Bank accounts and brokerage accounts are not the same in a premarital agreement

The Houston 14th Court recently handed down a decision regarding the characterization of assets in a premarital agreement, distinguishing between a "bank" account and a "brokerage" account in determining the characterization of certain assets.  IMOMO McNelly, __SW3d__, No. 14-13-00281-CV,  (Tex. App.—Houston [14th Dist.], no pet. h.) (05/15/2014).

Prior to Husband and Wife’s marriage, Husband owned and operated a business. Husband and Wife executed a premarital agreement in July 2008. The premarital agreement provided that separate property funds and proceeds from the sale of separate property would remain separate property but also provided that those funds and proceeds “may be deposited into any bank account styled in their joint names” and that such monies “shall become and remain community property.” The parties married later that same month. In September 2008 Husband sold his interest in the business for $1.3 million and later deposited $100,000 of the sale proceeds into two joint bank accounts and the remaining $1.2 million two separate joint brokerage accounts. Wife filed for divorce in 2010. Following the trial, the trial court found that Husband’s owned andoperated his business prior to the marriage, making his interest in the business Husband’s separate property.However, the trial court concluded that Husband converted all $1.3 million in his separate property proceeds from the sale of his business into community property by depositing the proceeds into joint accounts and comingling the proceeds with community funds. Husband appealed, arguing that the trial court divested him of his separate property when it characterized the $1.2 million deposited into joint “brokerage” accounts as community property.

The Court held, under the plain language of the premarital agreement, the couple clearly intended that the fruits of the business, such as the earnings that might result from the sale of the business, should remain Husband’s separate property. Resolution of the issue therefore turned on the meaning of “bank” in the premarital agreement.

Dictionaries generally define “bank” as a financial establishment for the deposit, loan, exchange, or issue of money and for the transmission of funds. In contrast, “broker” is defined as an agent who acts as an intermediary or negotiator, especially between prospective buyers and sellers; a person employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation. According to the Houston Court, these definitions illustrate that banks and brokers are distinguishable, particularly with respect to the scope of their respective services; banks tend to offer a broader spectrum of financial services than brokerage firms. Additionally,federal and state statutory definitions, including those under the U.S. Code Title 15 (Commerce and Trade), the Texas Finance Code, and the Texas Business and Commercial Code, illustrate that banks and brokerage firms generally fall under distinct statutory and regulatory regimes. Finally, federal case law suggests that mere overlap in the services provided by a nonbanking entity, such as a brokerage firm, with the services provided by a bank does not transform the nonbanking entity into a bank.

In this case, the premarital agreement stated that any separate-property funds deposited into joint “bank” accounts would become community property. The contested $1.2 million was deposited into joint “brokerage” accounts, not joint “bank” accounts. Therefore, that $1.2 million did not become community property. Accordingly, the trial court erred when, based on its erroneous interpretion premarital agreement, it characterized as community property the $1.2 million from the sale of Husband’s separate property business.

This is a significant opinion because most people do not distinguish between bank accounts and brokerage accounts as a practical matter.  Both types of accounts are for the purpose of holding money.  But, lawyers who are drafting a premarital agreement should be aware of the distinction between the two types of accounts and counsel clients in the application of the premarital agreement accordingly.

August 2014 Dallas Divorce News Newsletter

Michelle May O'Neil, a Dallas divorce attorney and Shareholder at Godwin Lewis PC, publishes a monthly newsletter.  Here is the August 2014 edition.

 August 2014 Dallas Divorce News Newsletter

Can a psychological evaluation in a custody case determine who is lying?

Oftentimes, people going through a custody dispute want to have psychological evaluations to show the judge "who is lying" to the court about some issue or another.  Conversely, some people going through psychological evaluations in a custody case become concerned that the other person will "lie" to the evaluator through charm or outright deception and sway the results of the evaluation.

Dr. John Zervopolous, a noted consultant in the Dallas, Texas area on psychological issues in custody cases, discussed this concern in the June issue of the Section Report newsletter of the State Bar of Texas Family Law Section.  He points out that child custody litigants who undergo psychological evaluations approach court-ordered evaluations in characteristic ways: they are defensive, or self-protective; they gloss over, if not deny, problems; and they often cast their soon-to-be or ex-spouses in a negative light. "When parents view litigation as a high stakes, win-lose gamble, they conform their behaviors towards that end," Dr. Zervopolous notes. 

