Yes, according to a Texas court in D.B. v. K.B., 176 S.W.3d 343 (Ct. Ap. 1st Dist. Texas 2004). In D.B., a husband filed a qui tam lawsuit under the False Claims Act in federal court while he was still married to his wife. As the relator in that proceeding, the husband could potentially recover between 15 and 30 percent of any settlement or damages recovered in the lawsuit.
Thereafter, the wife filed for divorce under Texas law. The parties could not agree on whether the husband’s potential fee from the qui tam lawsuit was a community asset to be divided as part of the divorce. The husband claimed that he paid the expenses and costs of the qui tam lawsuit himself.
Each party filed a summary judgment motion on the issue of whether the potential qui tam fee was a community asset. In his motion, the husband argued that because his wife had failed to establish that he had a present vested interest in the qui tam fee as of the date of the divorce, there was no evidence that the fee was community property or that the community presumption applied. In her motion, the wife argued that because her husband had testified that he learned about the fraud and filed the lawsuit during their marriage, there was no evidence that the potential qui tam fee was separate property. The trial court agreed with the wife and ordered the parties to split the potential qui tam fee 50-50. The husband appealed.
The Texas Court of Appeals affirmed the trial court’s decision. In doing so, the court noted that the issue was one of first impression in Texas and relied on an analogous Texas Supreme Court case which held that an ex-wife’s contingent interest in her ex-husband’s future military retirement benefits constituted community property.