This article is inspired by one of the questions I hear frequently regarding
damaging, destroying, or selling
marital assets. The question takes on some of the following variations:
- Can I sell X property?
- Can my spouse sell X property?
- My spouse destroyed X; what can I do about it?
- My spouse damaged X property; what can I do about it?
Unfortunately, the answer, as in many legal questions, is that it depends.
This blog will explore how timing and different circumstances can affect
Can I or my Spouse Sell our Property?
This is a question I get a lot when a
Texas divorce is on the horizon. If nothing has been filed with the court, then there
are no court orders to prevent either you or your spouse from doing anything
they want with marital property.
The beginning stages of
the divorce process are often one of the scariest times because of the lack of court orders.
This is because there is a lot of uncertainty of your rights and your
After Paperwork is Filed
Once the divorce paperwork has been filed, some counties in Texas have
standing orders that go into effect and place rules on how money can be
spent and on selling, damaging, or destroying property.
If the county does not have a standing order, you can ask the court for
a temporary restraining order. This is very similar to a standing order,
but has to be asked for and is routinely granted by family law judges.
A temporary restraining order in Texas is not a protective order; this
is a common misconception. Generally, a Texas temporary restraining order
has more to do with maintaining the status quo (much like a standing order)
and is generally not intended to keep a particular individual from being
around another individual or location.
The big difference between a temporary restraining order and a standing
order is that temporary restraining orders are only good for 14 days.
If requested, temporary restraining orders can be renewed for an additional
14 days. The idea behind a temporary restraining order is that they will
provide some temporary protection until there can be a hearing before
a judge can make more permanent orders for the duration of the divorce.
How is Property Divided in Texas?
Texas Community Property is property acquired by either spouse during the marriage.
There is a rebuttable presumption that all property owned during the time
of marriage is
One of the things I tell clients and potential clients regarding property
division during a divorce is that from the minute they are married until
the minute they are divorced, any property, debts, or income earned are
potentially on the table for division during the divorce.
The exception to this is any property that can be proven to be separate property.
To rebut this presumption, spouses must provide clear and convincing evidence
that an asset is
separate property in Texas.
Separate Property in Texas is
- Property acquired before marriage,
- Property acquired during marriage by gift, devise, or descent,
- Property acquired during marriage, but purchased with separate property funds.
Family heirlooms can probably be shown to be separate property. However,
something to consider is that if they were gifted, such as Grandma’s
wedding ring to your bride, then it may no longer be your separate property;
it may now be the separate property of your ex.
Wedding rings are a good example of being the separate property of the
person they were given to and not normally subject to division in a
Texas divorce. However, there is some case law that might provide a little wiggle room
in regards to family heirlooms.
Other Ways to Prevent a Spouse from Destroying, Selling, or Damaging Marital Property?
The best remedy is prevention. One of my suggestions to clients and potential
clients is to move any property they are concerned about to a safe location.
Some of these items may include:
- Inherited items
- Things of sentimental value
- Valuables in safe
- Financial documents
- Things that cannot easily be replaced
I tell my clients and potential clients these items will ultimately need
to be disclosed in the inventory during the divorce. However, by moving
them to a safe location, they can insure they do not end up in the trash,
a garage sale, or pawn shop. Unfortunately, not everyone behaves in a
civil manner during a divorce and a bit of caution is often prudent.
If you do not remove or cannot remove the items to a safe location, you
can at least:
- Inventory your valuables and create a list,
- Photograph the property and date the photographs,
- Locate any proof you may have of what was given to you, inherited, or owned
prior to the marriage.
At least in this way you have documented the condition of the property
and you can prevent your spouse from saying the item never existed.
What if my Spouse has Already Destroyed, Damaged, or Sold Marital Property?
One remedy is to plead for marital waste. As we discussed previously, the
Texas Supreme Court found that there is unquestionably a fiduciary relationship
owed by the spouses to each other and to the management of the community
estate. (Schlueter v. Schlueter, 975 S.W.2d 584 [Tex. 1998])
If it can be shown that waste took place, the innocent spouse may have
a claim for reimbursement.
If wasting of assets can be proven, a judge can consider that when deciding
how to divide marital property, to ensure the innocent spouse is reimbursed.
A judge has few options including:
- Awarding the wronged spouse an appropriate amount of the community property,
- Awarding a money judgment in favor of wrong spouse against the spouse who
committed the wrong, or
- Both of these options.
The downside of this remedy is that it will not help to replace things
that cannot be replaced such as photos or inherited items.
Seek Legal Advice Immediately
If you are concerned that your spouse may destroy, damage, or sell marital
property you will want to seek legal advice from a
Texas divorce lawyer immediately to go over your legal rights. This not a situation you want
to take lightly. The consequences of delay may be severe.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- The Dirty Trick of Hiding Assets During Your Texas Divorce
- The Dirty Trick of Engaging in Spousal Starving During a Texas Divorce
- Know How Property and Debts are Divided, When Preparing for Your Texas Divorce
- How Much Will My Texas Divorce Cost?
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
- 7 Important Ways to Financially Prepare for Your Texas Divorce
- 6 Tips - On How to prepare for a Texas Divorce
- 6 Mistakes that can Destroy Your Texas Divorce Case
Law Office of Bryan Fagan | Spring Divorce Lawyer
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with ar
Spring, TX Divorce Lawyer right away to protect your rights.
divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing
a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
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