Put yourself in this situation. You are humming right along in your marriage when suddenly, your wife files for divorce. Completely out of the blue- this catches you off guard. Your first thought is that the divorce isn’t agreeable to you. You don’t want to get divorced. After doing some basic research online you find that Texas is a no-fault divorce state. This means that not only do you not need to agree to the divorce, but your spouse can file for divorce for no reason. In other words, the divorce proceeds whether you agree to it or not.
This not only catches you by surprise as far as the emotions of it but also regarding the day-to-day functions in your marriage. One thing you do not need to worry about is kids. You and your wife talked about having kids someday but now it’s clear that the someday you talked about is never going to arrive. Without kids involved, the one area of your divorce that is relevant is property division. You don’t know much about the property division parts of the law. However, you do know that you have a “normal” amount of property for a guy in his mid-thirties.
Sound familiar? Dig into the subject of property division and asset protection in today’s blog post from the Law Office of Bryan Fagan. We have what it takes to guide you on this subject here on our blog. Have questions? Contact our office for a free of charge consultation.
Concerned with property division? Learn about community property, first
Your specific situation is important when it comes to deciding about property division. However, jumping right into how property is divided in your case misses the overall point. That is, we need to first talk about community property law and how that impacts Texas divorce cases. Community property principles and the statutes in the Texas Family Code govern how your assets are either going to be divided or retained by you. Understanding this subject gives you a major advantage in a divorce.
Community property principles are utilized by only thirteen states in the United States. Texas is one of those states. However, how Texas utilizes community law is different than California, which differs from Wisconsin. So on and so forth. Some of you reading this who moved here from out of state likely had different laws in your “old” state than we have here in Texas. As a result, it pays even more to learn how the Lone Star State divides property in a divorce.
For starters, understand that from the moment you file for divorce, a community property presumption attaches to your property. This means that it is presumed under the law that all the property you own right now is community property. A distinction like this matters a lot when you consider that community property is divisible in a divorce. That means, technically, that all the property owned by you and your spouse is divisible. Let that sink in for a moment.
Overcoming the community property presumption
Take a step back from your reaction to that statement. Not all your property is subject to division in a Texas divorce. Yes, there is a community property presumption in Texas. However, you can overcome that presumption with clear and convincing evidence. That is the legal standard you need to meet to prove the property is separately owned. There are three categories of property in Texas divorces: community property, your separate property, and the separate property of your spouse.
The key here is establishing what property belongs in what column. For instance, some of the property that you own is likely separate property. This would be property that you owned before your current marriage. Additionally, separate property is any property you acquired during the marriage by gift or inheritance. The same holds for property acquired by your spouse in the same way during the marriage. There is a possibility that you own separate property, therefore. A judge cannot divide separate property.
Much of the time you and your spouse will concede certain property is separately owned by the other person. That old sweater from college you won’t part with. She probably won’t argue that it belongs to you separate from her. However, there may be some assets that are more valuable which you need to fight for. I don’t mean to physically fight, of course. We at the Law Office of Bryan Fagan mean to present sufficient evidence to overcome the community property presumption.
Having an attorney helps in a property division case
The attorneys with the Law Office of Bryan Fagan have been in some real dogfights when it comes to property division. These are people just like you. Otherwise, reasonable, and calm people who get involved in a divorce and a switch goes off in their heads. Something about the competition of a divorce drives them towards acting not like themselves. Are you seeing that in your spouse? Is that something you would like to avoid?
Working with an attorney helps a great deal in a divorce. As you are about to see the process of dividing property can get complex. The further you fall behind your spouse in this process the more of an advantage she gains over you. While you are worrying and trying frantically to figure out a game plan she and her attorney are already two steps ahead. The property you wish to keep may end up outside your grasp when you wait too long to move forward.
Ready to move forward intentionally towards important goals? Contact the Law Office of Bryan Fagan. We have the experience and professionalism you need to convert worry into a game plan geared towards achieving goals. Our attorneys don’t flail madly toward just any goal or outcome. Rather, we sit down with our clients to help create a plan that is intentional and oriented towards your best interests. Ready to go. Contact us today for a free of charge consultation.
Organizing yourself in a property division case
When it comes down to it you need a game plan for your property division case. This is not a situation where you should jump into the pool without first testing the temperature of the water. When it comes to a property division circumstance the best plan of action is to be as organized as you can be. This means taking the time to understand the property that you own as well as the other property at stake in your case. Once you know the property involved in the case it is time to develop an understanding of who owns what.
This can be as simple as taking out a yellow legal pad and drawing two lines down the center to make three columns. The first column will be for Community property in the last two for your separate property and that of your spouse. Do your best to be honest so that you can come up with a division of the property as you see it. You may be surprised to learn just how closely your views align with that of your spouse.
