What to do when your divorce decree does not include a marital asset?

As a Houston, Texas divorce lawyer I get to hear many interesting stories from potential new client’s. Recently I heard a scenario where a couple had been divorced for over 10 years but according to the man one of the couple’s businesses had never been divided in the divorce. The man wanted to know if I could help him.

Post Division of Marital Property

Texas does have a remedy available for dividing property after a divorce under Texas Family Code Section 9.201.

What can be divided after a Divorce

Either spouse may file a suit to divide property not awarded to a spouse in a final decree of divorce or annulment. I was able to pull up the Man’s old divorce decree and one of the things I checked was whether or not the business had been awarded to either spouse. After checking I found that it had not.

However, after asking some clarifying questions I found out that the business had been sold prior to the divorce being finalized. I then looked at decree again. Unfortunately for the man the decree had some language in it awarding all some of cash to the person in possession of the cash.  Although this language certainly hurt his case depending on other facts I thought there may be a way to argue around it.

Statute of Limitations

The next thing I checked was the statute of limitations. When the man told me the divorce had occurred 10 years ago I had a feeling the statute of limitations had run and he did not have a case under Texas Family Code Section 9.201. However, I wanted to check to be sure.

Texas Family Code Section 9.202 provides that “(a) A suit under this subchapter must be filed before the second anniversary of the date a former spouse unequivocally repudiates the existence of the ownership interest of the other former spouse and communicates that repudiation to the other former spouse.”

After reading this section from the Texas Family Code it appeared the statute of limitation was not as clear as I first thought and I would need to dig into case law to find out what exactly it meant. What I found was that, “Absent unequivocal repudiation, the partition suit can be filed long after the divorce. The trial court below found that Sagester's claim was barred by both statutes of limitation. Sagester v. Waltrip, 970 S.W.2d 767, 769 (Tex. App. 1998

Fraud by a Spouse

There are occasions when a spouse will try to hide assets from the other spouse. If a spouse hides assets intentionally this can lead be the basis for a lawsuit to ask the court adjust the division of property to make the division “just and right” based on the assets as they actually existed at the time of the divorce. For a situation involving fraud the two year statute of limitations does not apply to fraud in the division of community property in a divorce.

A fraud on the marital estate means intentional concealment of the existence or true value of property. This means that a spouse:

  1. lied about the existence of the property or knowingly insisted it was worth a lot less than he or she knew it really was;
  2. knew those statements would relied on as an understanding of the marital property; and
  3. those statements were relied on.

Lack of Capacity

One other thing that was brought up in my discussion with this individual was that they were bipolar and were under a lot of medications at the time. I will write more on lack of capacity and whether that would have any effect on divorce case in a future blog article.

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Other Articles you may be interested in:

  1. Dividing Property in a Texas Divorce - The Just and Right Division
  2. Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
  3. What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
  4. Texas Divorce Property Division Enforcement
  5. Separate Property in a Texas Divorce?
  6. Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
  7. Is Social Security Considered Separate Property in a Texas Divorce
  8. Business Owners and Business Assets in a Texas Divorce
  9. High Net Worth Divorce / High Asset Divorce

Law Office of Bryan Fagan | Spring Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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