In Texas divorce cases, I have come to learn that when you ask most clients at the beginning of an issue about who they believe will divide their property, the vast majority will tell you that a family court judge will do so. We are told this through television, movies, and the stories we hear about divorces from our friends and colleagues. It is from these sources that we as a society have developed opinions and beliefs regarding divorce. While it is true that a family court judge can play an essential role in the division of your property, it is also true that family court judges may not play a role at all in that process.
How could this be? How can a judge seemingly play such an essential role in a case yet may just as readily play no role at all? It seems like it is a contradiction to believe both of these things at the same time. However, indeed, a family court judge will potentially act as the deciding factor in divorce; yeah, it may not Do much of anything in your case until they sign your final decree of divorce at the very end. For the sake of your case and for the benefit of the strategy you were going into your case with, it would make a great deal of sense for you to understand what a family court judge does in a general feel for your case.
What roles does a family court judge fill in any Texas divorce?
A family court judge plays an essential part in a Texas divorce case. From the outset of the case, the judge will review your documents before any court appearance. In preparation for a hearing, the judge will look at your paperwork to better understand what you are asking for in terms of relief from the court. It is incumbent upon you and your attorney to be prepared for any courtroom appearance. You must make sure that any documents are filed ahead of the hearing time for the judge to review them. This way, the judge will not have much to do in looking through information or preparing an S to an unnecessary degree for the hearing.
When it comes to a hearing, the judge will listen to make rulings on several different subjects. First, the judge will determine what evidence to admit into the record and what evidence to exclude. Having testimony, documentary evidence, photographs, video evidence, or any other type of evidence readily accepted into the narrative is precisely what the party offering the evidence would like. However, the judge was responsible for determining what evidence is admissible and which evidence is not. Frequently the opposing party will offer an objection when it comes to evidence into the record. Therefore, the judge must weigh those objections and determine the admissibility of the evidence.
A family court judge is referred to as a fact Finder. This means that the judge will determine what the facts of the case are. This is important, especially in a highly contested family law case. Factual circumstances may mean one thing to you and something entirely different for your spouse. As a result, the judge is responsible for taking two often competing viewpoints in determining what will be factual and the evidence the record will support. Well, the statutes and the Texas family code matter in a hearing or trial scenario-specific facts and circumstances of your life matter just as much in many cases. Therefore, the judge is tasked with determining what is and what is not factual.
Once the judge determines what is and what is not factual, they will issue conclusions of law based on those facts. Conclusions of law reference the relevant status and other laws in play for your case while comparing them to the points in circumstances of the case. From there, the judge can make decisions for you and your spouse. When it comes to the division of property, a judge will need to determine what is Community property, what property belongs in your separate estate, and what property belongs in the different estate of your spouse. Since Community property is divisible, it is this category of property that will need to be divided.
Even after the judge issues their findings of fact and conclusions of law regarding your case, they still play a role. That role occurs if a post-divorce or post child custody cause arises where you file a subsequent claim like a modification or enforcement. Is, they would make decisions Regarding any series of events that occurred after the conclusion of your case. Sometimes A party will violate a court order requiring the filing of that enforcement lawsuit. In that case, the judge would decide whether the violation occurred and what punishment is appropriate.
Or, you or your spouse may file a petition to modify your final decree of divorce. As I'm sure you could imagine, circumstances change after the end of a divorce case. Whether or not those changes in circumstances rise to the level of requiring a modification of your divorce decree is another subject altogether. A family court judge in a modification case will determine whether or not a material and substantial change have occurred in your circumstances since the court order has been issued. Then, if the requested modification has to do with your children, the judge will have to decide if the requested change that either party is making is in your child's best interest.
As you can see, a family court judge can play many roles and wear many hats in connection with her divorce case. You need to understand what role a judge may play in your divorce because it can impact how you approach the case in the various issues related to your divorce. Otherwise, you may have either an oversized or undersized idea about what a judge may do in your case.
What does it mean to divide property?
You could probably guess that dividing property is a part of family law cases just by reading the title of today's blog post. However, that does not mean that you know everything there is to know about property division or in what circumstances property can even be divided in a Texas family law case. I've had people completely off-the-wall impressions of when the property can be divided in a family law case.
Probably the biggest misconception that I've heard some people have regarding two family law cases is that property can somehow be divided in a child custody case. I think people hold this view on occasion because even though you and your child's other parents may not be married, you may have resided together for an extended period and consider yourself married in many ways. However, you would not go through a divorce at the end of a relationship unless you are formally married or through a common-law marriage. If you end a relationship with someone you are not married to, there is no legal property division.
