When considering the steps of a divorce, one of the more important aspects of your case will be how your property is characterized in ultimately divided. The reality of the situation is that not all property in a divorce is considered equal. Yes, you and your spouse may have considered certain pieces of property to be yours or theirs based on several factors. However, how you all characterize your property may be much different than how a family court characterizes the property. That's such; you need to be prepared to deal with your property in the way that the Texas family code in a family court would.
This may come as a difficult real reality for some of you. I have talked to many clients and potential law firm clients on multiple occasions about this subject. Sometimes, people can't get past how the law in Texas may differ from their own opinions on how various property pieces should be classified. While you may have considered a particular piece of property to be owned by either you, your spouse or both of you, in some combination, the law may have a completely different view of that. We must decide how the law will characterize property in your case and decide how to negotiate for a just division.
However, before discussing this subject, we must first discuss how Texas characterizes, classifieds, and ultimately divides property in a divorce. For those of you who don't know, Texas is a Community property state. This means that a divorce in Texas may treat property division much differently than a divorce in another state. When we often receive advice on divorce from people in our family or from articles online, this can be a tremendous problem. You do not want to take the advice of someone unfamiliar with Texas divorce laws regarding Community property and property division.
With that said, let's walk through what it means to get divorced in Texas from the perspective of Community property and property division. Once we have walked through the basics of Community property and how that applies to dividing your Community property estate, we will be better off when it comes to discussing the in's and outs of Community property division as well as how the property in your own life may end up being divided in a divorce.
The basics of Community property in Texas
As I mentioned a moment ago, Texas is a Community property state. This means that at the time of your divorce, it will be presumed by the law that all property owned by you and your spouse is owned as part of the community estate. However, it is possible that certain property items or assets were owned by either you or your spouse separately from one another. In that case, these separate property items would be placed into the separate estate of either you or your spouse.
The separate property most commonly is any property or asset owned by you or your spouse before your marriage. Additionally, the property you came to own during your marriage may also be considered separate property under limited circumstances. Typically, property that you inherited during your marriage for a gifted property during your marriage would also be considered part of a spouse is separate a state. Note that the gift would have to be made specifically to one spouse or the other to be classified as separate property.
If there is a dispute regarding the nature of the property as being part of the community or separate estates of either you or your spouse, he should be prepared to present evidence to back up your assertion. Much of the time, this evidence comes in receipts or title documents showing when the item was purchased in came into ownership by either you or your spouse. Sometimes you won't even need to hire an expert witness like a forensic accountant to trace the origins of when you came to own a certain piece of property to prove to a court that property did belong in your separate estate.
Otherwise, the most property involved in your divorce will likely be classified as community-owned. The significance of this is that community-owned property must be divided in a divorce in some form or fashion. This is where you and your spouse must place the most emphasis on your case. Determining how items like your vehicles, jets other personal property must be divided are critical in a divorce case. This isn't even to mention additional property types that are often provided with worse retirement accounts or family homes.
Despite what many people believe, there is no set method for dividing Community property in a Texas divorce. One assumption is that property will be divided exactly down the middle between you and your spouse. I think this method tends to strike people as being fair and equitable based on the circumstances of your case. However, it may not be true that the circumstances of your case demand a perfectly even divide of your Community property. As a result, we need to discuss the circumstances of your case that result in Community property being divided disproportionately. Namely, under what circumstances could Community property be divided up unevenly between you and your spouse?
What circumstances could lead to the property being divided up disproportionately in your divorce?
The first circumstance that I could foresee resulting in a disproportionate division of your community would be that of fault grounds playing a role in the divorce. Fault grounds are specific reasons why your divorce has a curd. Most people in Texas end up getting divorced in a no-fault divorce. A no-fault divorce states that the cause of your divorce was discord or conflict in personalities between you and your spouse, resulting in an irreconcilable conflict between the two of you. This way, you can get a divorce but do not have to specify a particular reason for doing so.
However, some circumstances justify specifying a particular fault ground when it comes to your divorce. Some examples of fault grounds are adultery, abandonment, and domestic violence. These are specific grounds that you could cite as to why a divorce is necessary for your marriage. You may be wondering why specifying fault grounds can be so important period; after all, if you can get a divorce for no reason at all, what is the purpose of specifying a particular reason for your divorce? The reason why fault grounds can be important to divorce is that fault grounds can determine how your Community property is divided.
For example, let's suppose that you specify in your original petition that you and your spouse are getting divorced because he cheated on you and committed adultery. This is a dire setup circumstance to allege against your spouse. If you can prove that adultery did play a central role in your divorce, there can be multiple impacts of this type of allegation on your post-divorce life and the outcome of your divorce presently.
