This article is inspired by one of the questions I hear frequently regarding damaging, destroying, or selling marital assets. The question takes on some of the following variations:
- Can I sell X property?
- Can my spouse sell X property?
- My spouse destroyed X; what can I do about it?
- My spouse damaged X property; what can I do about it?
Unfortunately, the answer, as in many legal questions, is that it depends. This blog will explore how timing and different circumstances can affect the outcome.
Can I or my Spouse Sell our Property?
This is a question I get a lot when a Texas divorce is on the horizon. If nothing has been filed with the court, then there are no court orders to prevent either you or your spouse from doing anything they want with marital property.
The beginning stages of the divorce process are often one of the scariest times because of the lack of court orders. This is because there is a lot of uncertainty of your rights and your spouse’s rights.
After Paperwork is Filed
Once the divorce paperwork has been filed, some counties in Texas have standing orders that go into effect and place rules on how money can be spent and on selling, damaging, or destroying property.
If the county does not have a standing order, you can ask the court for a temporary restraining order. This is very similar to a standing order, but has to be asked for and is routinely granted by family law judges.
A temporary restraining order in Texas is not a protective order; this is a common misconception. Generally, a Texas temporary restraining order has more to do with maintaining the status quo (much like a standing order) and is generally not intended to keep a particular individual from being around another individual or location.
The big difference between a temporary restraining order and a standing order is that temporary restraining orders are only good for 14 days. If requested, temporary restraining orders can be renewed for an additional 14 days. The idea behind a temporary restraining order is that they will provide some temporary protection until there can be a hearing before a judge can make more permanent orders for the duration of the divorce.
How is Property Divided in Texas?
In general, Texas Community Property is property acquired by either spouse during the marriage.
There is a rebuttable presumption that all property owned during the time of marriage is community property.
One of the things I tell clients and potential clients regarding property division during a divorce is that from the minute they are married until the minute they are divorced, any property, debts, or income earned are potentially on the table for division during the divorce.
The exception to this is any property that can be proven to be separate property.
To rebut this presumption, spouses must provide clear and convincing evidence that an asset is separate property in Texas.
Separate Property in Texas is
- Property acquired before marriage,
- Property acquired during marriage by gift, devise, or descent,
- Property acquired during marriage, but purchased with separate property funds.
Family heirlooms can probably be shown to be separate property. However, something to consider is that if they were gifted, such as Grandma’s wedding ring to your bride, then it may no longer be your separate property; it may now be the separate property of your ex.
Wedding rings are a good example of being the separate property of the person they were given to and not normally subject to division in a Texas divorce. However, there is some case law that might provide a little wiggle room in regards to family heirlooms.
Other Ways to Prevent a Spouse from Destroying, Selling, or Damaging Marital Property?
The best remedy is prevention. One of my suggestions to clients and potential clients is to move any property they are concerned about to a safe location. Some of these items may include:
- Inherited items
- Things of sentimental value
- Valuables in safe
- Financial documents
- Things that cannot easily be replaced
I tell my clients and potential clients these items will ultimately need to be disclosed in the inventory during the divorce. However, by moving them to a safe location, they can insure they do not end up in the trash, a garage sale, or pawn shop. Unfortunately, not everyone behaves in a civil manner during a divorce and a bit of caution is often prudent.
If you do not remove or cannot remove the items to a safe location, you can at least:
- Inventory your valuables and create a list,
- Photograph the property and date the photographs,
- Locate any proof you may have of what was given to you, inherited, or owned prior to the marriage.
At least in this way you have documented the condition of the property and you can prevent your spouse from saying the item never existed.
What if my Spouse has Already Destroyed, Damaged, or Sold Marital Property?
One remedy is to plead for marital waste. As we discussed previously, the Texas Supreme Court found that there is unquestionably a fiduciary relationship owed by the spouses to each other and to the management of the community estate. (Schlueter v. Schlueter, 975 S.W.2d 584 [Tex. 1998])
If it can be shown that waste took place, the innocent spouse may have a claim for reimbursement.
If wasting of assets can be proven, a judge can consider that when deciding how to divide marital property, to ensure the innocent spouse is reimbursed. A judge has few options including:
- Awarding the wronged spouse an appropriate amount of the community property,
- Awarding a money judgment in favor of wrong spouse against the spouse who committed the wrong, or
- Both of these options.
The downside of this remedy is that it will not help to replace things that cannot be replaced such as photos or inherited items.
Seek Legal Advice Immediately
If you are concerned that your spouse may destroy, damage, or sell marital property you will want to seek legal advice from a Texas divorce lawyer immediately to go over your legal rights. This not a situation you want to take lightly. The consequences of delay may be severe.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- The Dirty Trick of Hiding Assets During Your Texas Divorce
- The Dirty Trick of Engaging in Spousal Starving During a Texas Divorce
- Know How Property and Debts are Divided, When Preparing for Your Texas Divorce
- How Much Will My Texas Divorce Cost?
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
- 7 Important Ways to Financially Prepare for Your Texas Divorce
- 6 Tips - On How to prepare for a Texas Divorce
- 6 Mistakes that can Destroy Your Texas Divorce Case
Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Spring, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.