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Community property issues in Texas divorces: Wasting of assets by spouses

Texas is a community property state. This means that if you and your spouse were to get a divorce, the laws of community property would dictate how your property is divided upon completion of your case. The presumption is that all property that came into being during your marriage is community property. There are exceptions, but generally speaking, if you earn an income or purchase property during your wedding, it will need to be divided between you and your spouse when you get divorced.

I wanted to discuss some factors that can impact a divorce from a property division standpoint with you today in our blog post. Unfortunately, fraud is part of some divorce cases where one spouse has misrepresented circumstances to their other spouse or has misled them in some way to gain a financial advantage of some sort. Different types of fraud involve you simply doing things with property that belongs in your community estate without your spouse's knowledge.

The two types of fraud that you are likely to encounter in a divorce

If you are in an unfortunate position where you believe that your spouse has committed fraudulent acts against you, you need to be aware of Texas's two types of fraud.

The first is known as actual fraud. We don't see allegations of actual fraud in divorce cases all that regularly due to their being more challenging to prove in court. If you are interested in pursuing a valid fraud claim against your spouse, you must supply the evidence to prove that actual fraud has been committed. It is not sufficient for you to throw out a factual fraud allegation and then leave your spouse to mount a defense and offer evidence as to why the actual fraud did not occur.

The basis of fraud, as you probably know, is dishonesty. Your evidence must show your spouse to have purposefully acted in a manner that was intended to deceive you. Typically this must be based on community funds being transferred to their separate estate. You would be deprived of the use of those funds. To prove actual fraud, you must also show a judge that your spouse intended to act wrongfully. It cannot have been mere negligence in how they worked that resulted in the fraud.

Constructive fraud is the more likely claim for you to be exposed to in a divorce case. The bottom line is that you and your spouse are expected to act as fiduciaries concerning your finances. This means that you must put your spouse's interests ahead of your own when deciding what you are doing financially. You both own the community estate, and therefore a placing a certain amount of trust in the other to act responsibly with the contents of that community estate.

When your spouse commits an act of constructive fraud, they are wasting community property assets. Any wasting of your spouse's interests in property in your community estate is constructive fraud as long as your spouse does not know of the action. It is presumed that you commit constructive fraud if you transfer community property outside of your community estate without the knowledge of your spouse.

Here is an interesting point that you may not have considered. Fraud doesn't just mean hiding away community property income to buy a property that you would not tell your spouse about. Instead, it can, and often does, involve your spouse using community property to purchase gifts, vacations, and everything in between for a girlfriend. It could also mean that community property funds were being used without your knowledge to improve your spouse's separate property home.

Unlike what we saw in the section previous to this one, if you allege that your spouse committed an act of constructive fraud, then it is up to your spouse to present evidence that rebuts the presumption that fraud did occur. Essentially, your spouse must show the judge that the transaction that occurred was fair and not intended to deceive you or benefit your spouse's separate estate.

What will a court look to determine if constructive fraud occurred?

Now that we know the types of fraud that can be alleged in a Texas divorce, it makes a great deal of sense to determine what circumstances a court will look to decide whether or not constructive fraud has occurred.

In circumstances where a gift was made of community funds from your spouse to another person, the nature of the relationship between your spouse and the other person will be examined. If it was a gift made by your spouse to a relative who needed the money and your spouse had no time to ask you about the facility, then it is less likely that a court would hold that constructive fraud has occurred. However, if your spouse were engaging in a romantic relationship with another person and the gifts were made to their paramour, a constructive fraud finding would be more likely.

Next, how big is the gift about the size of your community estate? If your community estate is relatively small and the contribution is rather significant, I could see a court deciding that constructive fraud has occurred. However, if the gift is only $1,000 and your community estate is worth upwards of $900,000, I would struggle to see a situation where a judge would consider that type of transfer constructive fraud.

Connected to this last circumstance is whether or not the funds/property remaining in the community estate are sufficient to provide support for you after the divorce. Meaning, if you will be reliant upon the community estate share that you receive in the divorce to live for the first few months after your divorce, even a moderately sized gift from your spouse to another person without your knowledge or permission could hurt you severely.

