Ann Crawford McClure+ and John F. Nichols, Sr.
Eighth Court of Appeals, El Paso, Texas; B.F.A., magna cum laude, Texas Christian
University, 1975; J.D., University of Houston Law Center, 1979; Board Certified
by the Texas Board of Legal Specialization, Family Law (1984) and Civil
Appellate Law (1987); www.8thcoa.courts.state.tx.us.
++ Principal, Nichols Law P.L.L.C., Houston, Texas; B.S., Rice University,
1964; LL.B., University of Houston Law Center, 1967; Board Certified by the
Texas Board of Legal Specialization, Family Law (1975), Civil Trial Law (1978),
and Personal Injury Law (1987); National Board of Legal Certifications, Civil
Law (1988); www.nicholslaw.com.
Excerpt from Fraud, Fiduciaries, and
Family Law, 43
Tex. Tech L. Rev. 1081
I. Introduction 1
Creative theories of recovery abound for economic torts committed against the
community estate. 2 These range from waste, depletion of assets, the
community opportunity doctrine, and its inverse partner, the community jeopardy
doctrine 3 to the generic tort of fraud, which encompasses a number
of varieties such as breach of fiduciary duty, fraudulent conveyance, excessive
gifts to children, and gifts to paramours, just to name a few. The intermediate
courts have not been consistent in their determination of whether an economic
tort is actionable between spouses for damages to the community estate. The
Supreme Court has not been entirely consistent either.
As in other civil litigation, fraud in the divorce context may be actual or
constructive. Actual fraud is predicated upon the intent to deceive. The
elements are: (1) that a material representation was made; (2) that it was
false; (3) that the speaker made it knowing it was false or made it recklessly
without any knowledge of the truth and as a positive assertion; (4) that it was
made with the intention that it should be acted upon; (5) that the other party
acted in reliance upon it; and (6) suffered damages as a result. 4
"[C]onstructive fraud is the breach of some legal or equitable duty which,
irrespective of moral guilt, the law declares fraudulent because of its
tendency to deceive others, to violate confidence, or to injure public
interests." 5 In other words, intent is irrelevant.
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