From there, a basic appraisal of the property is a good step to take. Appraising property can be as simple as estimating the value of this item or that. Sometimes you may need to hire an experienced appraiser to determine the value of certain items like real estate or antique personal property. However, this is not a formal exercise by any means. Your basic appraisal of the property is good enough for right now. All you want is to have a basic understanding of what the value of these assets is.
How to inventory property in a divorce
keeping track of all the property that you own is a challenge that most people face in a divorce. The reality of the situation is that currently many of us own a substantial amount of property that we do not meet daily. As a result, this property can slip from our minds from time to time. As a result, we stand to forget about it or misplace it in the context of a divorce. This is not a good thing when it comes to trying to protect assets that you own.
On top of that, it is not a given that we will be able to access our home in all our properties once the divorce starts. This is not to say that you will be barred from your home by any means. However, there may come a point in your case where you choose to move out or otherwise lose access to your house by agreement with your spouse. Therefore, you must take advantage of the opportunities you have to get a hold of the property that you own.
For our purposes, this looks like you are walking through your home with your phone out to take pictures or a video of certain assets and things that you see. Go through all your closets and drawers as best as possible. Once you have done that begin to organize your investments and other things of that nature by going online and looking up the balance of your accounts. Collecting login information would also be prudent at this stage. The more organized you can be when it comes to this subject matter the better off you are towards the end of your divorce. Protecting assets at the end of a divorce depends heavily on the work you put in to organize yourself at the beginning of a divorce.
What factors would a court use to divide property in your divorce?
There are certain factors That courts use consistently to divide the property of spouses in a divorce. However, it is worth mentioning that you and your spouse play the primary role in dividing property in your case. This means that a court will only step in to divide property when it becomes apparent that the two of you are unable to do so. Therefore, the more effective you and your spouse are at communicating with one another the more likely you will reach a favorable outcome. Leaving anything up to the opinion of a family court judge puts you in a difficult position.
However, if your case does get to the point where a judge needs to decide there are a handful of factors that will matter. First, the court looks at the separate property owned by you and your spouse. If one spouse owns a tremendous amount of separate property and the other owns very little, then the spouse who owns little separate property would have an advantage when it comes to community property division. This is because a court would seek to even out the property that the parties come away with in the divorce.
Another important factor that a court would consider is the income-earning potential of both you and your spouse. For example, if you are a doctor who owns his medical practice then you are in a very steady position as far as income is concerned. Whereas, if your spouse has never worked outside the home then she is not in as strong of a position. Again, the spouse in the weaker position relative to future income likely walks away with more community property.
Who keeps the house in a divorce?
One of the most important questions that can be asked when it comes to property division in a divorce is who would stand to keep the marital home. This is an important question not only because of the emotional components but also because the house likely represents the most important asset in the marriage. As a result, understanding which spouse can keep the house matters a great deal.
To begin with, it is not a given that the house remains with either of you in the divorce. There is no rule which states a married couple must keep the house in a divorce. It may turn out that selling the house is a better option based on your specific circumstances. Many times, you and your spouse will not be able to afford the mortgage or to refinance a home at the time of your divorce. The cash you could receive from a sale of the home may matter more.
As we spoke about earlier, certain properties in your marriage may be separately owned. Separate property, if you recall, cannot be divided in a divorce. Therefore, if your home is separately owned by you or your spouse then that person would be able to keep the house. The decision about what to do with the family home is critical to your divorce. Having a plan for how to proceed in this area matters to you both now and in the future.
Protecting yourself in a divorce when dividing property
As you can see, the overarching theme of this blog post has been organization and intentionality when it comes to property division. Understanding the law and your circumstances matters but having a plan is most important. This means being diligent about keeping organized with your property and then having a well-thought-out and reasoned plan on how to divide it all.
From there, negotiating with your spouse is also critical to success. Very few people accomplish the goals that they set out for themselves in a divorce if they are unable to communicate. Setting aside your differences and being as civil as can be matters in a situation like this. This is true even if you are otherwise upset or angry with your spouse. You will find that you accomplish more by being civil and polite than by acting disrespectfully.
There are many moving pieces in a divorce case. It is perfectly fine to have questions about how to move forward or what to do when it comes to your property. However, the goal should be to have fewer and fewer questions as your case proceeds. You should find that you have more answers than questions at a certain point in your case. As a result, having proper guidance and assistance in a divorce matters.
Thank you for joining us here on the blog for the Law Office of Bryan Fagan. We value being a member of our communities and seek to provide accurate and interesting content here on our blog. It is possible to accomplish goals in a divorce but only when you have a plan. We at the Law Office of Bryan Fagan hope that we can be a part of your plan to achieve those goals.
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.
