Such an easy divorce? That husband may lose his house!

A couple weeks ago I met with a husband who wanted to divorce his wife. I was informed by the consult that this would be an “easy case” Whenever a consult tells me how easy the case will be, I always silently think, “We shall see.”

Reason 1 It would be an Easy Divorce – Adultery

The first reason the husband gave me that this would be an easy divorce was that he had evidence his wife had cheated on him multiple times.

As the readers of our blog will know, evidence of adultery is not the trump card that means you get everything you want and your ex gets nothing.

Reason 2 It would be an Easy Divorce – No Children

Another reason that the consult gave that the case should be easy is there were no children.

This information moved my thinking slightly closer towards his point of view. No children eliminated one of the three issues in a divorce. Without children, his case would only be about getting a divorce and dividing the property.

Reason 3 It would be an Easy Divorce – No Property Together

The husband’s final reason for why this case would be so easy is that all the property was in his name. This statement made me inwardly sigh. I thought I was going to explain to the consult how Texas is a community property state and what that meant.

The consult went on to tell me he had been married previously and in that divorce, he was awarded the house. That house was really the only asset and because he had it prior to the marriage, it was his separate property.

This statement gave me hope for the consult. What he was telling me was basically true, at least regarding the house. I asked him one clarifying question: “did you ever add her to the deed?”

My consult then went on to explain, “Well, yes. We kept getting statements from the property taxes, which had my name and my wife’s name on the statement and that upset my current wife. To solve the problem, I added her to the deed.”

Based on what this consult told me, I was agreed that the house was completely his separate property after the divorce… up until he added his current wife to the deed.

Community Property

In general, Texas Community Property is property acquired by either spouse during the marriage.

There is a rebuttable presumption that all property owned at marriage is community property.

Separate Property

Separate Property in Texas is:

  1. Property acquired before marriage;
  2. Property acquired during marriage by gift, devise, or descent;
  3. Property acquired during marriage, but purchased with separate property funds.

Separate Property & Gifts

The landmine the consult walked himself into was when he added his current wife to the deed, he arguably gifted her part of his home. The house then possibly became 50/50 separate property.

Under Texas Family Code Section 3.001(2), gifts are separate property.

In a Houston appellate court case, Raymond v. Raymond, 190 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2005, no pet.) it was found that a deed for property from one spouse as grantor to the other spouse as grantee creates a presumption the grantee spouse received the property as separate property by gift.

In the case, Hilley v. Hilley, 161 Tex. 569, 575, 342 S.W.2d 565, 569 (1961). The court found that a gift is a voluntary transfer of property to another made gratuitously and without consideration.

The elements of a gift are:

  1. the intent to make a gift;
  2. delivery of the property</a>; and
  3. acceptance of the property.

I explained this to the consult and that very likely would be the argument her attorney would make.

Separate and not Community Property

On a side note, it was separate property and not community property because in order for him to create community property, he would have had to comply with section 4.202 of the Texas Family Code. A statutory disclosure of the effect of the transfer that would need to be signed by both him and his wife, and the document would need to declare that it was creating community property.

What can I do?

The consult was understandably not happy about the information he was given and wanted to know what his options were.

Argue that the House was Not Separate Property

One possible option would be to argue that the house was not her separate property and that no gift was intended.

In order for the consult to fight against the transfer being a gift, he has the burden of rebutting presumption. The reasons given in the various cases I read that a court would accept in overcoming the presumption include fraud, accident, or mistake.

The husband’s argument would need to be that he never intended to make a gift. If a court believed him, then his house may still be completely his separate property.

Other Case Law

The husband is not the only person to have ever faced this situation. I normally hear about this type of thing happening when someone goes to refinance a house.

In one case, Magness v. Magness, 241 S.W.3d 910 (Tex. App.—Dallas 2007, pet. denied), a wife made just such an argument that she never intended to make a gift of her separate property and that she had only signed the deed in order to refinance the house. The court found against her and that the property was 50% owned by each spouse.

In another case of refinancing in, re Marriage of Skarda, 2011 WL 2502946 (Tex.App.—Amarillo 2011)(No. 07-09-00191-CV)(June 23, 2011), a similar outcome was reached where both spouses ended up with 50% ownership in the property.

Disproportionate Share of the Property

I explained to the consult that, should his argument about it still being his separate property be denied, another possible option would be to argue for a disproportionate share of the property. Where adultery is a factor, a court can award a disproportionate (more than 50% of the community property to one spouse) share of the property to the spouse that was cheated on.

One wrinkle to this plan is that only community property can be awarded disproportionately. This would mean that a court could not divest the wife of a disproportionate share of the home if it was partly her separate property.

After the Consult

Whenever I meet with a consult with interesting facts, I take some time to do a little research to better educate myself on the area of the law in case the consult should decide to sign up or should another case come along with similar facts.

From the reading, I did find most of the cases that had made the argument about it still being separate property had failed.


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