Constructive fraud, waste and breach of fiduciary duty are essentially the same in the context of a divorce. Puntarelli v. Peterson 405 S.W.3d 131 (Tex.App. – Houston [1st Dist.] 2009. Constructive fraud is the breach of a legal or equitable duty which the law declares fraudulent because it violates a fiduciary relationship. Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964). Constructive fraud does not require the intent to defraud, instead it is an equitable doctrine employed by courts to rectify an injury resulting from the breach of a fiduciary relationship Id. A breach of the fiduciary relationship existing between spouses is termed “fraud on the community,” a judicially created concept based on the theory of constructive fraud. Zieba v. Martin, 928 S.W.2d 782, 789 (Tex.App.-Houston [14th Dist.] 1996, no writ). Although not actually fraudulent, the conduct has the consequences and legal effects of actual fraud in that it tends to deceive the other spouse or violate confidences that exist as a result of the marriage. Id.
A presumption of constructive fraud arises when a claimant spouse shows that the other spouse has done the following (1) disposed of community property, (2) at a time when the spouses were fiduciaries, (3) without the claimant’s knowledge or consent. Puntarelli v. Peterson 405 S.W.3d 131 (Tex.App. – Houston [1st Dist.] 2009. If the claimant spouse knew about the disposal of the property, she must introduce evidence that she objected to the disposal to prove lack of consent. Marshall v. Marshall, 735 S.W.2d 587 (Tex.App—Dallas 1987, writ ref’d n.r.e.)