Saddle up with the Law Office of Bryan Fagan as we meander through the world of asset division. Divorcing isn’t just telling your spouse that this town ain’t big enough for the two of us. Rather, a divorce is a complex combination of many different areas of your life. Along the way in today’s blog post, we share tips and helpful information on how to approach a divorce. As someone in search of answers today’s blog post is exactly what you need. We intend to walk you through this dance one step at a time.
That’s the thing about dancing. It looks complicated from the outside looking in. All those steps. The motion is enough to make you dizzy. However, what you ultimately find out is that you can do it. All you need is some practice and a good dance partner. Thank you for allowing the Law Office of Bryan Fagan to act as your introduction to this subject. If you have any questions about the material, you read today please contact our office. We offer free-of-charge consultations six days a week.
Community property: the basis for the entire question of who gets what
Ultimately, what you want to know is who ends up getting what in the divorce. This is a reasonable question to ask. However, it is too soon to offer any guesses as to an answer. For one, we don’t know enough (or anything) about your situation. Second, we don’t know anything about the laws of property division in Texas. For that, let’s spend some time walking through the community property division in a Texas divorce. For questions about your situation- call the Law Office of Bryan Fagan.
Community property refers to a way of approaching the division of assets and debt in a divorce. Only thirteen states in the United States adhere to community property principles in property division. Even those thirteen states don’t necessarily agree on all the specifics of community property division. All we can say is that you need to understand at least the basics of community property division. Understand that and you are in a good position as far as your family law case is concerned.
The defining factor when it comes to community property is the presumption that all property is community-owned at the beginning of your case. Since community property is divisible in a divorce then you need to consider all property subject to division. However, realistically all property in your divorce will not be divided up. Rather both you and your spouse likely own separate property that is not divisible in a divorce case.
Community property versus separate property
Community property is property purchased during your marriage. It is also income earned during our marriage. Depending upon the length of your marriage this may represent a large percentage of your estate. Short marriages, on the other hand, likely resulted in relatively little community property being amassed. This will go a long way towards determining what property is divided in a divorce and how.
The classification of property relevant to our discussion is separate property. Separate property is property owned by you or your spouse before your marriage. Both of you likely own separate property. Additionally, property acquired during your marriage by gift or inheritance is also likely to be classified as separate property. Some forms of income are properly classified as separate property. The more separate property you own the less property that is divisible in the divorce.
To overcome the community property presumption you need evidence. This evidence can be the testimony of a person who was there when you purchased the car two months before your marriage. The evidence may be a receipt of a title document showing that you came to own that piece of land before your marriage, as well. The evidence must be clear and convincing in any event. This is not to say that all property will be debated upon to this extent. However, be prepared that it may be.
How do you start to organize the property you own?
This is a major question that rarely is asked. Lawyers sometimes make assumptions that you as a client can simply read our minds when it comes to issues like organizing your property. Of course, we run into these issues every day in our law practice. However, this being your first divorce you have worthwhile questions to ask about how to perform this important step. Rather than leave you to your own devices, here are tips and tricks to getting yourself situated with a community property organization.
Start with the property you can see and touch. For instance, the household items and personal property are easy to get to. Walk around your home and start to look at the things that you own. Take photographs of everything that you can. Closets, drawers, and areas like that are often forgotten about. Take the time to document these places as best you can. Don’t forget the garage.
Next, start to make a list of the items you find. Save yourself some time by taking a piece of paper and drawing two lines down the middle to make three columns. The first column is community property, the second is your separate property and the third is your spouse’s separate property. It does not have to be any more complicated than that. Sometimes doing this simply is better than trying to reinvent the wheel.
Organizing non-personal property
However, your willingness to organize your property should not stop at items you can touch. Additional property and assets in your life include your home itself and any other real estate. Raw land and investment properties come to mind. Then, investment and retirement accounts come to mind as being important to keep track of. Finally, your simple savings and checking accounts should be looked at to determine their current value.
Why is it so important to organize your property in this way? For starters, you don’t know if you will always have access to the home. Much of the time one spouse chooses to move out of the home in a divorce. Or a judge will order one of you to leave. If you are the spouse ordered to leave, there is no guarantee that you will have access to the home again. Therefore, you must organize the property as soon as you can. The last thing you want to do is delay this process. You are going to end up having to rely on your memory.
There is something about having a plan that matters in a divorce. I am fond of telling clients that they can wander into a divorce. However, it is very difficult to wander out of a divorce without having accomplished anything meaningful. The better your plan the more likely you are to be satisfied with the result of your case. Many people lament not having a plan for a divorce. Don’t let this be you. Instead, go into a divorce with a sensible and well-thought-out plan.
Goal setting in dividing property in a divorce
Accomplishing anything meaningful in a divorce depends upon your attitude. That attitude needs to be geared towards property division and accountability. Accountability when it comes to property division means being accountable to yourself. Even if backing down means finishing the divorce faster, you are hurting yourself in the long run. Looking back on the divorce in a few years presents a situation where you don’t want to have regrets. Taking the easy way out to quicken the divorce is short-term term not in your best interests.