Instead, you and your Co-parent would merely work out between yourselves how you want the property to be divided rather than relying upon a family court judge to do that for you. There is a risk to sharing finances with a person that you are not married to. Some of these risks may become apparent to you at the beginning of a breakup, given that if you all disagree on how property should be divided, it could result in some nasty arguments. Still, no actual legal mechanisms 2 divide your property. Suppose you want the Community property laws of Texas to potentially protect you in the event where property needs to be divided. In that case, you need to move forward and get married in the first period.
Otherwise, we are only talking about divorce cases where the property can be divided. Beyond discussing that property in a general sense can be divided in a divorce, it is only Community property that is divisible. All property at the beginning over Texas divorce is presumed to be Community property. Case: There are three property categories: Community property, your separate property, and separate property owned by your spouse. Particular property belonging to either you or your spouse cannot be divided by a judge. However, Community property can be divided by a family court judge and will be the subject of negotiations throughout your family law case.
Community property encompasses most property you acquire during your marriage. Separate property will be acquired mainly before your marriage, and property acquired by gift or inheritance during the wedding itself. Community property is more complicated than this, but I think that explanation will suffice for today's blog post. The division of Community property in your divorce case will represent a significant portion of the attention paid by both you and your spouse.
How will a family court judge view circumstances surrounding your Community property?
When talking about Community property and how it will be divided, a family court judge has a lot of factors to consider. First of all, the judge will consider what role, if any, either you or your spouse played in the breakup of your marriage. If either of you asserted specific fault grounds for divorce, then the judge will have to consider these fault grounds in the evidence submitted along with them. Examples of fault grounds that can be specified in your petition for divorce include abandonment, adultery, or cruel treatment. Suppose the judge believes that there is sufficient evidence to prove any of these fault grounds asserted in your petition. In that case, the judge will be able to award a disproportionate share of the community estate to you. This means that a larger share than half may end up going to you as a result.
Next, a family court judge can consider the amount of separate property that you or your spouse own. Individual property plays a role in dividing your Community property because the more separate property you own, the less reliance he will be on Community property for subsistence after your divorce. A critical thing to bear in mind is that you will be in a period of transition after your divorce. As a result, your income will be shifting around due to your no longer being Mary. This may cause you to transition into living separately and begin to pay your bills, rent, and even find work. The judge will be looking to sources of income In subsistence for both you and your spouse to at least meet your minimum basic needs.
If either of you has a substantial amount of separate property to your name, then a judge probably would not look to award that starts with a disproportionate share of the community estate, everything else being equal. Separate property can be liquidated for cash, utilized for a place to stay, or leveraged against to obtain a home loan. Your circumstances may vary but having separate property to assist you in preparing for the following stages of your life. But lack of individual property would cause you to become more reliant upon Community property.
If you find yourself in a position where you believe that you need spousal maintenance to cover bills and pay expenses after your divorce, then the judge would also look to any amounts of separate property or Community property to help you meet these obligations before awarding you maintenance after the end of your case. Even then, the laws in Texas are somewhat limiting in terms of how much and for how a judge can award extended spousal maintenance. You should look to Your budget and determine well in advance if you will need spousal maintenance. You may be required to negotiate for this throughout your case rather than surprise your spouse with a request like this by amending your petition or counter-petition.
Ultimately, you play the most central role in determining who divides your property in a divorce.
Today, we have spent a significant amount of time discussing a judge's role in dividing your property in a divorce. However, The person who plays the most critical role in dividing their property in a divorce case is you. Well, in actuality, it is you and your spouse. Both of you have control over how your property is divided before a judge that we get their hands on your case. All you need to do is be willing to negotiate with your spouse.
Often, that is the most challenging part of this entire process. There are likely to be hurt feelings and sensitive emotions at all stages of a divorce. With that said, a hurt ego and upset pride may cause you to have some second thoughts about negotiating with your spouse. However, we can say that if you intend to negotiate your way through a property division in your divorce, you will need to be able to look past these issues and deal in good shape with your spouse regardless of what circumstances have brought you to the dealing table.
Sometimes it will be some legitimate concerns brought into the divorce, and other times, it will be hurt feelings and things of that nature. You and your attorney will need to sort through this aspect of a case to determine how best to proceed. Sometimes an uncooperative spouse Can lead you towards a trial on their own. There is no sense in negotiating with someone who is being difficult and combative in negotiations. In these cases, it may well be a family court judge that ultimately decides to divide property in your case.
Only the other hand, you need to remember that the family court judge only has to sign off on the final decree of divorce. They are not required to look over your shoulder or make significant decisions in your case. You and your spouse can fill that role. Being diligent in negotiations Means not taking your iPad ball and coming into play into your case with a plan. If you do so, then the answer to who will divide your property could very well be you.
Questions about the material contained 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 the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.