Marital property division in a Texas divorce is a huge point of contention for many spouses. Depending upon the assets that you own as well as the circumstances that you find yourselves in, martial property division can be the most important issue for you all. Being able to learn as much information as possible before the divorce would be to your advantage, as a result. That is where blog posts like this one can be so important. Rather than relying solely upon what you can pick up along the way in your divorce, it is better to be able to learn before the case starts. Why do I say that?
The reason that I say that is a divorce can be an absolute blur for you and your family. I will grant you that a divorce can seem to be a never-ending slog in many ways but there are times in the divorce when you will be inundated with information, requests, problems, and everything else that happens in a divorce. You can feel like you are trying to drink water out of a firehose. This is not a fun thing to go through since you can be made to feel like so much is happening all at once and you have no power to stop it. A divorce does not slow down just because you feel like it is moving too quickly. By the same token, the rest of your life does not slow down either. You are going to be running at full speed at various points in your case, so you had better be ready to do so.
If you can find relatively succinct answers to your most pressing issues, wouldn’t you want to indulge in that kind of reading? That is what we do here at the Law Office of Bryan Fagan on our blog. Here, we can share with your additional information that may come in handy for your divorce. We understand that many of the subjects we write about here on the blog are not simple and digestible in one or two-paragraph blurbs. Rather, we take the time to share with your essential information about the type of subjects that are most important and most encountered in Texas divorce cases.
We know what is important to a wide range of people who go through divorces in Texas because we have been fortunate enough to be able to serve many of our neighbors and people in the community as they have gone through difficult divorce circumstances. Even though nobody is happy to go through a divorce the fact remains that having experienced and knowledgeable representation in your divorce case can help you and your family tremendously. Part of that effort is to provide blog posts with basic and essential information that you can use to your advantage before and during the divorce. When that feeling of drinking water out of a firehose can be overwhelming you can fall back on the solid base of knowledge that you have in your back pocket.
What is the division of marital property in a divorce?
You and your spouse will need to first determine what is community (marital) property and what is separate property in your divorce case. All the property to be accounted for must fall into one of these columns. Both you and your spouse will have separate property that you own as well as a common “pot” of community property that will need to be divided in some way between you and your spouse. Either the two of you can determine the property that you own mutually and through your attorneys or you can be made to do so through a process called discovery.
Discovery allows you and your spouse to submit requests for information, answers, and documents that can help you build your case and learn about the positions being taken by your spouse. This process allows the two of you to be on the same page as far as what issues will need to be sorted out in mediation to avoid ever having to go through to a trial. While it may be too much to ask for the two of you to agree on every subject under the sun, it is not too much to ask to at least agree on what the major issues of your case are. Discovery will allow you all to at least come to an understanding about what your spouse's beliefs are on what is part of your community estate, what is part of the separate estates of each of you, and what property is in existence at the time of your divorce.
The general rule of thumb that you should go by when it comes to community property is that if the property was acquired while your marriage, then the property is likely to be listed as community property. However, if you or your spouse owned the property before your marriage then it will be classified as separate property belonging to either you or your spouse. There are exceptions to these rules: such as property acquired by gift or inheritance during the divorce counting as your separate property, but the above rule of thumb will serve you well for the most part as you take on divorce.
Can separate property become community property?
As you have just seen the property needs to be able to be distinguished as either community or separately owned. This is the key distinction to draw in a divorce case. Whether or not you can count property as either separate or community property will go a long way toward deciding just about every non-child-related issue in your divorce. The more community property that is owned between the two of you the more likely it is that there will be some disagreements and bumps in the road. What is key to your divorce process is how well the two of you can at least agree on what the confines of your divorce are. If you two can’t even agree on what is community property and what is separate property then you are going to be in for a rather long case, most likely.
Part of the disagreements that you and your spouse may have when it comes to property is regarding when the property can go from being part of your separate estate to being part of the community estate. In this way, property that you had become accustomed to thinking about as your separate property can be divisible in this case. This is due to a process known as commingling. Commingling occurs when you or your spouse place separate property into a bank account or other setting where community property is also being held. It may require you and your attorney to be able to trace the deposit of funds to determine the source of the income or property. Being able to pick apart the community property and separate property in your lives is a key part of a divorce.
How is your property going to be valued in a divorce?