An example to better illustrate our points made about constructive fraud

Let's imagine a hypothetical situation that will hopefully illustrate the points we have been making so far in today's blog post. Suppose that you are a stay-at-home mother and wife who does not have much knowledge of the contents in your checking account. All you know is that your husband works, the money goes into a checking account, and you are provided with a certain amount of money to spend on yourself, your kids, and the household during each week.

Suppose your husband wasted community assets and otherwise failed to account for how money was spent in the community estate during your marriage and subsequent divorce. In that case, you are likely justified by filing a constructive fraud claim against him in your divorce.

Here is the most critical aspect of a case like this: you, as the spouse who alleges a fraud/constructive waste claim, do not have a burden to prove the inappropriate transfers of money out of your community estate. All you have to do is show that your husband did not have anywhere near the monthly expenses to justify spending that much money. The burden of proof is then on your spouse to show that the transfers were for a good purpose (keeping in line with his duty to act as a fiduciary) and that you had knowledge of the transfers being made and that you consented to them.

It is not always easy to show a court just how you spent money years ago. If your spouse cannot successfully do so, he will likely owe you a great deal of money. Finally, suppose your spouse is not entirely truthful about what bank account he owns, and he also fails to support you during the marriage. In that case, these are factors that a court may consider when determining whether a judgment for constructive fraud against your spouse is justified. If your spouse cannot show fair use of the community property funds, you are likely looking at a win for you in this aspect of your divorce case.

What you can do to prepare for a constructive fraud claim in your Texas divorce

A good place for you to start your preparation for a constructive fraud claim in a divorce is to compare your spouse's income to their expenses over a couple of months. If you find a significant gap between the two numbers, you are likely justified in alleging that fraudulent acts have occurred. It is not your burden to show that it actually happened or even probably occurred. Your spouse must come back and show that the funds were spent legitimately and not fraudulently.

So, if your spouse earns $10,000 a month and your family's monthly expenses are less than $4,000, then it follows that you should have a fair amount of money in savings or retirement accounts. If you do not, and your spouse has not been able to talk to you about this without being evasive, then it is up to you to bring the allegation of constructive fraud and leave it to your spouse to defend against that allegation.

What can you be awarded if your spouse acted fraudulently against you and your community estate?

The best way for a court to award you a judgment in your divorce against your spouse would be to divide the community estate disproportionately. This means that instead of splitting the estate down the middle and awarding each of you half of the estate, you would stand to receive a greater than 50% share.

The judge would need to calculate just how much value was taken out of your community estate by your spouse's fraudulent actions. Whatever the current value of your community estate is, the judge would need to divide up the remaining estate's value between you and your spouse in a manner that is justified under your present circumstances.

Suppose your community estate is worth $500,000 right now while your divorce is ongoing and your spouse is found to have committed constructive fraud against your community estate totaling $50,000. In that case, your community estate is worth $550,000 for the judge rendering orders related to your community estate and wasting of assets.

You could be awarded more than 50% of what the estate is currently worth. An assumption would be made here that your spouse still has the $50,000 that was fraudulently removed from the estate previously. It is also possible that you could be awarded a money judgment for the $50,000. However, keep in mind that since your spouse also owns the community estate, you are not likely to get a total $50,000 judgment.

Are third-party claims allowed in Texas divorces?

Spouses cannot sue each other in Texas for separate tort actions related to fraud in the marriage. You will need to bring fraud allegations as part of your divorce lawsuit. Suppose you are interested in getting a lawsuit against a third party (a girlfriend/boyfriend of your spouse, for instance) related to fraud. In that case, I recommend you return to our blog tomorrow to find out more about this possibility.

In the meantime, if you have any questions about the material discussed today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are an excellent opportunity to ask our attorneys questions and receive direct feedback about your particular circumstances.

Our attorneys and staff take a great deal of pride in representing and advocating for our clients in all of the family courts in southeast Texas. We must put your interests ahead of our own and stand up for your rights. Thank you for your time and consideration, and we hope you will join us tomorrow on our blog.


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

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  8. Community Property in Texas: What you need to know before you get divorced
  9. What happens if you and your spouse mix community and separate property?
  10. What am I or My Spouse Entitled to During a Texas Divorce?
  11. What is a reimbursement claim and when to pursue one in a Texas divorce

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