Sometimes what one parent thinks is a "lie" by the other parent is simply the other parent's perspective of the "truth". In other words, each parent may see a situation very differently and have differing perspectives on what is true or untrue. But, he says, psychologists do not have fool-proof abilities to discern whether people are telling the truth or deceptively shading the truth or outright lying.

No psychological test—even the MMPI-2 and its validity scales—reliably detects lies. Instead, adequately designed validity scales incorporated into tests may broadly reflect the examinee’s “response style” or approach to test questions. Further, the evaluation’s context may affect the examinee’s test response style. For instance, examinees answer test questions as parents in child custody suits, as plaintiffs in sexual harassment lawsuits, or as criminal defendants. Depending on the context, examinees may try to look too well-adjusted, to exaggerate or make up problems, or to reflect accurately their emotional condition. Determining the examinee’s response style and its meaning are the first steps to accurate test interpretation.

Unfortunately, not all tests contain equally reliable or sensitive response style measures. The MMPI-2’s measures, encompassing several validity scales, are comparatively well-developed and provide useful response style information. Yet much of the research supporting these measures is inconclusive. Further, these measures by themselves may not always accurately reflect the examinee’s true approach to the test questions—for instance, a naïve approach to test questions may be mistaken for trying to look too well-adjusted, or a profile that appears to indicate an examinee’s attempts to feign psychological symptoms may actually reflect a “cry for help.”

Compared to the MMPI-2, the response style measures of the MCMI-III and the Personality Assessment Inventory (PAI) are less developed. And response style measures of other tests, composed only of transparent questions that attempt to catch examinees in obvious falsehoods—e.g. “Have you ever told a lie?”—are as useless as tests with no response style measures. Testing without adequate response style measures are vulnerable to evidentiary reliability problems.

Dr. Zervopolous suggests four lines of questions to begin cross-examining experts about test results that inform their opinions:

  1. Do the administered tests assess the examinee’s response style?
  2. ‚ÄčIf so, how accurately, according to the research, do the tests’ response style measures assess the examinee’s approach to the test questions?
  3. What does the examinee’s measured response style say about her approach to the testing?
  4. How does that approach, then, affect the expert’s test interpretation?

Reliable test interpretation cannot begin without first addressing the response style issue. Answers to these questions will help custody litigants better understand how the expert interpreted test results and how those results informed the expert opinion.

 

Undisclosed assets after divorce

What happens if, after the divorce is final, a party discovers that the other party failed to disclose certain assets in the divorce proceedings?

The recent case of In re Ford out of the Texarkana Court of Appeals is instructive in this situation. In Ford, the parties had been married for 31 years and separated for 3 years.  Two months after the divorce was final, the Wife filed a new lawsuit complaining that Husband failed to disclose certain retirement income received while the divorce was pending.  Wife sought division of the undisclosed income. Husband testified that the money was spent on community expenses during the divorce, including support of the Wife.  Wife failed to show the existence of the money at the time of divorce. The trial court denied Wife's request because she failed to show that the income existed at the time of divorce.

A suit to divide undivided property after divorce is governed by Texas Family Code sections 9.201 and 9.203.  The only assets divisible upon divorce are those in existence at that time. Assets that have been disposed of at a time prior to the divorce are not divisible unless a spouse is found to have committed fraud is the disposition of the assets and the marital estate is "reconstituted" to fictionally include the disposed assets. Thus, it is critical to a suit to divide undivided assets post-divorce to prove that the assets were in existence at the time of divorce.

The Texarkana Court of Appeals in Ford found that the Wife made allegations about the receipt of money by Husband, but she failed to carry her proof forward to the final step in the analysis -- where was the money at the time of the divorce? She could have shown the existence of the money by tracing it to an undisclosed account that existed at the time of divorce, for that matter, undisclosed cash in the mattress. Because Wife failed to show the required proof, the Texarkana Court of Appeals affirmed the trial court's denial of Wife's lawsuit.

Most of the time in divorce lawsuits the parties exchange sworn inventories which detail each party's position under oath regarding the existence and value of the marital assets, including each person's position as to the characterization of the asset as community property or separate property. The point of preparing these sworn inventories is to have proof of the assets being divided in the divorce.  This would also be a good starting point in looking at the viability of a case for undisclosed assets post-divorce.  Was the asset listed in the party's inventory during the divorce?

