You’ve probably heard the expression, “What you don’t know can’t hurt you.” I don’t know where the phrase came from and as an attorney I couldn’t think of a less true statement, to be honest. What you don’t know certainly can hurt you when it comes to life in general as well as in a divorce case. You’ve worked your entire life to build a good marriage, save money, invest wisely, raise well adjusted and productive children. Now it has become obvious to you that in at least one of those regards you have not managed to do as well as you would like. What do you really need to know before, during and after a divorce?
Well, you need to know quite a bit. Too much to list in a single blog post. We can start to prepare little by little in hopes of having you know as much as you can about divorce. In yesterday’s blog post from the Law Office of Bryan Fagan, PLLC we began a discussion on this topic and in today’s blog we will continue doing so.
Don’t take the division of your community property for granted
Most people who enter into a divorce have a mistaken belief when it comes to how their property is going to be divided up between themselves and their spouse. I guess at some point a rumor started circulating that property in a Texas divorce would be divided straight down the middle- 50/50. This is not the case. In fact, there is nowhere in the Texas Family Code that references an equal division of community property upon divorce.
Let’s establish one thing right at the start: only community property is divided by a court in a divorce. This means that property (including most forms of “income”) acquired, purchased or earned during your marriage is to be divided at the time of your divorce. There are some exceptions that exist- property inherited during your marriage and property that was gifted to you alone- but for the most part all property that comes into your possession during your marriage is considered community property.
Separate property is everything else, namely the property that you acquired prior to the beginning of your marriage in addition to the exceptions I laid out in the above paragraph. The separate property that you and your spouse own are not within the court’s power to divide. It is important to note that there is a presumption under the law in Texas that all property owned by you and your spouse at the time of your divorce is community property. Therefore, you and your spouse must each provide evidence to rebut this presumption if you intend to argue that a particular piece of property is separately owned.
All of this is to say that when dividing up community property, a court must only do so in a just and right manner. Just and right sounds a little squishy to most people and in fact it is. A judge is given a fair amount of latitude to divide up community property based on the circumstances of you and your spouse. It could be that property is basically divided up 50/50, but most courts do not end up at this result. How exactly a court will divide up community property is the topic of the next section in this blog
What factors will a court consider when dividing up community property?
Although courts are given wide latitude when it comes to dividing up property there are some guiding principles that a judge can look to. These are all pretty straightforward and basically center around the future income earning abilities of you and your spouse, your work experience/education, and your physical health at the time of your divorce. A judge is placing educated guesses on how well you are positioned to earn an income for yourself after your divorce and provide for your needs/those of your children. If you are more highly educated, have an established career and a significant amount of separate property to your name you are likely not going to be awarded more than half of your community property estate.
Another important factor that a judge will consider when dividing up community property is any fault that you or your spouse played in the breakup of your marriage. For example, if you are alleging in your petition for divorce that your spouse committed adultery and that infidelity caused a breakup in the marriage then a judge will listen to evidence and review the circumstances to determine if it actually played a substantial role in your divorce. If so, you may be entitled to a disproportionate share of your community estate. For our purposes, disproportionate means greater than 50%.
Fair does not mean equal because equal is not always fair. It is nearly impossible for a court to divide up your community estate in an exact 50/50 fashion even if the evidence and circumstances lead your judge to believe that this is the appropriate method to divide your community estate.
It’s all business when it comes to dividing up your community estate
I understand that your divorce is an emotional time in your life. As a family law attorney, I have shared in highly emotional and delicate situations with clients of all different backgrounds. There is no doubt that what you are going through in a divorce is something that you will not be able to replicate (thankfully) ever again.
With all of that said, consider that if you allow your emotions to drive your divorce strategy that you are likely going to encounter mistakes in your thinking and planning. For example, if you are particular attached to your home you need to consider if that attachment is born out of necessity and reason or out of an emotional attachment to the memories made and years spent in the home. Now, of course it is likely a combination of the two but you need to determine what factor is driving you more towards wanting to remain in the house.
What I will typically tell clients is that if you are pushing hard to remain in the house for your child’s sake, it is my experience that children are more resilient than we give them credit for. If you decide to move from your home this can be a great start to a new beginning for you and your family. As long as you and your children stick together and not lose sight of what is important- namely your family and your traditions- a new house will not affect you and your family all that much.
Do not make decisions based on emotion or memory in your divorce. It is dangerous for your to do so. If you are not financially able to remain in your home then you need to consider selling it. Consider property taxes, utilities and a mortgage payment as the costs that you will need to bear in order to remain in the family home. Many times you will be asked to refinance the loan so that your spouse’s name is removed from any responsibility with the lender. There are up front costs associated with doing so and you need to be prepared to bear those up front costs.
Interested in learning more tips on divorce? Stay tuned to tomorrow’s blog post
We will continue our discussion about less well known, yet vitally important parts of your divorce in tomorrow’s blog post. Thank you for your time and consideration in reading with us today.
If you have questions about the content about anything that we discussed today or want to learn more about our office please do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. We offer free of charge consultations six days a week with one of our licensed family law attorneys. We take a great deal of pride in meeting with people in our community just like you in order to discuss family law issues. Your questions and concerns can be addressed and answered in comfortable, pressure free environment.