Take the time to create some goals for yourself in the divorce. When it comes to creating a plan for your property this doesn’t have to be complex. Consider all the property that can change hands during this divorce. It’s a significant amount. As a result, what you plan on doing in the divorce is what you will accomplish. If you plan on giving up property to speed through the divorce that is going to matter.
Don’t know where to begin when it comes to goal setting? This is a common position to find yourself in. Many people who get involved in a divorce simply do so because the case was filed against them. While participation should be seen as the bare minimum in a divorce that is not good enough. Rather, completing a divorce to accomplish worthwhile goals is best. Talk to the Law Office of Bryan Fagan about this in greater detail.
How property is divided is up to you and your spouse
You and your spouse are in the best position to divide up your property in the divorce. Many assume that it is the judge who divides property. Rather, you and your co-parent get the first crack at dividing property. It is only when the two of you are unable to do so does the judge involves himself. Until then, have at it with your spouse on dividing this property up. There is no right or wrong way to do it. Instead, just divide the property in a way that works for both of you.
Once you arrive at a point where you cannot negotiate any further, then a court gets involved. A family court judge is better than nothing when it comes to dividing property. Still, you would prefer to have your spouse do it with you. A judge would make temporary decisions on how to divide property in temporary orders. A final hearing (trial) makes determinations on asset and debt division.
Dividing property is performed according to several different guidelines. The just and right division of property is the standard method for a court to employ in this situation. Consider that the entirety of your life and that of your spouse matters when it comes to property division. It’s not just the value of the property that matters here. Rather, some factors matter reflecting the past and the future.
Consider equity and fairness as much as anything else
Think about a situation involving you and your spouse. You are all married in your early twenties. He was a year older than you, so he had just finished college. You figured that college wasn’t really for you, so you quit school before earning your degree. Your husband continued to medical school. He couldn’t work because the schedule he has is so intense. As a result, you worked a series of odd jobs to keep the household afloat.
This wasn’t anything that you thought twice about. You knew that he would do the same thing for you if the roles were reversed. At that point, he needed your financial support a great deal. However difficult it was you worked these jobs to the best of your ability. No complaining or anything close to it. It was your duty that you fulfilled.
Eventually, your husband graduated from medical school. Residency did not pay great, but it was better than earning nothing as a student. You still worked during this time to supplement your husband’s income. By this time the two of you had a baby girl at home. Life was complicated but you made it work. This was the life of a young doctor and his family.
Property division when the spouses are in different financial worlds
Fast forward to now. You are going through a divorce which you did not file. Not that this makes a real difference when it comes to property division. However, it does frustrate you that all the work you put into the marriage resulted in a divorce. Doesn’t seem like you could’ve done much to save the relationship. Your kids are grown and out of the house. The main issues to try and settle relate to property division.
Where are the two of you regarding your financial lives? Your husband is still practicing medicine. He and another doctor own a medical practice together. Business is going well. He earns nearly $500,000 per year. Contrast that with your situation. You have not worked outside the home in many years. Taking care of the home and the children was your full-time job. You took that job seriously and you performed well in that role. Now, your main source of income is divorcing you. To say that you feel vulnerable now is an understatement.
A court would consider your disparate situations when it comes to income-earning potential. Not only is this subject important for one year but think about how the math works out over several years. The income disparity grows and grows as time goes on. As such, a court would seem to “even out” the situation. You do not stand to earn as much money as your husband over the next few decades.
Other factors a court considers when dividing community property
There are a handful of other factors a court uses to determine how to divide community property. For one, the health of you and your spouse matters. Consider if you have a chronic ailment of some kind. Absent other considerations this would point towards you receiving a disproportionate share of your community estate. Working while balancing a chronic illness is a challenge. Being able to do so consistently is not realistic. Receiving Social Security Disability benefits would be evidence to support this contention.
Fault grounds matter in the property division scenario. Texas is a no-fault divorce state which means that you can get divorced for no specific reason. However, there are benefits to divorcing based on specific reasons codified in the Texas Family Code. Among those reasons is a disproportionate share of your community estate. Examples of fault grounds for divorce in Texas include adultery, confinement in a mental institution, cruel treatment, and abandonment.
However, it is insufficient to merely allege fault grounds in a petition or counterpetition for divorce. You need to be able to prove those fault grounds with evidence. This is not always simple. Having an experienced family law attorney to assist and guide you through this circumstance matters. The Law Office of Bryan Fagan is here to help you and your family.
Final thoughts on property division in Texas
It truly is a dance when it comes to dividing assets in a divorce. You cannot be too aggressive- you risk hurting your dance partner. Like a great dancer, you need a plan thought out before you step foot on the dance floor. The Law Office of Bryan Fagan provides clients with those plans on a day-in, day-out basis. Thank you for choosing to spend part of your day with us here on our blog.
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.