The second place to look in evaluating a post-divorce claim for undivided assets would be in the divorce decree entered by the Judge.  Are there general division provisions contained in the decree? It is common to use general language for the award of money on hand, bank accounts, retirement accounts, and even bonuses not yet received, such that a party is awarded "the accounts in his or her name".  This type of general language can block a lawsuit for post-divorce division of assets.

A third consideration in looking at a post-divorce division of undisclosed assets is to look at the discovery that was completed during the divorce.  Was a request for production sent seeking copies of all documents pertaining to the assets? If one was sent, did the opposing party respond fully to the request? If not, did the party seeking discovery seek enforcement remedies from the divorce judge to compel the document production? If the party failed to exhaust all available discovery options, it could cause waiver of the post-divorce suit claiming undisclosed assets. If the assets could have been discovered through diligence but the party complaining about the failure of disclosure did not exercise such diligence, then the post-divorce suit is waived.

Overall, it is very difficult to maintain a suit for post-divorce division of undisclosed assets and the Ford case is one example illustrating the difficulties.

Reimbursement for using inheritance on community obligations

What happens when a spouse contributes or loans separate property to the community estate during marriage, then seeks reimbursement of those contributions/loans at divorce?

The recent case of Hinton v. Burns out of the Dallas Court of Appeals sheds light on how this is handled. In Hinton, Husband and Wife both brought separate property assets into the marriage.  Husband had a separate property business and inheritance, and Wife had a separate property residence.  During the marriage, Husband contributed all of his inheritance to the community estate and it was spent on community expenses.  Additionally, Husband's separate property business made a loan to the community estate. Husband sought reimbursement to his separate property estate from the community estate during the divorce for these contributions. Meanwhile, during the divorce, Wife moved into her separate property residence and established it as her homestead. This residence was confirmed as her separate property during the divorce.

The trial judge found in favor of Husband in his reimbursement claims and awarded judgment in favor of the separate estate and against the community estate for the reimbursement claim.  The trial judge then split the reimbursement judgment in half and ordered half of the claim to be borne by Wife in the division of the marital estate.  Unfortunately, the trial judge also ordered that the judgment be secured against "all of Wife's property" including her separate property homestead residence.

Wife appealed, complaining that the trial court erred by imposing the lien against her separate property, and especially against her homestead.  

The Dallas Court of Appeals agreed with Wife for two reasons.  First, Wife's separate estate did not benefit from the contributions made by Husband's separate estate to the community estate so a lien against Wife's separate estate was improper.  Texas Family Code Section 3.406(a) provides that “[o]n dissolution of a marriage, the court may impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement against that property by a contributing marital estate.” Thus, the lien was only proper against the community estate which benefited, and not against the Wife's separate estate. Second, the Texas Constitution prohibits imposing a lien against a homestead except under certain, limited circumstances.  This situation failed to come within the exceptions and so the lien was constitutionally prohibited. Thus, the only lien permissible here was the lien imposed against Wife's portion of the community estate. 

 

Digital and virtual assets as part of the marital estate and division of property

Our lives are becoming more and more connected to technology. Without even thinking about it, spouses may have digital or virtual assets with value to the community estate that should be considered in the division at divorce. 

Chris Meuse's article on the Dallas Bar Association website sheds light on how to address digital and virtual assets in divorce.

The first step, according to Meuse, is to identify whether the parties have any valuable digital or virtual assets. 

Digital assets are intangibles that only exist in a digital form (i.e. data in the form of binary digits). Such assets may include: e-mail and social network accounts; websites; domain names; digital media, such as pictures, music, e-books, movies, and video; blogs; reward points; digital storefronts; artwork; and data storage accounts. These assets, although intangible, are marital property and are subject to characterization, valuation and division, during divorce.

Two examples of digital assets that most people getting a divorce in Dallas, Texas own are the iTunes music library and the Kindle digital book collection. Virtual media libraries, such as Apple’s iTunes and Amazon’s Kindle libraries, are the modern way to store a media collection. Music, movies, and books are now able to be stored on applications such as iTunes on an individual’s computer, cell phone, or any other supportable device.  In addition to adding media already owned, a user can download content; in the context of iTunes, the iTunes Store allows easy access to purchase a variety of media with a simple click. When the company provides their software to individuals, the individual receives a license to use or rent the software, not to own it. So an individual using iTunes really owns a legal right to use the product, not outright ownership of the product. The registered user is also the only individual actually allowed to use the product – not the individual’s significant other or family members -- making division in divorce difficult.