The first area of your divorce that a successfully proven allegation of adultery could impact is that your children and the child custody component of your case may be different. This is because if your children were made aware of the adulterous acts, this could be seen as displaying bad judgment on the part of your spouse. In that case, he may be penalized by the judge and not be able to see the children as frequently as he otherwise might have been able to have the Adultery not occurred.
As it pertains to Community property division, fault grounds are potential factors to consider regarding how property may be divided in a manner that is not 50/50. Fault in the breakup of your marriage means that the court must find that you not only have evidence to prove that your spouse behaved badly but that the bad behavior impacted your marriage negatively in a tangible way. It may surprise you, but not all incidents of infidelity in a marriage are treated identically by family court judges.
If the adultery impacted the lives of your children, resulted in the wasting of community assets or something similar, then a judge is more likely to consider the fault grounds ass a factor when dividing community property. On the other hand, if the adultery occurred but did not impact your children, your community finances or did not occur over a long period, then it is less likely that the judge will consider that in dividing up your property.
The wasting of community assets is a factor that I think demands special attention when it comes to adultery. The whole purpose of considering fault grounds in the property is to ensure that equity and fairness are at the fair front of your case. If the judge sees that your spouse has spent money on gifts, hotel rooms, or other things for their significant other, then they are more likely to award you a greater than 50% share of the community estate.
If this is a situation that is relevant for you and your family, then I would recommend having your ducks in a row as far as being able to present evidence to a court. Receipts, dates, and other details regarding dividing up property based on wasting your community assets would be essential. It would be best if you worked with your attorney to obtain this evidence and organize it before it comes time to negotiate with your spouse or present the evidence in a trial.
Dividing up your home in a Texas divorce
If we assume that your family house is Community property, you will have some decisions to make when dividing the house in your divorce. Option number one is for you to remain in the house and for your spouse to exit after your divorce case. This would likely involve you taking on the responsibility of paying the mortgage and your spouse being bought out of their share of the equity. This is a good option, especially if you have children and are financially able to take on the responsibility of paying the mortgage on your own. Otherwise, it may be better to try out one of the other options associated with the house.
A second option that is a viable one would be to allow your spouse to remain in the house and for you to be paid out of your equity so that all of you can go your separate ways with some contentment after the divorce. This is a great option if you cannot meet the significant financial demands of paying a mortgage on your own after a divorce. Additionally, the home is a lot to take care of and is a significant responsibility. There is nothing wrong with allowing your spouse to take on the mortgage responsibility. You can walk away from some cash or a greater share of the rest of your community estate as a result.
Finally, you and your spouse can agree to sell the house as a part of your divorce. This is probably the neatest way to handle the marital home in your divorce. You can agree to the terms of hiring a realtor, selling the house, and then splitting the equity in the home based on all the factors of your case. It would be best to speak to your attorney early in your case to determine what is best for your family.
Negotiating a division of your community estate
Contrary to what many people believe, the most likely outcome of your family law case will be that you and your spouse settle things in mediation rather than going to a contested trial. This is a better scenario for everyone involved and typically allows you and your spouse to have a more hands-on role in shaping the final terms of your divorce. A family court judge may mean well, but ultimately, they will not know your circumstances better than you all do.
This means that you need to be prepared to go to trial and negotiate like it is a real option for you. Many people who go through divorces do not consider the role that negotiation plays in a case. For that reason, these folks will act like it is a foregone conclusion that the divorce will end in court. This could not be further from the truth. You have every opportunity in the world to settle your case with a strong showing in mediation.
Begin by documenting your personal property. Before your divorce is even filed, you can go around the house, your safes, and other private locations to photograph any property currently contained in your house. This way, you will know what property needs to be accounted for and divided if you are barred entry from your home. Additionally, yours would not be the first case to see property “grow legs” and walk away at some point during the proceedings.
Documenting all your property and then assigning values to the property is accounting as well. It would help if you had a rough idea of how much your property is worth so that you can negotiate on it all. Going into mediation with only part of your estate accounted for is a bad idea. Not only will it put you at a disadvantage, but it will not encourage your spouse to negotiate with you. The more organized you are, the better presentation you will give to your spouse as far as settlement offers are concerned.
Finally, it would help if you worked with your attorney to develop goals that consider your circumstances when negotiating the division of your community estate. Asking for a disproportionate share of your community estate when you have not worked in years or have not worked in years may be justified. However, asking for the same division when you have a superior education or job history probably wouldn't result in the same outcome.
Either way, there are many moving pieces when it comes to dividing up your community estate. The best way to account for this is to hire an attorney with family law experience and specifically has experience handling divorce cases. Thank you for your attention and time in reading today’s blog post. We hope that you will join us again here tomorrow.
Questions about 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 a great way for you to learn more about the world of Texas family law and about how your family may be impacted by the filing of a divorce or child custody case.