Look around your home and think about what you see. The coffee maker, kitchen table, television, kids’ clothes, and the car are in the driveway. If you had to answer a question about who owns those pieces of property- you or your spouse- what would you say? Do you both own them? Does your spouse own them because he paid for them? Maybe you use them more and therefore you consider them to be yours. Any of these responses are reasonable. We don't stop and think about who owns a particular piece of property in our homes every time we walk by it or every time, we use it. Life is tedious enough at times in normal circumstances.
Now think about the property that you own outside of your home. These may be things that you don't even consider to be "property" because you can't put your arms around them. I'm talking about things like your checking account, retirement account, brokerage accounts, and things of this nature. Valuable assets but not things that you have much sentimental attachment to. Your children's toys from when they were babies may pull at your heartstrings more than your 401K, but that retirement account is valuable nonetheless.
My point is that the emotional connections to our property can differ a great deal based on our circumstances. If you were someone who grew up poor and has now amassed a significant amount of wealth in your 401K, then that account may be something incredibly meaningful to you. On the other hand, if you grew up with money and have always had money then the retirement account probably isn't something that you care much about- at least not right now. The sentimental things may be more valuable to you even though these are items that are not going to figure too much into the division of your marital property. Different situations, backgrounds, and beliefs all factor into how you may be looking at the property division aspects of your case.
No matter what your positions are on this subject I can tell you that property division is one of the two major areas of a divorce case with child custody being the other. What you ultimately decide with what your spouse in these two areas shapes your present and future. In today's blog post from the Law Office of Bryan Fagan, I would like to spend some time discussing with you how a family court judge may approach the issue of property division in your divorce. However, even more importantly I will be discussing with you how you and your spouse play a central role in this process- more prominently even than the judge in many cases.
Who gets the final word on property division- you or the judge?
This is the question that we need to answer right off the bat before we can go any further. The presumption based on my conversations with many people who have gone through divorce cases is that most of the time a judge will get the final word on issues related to property division. This is due to a range of factors. Movies and television show typically present divorce cases as being between 2 high-energy and argumentative people. These folks will spend the duration of their case fighting and squabbling over little issues that do not amount to much. The end of the episode or movie may feature a divorce court judge banging their gavel and making decisions about all the subjects in their case. At the end of the day, nobody is left satisfied, and the parties are left wondering if they could have spent their time more effectively elsewhere.
Additionally, you may have asked friends and family about their experiences with their divorce cases. For instance, if you have never been through a divorce yourself you may have spent some time trying to learn from other people about what they had to go through. I know that when I have a new situation to confront in a legal case I will typically look to other attorneys and seek out their perspectives to see if they have gone through something similar. We all do things like this from time to time when we encounter something new in our lives. You go to people that you trust, and you seek out their opinion and perspective.
However, a divorce is an incredibly personal subject. Not only is the subject matter typically delicate but the circumstances that you are involved in are incredibly unique. Even if you don't feel like they are this is the case. Nobody else in the world has your personality, your spouse’s personality, your children, or your exact combination of property. As such, it is impossible to say that someone else who is experiencing divorce will be exactly like your own. Divorce is something that you have to go through yourself to determine exactly how it will go.
Additionally, many times even well-meaning people can inadvertently intimidate or scare you regarding a divorce case. These folks we'll relish the opportunity to tell dramatic stories about their divorce for no other reason than it gives them the thrill to recount the story. It is almost like a veteran telling an old war story. What was stressful to them at the time maybe even therapeutic to relate to you now in a comfortable setting like your living room or on the back porch. As such, you may be getting skewed perspectives when it comes to your circumstances in a divorce.
Probably the most dramatic difference between divorce on television and divorce in real life is that most divorces in real life do not come down to what a divorce court judge says. Rather, in real life at least in Texas, it is you and your spouse who have the primary say so regarding how property is divided among other issues. The reason for this is that a divorce case takes at least 60 days to complete. This means that from the date that the divorce petition is filed the earliest that you and your spouse can officially become divorced is 60 days later period this gives you at least a 2-month period for you and your spouse to negotiate over the terms of your divorce. What if the negotiation occurs informally between the two of you or formally in a setting like mediation there is ample opportunity in a divorce for the two of you to determine how to split your affairs when it comes to property?
I think almost everyone is well served to hire an attorney to help you in this negotiation process. As you are about to see, property division can be complex. That's not to mention any issues you have additionally in terms of your children. If you own any amount of property with your spouse or have children, then it is highly advantageous for you to have an attorney. The investment into hiring a lawyer in the short term is more than outweighed by the benefit that you can get from having done so in the long term.
The people that have the most successful divorces, if you can think about divorce as being successful, are those that work diligently to settle their cases between themselves. Not only does this typically reduce the stress level of a case but it also puts you in a position where you and your spouse can have the final say so. No one knows the circumstances of your life better than you and your spouse. Even if the two of you do not see eye to eye on most or even some of the relevant issues that do not mean that you can't temporarily set aside your differences and work to settle your case between the two of you. This is true especially when it comes to your children but also applies to property.
