Managing your finances in a divorce does not mean only looking at your bank account. Your financial life is multifaceted and touches on a variety of different areas. One of those areas is your family home. Depending upon your situation the family home may be the largest asset that you own. However, being able to determine your rights to the home in a divorce is complicated. There is more to this situation than meets the eye.
In today’s blog post from the Law Office of Bryan Fagan, we are going to share with you our thoughts on how you can best serve yourself and your family in a divorce involving the family home. With so many different variables at stake in the case there is no wonder that many people in your shoes have questions. The last thing you want to do is to make a mistake that costs you a great deal of money.
At the same time, there are considerations you need to pay attention to which involve the emotions and relational aspects of home ownership. Consider all the memories and positive aspects of home ownership. Everything that you have accomplished over the years relates to your home in some way. With so much tied up in the house making an error in handling matters related to the home, there’s something most of us don’t want to consider.
Avoiding mistakes when it comes to the family home it’s possible. However, it takes proper planning and due diligence. Please allow today’s blog post to serve as your introduction to the subject of homeownership and divorce in Texas.
Marital property in Texas
Before we get into a discussion on your home it is worthwhile to discuss property generally in a Texas divorce. Texas is a community property state. This means that the state of Texas has different theories that apply to marital property than most other states. With so many families moving to Texas in recent years we think it is a great idea to first establish what it means to live in a community property state. From there you will better understand how the marital home is treated specifically.
For starters, a presumption applies at the beginning of your divorce that all property owned is community property. This is an important designation given that community property is divisible in a Texas divorce. Therefore, all property at the beginning of your divorce is subject to division given the community property presumption. For many of you reading this a reality like that can be sobering.
However, before you start to worry understand that not all the property that you own, likely, is community property. That community property presumption can be overcome. However, it takes planning and diligence to overcome the community property presumption in some cases. The more valuable the asset the more important it is to have a plan. Working with an experienced family law attorney is the best way to develop a plan like this.
Separate property and its role in a Texas divorce
On the other hand, if the property you own is not community property then it would be separate property. Separate property is not divisible in a divorce case. Both you and your spouse likely owned some separate property. Separate property is most typically property owned by either of you before you got married or acquired by either of you during the marriage either by gift or inheritance.
In your mind, you can already think about the property in your life that is most accurately classified as separate property. This separate property cannot be taken from you in the divorce and given to your spouse. As we mentioned a moment ago, it does take some planning and thought as far as working towards achieving a goal associated with the proper division of your community estate. It is not as if you can show up to your divorce and wave a magic wand to accomplish your goals.
Rather, the better prepared you are for your case the more likely you are to be able to accomplish specific goals that you may have in mind. Consider that your spouse may have different goals from you. Part of this may be a completely different Idea of what property is community versus what property is separate.
What is tangible property?
Part of this discussion on community property comes down to the differences between tangible and intangible property. When most of us start to think about property I think most of us consider tangible property this would be property that we can reach out and touch. Examples of tangible property include personal property like your household items as well as vehicles.
Your family home is certainly something that you can reach out and touch. Many of us are reading this blog post from home right now. We can easily reach out and touch one of the four walls of our home. However, this property is slightly different than the personal property we have in our closets or anywhere else for that matter. The reason is that our home is a much more valuable asset than our silverware collection. As a result, you need to think differently about your home than you would most other personal property.
Simply put, the stakes are much higher when it comes to what happens with your home than with the previously mentioned silverware collection. You mentioned this because so much of the time in a divorce we can lose track of what matters. The day-to-day drudgery of a divorce is such that you can become distracted by small matters. This causes your overall divorce strategy to suffer.
What is intangible property?
The intangible property would be property that you cannot reach out and touch. When we talk about intangible property, we mean the cut-up property that you cannot necessarily Hold in your hand. However, this does not mean that the property in question is not important. On the contrary, it is usually the case that intangible property is more valuable in terms of dollars than tangible property.
Examples of intangible property include your stocks, investments, retirement accounts, and even cryptocurrency. These are the types of assets that amount to your savings and other future needs. I would even classify your bank accounts as intangible property. Most of us will never hold, in cash, the amount of money that we have in our bank accounts. As a result, it is proper to think about big counts as intangible property.
This is all to say that you need to have a strategy that takes into consideration intangible and tangible property. Neglecting one to the benefit of another is not wise. Even if you value one more than the other there are reasons to protect the types of property involved. For instance, even if you do not value your property anywhere near there’s a degree that you value your relationship with your children the property that you own still has a tremendous amount of value both now and in the future. Think about the degree to which you can impact the lives of your children with the property that you have accumulated.
