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
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.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.