Reimbursement Claims in Divorce

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A lot of people coming into a divorce assume that they will get credit for money they spent during the marriage, including paying down the mortgage, helping the other spouse with student loans, and paying expenses for a step-child. The rules for reimbursement are very specific, and many of those items are not reimbursable at all, or would be reimbursed at an amount different from what was originally spent.

To give some common examples:

  • Husband and Wife life in a house that Wife owned prior to the marriage. Husband uses his income (community property) to pay down the mortgage. Husband does have a claim for reimbursement, but not in the amount he paid. The reimbursement would be for the amount that the principal of the mortgage was reduced, not for the interest or finance charges. Also, Wife might get an offset to reduce the amount of the reimbursement, because Husband was living in the house while he was making those payments.
  • Husband and Wife buy a house together, and Wife uses her separate property savings account to make payments on the mortgage. Again, Wife does have a reimbursement claim, only in the amount the principal was reduced. Also, since the house is community property, Wife will probably only get a reimbursement of one-half of that amount, again possibly offset by her use of the house while she was making payments.

Another common question is whether a spouse can be compensated for money spent on the other spouse’s children. You cannot get a reimbursement for payment of child support, alimony, or spousal maintenance, or for paying living expenses of your spouse or your spouse’s child. These are considered gifts to the community “for the benefit of the well-being and use of the community estate” (Graham v. Graham). A person can also not get reimbursement for payments to a student loan owed by a spouse.

Finally, the person making the claim for reimbursement has the burden of proof and has to prove where the funds came from and what they were spent on, and whether they were separate or community property. This can be a challenge when you are looking at a marriage of many years and transactions that took place a long time ago.

Reimbursement claims can be well worth pursuing, and a person going through a divorce should definitely speak to his or her attorney regarding the possibility of a reimbursement. Just understand that it’s a complication question, and you may not be entitled to as much as you think.

Family Law vs. Guardianship

Conservatorship vs. Guardianship

Courtesy of the Government of Alberta

People often confuse the terms “guardianship” and “conservatorship,” which have specific meanings in Texas and don’t necessarily match up with those terms in other states.

“Custody” is actually not a legal term in Texas. Instead, we refer to conservatorship, which address the rights and duties of a parent or sometimes non-parent appointed by the court. In a divorce or parentage case, both parents will typically be named as Joint Managing Conservators or one will be named as Sole Managing Conservator while the other is named as Sole Possessory Conservator. Under certain circumstances, an arm of the state (the Department of Family and Protective Services) can be named as a conservator of a child, as can a family member. However, parents have legal priority and, without their agreement, another person would have to prove very special circumstances to the Court in order to even begin a suit for conservatorship.

Guardianship in Texas is not a family-law term at all. Guardianship is covered by the Texas Probate Code, and it addresses people with a legal incapacity, defined as “(1) a minor; (2) an adult individual who, because of a physical or mental condition, is substantially unable to provide, food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individuals’ own financial affairs; or (3) a person who must have a guardian appointed to receive funds due the person from any governmental source” (Tx. Probate Code Sec. 3 (p)).

Unless both parents are deceased, legal matters concerning a child will be dealt with under the Family Code as conservatorship rather than under the Probate Code as a guardianship. If a family member or friend is seeking some parental rights, such as the ability to establish health insurance for the child, that would probably fall under conservatorship, not guardianship.