Have a plan on marital property
With that said, understanding the meaning behind planning your marital property division is a key phase of your case. The last thing you want to do is to enter a divorce without a plan in mind. This is a recipe for a disconnected and nonproductive case. Nobody enjoys being involved in a divorce case. However, you can make the process as productive as possible by properly planning estate matters.
Do you have a will?
This may seem like a side topic, but I assure you that a divorce is a perfect time to draft a will. The attorneys with the Law Office of Bryan Fagan not only assist individuals with divorce cases but also with planning their estate. After having performed all the difficult work associated with property division and divorce it makes sense to go the extra step and plan estate matters related to your case.
Of course, doing so at the end of the divorce is the best time to go through a state planning matter. At the beginning of a case, you have no idea about how the property will end up looking after your case. Therefore, while you are planning a division of your community property you can also consider the best way to organize your estate plan. This way you can spend your time as productively as possible.
A will is the most tried and true method of estate planning that we have. Many people hold the incorrect belief that only wealthy people have wills. This may be why so many of us pass away without undergoing any kind of estate planning. However, the reality of the situation is that you do not get second chances when it comes to planning your state. Rather, the best opportunity you must plan your estate is today. Contact the Law Office of Bryan Fagan to learn more about how our office can help you both with your divorce and with estate planning matters.
Purchasing a home
Deciding to purchase the home requires a fair bit of contemplation. On the one hand, home ownership is a central part of the American Dream. Owning real estate is one portion of that. If nothing else, the last century has shown that real estate tends to increase in value over time. Sure, there are periods where real estate goes down in value but the overall trend in real estate prices is upward.
There are also the relational and familial aspects of home ownership that cannot be understated. For example, knowing that your family has a place to live is a crucial part of being a mother or father. That your family enjoys living in your home and has built memories there makes the whole experience even better. All this ties into the importance of homeownership and the ability of a family to come together as one unit.
A divorce takes this entire situation and turns it on its head. By going through a divorce, you are ending the primary bond between the family and making it so you need to contemplate how the home needs to be treated. Determining the goals for the home depends almost entirely upon your specific circumstances. It will be impossible for you to learn how your house should be dealt with just by reading a blog post.
When did you purchase your home?
This is the central question that you need to be asking yourself. As we just saw in our discussion about community property in Texas, it matters when your home was purchased. For the most part, it matters because Community property typically means property acquired during your marriage. If your house was purchased during your marriage, you can expect that it will be subject to division in the divorce.
For the most part, this is not a conversation that is all that complicated. Your marriage begins on a specific date. You can look up and see when you signed the closing papers on your home. In some circumstances, there are questions about when a person moved into a home versus when the closing occurred. However, for the most part, it is not complicated as far as determining when the house was purchased period from there, determining community versus separate property becomes relatively simple.
In situations like this, the next step in the process is to make decisions about how you see your property being divided. You keeping the property, your spouse keeping the property, or the property is being sold. These are your basic options when it comes to the property division of a home. Your goals, plans of moving, and financial situation all play into the decision of whether to keep the house. There is no set way to deal with the family house in a divorce. It is up to you and your goals as far as how property like a home should be dealt with. Having the advice and perspective of an experienced family law attorney is important. Attorneys have the advantage of seeing what works for people and what has been less successful.
What if your name is not on the deed to your home?
When it comes to ownership of property, it is important to consider not only physical possession but legal possession. Legal possession refers to ownership of property under the law. For the most part, when it comes to real estate having your name on the deed or title to property is what matters. Physical possession of real estate becomes important in certain situations. However, legal ownership of property is ultimately what matters.
Fortunately, in Texas home ownership in a divorce does not hinge necessarily on whose name appears on the deed. Put yourself in the following situation. You and your spouse got married and six months later decided to purchase a home. Very clearly the two of you were married when the home was purchased. However, because one of you had a better credit score than the other it was decided that you would apply for the home loan under only one of your names.
For that reason, the deed to the home bears only your husband’s name. However, you have lived in the home with him for the entire ownership period. Your income has been used to pay for the mortgage and other improvements on the House. In short, this looks like A very traditional way of purchasing a home and building a life together. The question you are asking yourself is whether not having your name on the deed will ultimately matter.
Community property laws save the day
Ultimately, not having your name on the deed to your home will not necessarily matter when it comes to the house and your divorce. Since the home was purchased during your marriage it will be very difficult for your husband to make the case that the home is not community property. Even if he were to do so you would simply be able to take the case to a judge who would properly identify the home as community property.
In this way, not having your name on the deed to your home is not something that will hinder you all that much. However, avoiding a big issue with this subject does not mean that you are in the clear quite yet. There is still the matter of potentially dividing the home and deciding how to treat the other property in your life. Thank you for choosing to spend part of your day with the Law Office of Bryan Fagan.
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. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
