When you think about a divorce, does your mind immediately think of a courtroom with an old, stuffy judge in the front who is banging a gavel and deciding your fate? It does for most people based on what I have heard from folks who have come in for a free-of-charge consultation with the Law Office of Bryan Fagan, PLLC. People think that their divorce will ride or die with how a judge perceives them and how that same judge perceives their spouse. If the judge had a bad tuna sandwich at lunch, that could affect how much child support is paid or what percentage of the community estate ends up going to a particular spouse.
Well, with all that said, I would like to put you at ease- somewhat. Most divorces in Texas do not result in the scenario as mentioned above being played out. You and your spouse may not even have to step before a judge until the very end of the divorce when one of you will do so only to tell them that you have a signed final decree of divorce ready for the judge's signature. I hate to take some of the drama out of the process, but I figured I wouldn't put you in suspense any longer.
What role could a judge play in the property portion of your divorce?
A judge will step in and play a tiebreaker on various property issues that you and your spouse cannot settle between yourself. This means that you and your spouse will head to a trial as it is known in the legal world. The vast majority, 95% or so I would say, of divorce cases in Texas are settled successfully before the trial stage. If you have a spouse who you think is the most stubborn person in the world, this should make you feel a whole lot better, I hope.
Despite their reputations in our culture, attorneys are very good at helping clients resolve disputes and move towards settlement through negotiation. It will take some work to do so, however. You will have to give and your spouse will too, some things that you maybe don't feel all that good about. However, you will also gain things that your spouse is not too happy about. I always tell clients that if you walk out of a negotiation session a little unhappy, and your spouse does as well, you know it was a good and probably fair session.
Unique situations involving facts and circumstances that require a judge to decide are typically the kinds of cases that end up going to try. If you and your spouse are arguing over the percentage of a retirement fund that each of you ends up receiving, it is probably not worth using your time and money to have a conversation with the judge.
Keep in mind that unless you and your spouse are fabulously wealthy (which if you are, congratulations!), the money that you stand to gain in a trial could well be eaten up by the attorney's fees that you have to pay to have your lawyer prepare your case for trial. It is not simply a matter of waltzing into a courtroom and asking a judge for some relief if you do not know. Your attorney will need to prepare evidence, a strategy, train you, and prepare a case to counter your spouse's evidence/strategy. This takes a long time, and the result may not be all that different than what you turned down in the negotiation session.
What will a judge be looking at in a trial?
If your case makes it to a trial, then your judge will be working to apply the rules of the Texas Family Code regarding the property. They will determine the separate property of each of you and divide it as such. Testimonial and documentary evidence will be presented wherein you and your spouse will present your theories of the case as to why you should end up with a certain percentage of the money in your bank account, retirement account, etc. Judges can freely judge circumstances and make assessments based on those circumstances as to what percentage of the marital estate goes to you and what percentage goes to your spouse.
Two things to note here. First, it is a misnomer that parties to a divorce in Texas automatically start with a 50% share of the community estate. Fair and equitable does not mean 50/50, necessarily. It could, but if you earn a sizeable annual income and your spouse is a stay-at-home parent who worked nights to put you through medical school, then she may be in line to receive a greater than 50% share of your marital estate. Also, if you or your spouse have alleged fault grounds for your marriage- domestic abuse, adultery, etc.- this may entitle the aggrieved party to receive a disproportionate share of the community estate as well. Most divorces are no-fault nowadays, so don't expect fault grounds to play a significant role in your case
.Does it matter if the property in my divorce is all in my spouse's name
nt, etc., are all in their spouse's word that they will walk out of the divorce with nothing to fall back on. Fortunately, if you find yourself in a similar position, you will not have to worry about this.
The fact is that because Texas is a community property state, most of these items will be considered community property if they were purchased with income earned during the marriage. It does not matter with the title to the property states as far as your name or your spouse's name. Retirement savings made during the marriage are also considered to be community property. You will need to determine what portion of the retirement account was brought into the marriage. You can subtract that from the account's overall value to determine the community property value.
What can you do to keep your separate property separate and not part of the community estate?
Keep your separate property (property owned before your marriage or acquired during your marriage by gift or descent from a will) in an account all its own, and keep the property titled in your name only. It will likely stay separate from your community estate. Keep your money that is the individual property in a different bank account than the one you deposit your paychecks into. Or, open up an investment account with stocks you inherited from your uncle, who passed away, and do not add the stocks into an investment account you share with your spouse.
Finally, suppose you use your separate property to invest and upgrade a rental home that you purchased together. In that case, the money will likely be determined to be community property at that stage. You are essentially gifting that money to your marriage. These are general overviews of the law on community and separate property. You need to hire an attorney to explain how your specific circumstances will likely play out in a future or current divorce case.
More on fairness, equity, and dividing community property- tomorrow's blog post topic
Life isn't fair. You may not find that phrase more accurate in any setting more than in your divorce case. I want to spend some time at the beginning of tomorrow's blog post delving a little deeper into this subject with you all.
If you have any questions about what we've discussed today, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultation with a licensed family law attorney six days a week, where we can answer your questions in a comfortable and pressure-free environment.