The process of valuing the property in your divorce is another important part of your case. Once you determine what property is part of the community estate and what property is part of a separate estate you can key in those items that are going to be part of the community estate. From there, you will need to figure out the overall value of the community estate. For example, let’s assume that your community property estate is valued at $500,000. A fair and equitable division of the property in that estate would dictate that around $250,000 of the total value would go to you and the other $250,000 would go to your spouse. However, how you get to the state where the property is divided is a completely different story. For that, you would need to consider all of the factors of your case as well as whether or not you and your spouse plan on splitting the money right down the middle.
For much of your community estate, it will be simple for you to value a few different types of property or assets. The first is a simple bank account. You can log into your account online or even dial the bank's phone number to get a value for your checking or savings account. There isn't much to come up with a value for one of these accounts and you and your spouse probably would not argue too much over the value of one of these simple types of bank accounts. Most everyone reading this blog post has one and we all know how to obtain the value of each.
There are also investment accounts that are commonly a part of a divorce. These can be retirement accounts like 401Ks as well as brokerage accounts. A brokerage account is an investment account that is through a brokerage house that places trades and does other work for you in order so that you can have the accounts you want in your folder. These brokerage accounts sometimes fluctuate in value due to their investments but the value on any given day can be determined simply by logging onto a website for the brokerage account. You may need to specify that the value of these accounts will be determined on a specific date when it comes to coming up with an approximate value for your community estate.
These are the types of accounts that are simple to divide in a divorce and to come up with a value for. On the other hand, there are also types of accounts that may be part of the community estate which are more complicated and detailed when it comes to figuring out their value. The first type of asset which I would like to mention in this space is your family home. To divide up a marital home most likely means selling the home. To sell a house must mean that an appraisal is requested so that you and your spouse can know the approximate value of the home.
This is always a stressful subject, that of selling the family home. There are so many details that bear mentioning in this space, but we will stick to just a couple for brevity. A key to understanding this subject is that you should not agree to take on more responsibility than you have the means to do so. Even if you are going to be the primary conservator of your children, it is not wise to bite off more than you can chew when it comes to a home. Remember that your two-income household is very quickly going to become a one-income home. That mortgage you all have been making payments on is likely based on a dual-income household and not a single-income household. This alone can swing a divorce case from being favorable to unfavorable for you.
Next, if you and your spouse own any type of antiques, art, or other antiques in your home that are also community property then the difficulty level increases as far as determining the value of these types of property. There are many reasons why it is difficult to appraise items like this, not the least of which is that there aren't as many of these types of items as there are houses. There are thousands of homes in the Houston area whose values can be compared so that your home can then be appraised. If you own a vase, book, or other antique there may be very few comparable items to ascertain the value of. As a result, you may have to hire an expert to come into your divorce to assist you all with determining the value of an account.
The most typical way for property to be divided goes like this. Suppose that you receive a painting in your divorce that is worth $10,000. Your spouse would then get an item or combination of items that are also worth $10,000. You could go down the line just like this and divide up property accordingly so that you get what you want, and your spouse gets what they want. Any items that you both want to keep after the divorce may be more difficult to divide up. You may need to end up selling certain items if you and your spouse cannot agree on how to divide them fairly.
What factors will a judge consider when dividing property?
For most people who go through a divorce in Texas, it is the spouses themselves that will ultimately decide how their community property is divided. We just finished discussing how some people in your shoes may end up dividing property. For whatever reason, you and your spouse may not agree on how property should be divided. As a result, it may fall to a judge to divide the property. Here are some of the important factors that a judge may utilize when dividing up your community property.
The age and health of you and your spouse will almost certainly be an issue that the judge considers when determining how to divide up the property. If you are healthy and young, while your spouse is older and ill then a judge would likely divide property in favor of your spouse due to your ability to earn an income being greater than your spouse.
Next, the separate property of you and your spouse will also be considered. If your spouse owns a great deal of separate property while you own very little, then you are more likely to end up with a greater share of your community property to equalize the situation. If you are older than your spouse, then you may have substantially more separate property than she does. As a result, much of your community estate could end up coming home with you because of the divorce. This is one of the reasons why it is so important to be able to understand which “column” the property relevant to your divorce falls into.
Finally, your educational level and job prospects will also play a major role in the division of community property. If you earn more money than your spouse, work in a higher-paying career field, and are better educated then equity may put the judge in a position where your spouse ends up with more community property. This is especially true if your spouse worked while you went to school or stayed home to help raise your kids rather than go out into the workforce. In this way, the specific circumstances of your life will play a huge role in helping to determine how your community property will ultimately be divided up in a divorce.
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 attorneys at the Law Office of Bryan Fagan. Our team of attorneys offers free-of-charge consultations six days per week: over the phone, via video, and over the phone. 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.