Fraud/Conversion
Form 3-32
Word
Form 3-32
The following are additional causes of action that may be brought against a spouse. This material can
be incorporated, if appropriate, as an integral part of the divorce pleading to be inserted as a paragraph
preceding the prayer. (If the material is incorporated in the respondent’s pleading, it should be
reworded to reflect that the respondent, rather than the petitioner, is the complainant.) Select applicable
paragraphs. See the practice notes at sections 3.66, 3.67, and 3.68.
Fraud/Conversion
1.
Breach of Fiduciary Duty
Respondent, as Petitioner’s spouse, had a fiduciary relationship with and a fiduciary
duty to Petitioner. As a result of their fiduciary relationship, Petitioner reposed a special
confidence in Respondent, and Respondent had a duty in equity and good conscience to act in
good faith and with due regard for Petitioner’s interests.
Respondent, in violation of [his/her] duty to Petitioner, has breached [his/her] duty to
Petitioner by [state actions taken by respondent that constitute breach as they relate to fraud,
conversion, or both].
Select as applicable.
Include the following if one spouse actually induced the other
spouse to enter into a transaction with the intent of actually
defrauding the spouse.
a.
Actual Fraud [transaction-based]
Respondent plotted and carried out a plan to actually defraud Petitioner and Petitioner’s
separate estate. Respondent made material representations to Petitioner that were false.
Respondent knew these representations were false, or Respondent made them recklessly
without knowledge of their truth and as a positive assertion. Respondent made these
representations with the intention that Petitioner would act on them. Petitioner acted in reliance
on these
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Fraud/Conversion
representations and as a consequence suffered injury and damage as follows: [allege specific facts].
And/Or
Include the following if one spouse actually defrauded the other
without the occurrence of a transaction between the two—for
example, by making an unusually large gift or transfer, the
primary purpose of which was to defraud the other spouse.
b.
Actual Fraud [not transaction-based]
Respondent, without the knowledge, consent, or approval of Petitioner, unfairly conveyed
more than $[amount] in community assets to [name] for the primary purpose of defrauding
Petitioner. That conveyance was unfair and in actual fraud of Petitioner’s rights.
And/Or
c.
Constructive Fraud
Respondent has defrauded Petitioner by breaching a legal and/or equitable duty owed
Petitioner as a result of their fiduciary relationship. That breach is fraudulent because,
irrespective of Respondent’s moral guilt, the breach had a tendency to deceive Petitioner and to
violate Petitioner’s confidence or to injure the public interest. Respondent’s actions damaged
Petitioner as follows: [allege specific facts].
Include the following paragraph only if a claim is made for actual
fraud against the petitioner’s separate estate.
Damages for Actual Fraud
All these acts constitute actual damage to Petitioner’s separate estate in the amount of
$[amount]. Further, these acts were maliciously done by Respondent, and as a result Petitioner
is entitled to exemplary damages of $[amount].
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And/Or
d.
Waste of Assets
Respondent has squandered community assets by making grossly excessive gifts of
community [include if applicable: and separate] assets to [name], a person who is not the
natural object of Respondent’s generosity, being [describe, as applicable, someone who is not
related to respondent, e.g., Respondent’s
paramour]. Respondent has spent and wasted
community funds [include if applicable: and Petitioner’s separate assets] on this person at a
time when Respondent knew or should have known that Petitioner would have objected to
these expenditures. These expenditures and gifts of property are in direct violation of
Respondent’s duty as co-manager of the community estate [include if applicable: and in
violation of the fiduciary responsibility placed on Respondent when entrusted with
Petitioner’s separate estate and funds].
And/Or
e.
Conversion of Separate Property
On [date] Petitioner was the owner of [describe property] and was in possession of or
had the right of possession of that separate property under section 3.101 of the Texas Family
Code in that [describe the facts showing separate-property ownership]. [Include if applicable:
A true copy of the document giving rise to the right of possession to the property is attached
to this pleading as Exhibit [exhibit number/letter].] On [date] in the city of [city, county]
County, Texas, Respondent unlawfully and without authority assumed dominion and control
over the property to the exclusion of or inconsistent with Petitioner’s rights in the property in
that
Respondent [describe the manner in which respondent converted the property, e.g., sold the
property to a third party]. In this connection, Petitioner will show that Petitioner had left the
property in Respondent’s possession for the purpose of [describe purpose]. On [date] Peti-
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tioner demanded that Respondent return the property. Respondent has refused to return the
property to Petitioner.
Select one of the following.
The fair market value of the property at the time and place of conversion was
$[amount], for which Petitioner now sues.
Or
The property described had no readily ascertainable fair market value but had an intrinsic
value to Petitioner at the time and place of conversion of $[amount], for which Petitioner now
sues.
And/Or
Petitioner seeks compensation for the loss of use of the converted property in an amount
of $[amount].
And/Or
Petitioner is also entitled to recover damages for the mental anguish suffered as a proximate
result of that conversion, because Respondent intentionally converted the property.
Continue with the following as applicable.
Prejudgment Interest for Conversion
Petitioner is also entitled to interest on the sum of $[value of property converted] from
[date] at the prejudgment rate of interest.
Exemplary Damages for Conversion
Fraud/Conversion
Form 3-32
Respondent’s conversion of the property as alleged above was done fraudulently or with
malice, for which the law allows the imposition of exemplary damages. Respondent’s
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conversion of the property was intentional, willful, wanton, and without justification or
excuse and was done with gross indifference to Petitioner’s rights. In this connection,
Petitioner will show that, as a result of Respondent’s conduct, Petitioner has suffered losses
of time and other expenses, including attorney’s fees incurred in the investigation and
prosecution of this action. Accordingly, Petitioner prays for exemplary damages against
Respondent.
Include prayer only if requesting damages in addition to
disproportionate division.
2.
Prayer
Petitioner prays for judgment against Respondent in a sum within the jurisdictional
limits of this Court for [his/her] actual damages as alleged, [include if applicable: for exemplary
damages,] for prejudgment and postjudgment interest as allowed by law, for costs of court, and
for general relief.
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