Generally speaking income earned and property/debt acquired during the course of your marriage is considered to be community property for Texas residents. Property and income is presumed to be community property in our state and you or your spouse must present evidence to rebut that presumption in order for it to be considered either of your separate property.
For example, showing that the property was a gift intended solely for your use rather than your spouse is a way to prove that property is a part of your separate estate. Likewise, if you inherited a sum of money from a relative then this sum is a part of your separate estate as well. Otherwise, all property and debt falls into the broad category of community property
Mediating on community property and what can be done to avoid a trial
Mediation is one of the tools that effective and successful family law attorneys will utilize to help ensure positive outcomes for their clients going through divorce. Rather than to roll the proverbial dice and take a chance on what a judge has to say about who gets what, mediation allows both you and your spouse to collaborate and negotiate on whatever encompasses your community estate.
The result is typically a much more flexible and sensible division compared to what a judge would decide. It’s not that the judge is incompetent or doesn’t care, however. It’s just that he or she will have little time or opportunity to learn all the nuances of your case in time to make as good a decision as you and your spouse would be able to.
When you and your spouse attend mediation, it is likely that both of you and your attorneys will have come up with proposals on all of the property that encompasses your marriage. A common way to break down the property is to create columns of community property/separate property/valuation of that property. If a piece of property is real estate with a lien on it then the lien holder and the amount of the lien will need to be included for a thorough analysis to be done.
Your proposals will most likely include your positions on how the property should be qualified (community or separate property) as well as which party should end up with the property when the divorce has concluded. These sort of proposals are good starting points for each side to learn of the other’s thought processes and to attempt to meet in the middle to avoid having to force a judge to make these sort of difficult decisions for you both.
Preparing for mediation when community property is at issue
When so much is at stake it makes sense to work closely with your attorney in the weeks and days leading up to your mediation. Our office staff and your attorney will work with you to complete worksheets (often an Inventory and Appraisement) that details each piece of property in your marriage, how you believe it should be characterized and what you asset the value of the property to be.
Debts are not as much fun to discuss but they are just as relevant and will need to be discussed as well.
I will ask you to present any information that you have possess as far as valuing the property as well. If you have various retirement accounts, stock holdings or mutual funds that you contribute to I’ll ask you to do some research on what the fund or stock was worth at the time of your marriage to your spouse and what it is worth now.
Should it become necessary to divide that account in mediation we will have all the information that we need to make a proper and sensible decision based on the most recent valuations.
Preparing for mediation when community property is at issue
Unfortunately not all mediations lead to a settled case. That’s not to say that a settlement isn’t possible after the fact but becomes much more likely that your case will head to a contested trial in front of a judge. As we alluded to earlier in this blog post, the judge will be the final arbiter of your divorce and will make decisions regarding any outstanding issues in your case.
This includes characterizing any property that is in dispute and dividing any property that is a part of the community estate.
Your judge will have the difficult task of not only making a determination as to what is part of the community estate and what belongs to either you or your spouse’s separate estates, but who gets what and how much each piece of property is worth. Decisions on these subjects will need to be made by the judge after a trial that can last a few hours or just a few days.
Either way, there is not much time for your lawyer and your spouse’s lawyer to present a case and lay out evidence that can be considered by the judge.
It would make sense, and I personally encourage all clients I work with, to attempt to settle your case in mediation. You do not have to walk out of mediation believing that you have the upper hand for it to be a success from your perspective. In fact, most mediations end with both sides conceding some things and gaining some things.
That’s how negotiations work- if both you and your spouse walk away feeling like it could have gone a little better in a particular area then you probably came to a fairly equitable and fair settlement. While your case may prove to be an exception to the rule, it is generally better to settle in mediation rather than risk the ruling of a judge.
Questions of dividing community property in mediation? Contact the Law Office of Bryan Fagan
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Other Articles you may be interested in:
- Issues in Community Property Law in Texas
- Who decides how your community property is split during a Texas divorce?
- Interim Attorney's Fees in a Suit Affecting the Parent-Child Relationship (SAPCR)
- Dividing Property in a Texas Divorce - The Just and Right Division
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
- High Net Worth Divorce / High Asset Divorce
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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 one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our Divorce lawyers in Houston TX are 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 form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.