If you all have specific concerns regarding that area regarding your finances, then you should do your best to address that concern with your spouse. A family court judge will do their best to consider your testimony and the evidence as well as the law in Texas regarding the division of property. However, he or she is much more likely to take a pragmatic and orthodox approach to dividing the property. On the other hand, you and your spouse can divide property in a way that doesn't even necessarily follow the Texas family code exactly when it comes to property division. Rather, you all can create a division that works well for you and your family. If that division does not violate the ideals of Texas public policy a family court judge is likely to approve whatever you have come up with.
The bottom line is that you do not have to be scared or intimidated by the prospect of going before a judge to answer every question that the two of you have regarding a case. While it is never a bad idea to get advice from someone who has been through a divorce before you enter into your own, I think it is worthwhile to consider that the experiences of other people cannot necessarily be extrapolated to your situation. As such, your best bet is to work with an experienced attorney who can take your specific situation and help you determine how your wife may be impacted by a divorce case.
An overview of Texas Community property law
To finish up today's blog post I would like to discuss with you probably the most important aspect of dividing property in a divorce case in Texas. Namely, I am talking about Community property law. Community property simply refers to the legal theory on which Texas law bases its statutes regarding property division for spouses at the time of death or divorce. Community property law is fairly unique in the United States given that most states adhere to a different principle when dividing the property of married people. However, Texas and a handful of other states utilize Community property principles when dividing marital property. Let's talk about the basics so you can be more informed as you begin a divorce case.
The most important principle of Community property is that at the time of your divorce it is presumed that all property owned between you and your spouse is a community in nature. This means that all property is subject to division by that presumption. Of course, it is possible to rebut that presumption and there will be property, almost certainly, that it's a part of your or your spouse is a separate estate and therefore not divisible. However, if the property is acquired during your marriage, then it is very likely to be part of a community estate.
An important distinction to draw in this regard is that it does not matter whose income was utilized to purchase the property. For instance, suppose you are a stay-at-home parent who has never worked outside of the home. For the entire duration of your marriage, you stayed at home to raise the family, prepare meals, provide transportation, and take care of the home. Even though you never contributed a single dollar to your household budget you have just as much a right to the property in your home, in your bank account, and likely inside of your spouse’s retirement account as he does. Given that your contributions are non-economic but certainly important this would seem to be fair.
From my experience, this is one of the biggest shocks that most people have when it comes to the subject of Community property. Many people assume that because they are the earning spouse in the relationship the property purchased with their income would necessarily go to them in a divorce. However, this is not the case in Texas. Rather, when it comes to Community property adjust and right division would be executed by a family court judge were you to get into that circumstance. It may even be that do too your spouse having brighter income earning potential, better education, and more experience in the job market he may end up with less Community property than you. That is if you left it up to a family court judge to make that decision.
Otherwise, exceptions to the rule regarding Community property pertain to gifts made to you or your spouse during the marriage or inheritances during the marriage period in these circumstances gifts on inheritance are like this would count as separate property either for you or your spouse. It does not matter if they were acquired during your marriage. For the most part, all other property accumulated during your marriage would be counted as Community property and is thus divisible in the divorce.
Some of the most tedious sorts of work regarding a divorce case is having to inventory all of your personal property as well as non-personal property like bank accounts and retirement accounts. This is likely to be one of the first assignments that you will be given by your lawyer at the beginning of a case. A family court judge will need this information if he or she is asked to decide how to divide your property. I always recommend to people that they begin doing this before our case even begins. You can save yourself time, money, and stress by simply taking account of all the property you own and then doing your best guess as to what the property is valued at. If your attorney and your staff have to help you determine these values then it will end up costing you both time and money during your case.
Otherwise, you and your spouse will be given ample opportunity during your divorce to decide on how to divide up your property. Many times, discovery will be sent out for both you and your spouse to respond to you. Discovery allows the two of you to learn details about the other's perspective asked to the case and what property might be in existence that you were unaware of. From there, you and your spouse can operate with the same facts and be able to make informed decisions about how to divide up your estate.
Most of the time parties end up settling these matters in mediation. Mediation is the process whereby you and your spouse agree to meet with a neutral, third party it would help you all to problem solve through whatever property division scenarios you are going through. This can truly help avoid additional conflict in the possible need to attend a contested trial. If you want to exert as much personal control over property division as possible then mediation can be your best Ave to get to that destination.
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 blogpost, 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 as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.
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- 6 Tips - On How to prepare for a Texas Divorce
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Law Office of Bryan Fagan, PLLC | Spring Divorce Attorneys
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Attorneys right away to protect your rights.
Our divorce attorneys in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, and surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.