One of the pieces of advice that I will hear people tell those of you who are going through a divorce is that, at a certain point, a divorce becomes a business transaction. While this may be true on some level it is difficult to put this theory into practice. No matter how true it may feel, the reality is that your divorce will never really feel like a business transaction because of the personal nature of everything. When you are the person going through a divorce it is easier said than done to think of your divorce as a business transaction. Even then, you would need to consider whether you would even want your divorce to go from something intensely personal to something that is negotiated upon like the purchasing deal between two businesses.
Certainly, there are elements to a divorce that are like a business transaction. The most obvious comparison could be made between a business transaction and how your community property estate will be divided between you and your spouse. The community property division occurs because, at the end of your marriage, there will likely be a substantial amount of property that will need to be divided between you and your spouse. This would be nearly all, or possibly all, of the property that you own. Given this, it can be useful to learn about how property is divided in a Texas divorce. Rather than expecting something unrealistic, this guide will help you prepare for what to expect in your divorce when it comes to community property division.
What is community property and why does it matter to my divorce?
Different states have different legal theories that they utilize to determine how marital property is divided. Texas is one of a handful of states in the country which adheres to a community property theory of how marital property should be treated in the event of a divorce. Community property, as applied under Texas law, treats most of the property owned by spouses at the time of their divorce to be divisible. This is because there is a presumption that all property owned at the time of your divorce is community property. Depending upon the length of your marriage this could mean that most if not all the property that you own may be classified as community property and thus subject to division in your divorce.
For many of us, we simply did not enter our marriages with much in the way of property. Numerous studies there show a person's income increases when they marry. I will assume that this is true for many of you reading this blog post today. However, that happens, you should know that the property that you own at the time of your divorce is mostly going to be classified as community property unless your marriage was extremely short or if you are older and have been married multiple times. Otherwise, you are likely to be in a position where most of the property that you own will be subject to division in your divorce. This is a significant realization that will hopefully snap you into attention when it comes to looking at the details of property division in your divorce.
How is community property divided in a Texas divorce? It depends
The lawyer’s go-to answer for most any question that we receive is: It depends. There are so many factors at play when it comes to answering questions about divorce that it is impossible to be able to give you a specific answer without knowing the specific facts and circumstances that you are facing. Without having this knowledge an attorney would be giving you information based on their assumptions or based on general circumstances that apply to most people. When you are going through a divorce, however, that is not good enough. You need answers that are specific to what you are going through and can help you figure out how to proceed within your case.
So how will community property be divided in your case? Well, you first need to figure out what property there is. It is recommended that you inventory all the property that you and your spouse own as soon as it becomes apparent that you are going to go through a divorce. My recommended way of doing this is to take your phone and simply video each room in your home. Not only the visible places in the room but drawers, cabinets, underneath side of beds, safes, gun safes, closets, etc. This way you will be able to tell what property was in existence at the beginning of your divorce in case there is any disagreement about this.
Why is this so important? For several reasons but we will just mention a few here. For starters, there is no guarantee that you will have unfettered access to your home moving forward. Usually, once the divorce gets going either you or your spouse will be moving out of the house. In that case, you cannot assume that you are going to be the person who can stay at the home. If you have kids, then it is typical for the primary conservator to remain in the home. You should plan for some interruption as far as your access to all the property that you believe is yours. You will give some opportunity to come back into the house and retrieve your belongings, but you will be watched like a hawk while you do it.
The other point I would like to make right now is that your property tends to grow legs and walk away during a divorce if you know what I mean. A perfect example of this occurred in a divorce case a few years ago. The Law Office of Bryan Fagan was representing a gentleman who worked in another state for an oil and gas company but would fly back to Houston on weekends to spend time with his daughter. While the divorce was ongoing our client few back home a day early and decided to use the day while his daughter was in school to swing by the house and pick up some clothes and other items before his weekend visitation with his daughter. Seems innocent enough. He booked a quick flight back home to Texas and texted his wife that he was on the way.
When he arrived in Houston his wife had not responded to his text. He drove home and entered the house with his key. What he found when he arrived home was that his big safe was wide open. When he looked at the number pad that was used to open the safe it was obvious that the safe had been tampered with. He still was not able to get a hold of his wife so he called a local locksmith to see if he could get some help repairing the safe's lock. This is where the story gets interesting. The local locksmith came out to the house and was laughing as he pulled into the driveway. The locksmith had just been called out to the house by the man's wife to see about opening the safe. She told the locksmith that the number pad was malfunctioning and that she needed immediate access to the safe. The locksmith told our client that it was his wife who had attempted to hit the number pad with a hammer causing the visible damage.
