If you and your spouse were to take all the community property that you own and put it towards the center of an imaginary (and huge) table during your divorce, the next question that would need to be answered is how is it going to be divided up ultimately. It’s not enough to simply determine what property is yours separately, which property is your spouse’s separately and what property is jointly held.
The tough question is what is going to be done with the property prior to your divorce being finalized. There are three people in our world that can make that decision- you and your spouse as a team or the judge whose court your divorce case has been assigned to.
Take away what you’ve seen in movies and the horror stories that you’ve heard from friends and families about reengage judges who had it out for him or her and what you’re left with is the reality that the vast majority of divorces end mediation rather than in a courtroom.
Mediation is a process that you and your spouse undertake to avoid taking your case to a judge and instead work to settle on the outstanding issues in your divorce with the assistance of a third party mediator. The direct control that this option offers you and your spouse when compared to a trial is preferable in the opinion of most people going through a divorce as well as yours truly.
The creativity and flexibility afforded to you and your spouse (with the assistance of the mediator and your attorneys) will likely trump any result that a judge could create for you. It’s certainly possible that you could end up with a better result from a judge, but the tables could just as easily be turned and you could walk away with nothing more than the proverbial shirt on your back.
A trial should represent a last resort, not a first option for divorcing spouses
When it comes to a method to divide up your community estate, a trial wherein the judge lays down a ruling should be the last option pursued. However, there are those rare instances where parties are not able to settle their issues outside of court and you and your spouse could potentially find yourselves in this position.
Among the reasons why heading to court should be a last resort is that there is a high level of risk involved in doing so. The reason for that risk is a judge does not have a set formula for dividing up your community estate. There is no “paint by numbers” chart for the judge to go by- if spouse A does this, spouse A receives this, etc. Being a judge is tough and he or she will be forced to make difficult decisions using the facts available in your case but also relying a fair amount on their own judgment.
Additionally, it is not mandatory for the pot at the middle of the table to be split down the middle perfectly. That certainly can be the end result but there is nothing in the rule book that says that it has to happen. The rule book is open ended and gives a lot of discretion to your judge to make decisions on the fly. That is a recipe for little peace of mind for you and your spouse.
Your judge will place more weight on some factors and less on others
We generally know what a judge will look at when evaluating who will get what when it comes to property in your divorce. Are you or your spouse the primary conservator of your child? Which of you earns more money? How old are both of you? How long has your marriage lasted? Did you cheat or your spouse or vice versa?
Did you use any community funds to gamble or engage in another activity that seriously undermined your financial livelihoods? These are a few of the fact specific situations that a judge will be evaluating your case by.
Unfortunately every judge will place their own, individual importance on any various factor so being able to identify how a particular judge will react to a particular set of circumstances is a really tough thing to do.
Your attorney should have some knowledge of the judge your case has been assigned to if he or she has experience practicing family law in your area. Even still, asking for an opinion on how the judge will decide your property division is not a scientific survey. It is an estimate. I’m willing to bet that neither you nor your spouse want to leave your finances subject an educated guess.
Pride comes before the fall
In the middle of a contested divorce it is easy to fall into the trap of feeling the need to do something out of pride. I’ve had clients tell me that they refuse to settle on an issue because he or she feels that they have been disrespected or otherwise taken advantage of. I’m not going to tell you that in some situations those feelings are not justified.
It is certainly worth it on occasion to take the plunge and see what a judge has in mind when dividing up your community estate. However, if you are considering pushing for “truth, justice and the American way” in your divorce then you will likely be saddened by the end result.
Refusing to meet in the middle because you are overly convinced of your own righteousness is a dangerous mindset to have in your divorce. This is all the more reason to have hired an objective, experienced attorney who can lend their perspective and help you avoid following your pride down a path that is not in your best interest.
Questions on how your community estate may impact your divorce? Please contact the Law Office of Bryan Fagan, PLLC
If you have questions regarding community property, divorce or any other subject in family law please do not hesitate to contact the Law Office of Bryan Fagan, PLLC today. Our licensed family law attorneys are standing by to take your call. A free of charge consultation is available six days a week where your questions can be answered in full.
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Other Articles you may be interested in:
- Issues in Community Property Law in Texas
- Dividing community property in mediation: What can be done to settle your divorce in Texas
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- Dividing Property in a Texas Divorce - The Just and Right Division
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
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 one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our Divorce lawyers in Houston TX are 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 Houston, Texas, Cypress, 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.