The part of a divorce that proves to be the most difficult time and time again (other than issues relating to children) is what ultimately happens with your community estate. The community estate that you and your spouse share is made up of both property and debt that is considered to be a product of your marriage.
This means that neither of you can claim it individually as your own and must therefore be divided- either by agreement or by court order. Today’s blog post will center around this subject as well as the steps that can be taken to prepare for a discussion of these issues during your divorce case.
Settlement vs. Litigation
Most clients that I have worked with have the mistaken idea that their divorce case will likely be decided by a judge after a trial has been commenced. The fact of the matter is that divorce cases in Texas rarely go before judges for justice to be handed down. On the contrary, the vast majority of divorces conclude in a setting called mediation.
Mediation typically is where you and your lawyer will agree with your spouse and their lawyer to attempt to settle your case at a third party attorney’s office. That third party attorney is typically a family lawattorney themselves and will help assist you all in your efforts to conclude your divorce. The mediator acts as a go-between and voice of reason during what can become a heated negotiation session.
The other route to go is the one that involves heading to court for a judge to pay tie breaker on the issues that cannot be settled. You can settle 95 percent of your case in mediation and head to court for the judge’s decision on the remaining five percent. I can think of many other ways that you and your spouse could spend the money it takes to go to trial but on occasion the situation warrants a trial.
Either way, you should be aware that when it comes to the issue of community propertydivision, a judge will have the best intentions of arriving at a decision that is fair and equitable. However, understand that the judge will not have enough time to learn everything there is to know about your family. The fact that divorce cases sometimes last two or three days can tell you that there is an information gap even in the longest of divorce trials.
If you feel comfortable having a judge decide how to divide up your community estate even knowing all of this, then you would be among a small percentage of divorce litigants in my opinion.
Don’t let there be a knowledge gap between yourself and your spouse when it comes to finances
Many marriages have it set up that one spouse acts as the family banker. This spouse is in charge of making sure bills are paid, food is purchased and the family home generally runs on schedule and under budget. A lot of times this is a spouse who does not work and instead devotes a great deal of time to being the home economist.
The other spouse perhaps has the full time job with which the bills are paid and the groceries are purchased but he or she doesn’t have the time to keep up with where exactly the family is in terms of finances. Having to learn about your family’s financial state on the evening before you hire a divorce attorney can seem like a daunting task.
The key is to learn as much as you can about where your family sits financially before filing for divorce can be extremely helpful. This is true for a couple reasons. For one, any information that you can provide your attorney with at the outset of your case can assist him or her with building arguments for mediation and if necessary a contested hearing.
Also- your spouse may begin to hide information that was previously available to you if he or she believes that a divorce is upcoming. You can still request information using Discovery if necessary but it can take a longer time and will cost you more money in attorney’s fees to go about it this way.
Community vs. Separate property in Texas
Although you’ve probably heard the terms used before, you may not have a clear understanding about what community property is and how it differs from separate property. The law presumes that all property owned by you and your spouse is community property. Clear and convincing evidence is needed by either you or your spouse to contradict this presumption and prove that property belongs in either your or your spouse’s separate property ledger.
If we define community property as all property other than separate property that is acquired by either spouse during the marriage then it makes sense to list what makes a property or debt separate property. Separate property is made up of:
- Inheritances or gifts
- Personal Injury awards
- anything owned prior to your marriage by either spouse
An increase in the value of your separate property counts as separate property, if you are curious. However, income and rent earned from separate property counts as community property since it is technically income earned during the marriage.
What is the general manner in which your community estate will be viewed in the context of your divorce?
Whether it is you and your lawyer preparing for mediation or a court preparing to divide up your debts and assets after a trial, the same evaluation will be done. First and foremost, it must be decided whether a piece of property is part of your community estate or either one of your separate estates. From there a dollar value will need to be assigned to the property prior to it being divided up to either you or your spouse.
This exercise applies equally to debts as well as property (though property is more fun to talk about).
Part Two of our Discussion on the Community Estate coming tomorrow
The Law Office of Bryan Fagan, PLLC invites you to return to our website tomorrow for part two of our discussion on your community estate and how it could be divided in your divorce. If you have any questions on the information presented in this blog post please do not hesitate to contact our office today. A free of charge consultation is available six days a week where your questions can be answered by a licensed family lawattorney.
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Other Articles you may be interested in:
- Who decides how your community property is split during a Texas divorce?
- Know How Property and Debts are Divided, When Preparing for Your Texas Divorce
- Dividing Property in a Texas Divorce - The Just and Right Division
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
- High Net Worth Divorce / High Asset Divorce
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 Child Divorce Lawyers right away to protect your rights.
Our Divorce lawyers in Spring 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.