When you file for divorce one of the most important areas of a case that you should focus your attention on is that of the community property division and your marital estate. Dividing up the property in your marital estate is crucial to being able to land on your feet after divorce comes to an end. The most widely held belief on community property division in a divorce is that you can’t avoid having a 50/50 split of property in your divorce. This is not true. While a just and right division of community property often does look like this it does not have to. There are ways to negotiate for what is known as a disproportionate share of your community estate.
What is the community estate?
Community estate refers to the property acquired during your marriage. When you file for divorce, it is presumed that all property you and your spouse own is community property. This is a huge presumption and is likely to be untrue. There is likely to be some property owned between you and your spouse which is not community property. Both of you may own separate property which was purchased or acquired before your marriage. This property is not subject to division in the divorce. The same applies to property inherited or gifted to you during your marriage- this is separate property, as well.
The community property that you all own can be divided in a divorce but it does not have to be. One interesting aspect of community property law in Texas is that it does not matter whose name is on the property in question. Your name does not have to appear on the receipt or the title to have property rights concerning the item. This is why you would be protected in a divorce from the home being sold or otherwise disposed of without your name being on the title. If your home was purchased during your marriage, then it is community property and therefore would be divisible in the divorce.
What is a disproportionate share of your community estate?
The term “disproportionate” refers to your ability to receive more than a 50% share of your community estate. Different factors become relevant in a divorce when it comes to dividing up your community estate. For example, your age and health matter. If you are older and are in poorer health, then you may be able to receive a greater than 50% share of your community estate due to you having a more difficult path toward financial success after a divorce.
Next, your work history has a lot to do with how property is divided. Your spouse who has a great work history and educational background would be in a better position than you to land on your feet financially after a divorce. This is true if you have been a stay-at-home parent who has not worked outside the home in many years. The division of community property would need to be in your favor so that you can use that community property to live off when the divorce is over with.
Texas is a no-fault divorce state
Like all the other states in the United States, Texas is a no-fault divorce state. This means that you do not need to specify a reason why you are filing for divorce to get divorced. You can file a divorce without having to say exactly why you want the divorce. Irreconcilable differences and/or conflicts in personality are the basis for what is known as a no-fault divorce. Tell the court that the two of you could no longer get along and that is an ok basis for getting divorced.
There is nothing wrong with getting a no-fault divorce, but it does limit your options as far as how much property you can likely end up with. Suppose that you file a no-fault divorce in Texas. Your income is like that of your spouse and your educational background is similar. Neither of you has any impairments or disabilities that would prevent you from working in the future. You are both 35 years old period in that case, they’re not much in the way of differing factors between the two of you to convince a judge that one of you needs a disproportionate share of your community estate. By filing the no-fault divorce, you are helping to ensure that each of you receives proportionate shares of the Community property once divided in your divorce.
Divorce courts in Texas utilize what is known as a just and right theory of property division. Just in right for our purposes means fair. The court seeks to take into consideration all the relevant factors when determining how to divide property. We have already talked about what many of those factors are including whether yours is a no-fault divorce. If your goal is to walk out of the divorce with a disproportionate share of the community estate, then you need to be aware that these factors are going to be considered and that there are some situations where it is easier than others for a judge to divide property disproportionately.
Therefore, before you file your original divorce petition it is worth the effort for you to consider if any fault grounds for divorce apply to your case. The reason that we say this is due to fault grounds being the most direct way for you to be able to establish that a disproportionate share of your community estate is justified for you to take home after the divorce comes to an end. There are a handful of fault grounds for divorce but probably the most common one that we see in Texas is that of adultery.
Adultery as a fault ground for Divorce in Texas
Infidelity and adultery are the same for our discussion today. When someone cheats on their spouse the traditional infraction (sin) is referred to as adultery. Different groups/religions can refer to sin in different ways. What one person may view as adultery may not be adultery in the eyes of another person. However, I think almost everyone reading this blog post would agree with the idea that adultery is characterized by one spouse becoming physically intimate with another person who is not their spouse. We can hem and haw about how the issues are categorized but this should about sum it up for us today.
We don’t need to get into the specifics of what adultery is or what constitutes adultery. To assert that adultery is the fault ground on which your divorce is based is to say that all you need to do is to tell the divorce court through your Original Petition for Divorce that you are filing for divorce based on adultery. You do not need to substantiate that claim at the beginning of your divorce although before your case is all said and done you will need to do so. Evidence of the adultery, in other words, is necessary. If you cannot provide evidence to the court that adultery has occurred, then you may as well not even assert it in your original petition.