Virtual assets are intangibles used in virtual worlds or massively multiplayer online role-playing games (“MMORPGs” for short). Popular, online communities, such as World of Warcraft, Second Life, and Entropia, draw millions of users worldwide, who spend billions of dollars each year within these virtual realms. In 2009, 3.8 billion dollars were spent on MMORPGs, with over $100 million going towards virtual assets in these online communities. These assets range from virtual pets; avatars; accessories for those avatars (clothing, weapons, etc.); prizes; virtual real estate; to virtual currency. The popularity of these virtual worlds and games is only growing, and family law attorneys must realize these assets are out there and should start asking if they are a part of marital estates.

Once such assets are identified, the next step, as with the analysis of any asset of a marriage, is to determine whether the asset was acquired during the marriage, making it community property subject to division in the divorce, or whether the asset was owned prior to the marriage and is therefore separate property and outside the reach of the divorce court. This analysis is no different with digital or virtual assets than it is with a tangible asset. The example given by Meuse involves an income-producing blog.  If a blog was started during the marriage, it should be considered community property. If a blog were started before the marriage, but it was monetized and produced income during the marriage, that income would likely be considered community property. And, if the spouse who did not come into the marriage with that blog contributed to it by posting to it, editing it, or advancing it in any way, the community estate may have a reimbursement claim against the other spouse’s separate property estate for increase in value to that blog.  

Next, the value of the digital or virtual asset must be determined.  This is the difficult part of the analysis. Many personal, digital assets, such as photos or videos, have little to no market value but have great sentimental value to parties. Other digital assets, such as websites, personal blogs, or domain names can have great value. For instance, the most expensive domain name ever sold, vacation rentals [dot] com went for $35 million in 2007.  Many web-based services are available to value digital assets, and many of those same services can be used to sell such assets. The value of virtual assets can often be determined in the virtual marketplace.  Thousands of transactions take place daily for virtual goods, and like digital assets, the value of virtual goods should not be underestimated. In 2010, for example, a virtual nightclub, Club Neverdie, ran by Jon Jacobs in the virtual Entropia Universe (a virtual world with a real-cash economy) sold for $635,000.00.  

After digital or virtual assets are identified and character and value determined, parties must still figure out how to assign or divide that assets. Some digital assets, such as airline miles or membership points, can be transferred. Other digital assets, like digital photos or videos can be copied. But some assets, like e-books or other digital media files cannot be transferred. When parties own digital or virtual assets that cannot be transferred or copied, practitioners must value such assets, award them to one party, and provide value to the other party, in lieu of those digital/virtual assets.

 

Rule 11 agreements are revocable before judgment is rendered

A point of confusion for many in the family law context is the viability of a rule 11 agreement to settle an issue or a whole case. 

Rule 11 of the Texas Rules of Civil Procedure provides that an agreement between lawyers in a case is enforceable as long as the agreement is in writing and filed in the papers of the court or read into the record of the court.  However, rule 11 agreements are revocable at any time until judgment is rendered. A court may not enter an order upon a rule 11 agreement when one of the parties to the agreement has revoked his or her consent.

The recent case of  Woody v. Woody, __SW3d__, No. 14-12-00762-CV, 2014 WL 1512395 (Tex. App.—Houston [14th Dist.], 2014, no. pet. h.) (04/17/2014), illustrates this point.  In this case, the parties had very contentious litigation over child support.  In the end, they reached a rule 11 agreement read into the record, but before judgment could be rendered by the court, the father revoked his consent.  The trial court entered judgment anyway, which the Houston 14th Court found to be error. 

Parties can enter into an enforceable Rule 11 agreement if it is made in open court and entered of record. If a party revokes its consent to a Rule 11 agreement at any time before the trial court renders judgment in the case, the agreement can no longer simply be “approved” by the court; instead, the enforcement mechanism is through a separate breach of contract action. Here, although the parties entered into an agreement in open court, Father subsequently requested a reduction in child support. Therefore, Father clearly withdrew his consent to that agreement before the trial court rendered judgment. Accordingly, the trial court erred by incorporating the child support agreement into the final judgment.

 

Becoming a Partner -- Ownership Interest in Divorce

I was asked recently about whether becoming a partner in a professional company creates community or separate property.  The Husband worked for a firm prior to marriage and shortly before the marriage was offered a partnership interest in the firm.  He and the firm signed the partnership agreement a few months prior to the marriage.  After the marriage, he began receiving the benefits of the partnership agreement.  Now, he and his wife are headed for divorce and he wonders if she is going to be entitled to part of his partnership interest.

