One of the best pieces of advice that you can give regarding a divorce would be to act as intentionally as possible. This means that you should consider all of your options in creating plans and strategies to help accomplish the goals you have made. Every person reading his blog post considering a divorce likely has their unique circumstances and therefore has their own goals process result. Having dreams is one thing, but having a plan to accomplish those goals is different altogether.
One of the first things that our staff and attorneys will do with a new divorce client is to help them create homes and then create a process within their case to accomplish those goals. Many people who go through a divorce do so with a general concern for their future specific plan or creating a future that is the best for themselves and their children. A widespread problem about the divorce process is not enough to help you accomplish your goals. You need to enter into your divorce with a specific plan in mind.
At this point, you may be thinking, how can you create a specific plan when you only have a general understanding of divorce and the divorce process? That is where today’s blog post comes in. I want to walk you through how to develop a checklist for dividing up marital property in your divorce. By doing this, we can identify the crucial issues of property division in a Texas divorce and help you develop a plan for preparing for those critical issues. It is possible to wander into a divorce, but it is next to impossible to walk out of the divorce with the result you approve of. Let’s stop wondering, and let’s start being intentional.
Understand the basics of Community property law in Texas
Texas is a community property state. The state laws regarding the division of property upon a divorce add here to these community property principles. The first thing you need to understand is that the law assumes and presumes that all property owned by you and your spouse at the time of your divorce is Community property. Community property is subject to division in a divorce, absent evidence showing that it is part of one of your separate estates. Separate property cannot be divided by a family court judge in a divorce.
What does this mean for you in your divorce? On a practical level, it means that the property you own may be subject to division even if you are the breadwinner in the family. Think about that for a moment. You may have been the spouse who has entered the workforce and earned a living for you and your family while your spouse has stayed home to raise children and take care of the family home. You may have been operating under the assumption that because it was your income that was utilized to purchase your home, your personal property, your vehicles, and invest for retirement, you would be given preference when and if this property were to be divided.
This is not the case in Texas. When it comes to property in Texas, if it was purchased during your marriage with income earned from your job, then everything: your income in the property purchased with that income is considered community-owned. This does not mean that the property is half yours and half your spouse’s. This means that it is all yours and all your spouses. Each of you has full ownership rights in the property, no matter whose name appears on the title to the house or whose income was used to purchase the property.
The same goes for investments and retirement savings. For example, if you have a 401K through your employer, it would bear your name as an employee of that company and as the Account Holder. However, just because their retirement account does not have your spouse’s name on it does not mean that you would not allow them to take advantage of the money once you all reach retirement age. You would have shared that money as a couple in the future when you stopped working. We can now look at it from the same perspective even though you are not yet at retirement age. That retirement savings, as well as most investments entered into during her marriage, will be considered to be community-owned.
On the other hand, the property you or your spouse owned before your marriage will be counted as separate property belonging to you individually. From my experiences, spouses can agree on what property is distinct and what is part of the community estate most of the time. However, suppose you are challenged on your assertion that particular property belongs in the separatist state rather than the community estate. In that case, you should be prepared to present receipts, proof of purchase agreements, title documents, or any other type of paper trail that may help prove the separate property nature of that asset.
From my experience, it is the realization that essentially all property acquired during your marriage is considered community-owned that is the most surprising to people going through a divorce. No matter it if you are the spouse who has earned most of the money in your marriage or if you are the spouse who has made relatively little in terms of income during the wedding, you can negotiate from the exact position of strength when it comes to how this property will ultimately be divided in the divorce.
In the context of a divorce, this means that you should not assume that because you were either the spouse who earned all the money or were the spouse setter and none of the money that you will either receive all or nothing of your property. Instead, it would help if you looked at the property as being in play for both spouses and then think of ways to have it divided relatively and equitably creatively.
What are your realities going to be after the divorce?
The next question that I think you need to ask yourself concerning the divorce case is what position you will be in from a financial standpoint after your divorce has been finalized? By answering this question, you will be able to develop a checklist and goals for the financial aspects of your divorce. It helps to be as realistic as possible so that you are honest with yourself and can create reasonable plans based on your specific circumstances.
For starters, you need to have a place to live, pay your essential bills, and have transportation available for traveling to and from work and other necessary sites. If you have been the spouse who has stayed at home throughout your marriage and has not worked, even these necessities may be out of reach for you at the moment. While it has been excellent for you to rely upon your spouse for income and the needs of life, you are now facing a scenario where your spouse’s income will not be a given for you in your post-divorce life. Therefore, you need to begin to plan how to manage these issues after your divorce.
Consider how you will negotiate through the issues of community property and whether or not a disproportionate share of your community property a state will need to be awarded to you so that you can survive in the years after your divorce. You may be in a solid position to return to the workforce if you have prior job experience in a particular field or have a college degree. However, if you do not have advanced education or do not have much work experience, you may struggle in the years after your divorce if you do not adequately plan.
Your checklist for a successful divorce from a financial perspective
I would approach creating this checklist as a person would need to if they were in the position of a spouse, as I described it a moment ago. The reality is that a spouse who does not have access to immediate funds as far as income or assets is concerned is in a disadvantaged position after the divorce. Therefore, I will write this final section of today’s blog post as someone who is planning to get a divorce but does not have independent means to earn an income.
For starters, you need to think about the essentials of where you will be living and how you will maintain communication and transportation after the divorce, at home, food, cell phone, and a vehicle. These are the essentials that I have in mind that you need to think about when you are preparing to divide up marital property. To pay for these items, you may need to request a disproportionate share of your community estate for spousal maintenance or contractual alimony after the divorce.
A disproportionate share of your community estate means that greater than 50% of the community estate property will go to you in the divorce. Having money liquid to turn that into a place to live and food to eat is essential. Once you have these basic items locked down and have a plan in place on how to negotiate for them, you will be better off. Begin by thinking about how much rent will cost for food and other items for you as a single adult. The more specific you are, the better off he will be when negotiating back and forth with your spouse.
When it comes to your community, if there are insufficient assets or property to distribute to you or your post-divorce survival, you need to think about how your spouse may pay you some degree of spousal support. Even if the spousal support is minimal, it can help you pay for a basic apartment and car insurance to have a place to live in a means to get around. Being specific with your needs would allow a judge to understand that you’re reasonable in that his requests are in line with your actual needs.
Once you get past these issues, you can start to think big picture. Begin by listing all of your retirement and investment assets and how much money is in each account. Once you have made this determination, you can work with your family law attorney to determine how to divide these accounts up reasonably. If you have no retirement assets of your own, then you may be able to request and negotiate for a greater than 50% share to be given to you in the divorce. Again, understand what is at stake, be specific about your goals and then develop a plan with your attorney to negotiate for that with your spouse.
Questions about the material presented in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn more about Texas family law and our law office’s services to our clients.
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.