Evidence can be obtained through witness testimony, your own experience, documents, bank statements, and through photographs. Social media is widely becoming a terrific source for obtaining evidence of all sorts in divorce cases. A family law attorney from the Law Office of Bryan Fagan can tell you just how regularly evidence in a divorce is obtained through social media. This is doubly true when it comes to adultery. People tend to watch their online behavior when it comes to adultery but even the most vigilant people can leave a few breadcrumbs of information/photos exposed for the world to see.
What other sorts of harm may result from adultery?
There is a type of infidelity that is related to physical infidelity known as financial infidelity. Financial infidelity often goes hand in hand with physical infidelity. Hiding types of spending that go on between spouses is what financial infidelity is all about. Being unfaithful with your money is possible in a marriage. Hiding bills, getting secret credit cards, or spending money on gifts for other people and not telling your spouse are all examples of financial infidelity. Depending upon the circumstances you may find that the financial infidelity could hurt more than the physical.
Wasting of community property assets is the specific harm brought about by financial infidelity in a Texas divorce case. When you take community property income and instead spend that money on a significant other or however you want to refer to the person with whom your spouse is having an affair, that means you are reducing the overall value of your community estate and harming your children and spouse. This is something that can add to an adultery assertion within the divorce.
The reality is that while adultery is a word that still cuts deep across the world of divorce, an adultery claim has the most power when you can produce evidence showing that the adultery had a demonstrably negative impact on your life and/or that of your children. When you are telling a court that adultery has led to your having filed for divorce you need to be able to present evidence that the adultery not only occurred but that it had a meaningful impact on your family.
What does this mean on a practical level? For starters, it means that if your spouse had a one-night affair with someone and that was it, there may not be much “meat on the bone” (so to speak) as far as that adultery claim is concerned. You need to be able to substantiate the adultery claim by showing that the episodes of infidelity impacted your finances. How much money was spent on this other person? To what extent were you not able to pay bills because your spouse was spending household cash on this person? Did your children ever witness anything going on between your spouse and this other person? What was the impact on your child?
This is the type of evidence that you need to be able to produce to proceed with an adultery fault ground in your divorce. You can assert whatever you would like in your petition for divorce. However, to see that allegation, become something meaningful in your divorce you need to have evidence to back up the allegation. That evidence needs to point to a negative impact that the affair(s) had on your marriage, your family life, and/or your children.
There is also the idea that mental anguish plays a part when it comes to adultery in a divorce context. While we may hear about mental anguish more in the context of a personal injury lawsuit, there is anguish associated with adultery, as well. In a situation where you go to trial and request a jury, mental anguish may even be able to e be an element of the case that you can be awarded property regarding. The extent of the mental anguish will determine how much of a disproportionate share of your community estate you will be able to be awarded.
Closing thoughts on winning a disproportionate share of your community estate
In a divorce context, a long-term, committed relationship comes down to a business transaction. When we go through a divorce with a client, we at the Law Office of Bryan Fagan understand that what you are trying to do is not something that you are excited about or are looking forward to. A divorce hurts. There are hurt feelings, hurt finances, and a sense of uneasiness that comes with a divorce. The stability and consistency of your life have been thrown around and you are trying to figure out what the next steps in your life are going to look like.
All other things being equal, it is nice to have more money rather than less to go through this period of transition in your life. Being able to win a disproportionate share of your community estate is not something that comes easy. The default setting in a divorce is for you and your spouse to walk away from the case with roughly the same amount of money and property. However, as we have seen today, there are opportunities for you to come away from the divorce with more than half of your community property in tow.
You need to be able to plan for this kind of outcome. You cannot wander into a divorce and expect to wander out achieving all your goals and ambitions for the case. It is great to have a goal for your divorce. Winning a disproportionate share of your community estate is certainly a worthwhile goal. However, the ability to do so depends on your having a plan which you can act upon to achieve that goal. Where do you develop a plan like this?
Working with one of the experienced family law attorneys with the Law Office of Bryan Fagan is a good place to start. We want you to know that we have the heart of a teacher when it comes to issues like this. Yes, we are lawyers. Yes, we don’t back down in the courtroom or at the negotiating table. But when it comes to helping clients, we understand that our duty is first and foremost to educate order so that our clients can make good decisions for themselves and their families. We do not dictate things to our clients or make recommendations to them without first helping them understand what the issues in their case are and why it is important to their well-being now and in the future.
The subject of community property division is complex. There are no two ways about it. Even if you don’t have much in the way of property or assets it is a subject that has financial and relational implications. When you consider that the decisions you made within your marriage as well as the financial situation you find yourself in at the time of your divorce both coincide to impact the subject of community property division, there is a lot to unpack and prepare for. Depending upon what your goals are you may face an uphill battle to be awarded a disproportionate share of your community estate.
No matter what your position is right now when it comes to finances, the attorneys with the Law Office of Bryan Fagan are prepared to help you. We advocate for our clients and their interests across southeast Texas, and we would be honored to do the same for you.
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