Transparency is one of the most important qualities to have in a divorce when it comes to dividing property. We know that there are risks associated with going through a divorce. One of those risks is having a spouse who is not willing or able to be truthful with you. That may have been a problem during your marriage. Getting divorced because your spouse lied to you too frequently is not uncommon. As a result, the level of trust you have in your spouse may be rather low now.
With that in mind, going out on a limb and trusting the things your spouse tells you during the divorce is not going to be easy. Some of this is a reasonable concern over your spouse and their propensity to lie. However, doing something about your spouse’s propensity to not be truthful is a different matter altogether. The question you need to ask yourself is how can you protect your family moving forward when it comes to property protection and division. Being fair in a divorce is one thing. Being prone to being taken advantage of is a completely different matter altogether.
Today’s blog post from the Law Office of Bryan Fagan focuses on protecting yourself from an untrustworthy spouse. Dividing the property in a divorce is no small matter. We will learn more about how property is divided in a divorce. Additionally, there are ways to identify behavior that indicates bad intent.
Property division in Texas divorce cases
Before we discuss the dirty trick of hiding assets we first need to learn more about how property is divided in a Texas divorce. In truth, there are two ways to divide property in a Texas divorce. The first way involves utilizing our state laws on marital property division. Namely, the community property laws of Texas.
Community property refers to a legal theory on how to classify property in a divorce. In Texas, the law presumes that all property owned by you and your spouse at the time of your divorce is community property. This is important because community property is subject to division in a divorce. This means that a court can divide any property classified as community in a just in right manner depending upon the circumstances of your case. As with just about every instance involving family law and the courts the facts matter in your case. A just and right division of community property does not necessarily mean that the property will be split evenly, down the middle.
Property from the marriage is almost always community property
Another unique aspect of Texas community property law is that property accumulated during the marriage is almost always community property. It does not matter who earned the income or who purchased the property. So long as the property was accumulated during the marriage it attempts to argue that this property is just as much your spouse’s as it is yours. For example, let’s say that your spouse is a stay-at-home mom while you are a successful business owner. It doesn’t matter that all the income in the household technically comes from your work. It also doesn’t matter that nearly all the property purchased in the house was with your income. All that matters is that you and your spouse were married while the property was acquired. For most people, this comes as somewhat of a shock.
More on Texas community property
Furthermore, the property in Texas that you have divided in your case is not always done so by a judge. Many people hold this idea that it is a foregone conclusion that the property and their case must be divided by a judge. Rather, the reality is that you and your spouse are the most likely persons not to divide your property.
The reason why this is the case is due to the courts favoring spouses having an opportunity to divide property themselves. This is done through informal settlement negotiations. Whether you and your spouse hire an attorney is up to you. However, there is a notable amount of time in a divorce to where the two of you can negotiate directly. Or you may choose to hire attorneys to help facilitate that process. In any event, understand that the courts would prefer you and your spouse to be able to work together on this subject.
Settlement negotiations are also facilitated by mediation. Mediation involves you and your spouse mutually agreeing to name a third party who can oversee settlement negotiations in a set period. Typically, mediation occurs at the office of the mediator. The mediator is usually a practicing attorney. A mediator acts like a ping-pong ball, bouncing back and forth between you and your spouse. Along the way, he plays devil’s advocate brings up additional information, and helps continue discussions.
The mediated settlement agreement
After mediation, a mediated settlement agreement is the goal. A mediated settlement agreement contains all the settled-upon issues in your case. These are not final orders, however. Rather, they form the basis for final orders to be drafted. You and your spouse should check what the mediated settlement agreement says before signing. Once signed, there are very few circumstances in which a mediated settlement agreement will not be honored by a court. For this reason, it is wise to have an attorney attend mediation with you and certainly help you draft orders off those agreements.
Whatever has not been settled in mediation will likely need to be litigated in court. This simply means that you and your spouse will need to attend either a temporary orders hearing or a final trial to determine matters not settled in court. Typically, mediation is set up near a trial or hearing date. The idea is that deadlines spur action. As a result, you and your spouse are more willing to work with one another when you know the alternative is a trial or hearing.
As it pertains to property division, attending mediation with documents, a plan, and goals is crucial. The more prepared you are to attend mediation the more likely you are to arrive at an equitable settlement with your spouse. Getting on the same page as your spouse on the facts and circumstances of your case is also important. One of the biggest hindrances to settling a case is simply not agreeing with him or her on the facts. Therefore, working with your spouse to turn over important documentation to the other person is the difference between settling a case and being forced to attend a court date.
Using discovery to negotiate
it is fair to look at mediation and discovery as a means to an end. That end is the negotiation of your divorce with your spouse. There is no doubt that settlement negotiations within a divorce are complex. There is very likely to be some difficult subject matter and facts to go over with your spouse. Additionally, there are the emotions that almost every spouse experiences because of the divorce. Ironically, the most important person to negotiate with is also the person that you are most inclined to be upset with at this moment. That does not make for a great setting as far as negotiation is concerned.
