When you think about a divorce does your mind immediately go to thoughts of a courtroom with an old, stuffy judge in the front who is banging a gavel and deciding your fate? It does for most people based on what I have heard from folks who have come in for a free of charge consultation with the Law Office of Bryan Fagan, PLLC. People seem to think that their divorce is going to ride or die with how a judge perceives him or her and how that same judge perceives their spouse. If the judge had a bad tuna sandwich at lunch that could affect how much child support is paid or what percentage of the community estate ends up going to a certain spouse.
Well, with all that said I would like to put you at ease- somewhat. Most divorces in Texas do not result in the aforementioned scenario being played out. In fact, you and your spouse may not have to even step before a judge until the very end of the divorce when one of you will do so only to tell him or her that you have a signed final decree of divorce that is ready for the judge’s signature. I hate to take some of the drama out of the process but I figured I wouldn’t put you in suspense any longer.
What role could a judge in play in the property portion of your divorce?
A judge will step in and play tiebreaker on various property issues that you and your spouse cannot settle between yourself. This means that you and your spouse will head to a trial as it is known in the legal world. The vast majority, 95% or so I would say, of divorce cases in Texas are settled successfully before the trial stage. If you have a spouse who you think is the most stubborn person in the world this should make you feel a whole lot better I hope.
Attorneys, despite their reputations in our culture, are actually very good at helping clients resolve disputes and move towards settlement through negotiation. It will take some work to do so, however. You will have to give and your spouse will too, some things that you maybe don’t feel all that good about. However, you will also be able to gain some things that your spouse is not too happy about either. I always tell clients that if you walk out of a negotiation session a little unhappy, and your spouse does as well, you know it was a good and probably fair session.
Unique situations involving facts and circumstances that require a judge to make a determination are typically the kinds of cases that end up going to try. If you and your spouse are arguing over the percentage of a retirement fund that each of you end up receiving it is probably not worth using your time and money to go have a conversation with the judge.
Keep in mind that unless you and your spouse are fabulously wealthy (which if you are, congratulations!) the money that you stand to gain in a trial could well be eaten up by the attorneys fees that you have to pay in order to have your lawyer prepare your case for trial. In the event that you do not know, it is not simply a matter of waltzing into a courtroom and asking a judge for some relief. Your attorney will need to prepare evidence, a strategy, prepare you and prepare a case to counter your spouse’s evidence/strategy. This take a long time and the end result may not be all that different than what you turned down in negotiation session.
What will a judge be looking at in a trial?
If your case makes it all the way to a trial then your judge will be working to apply the rules of the Texas Family Code in regard to property. He or she will determine what is separate property of each of you and divide it as such. Testimonial and documentary evidence will be presented wherein you and your spouse will both present your theories of the case as to why you should end up with a certain percentage of the money in your bank account, retirement account, etc. Judges are freely able to judge circumstances and make assessments based on those circumstances as to what percentage of the marital estate goes to you and what percentage goes to your spouse.
Two things to note here. First of all, it is a misnomer that parties to a divorce in Texas automatically start off with a 50% share of the community estate. Fair and equitable does not mean 50/50, necessarily. It could, but if you earn a large annual income and your spouse is a stay at home parent who worked nights to put you through medical school then she may be in line to receive a greater than 50% share of your marital estate. Also, if you or your spouse have alleged fault grounds for you marriage- domestic abuse,adultery, etc.- this may entitle the aggrieved party to receive a disproportionate share of the community estate as well. Most divorces are no fault nowadays, so don’t expect fault grounds to play a major role in your case
.Does it matter if the property in my divorce is all in my spouse’s name
nt, etc. are all in their spouse’s name that they will walk out of the divorce with nothing to fall back on. Fortunately if you find yourself in a similar position you will not have to worry about this.
The fact is that because Texas is a community property state most of these items will be considered community property if they were purchased with income earned during the marriage. It does not matter with the title to the property states as far as your name or your spouse’s name. Retirement savings earned during the course of the marriage are also considered to be community property. You will need to determine what portion of the retirement account was brought into the marriage and can subtract that from the account’s overall value to determine the community property value.
What can you do to keep your separate property separate and not part of the community estate?
If you keep your separate property (property owned prior to your marriage or acquired during your marriage by gift or descent from a will) in an account all its own and/or keep the property titled in your name only it will likely stay separate from your community estate. Keep your money that is separate property in a separate bank account than the one you deposit your paychecks into. Or, open up an investment account with stocks that you inherited from your uncle who passed away and do not add the stocks into a investment account you share with your spouse.
Finally, if you use your separate property to invest and upgrade a rental home that you purchased together the money will likely be determined to be community property at that stage. You are essentially gifting that money to your marriage. These are general overviews of the law on community and separate property and you really need to hire an attorney to go over how your specific circumstances will likely play out in a future or current divorce case.
More on fairness, equity and dividing community property- tomorrow’s blog post topic
Life isn’t fair. You may not find that phrase to be truer in any setting more than your divorce case. I’d like to spend some time at the beginning of tomorrow’s blog post delving a little deeper into this subject with you all.
If you have any questions about what we’ve discussed today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultation with a licensed family law attorney six days a week where we can answer your questions in a comfortable and pressure free environment.