Starting at the beginning of the analysis, community property is anything that the spouses gathered together during the marriage.  It is presumed that everything the spouses own at the time of divorce is community property.  Community property is divisible upon divorce. 

On the other hand, separate property are those assets that were acquired before the marriage or through gift or inheritance.  Separate property assets are not divisible upon divorce. 


The inception of title doctrine governs the timing of whether an asset is separate or community property.  In other words, when was the first moment that the spouse was entitled to claim ownership of the asset? Was that moment during the marriage (community) or before (separate)? It is the origin of the right to title, not the actual acquisition of final title that determines the character as either community or separate.


Here, the documents securing the interest in the partnership were signed prior to the marriage.  Thus, the right to the ownership interest accrued before the marriage, making the partnership interest separate property and not subject to division upon divorce.

 

Strategy in Asset Divisions - Do's and Don'ts

One asset does not always equal another asset, even if the values are identical. One reason for this may be based on the personal situation of each spouse.  For example, one spouse may have a greater need for cash in the short run, where the other spouse may place higher need on retirement assets. Personal preference or short-term and long-term financial needs may be only part of the equation. Tax consequences of a property division can impact the long-term financial future of divorcing spouses. 

Deborah Nason with CNBC pointed out the not-so-obvious effects of a divorce property division in her article Not always a rose: Avoiding thorny asset-liquidation issues in divorce. For example, she points out, “if the wife keeps a house with $500,000 equity, this asset generally has a gain exclusion; if the husband keeps a 401(k) worth $500,000, he will sustain an unavoidable tax liability—one-third of it could go to taxes.”  However, a judge will view these assets equally based solely on valuation at the time of the divorce. 

But, keep in mind, liquidation is not the best answer either because liquidation creates a taxable event.  Dividing assets between spouses during a divorce is generally not a taxable event. Nason’s article points out, “…because transferring assets between spouses is a nontaxable event, it becomes a great motivator to trade assets back and forth”. 

Nason suggests the following Do’s and Don’ts in considering asset liquidation as part of a divorce: 

Asset liquidation dos and dont's 

Do:

—Understand the cost basis of investable assets.

—Make sure you know the purchase price of a real estate asset and quantify all improvements made.

—Understand what the capital gain will look like for the sale of a home.

—Make sure to obtain good business valuation (on equipment, buildings/real estate, goodwill, customer lists, customer base, etc.).

—Get an appraisal for collectibles.

 Don't:

—Liquidate a 401(k) if at all possible.

—Sell something that will result in the biggest capital gain.

—Forget to be aware of the change in capital gain exclusion from $500,000 to $250,000 when the proceeds of a house sale are split.

—Sell an asset without getting a fair price.

 

Michelle May O'Neil joins Godwin Lewis, P.C.

I am very excited to announce that effective today, July 1, 2014, I am joining the firm Godwin Lewis, P.C. in downtown Dallas as a shareholder. After 20+ total years of practice, and 10+ years with O'Neil & Attorneys, I am excited for the new opportunities ahead of me. As a firm owner, I have always tried to provide high quality representation in a personal atmosphere.


I believe that joining Godwin Lewis will help me to do a better job by focusing all of my efforts on my clients' best interest, eliminating the administrative tasks involved with owning and running a law firm. Godwin Lewis has offices in Dallas, Houston, and Plano, allowing me to expand my family law litigation and appellate practice beyond the Dallas area, to a statewide focus. The new firm also has lawyers that practice at the top of their field in 39 practice areas, providing depth to the services that I can provide to my clients. From business litigation to tax law, from immigration to estate planning, Godwin Lewis can cover just about every need that my clients may have. Built on a foundation of preparedness, out-of-the-box thinking, creativity and exceptional trial skills, Godwin Lewis PC is a mid-size trial and appellate law firm which has earned a national reputation for handling complex, high-stakes litigation and gaining desired outcomes. By joining forces with the Godwin Lewis team I can enhance the foundation of service to my clients.


I will continue to blog here at www.dallastxdivorce.com, providing readers with updates and insight into family and divorce law as it affects the Dallas, Texas area.


New contact information:


Michelle May O'Neil, Shareholder
Godwin Lewis, P.C.
1201 Elm Street, Suite 1700
Dallas, Texas 75270
Direct: 214-939-4427
Direct fax: 214-527-3123
Main: 214-939-4400
Email: Michelle.Oneil@GodwinLewis.com
website: www.GodwinLewis.com