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Defining the word "property" in a Texas divorce

Before we jump further into discussing how property is divided in a Texas divorce and all the issues that come along with it, let’s take a second to slow things down and actually define what property is. Contrary to what many people believe, property is not just the things that are in your home like furniture, clothes, books, computers, electronics and silverware. You will need to expand your thinking and consider that property can also mean intangible things rather than just the stuff in your home that you can pick up with your hands.

If you own a business or stocks or mutual funds, these are all intangible property examples that are going to be relevant in your divorce. The fact is that you will have to disclose ownership of these property items in your divorce as well as their value. Typically you and your spouse will exchange discovery requests which ask both sides to disclose to the other information such as this. It allows you and your spouse an opportunity to sit down with your attorneys to figure out what is out there in terms of property and how best to negotiate based on the newly acquired information.

When the value of a piece of property becomes a point of contention during a divorce

It could happen in your divorce that you and your spouse do not agree on the value that either of you has assigned to a piece of property. Surprise! People getting a divorce can disagree on a particular issue. A common issue is how a business owned by you or your spouse is valued. You should meet with your lawyer to discuss how you can place different values on a property through valuation methods.

Once the divorce is filed be careful how you treat your assets

Your ability to spend money, move assets or transfer money from one account to another will be looked at closely by your spouse and the judge in your case. There will likely be a temporary order from the very beginning of your case that bars either you or your spouse from purposely wasting community property assets in order to hurt your spouse. If you do so you could be penalized by having to pay your spouse’s court costs, attorney’s fees or other deterrents from following through with bad actions such as these.

Also, if you act deliberately to waste community income or property at any time during your divorce you run the risk of this being a potential fault ground for your divorce. That means whereas your divorce may have been filed on grounds that you and your spouse have irreconcilable differences that caused one of you to file for the divorce, now your spouse will have a specific reason why a divorce is necessary. A judge can take these fault grounds into consideration when he is dividing up your community estate and order that you take a less than equitable portion based on your prior bad deeds. It is advisable that you consider this possibility before doing anything unscrupulous in regard to your property during a divorce.

Economic circumstances at the time of your divorce will impact how community property is divided

Suppose that you are a stay at home mom and have been for the past fifteen years. You have a high school education and haven’t worked since before you got married. You’ve been a homemaker and mother, raising two children who are now almost out of the house and off to college. Right now if you had to go get a job the best you could probably do is to work retail somewhere or possibly secretarial work of some sort.

Compare this to your spouse who has worked in the same field for almost twenty years and has a master’s degree level of education. That master’s degree was earned while you were staying at home watching the kids, taking care of them and generally managing the household affairs. That degree was earned in no small part because of your efforts to raise a family and stabilize things across the board for your family.

Now that you have decided that a divorce is necessary, you have an overwhelming amount of concern that you are going to be left to fend for yourself after the divorce because while you have little education or money to fall back on, your spouse has his good job and all of the retirement benefits in his name. Is this the case- where you will suffer due to your staying at home and not betting yourself from a work and educational perspective?

There is almost no chance that your divorce will see you left to suffer because you have not been able to earn the income that your spouse has over the course of your time as a married couple. In fact, it is likely that a judge would give you a great deal of credit for staying at home to raise the family while your spouse went out and earned money and got the master’s degree that allowed him to do so.

In this situation you would likely be awarded a greater than fifty percent share of the community estate considering your disadvantages financially speaking. An alternative to this arrangement would be one where your spouse pays you a specific amount of spousal maintenance each month in lieu of a greater slice of your community estate. If you are holding back on a divorce because you are concerned that you will not be able to care for yourself and your children because of money worries then do not fear.

How do you define “income” in a divorce

Speaking of spousal maintenance, we ought to discuss how income is defined in a divorce so that we can discuss support issues. Child and spousal maintenance are two huge issues from a financial perspective in a Texas divorce. How much you stand to receive or to pay can swing your case from a “loss” to a “win” and vice versa.

In Texas, the Family Code defines what is to be taken into consideration when it comes to income. Things like wages, salary, tips, bonuses, etc. all count when it comes to income. Investment income, dividends, and other items that don’t come up as often (business royalties) also count as income when calculating both child support and spousal maintenance.

Underemployment explained

It happens from time to time that mysteriously, right before your divorce, your spouse quits a relatively well paying job and starts work at a business that pays him much less money. He tells you that it is for quality of life that he took the less-paying job. After all- now he has more time to spend with your kids and less time having to worry about work. Sounds somewhat plausible, but you smell something fishy.

If your spouse has taken it upon himself not to work full time or up to the level that he is qualified for then you may be able to argue that he has purposefully become underemployed. The motivation for your spouse to do so is that he does not want to pay you a full amount of child support based on his old income. If he can show that he can’t pay both child support and spousal maintenance he may be kept from having to pay spousal maintenance altogether.

A court, if you are successful in proving your purposeful underemployment argument can disregard his current pay grade and base child support and spousal maintenance off of his old rate of pay. Likewise, if your spouse is not working at all and is ordered to pay child support, the child support will be based on an assumed income as if he was working a minimum wage job.

Child Support, Spousal Maintenance and the expenses of divorce- tomorrow’s blog post subject matter

Please head back to our blog tomorrow to read more about this important topic. If you have questions about today’s subject matter please contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys are eager to meet with you in a free of charge consultation in order to address yo
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