Property Division in Divorce: Does ‘Cruel Treatment’ Matter?

Yeshiva University Wurzweiler School of Social Work Professor Daniel Pollack, MSW, JD, and attorney Elisa Reiter recently published an article in Texas Lawyer entitled, “Can ‘Cruel Treatment’ Impact Property Division in Divorce?”

Attorneys often find that new clients allude to cruel treatment by a spouse when seeking a divorce. While cruel treatment is considered a "fault" ground for divorce, it has not seen much momentum in recent years. However, two cases may have cruel treatment allegations finding their way into new divorce cases.

The definition of cruelty in divorce cases is important here. According to Texas Family Code, the court “may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.”¹ Based on the outcomes of the court cases outlined below, cruel treatment is not just physical abuse, but also includes verbal and emotional abuse.

Insupportability occurs when there is no reasonable expectation of reconciliation. The legitimate ends of the marital relationship have been destroyed, and thus the marriage is deemed insupportable.

The 14th Court of Appeals in Texas heard the case of Orzechowski v. Orzechowski, which was brought forward on an appeal that alleged the trial court abused its power in dividing the community estate. While the assets had been evenly divided by the trial court, Wes, the husband, received missing funds from the couple’s shared bank account, which was determined because the trial court also found that Wes committed fraud. Removing the missing funds from the community estate, Wes was awarded 10 percent of the property.

Regarding cruelty in this case, the trial court took verbal and emotional abuse into account when awarding property division. The husband in the case was accused by Elizabeth, the wife, of frequently maligning her appearance. She noted that he called her calling her “ugly,” “old and wrinkly,” “fat pig,” “fat cow,” “stupid,” and “a nobody.” She also shared that he even blamed his mother-in-law’s death on her for being a bad person and daughter. This is just a sampling of the verbal abuse Pollack and Reiter outline in their article.

The 14th Court of Appeals went beyond the verbal abuse related to the accusations of cruelty to examine instances of physical abuse. The court cited two instances of violence, noting a time Wes, in a drunken rage, threw hot tea in Elizabeth's face, and a time he grabbed her wrists, pushed her around their kitchen, and threatened to kill her due to the request for a divorce.

The accusations of cruelty here were an important part of the 14th Court of Appeals upholding the trial court’s decision.

This was another case that came before the 14th Court of Appeals. The bench trial for the divorce ended the marriage on grounds of insupportability and cruelty, with the cruelty being noted as done by Cook (the husband) against Hultquist (the wife). The 14th Court of Appeals stated that the division of the couple’s estate did not need to be equal, as fault in the divorce is a consideration that the trial court is able to consider in dividing the community estate.

When the trial court was looking to make determinations on property division, Cook did not proffer detailed documentation on any of his assets, yet was seeking to be awarded the home the couple had shared, and a $500 a month maintenance from his wife. Hultquist was seeking divorce on the grounds of cruelty by Cook. She was seeking to be given the home, but offered to pay Cook $25,000 for his portion of the interest.

The cruelty accusation was important in allowing the trial court to make the final decision on property division. Hultquist alleged verbal abuse and testified that Cook abused drugs and spoke of other relationships during their marriage.

The court eventually obtained a clearer record of Cook’s assets and used those to make decisions on the property division. In the end, Cook was awarded his tools and shop items for his carpentry business, valued at $50,000, his retirement accounts, valued at $50,000, the cash in his possession (under $350), and the car at an equity of $40,193. Hultquist was awarded the home, valued at $299,000, the home’s furnishings, valued under $8,000, the cash in her possession ($1400), and two vehicles.

The 14th Court of Appeals upheld the trial court’s decision to dissolve the marriage on grounds of cruelty, especially considering that Cook’s conduct rendered the marriage insupportable.

Read the full article from Pollack and Reiter here.

Pollack is a professor for the Wurzweiler School of Social Work. He has been an expert witness for lawyers in more than 30 states. Since 1980, Pollack has held executive, management, and policy-making positions in social welfare agencies in Maryland and Ohio. Pollack's research interests include law, ethics, and liability; adoption, foster care, child abuse and neglect; wrongful death of children in foster care and residential care; risk management; record keeping; licensing and accreditation; domestic violence, and international social work.

Reiter is a Senior Attorney at Underwood Perkins, P.C. She is one of 47 attorneys in Texas who is double Board Certified in Family Law and Child Welfare Law by the Texas Board of Legal Specialization.

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