Upon closer inspection, all the cash in the safe was gone. The spouse had stolen all his cash and other items that were kept in the safe. Our client was grateful that he had no firearms in the safe or anything else that could have posed a danger if left unlocked and unattended. This is what we know about the situation. Our client finally got a hold of his wife who denied any wrongdoing. She claimed to be completely obvious about the situation. This is when our client pulled out the receipt that showed she had paid for the locksmith using a jointly held credit card. She was busted and knew it. Tough situation for her to be in having been caught in a lie.
Eventually, we spoke with her attorney, and she agreed to return all the cash that was taken out of the safe. This was not an ideal situation and hopefully, most people would not engage in this type of behavior during a divorce. However, it is possible that this could happen in your case and is something that you need to be aware of. This story has been told to you as a means of relaying just how important it is for you to have a good inventory of your property. You never know when you are going to get access to your home next and you never know when your property may get up and walk away without your knowing it.
Appraising the property is the next step in the process as far as how to handle matters related to your community property division. This does not have to be a complicated process but often becomes that way at least when it comes to expensive or rare items. For things like that you can consult with an experienced appraiser or someone who has a certain level of expertise in that field. Many people do not like the idea of paying money for an appraisal like this, but it can mean the difference between an accurate experience in creating a property division proposal and an experience that leaves you wanting. Think of it like a short-term investment into your long-term future and that of your family.
For everything else, you simply need to come up with an approximate value for household items, etc. that you and your spouse will be negotiating upon. This is important to do not only with your community property but also with your separate property. The reason why it is important to appraise your separate property is that the value of your separate estate will make a difference in how Community property is negotiated upon. If you have a substantial amount of separate property that is owned by you then you would stand to be able to have more of your community property go to your spouse if he or she has less in the way of separate property, then you do. In this way, your spouse could receive a somewhat equal amount of property compared to you who has a substantial amount of separate property.
How do you negotiate on a division of your community estate?
When it comes to negotiation on a division of your community estate there are no rules that you and your spouse need to follow. The two of you need to take into consideration the circumstances of your family when it comes to negotiating upon division of your community property. Nobody will know the circumstances of your life more than you and your spouse. For this reason, it is recommended that you and your spouse are the ones who take the lead on division of your property. This is as opposed to a family court judge doing so. even the most well-meaning family court judges will not be able to take into perfect consideration the circumstances of your life and how they impact your need for property in a post-divorce division. You and your spouse should take time to be careful about how you negotiate on this subject because it is difficult to come back and attempt to modify property division in a final decree of divorce.
For instance, you and your spouse can effectively spend your time negotiating throughout your divorce by keeping open your lines of communication. The two of you do not need to rely upon your attorneys to communicate with one another period rather, both of you can make a concerted effort to negotiate well with one another if that is what you want to see happen. I have been fortunate enough to be part of many divorces where the spouses have taken the time to think through issues related to property division before the divorce and they were able to solve many of the issues themselves without ever having to engage their attorneys. This limits the likelihood that problems can arise during the case and limits the costs of the divorce overall.
the best way to avoid any problems when it comes to property division in a divorce would be to negotiate on this subject before ever getting divorced in the first place. To do this, you and your spouse can negotiate a marital property agreement. A marital property agreement is essentially a contract created by you and your spouse either before your marriage or immediately before your marriage begins. This document would set forth the terms about how the property would be divided in the event of a divorce. A benefit to having one of these premarital or marital property agreements is that you do not have to negotiate with your angry spouse during a divorce. Rather, the two of you can negotiate on this subject while you are on good terms with one another.
A premarital or marital property agreement must be in writing. It is better for both sides, in my opinion, to be represented by an attorney during the negotiation of a premarital or marital property agreement. This way you can receive advice that is custom-tailored to your needs and can better reflect the realities of your situation. If you and your spouse do end up getting divorced all you would need to do is attach the door property agreement to the divorce petition and the court would know that this agreement needs to be utilized during your divorce case.
In conclusion, I think the best information that we can provide in this space would be to urge you to be as prepared as possible for issues related to property division in your divorce. Following the basic steps that we outline in today's blog post is a very good place to start. However, receiving specific information about your particular divorce is the best-case scenario. For that, being able to reach out to the experienced attorneys with the Law Office of Bryan Fagan is where I would recommend that you go next. If you want to feel secure that your needs are being met and your interests are being upheld, then you cannot do better than the attorneys with our law office. We thank you for spending some time with us today here on our blog and we hope to hear from you in the future if you have any questions about this or any other issue related to Texas family law.
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 a great way for you to learn more about the world of Texas family law as well as how your family circumstances may be impacted by the filing of a divorce or child custody case.