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You are here: Home / 2012 / Archives for November 2012

Archives for November 2012

November 26, 2012 by Aaron Tress

How Tort Awards are Divided in Divorce

Q: How does Texas divide property in divorce?

A: Texas is among a small number of community property states. Community property states distinguish between separate property and community property. Property that constitutes separate property is set out in the Texas Family Code and case law. Everything that is not separate property is community property. Divorcing spouses keep all of their separate property. Community property, on the other hand, is divided between the spouses.

Q: What property constitutes separate property?

A: The Texas Family Code limits separate property to

  • property the spouse owned before marriage;
  • property acquired through gift, devise, or descent; and
  • recovery for personal injuries, unless the recovery is for loss of earning capacity.

Q: Which types personal injury damages are separate property?

  • Damages based on a loss of consortium are separate property. Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).
  • Damages based on a parent’s mental pain and anguish at the wrongful death of a child are separate property. Johnson v. Holly Farms of Texas, Inc., 731 S.W.2d 641 (Tex.App.—Amarillo 1987, no writ).
  • Recovery for medical expenses during the marriage and recovery for loss of earning capacity during marriage are community property. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972).

Q: What if I move to Texas from an equitable distribution state?

A: As long as the couple divorces in Texas, Texas treats the property as if the couple had always lived in Texas.

Filed Under: Divorce Tagged With: divorce, Lubbock, personal injury recovery, separate property, Texas, Tort awards

November 5, 2012 by Aaron Tress

Amarillo Court of Appeals rules that homestead proceeds are protected from creditors in divorce

In re Marriage of Christodolou, 383 S.W.3d 718 (Tex. App.–Amarillo 2012, no pet.).

This was a case I recently won on appeal. To read the Court’s opinion, see here.

In divorce, courts divide up community property between the spouses. This community property often includes houses. Here, a husband and wife had a house, which was classified as a homestead. (A homestead is a house used as the primary residence.) The designation of their home as a homestead was important because according to article 16, § 50 of the Texas Constitution, “[t]he homestead of a family . . . shall be, and is hereby protected from forced sale, for the payment of all debts.” This protection from forced sale to pay debts also extends to divisions of homesteads in divorce.

The trial court divided the home by awarding the home to the husband. The husband, in turn, was ordered to pay the wife about half of the home’s value in monthly installments.

Notwithstanding the designation of their home as a homestead, the trial court ruled that the money the wife received as her portion of the homestead would be used to pay a debt. The Amarillo Court of Appeals overturned the trial court’s ruling, clarifying that the wife’s portion of the homestead was not subject to pay a debt.

Filed Under: Amarillo Appellate Decisions Tagged With: 383 S.W.3d 718, Amarillo Court of Appeals, article 16 § 50, debt, divestiture, divorce, homestead, In re Marriage of Christodolou, Lubbock, protection from creditors, Texas

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  • Sample Voir Dire Questions and Sample Jury Charge – Custody August 6, 2014
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