spouse." This creates a whole new set of problems, which I will discuss in another post.

Texas Annulments - things you should know

As a San Antonio Texas divorce lawyer, lots of folks ask me about annulments, as opposed to divorce.  Typically, the couple, hasn't been together very long, and they realized that the marriage was a mistake very quickly.  Many people have some very strange ideas about how and why you can have a marriage annulled, so I wrote this blog to get rid of a lot of misconceptions about the annulment process.

An annulment can be granted in Texas under some very specific statutory grounds.  For instance, if you find out after the marriage that your spouse has recently escaped from mental institution, you can have your marriage annulled.  If you got married under duress, or if you were under the influence of alcohol or drugs at the time, you can get your marriage annulled.  There are a number of other statutory grounds, including "impotence" (although I've never had anyone seek an annulment on that ground).

The most common ground for annulment is "fraud in the inducement."  Simply put, this means that if your spouse used fraud to induce you into the marriage, you can have the marriage annulled if you stop living with him or her as soon as you discover the fraud. 

Now what the term "fraud" includes is anyone's guess.  A typical situation:  spouse "A" who lives in another country induces spouse "B," who lives in Texas, to marry her/him, promising love, affection, undying devotion, etc.  As it turns out, all Spouse "A" wanted was to get into the country, and she/he quickly makes it clear that there will be no real marital relationship, and that the only thing spouse "A" really wants is a green card. That seems to me to be a clear case of fraud, and in fact I have had a number of clients come to me seeking annulments under that circumstance.

On the other hand, if the "fraud" in that instance was Spouse "A"'s false promise that he or she wanted to marry for legitimate reasons (love and affection, etc.), then that leaves open a number of interpretations.  For instance, can someone have the marriage annulled when he or she realizes that the other spouse only married him or her for his or her money? 

Bexar County District Clerk website

If you contact a divorce attorney in Bexar County, chances are he'll be able to tell you if your spouse has already filed for divorce, or if she's ever been divorced in Bexar County in the past.  Did you know you can check divorce cases, custody cases, and most other civil lawsuits online in Bexar County.  If you know the name of one of the parties, you can find out if they are currently a party to a divorce or other civil lawsuit, or if they have ever been a party to divorce or other lawsuit, by checking this site:  http://www.co.bexar.tx.us/dclerk/

As a divorce lawyer in Bexar County, Texas, I routinely check the District Clerk's website to determine whether or not my client's spouse has already filed for divorce.  Aside from the obvious strategic considerations of being a Respondent rather than a Petitioner in a divorce case, it can also save my client a lot of money in filing fees, costs for service of process, the cost of preparing and filing a detailed original petition, etc.

If you meet with a divorce lawyer in Bexar County, Texas, you should ask him or her to do such a check if you think there is any chance that your spouse may already have filed.  Of course, this will only determine whether a filing has occurred in Bexar County, Texas, and not any other counties or states.

Military divorce rates in Texas

According to the Army News Service, divorce rates among military service members in Texas and the rest of the country are on the rise.  In a recent article, the ANS reported that divorces among officers tripled from fiscal year 2002 to 2004, according to statistics compiled by the Defense Manpower Data Center. After Operation Iraqi Freedom began, there was an increase of 3,024 divorces Army-wide.

There are programs available to service members designed to deal with the rising divorce rate among service members and to help Soldiers cope with life and parenting after divorce. Divorce Care Support groups and Divorce Parenting classes are mandatory for Soldiers at Fort Hood, Texas.

The article quotes Lt. Co. David Scheider, director of Family Life Chaplain Training Center at Fort Hood, Texas, as saying “We recognize [Soldiers] come because they are required, but it is difficult to get time off on a duty day, so the requirement makes leaders willing to let them go.”

Also available is Army One Source which is a toll-free nationwide number as well as a Web site that allows Soldiers to contact a consultant regarding life’s issues. Through this service, Soldiers and their families have access of up to six in-person counseling sessions at no cost to them.

Although deployment is an indicator of the stress on the force, both Bloomstrom and Scheider agreed that the problem is that many couples do not have the skills needed to make their marriage work. “Anytime there is a lot of stress, there is a higher opportunity for people to stray,” said Scheider.

Texas Divorce Statistics

As a Texas divorce lawyer, I find divorce statistics very interesting.  The Texas Bureau of Vital Statistics has a website at http://www.dshs.state.tx.us/vs/marriagedivorce/default.shtm that has more information than you can shake a stick at about Texas divorces.  It isn't the easiest thing to navigate, and involves downloading a bunch of data files, but if you have the time, you can find out just about anything on divorces.  Texas divorce attorneys (actually their clients) are required to submit a form to the Bureau of Vital Statistics whenever someone gets divorced.  The form has a lot of private information on it which becomes a public record once submitted to the BVS.

If you want to write to the BVS about divorce records or birth records, they have their own website at http://www.cdc.gov/nchs/howto/w2w/texas.htm.  You can get a lot of information from this site on how to get birth certificates, death certificates, and divorce records.