However, this is the reality of your circumstances. To avoid the worst outcomes in a divorce you need to be able to engage in the most uncomfortable behavior. We know this to be true in so many areas of our life. When we exercise the best we usually have to withstand some unpleasantness as far as the exercise we endure. The same applies to divorce. Engaging with your spouse on this level is not fun but it is necessary.
Texas attorneys and parties alike both use discovery to their advantage. Discovery involves formalized requests for information, documents, and answers to questions. These requests are made at various points in a divorce case. You are expected to give honest answers to whatever questions you can. You are also able to object to certain questions based on the facts and circumstances of your case. Once received, the answers to your requests are used to learn more about your spouse’s case and the facts at hand.
Observe how your spouse responds to requests for discovery
In the interest of full disclosure, discovery is not something easy to do. Attorneys who are not experienced in family law struggle with submitting and responding to discovery. For that reason, we recommend working with an experienced family law attorney. The lawyers with the Law Office of Bryan Fagan focus our practice on family law. We are skilled at requesting discovery responses and responding to the requests of an opposing party. If you need to respond to discovery, contact our office today.
In any event, one of the first signs that your spouse may be trying to hide assets is if he or she is unwilling to respond to your discovery requests. True enough, there are certain circumstances where proper objections may be made to certain discovery requests. Sometimes attorneys attempt to be over-aggressive when it comes to making discovery requests. That does happen. However, there are also straightforward, specific requests for information where an objection is not warranted. When you start to see situations develop like this it may be taken as a sign that your spouse has something to hide.
Small business considerations
Many times, this involves a circumstance where your spouse has a small business and is unwilling to provide you with information about the financials of the business. Take a situation, for example, where you are a stay-at-home mother. Your husband owns one or more small businesses. You may have a general understanding of what he does for a living but have no specifics. When your husband refuses to provide you with even the most basic information about their business then this is a warning sign. If you encounter this in a divorce it is best to consult with an experienced family law attorney. Not doing so may result in you losing out on a substantial amount of property in your case.
Dealing more in cash than before
Watch for your spouse utilizing more transactions in cash than he or she had previously. Of course, cash is easier to hide as far as transactions are concerned. Using cash means that your spouse can avoid disclosing their actions when making purchases. This is ideal for someone who is attempting to buy something without you knowing or even to Move cash to a place where you can’t find it. Check your bank statements regularly. If you are not the spouse who has paid attention to this type of thing before you need to start keeping an eye on it. The reality of the situation is that your spouse knows if you are the type of person to keep an eye on your finances.
Again, there is a great deal of downtime in a divorce. So much can go on from the time your divorce is filed until the time of a trial or final mediation. You may be honoring the temporary order against unnecessary spending. However, it is probable or likely that your spouse is not as honorable. This is not fair to you. However, it doesn’t mean that you must sit idly by and let that happen. Rather, understanding the realities of a divorce case means being always vigilant. This starts and ends with something as simple as keeping track of your bank statements.
Account balances are crucial to understand
At the beginning of your divorce, make sure to look at the balances in your checking and savings accounts. Doing this will help you to gain a better understanding of where your family is financially at that moment. Then, make sure to check your bank statements regularly thereafter. See if withdrawals are being made. Then, contact your bank to gain more information. You should be able to find out the source of the transfer. A withdrawal in cash is especially concerning.
Taking action when you believe it to be necessary
When you see something suspicious in the financials for your family it is time to act. Again, sitting idly by and worrying about what is going on do you no good. Rather, the time to do something is now. It is unreasonable to expect that you can do something to prevent every bad act with your finances from occurring. However, it is reasonable for you to act when you see that something has happened that catches your eye.
First, attempt to address the situation directly with your spouse. Sometimes you may legitimately run into an honest misunderstanding. It could surprise you when your spouse provides you with a legitimate explanation for what you see as financial irregularities. Going directly to your spouse with the issue may also lay the groundwork for a more positive negotiation during the rest of your case. Many times, we take for granted that interpersonal communication is a major part of a divorce. In short, do not immediately go to your attorney or request a hearing with the judge.
However, if it becomes apparent that something is wrong with the finances and your spouse will not work with you on them it is time to protect yourself. Having an attorney means allowing the lawyer to contact your spouse or their attorney. Sometimes having the issue addressed with the third party is the best way to go. If an explanation is not given to your attorney then a hearing may be necessary before the judge. This is especially true if there is a temporary order in place that bars your spouse from acting in a certain way with the finances.
Final thoughts on suspicious behavior and property division
Dividing property in a divorce fairly is possible. However, it depends upon both you and your spouse acting in good faith. When spouses choose to act in a way that is not fair then you have a recipe for unfairness in negotiation. Couple that with the propensity of people to act out of character and divorce and you have all the makings for unethical behavior.
In a situation like this, you have options. One of the most important options is for you to consider reaching out to an experienced family law attorney. The attorneys with the Law Office of Bryan Fagan are equipped to handle matters regarding an unethical spouse. Bad behavior in a divorce is common. Responding appropriately and swiftly is crucial for the innocent spouse. Thank you for choosing to spend part of your day with us here on the blog for the Law Office of Bryan Fagan.
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
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.