Community Property Issues in Texas Divorces - Economic Contribution

This is the 3rd installment of a series of posts discussing certain special situations which often occur in Texas divorces.  Previously, I talked about the issue of reimbursement, which is a claim by one of the marital estates (either the community estate or the separate estate of one of the spouses) against another marital estate.  That issue usually involves a claim by the community against one spouse's separate estate brought about when community income was used to pay off unsecured debt that one spouse had before the marriage.  Your Texas divorce lawyer should be able to explain these and other issues to you in detail.

The next special situation involving separate property/debt is an issue called "economic contribution."  Economic contribution is similar to reimbursement, but has some very important differences.  "Economic contribution" claims most commonly involve the situation where community income is sued to pay the mortgage note on a residence or other real estate which then appreciates in value after the date of the marriage.  The formula is very complicated, and in fact was set out in the Texas Family Code with an error in the formula, which was only corrected in the most recent legislative session.  The general principal is that any appreciation in value of a spouse's separate property should be considered partially community property, at least to the extent that the debt on the property was paid down during the marriage, and taking into consideration community property money used to make improvements on the property.

Any Texas divorce attorney should be thoroughly familiar with reimbursement and economic contribution issues, but you'd be surprised at how many Texas divorce attorneys misunderstand these principals.  If you are involved in a divorce and either you or your spouse owned property before you got married, or had debt before you got married, be sure your Texas divorce lawyer is thoroughly versed in the nuances of these special issues.

Texas Community Property Reimburement Issues in Divorce

I told you in my last post that I'd be giving you some more information about exceptions to the general community property rule in Texas divorces, and about other nuances of Texas property division in divorces.  This post will discuss the issue of "reimbursement."

In Texas, many people who get married own property (and/or debt) they acquired before they got married.  The general rule in Texas is that any property acquired before the marriage is that person's separate property--the other spouse has no right to it, and it cannot be divided by the court in a divorce.  However, separate property can create a number of complications.  This post will discuss the complication known as "reimbursement".

The most common claim for reimbursement in a divorce comes about when one "marital estate" (which could be the community estate OR the separate estate of either party) pays the unsecured debt of another marital estate.  The most common example is when a couple gets married and one party has a lot of credit card debt.  Then, during the marriage, the credit card debt gets paid down from income earned during the marriage.  Since most income received by either spouse during the marriage becomes part of the community estate, this results in one person's separate debt being paid down with community income.  To put it another way, one spouse's separate estate is being improved at the expense of the community estate.  In that example, the separate estate of the spouse with the separate credit card debt would upon divorce owe money to the community estate in an amount equal to the amount of the separate debt principal paid off during the marriage.

Here is an example of how the reimbursement claim would play out:

Assume at the time of divorce that the parties have no property other than $10,000 in the bank.  However, during the marriage, the husband's separate credit card debt (debt he had prior to the marriage) of $10,000 was paid off during the marriage using the Husband's income.  At the time of divorce, Husband would owe $10,000 back to the community.  That money would then be split, since Husband is entitled to 50% of the community property, which results in an additional $5000 going to the wife.  Since Husband has no separate property money to pay wife for her "reimbursement" claim, he'll have to pay her out of his share of the community estate.  His original share of the $10,000 bank account is $5,000, which he has to pay to the wife as reimbursement, meaning she'll get a total of $10,000 and Husband will get nothing.  This may sound unfair, but remember that the Husband paid down all of his credit card debt.

Community Property in Texas Divorces

As a divorce attorney in San Antonio, Texas, I find that the concept of "community property" is very confusing to many of my new clients.  In a nutshell, Texas, and a number of other states, consider property acquired during a marriage as belonging to the "community" rather than to either spouse individually.  The idea is that it took a community effort to acquire the property.  Perhaps one spouse worked during the marriage and the other spouse took care of running the household, or perhaps both spouses worked--the idea being that the efforts of both spouses were required to create the community estate. 

In Texas, the law requires that the community estate, also known as the marital estate, be divided in a manner "which is just and right."  That means that a 50/50 division of the community property at the time of divorce is not authomatic.  A number of variables come into play, such as the relative earning capacity of the spouses, their age and health, fault in the breakup of the marriage, and large number of other factors. 

In future posts, I'll discuss the exceptions to the community property rule, as well as other nuances of Texas community property law in the divorce context.

Texas divorce lawyers and putative marriages---I thought you told me you were divorced!!

In the state of Texas, the issue of a putative marriage sometimes comes up in divorce situations.  Simply put, a Texas putative marriage exists when a person fails to get divorced before marrying someone else.  Technically, it is also called bigamy, but from the perspective of the "innocent spouse" (the one who had no knowledge of the prior marriage), it is referred to by Texas attorneys and the Texas Family Code as a putative marriage.  Every Texas divorce lawyer has at some time or another dealt with the issue of such a marriage.  Typically, a prospective new client will call and ask about the following situation:

----After years of marriage, one spouse suddenly lays the bombshell on the other spouse that he/she is still married to someone else.  It can happen a variety of ways--perhaps he/she thought he/she was divorced, but in fact the previous spouse never filed, or any number of other ways, but the issue is still the same:  what are the rights of the new (putative) spouse.  In many cases, the parties have been "married" for a number of years, had children together, and have accumulated what would in normal circumstances be a great deal of community property, including retirement benefits.