Stressful situations usually bring about two sorts of responses from people, at least in my experience. The first group of people will understand that they are in a trying situation and will use that as an opportunity to focus, buckle down on the task at hand and generally work to improve their lives in a constructive manner. A second group of people will understandably be overwhelmed by their stress and will make bad decisions as a result. Their justification is also understandable- that because they are stressed they will need to do something to soothe their psyche. Whether that is buying a new car, making a rash spending decision in some other regard or some other ill-conceived decision these folks will take a bad situation and make it worse.
Divorce certainly qualifies as a stressful situation. Your entire life, your well being and your piece of mind is being overturned- sometimes through no fault of your own. What you are left with is a question of where do you go from here and how can you best achieve the goals that you have set out for yourself.
Family law attorneys are in the business of helping people just like you achieve their goal despite difficult circumstances. One of the jobs of a family law attorney is to help clients to understand the circumstances of their case and to advise him or her based on what is going to help him or her achieve those goals.
With that in mind, the attorneys with the Law Office of Bryan Fagan, PLLC would like to take this opportunity to discuss with you some tips on handling issues related to property during your divorce. So much focus is (correctly) put on issues related to your children during a divorce, but a rather small amount of comparatively placed on property issues. We would like to remedy that in some small way today by taking a look at how best to approach property matters in a divorce in Texas
Make a list for your attorney dividing the property between community and separate
At the beginning of your case (or even before it begins) it makes a lot of sense for you to take a piece of paper, a spreadsheet or any other means and to divide up your property into separate columns. The heading of the first column should be “community property” and the heading of the second column should be “separate property”.
Community property is any property that is owned mutually by you and your spouse. This property acquired or purchased during the course of your marriage, with a few exceptions. Income that was earned by either of you during the course of your marriage is considered to be community income. It does not matter if your income was deposited into a bank account that bears only your name and was never “commingled” with any of your spouse’s income.
The presumption in Texas is that all property owned by spouses at the time of your filing for divorce is community property. In order for a piece of property to be considered separate property it must be proven to be separate property. Separate property is any property owned by you or your spouse prior to your marriage or property acquired via gift or inheritance during the course of your marriage. Again, the burden is on you to prove (if contested) that a piece of property is separate rather than community property.
Before you even hear from your spouse on the subject, take an inventory of all the items in your home, your business, your investment portfolio and any other property in your lives. For items in your home I recommend taking photos of every room. This way if something is removed without your knowledge, or if for some reason you cannot return to the home, you have proof of an object’s existence. Begin by deciding what is rightfully owned by each of you and what property should go into your and your spouse’s separate estates. In the separate property column you can establish something as either your or your spouse’s separate property.
If you anticipate that an item is going to be contested, in terms of its belonging to the community estate or either of your separate estates, you should begin to collect evidence to prove your assertion. For instance, if you intend to prove that property is yours separate from your spouse you need to have a document that evidences title to the property. Whether this is a title document, receipt, or something less formal, you need to be able to show a judge that the item you assert is your separate property is in fact so. It’s not every case where you have to do this but it does happen so you should get ahead of the game and begin to prepare your case.
Discovery responses are important- answer them on time and in full
If you are not already familiar with the process of Discovery in a civil law case you will learn its importance as a result of your divorce. Discovery is the process by which both your attorney and your spouse’s attorney submit requests for information, documents and statements to the other side as a means to discover information that would otherwise be unknown. Both sides use that information to help inform their case strategies, prepare for mediation as well as prepare for trial.
It is common to either receive discovery requests at the outset of a divorce (when the petition for divorce is first served) or around the time that mediation is set. Many attorneys like to have discovery received either before temporary orders mediation or well in advance of the time that you all attend mediation for final orders.
These are not requests for information that you can do in one or two nights. My suggestion to clients is that we will get the responses to you as soon as we receive them, so you ought to begin working on them as quickly as possible. Ask questions of your attorney on things you don’t understand. If your attorney wants you to come into the office to answer questions in person please make arrangements to do so. If you can get a jump on the requests, begin to collect documents (financial especially) before your divorce even begins. You can save yourself and your attorney a great deal of time by doing so.
Don’t let your property become used and abused during a divorce
Just because your focus is elsewhere (again, understandably) during the divorce does not mean that you should completely fall off of your normal maintenance schedule on your home, car or other property. Take care of your belongings during the divorce. If you will clean and maintain your pool once a month continue to do so. You don’t know what will ultimately happen with your house. If it ends up that selling the house is what is agreed to or ordered you do not want to run into costly and time consuming problems with the pool down the road.
Likewise, make sure that your car receives regular oil changes and maintenance as well. Your vehicle is not liable to be turned over to your spouse but you do not want to come out of your divorce with a lawyer’s bill and a mechanic’s bill. This is doubling down on costs that are not necessary if you are diligent about the upkeep of your property.
Go online and obtain a credit report
Once a year you can go online and obtain a free credit report that lists your open accounts and activity therein. Your debts are relevant to your divorce so make sure that you are familiar with each of them. If you spot a debt you are not familiar with, contact that lender and get an idea of what is going on. It does happen that a person can open up an account in their spouse’s name without the spouse knowing. Do not be that person and operate with all the information available to you in your divorce.
How not to handle property issues in your divorce- tomorrow’s blog post topic
If you have any questions about today’s material that we covered please feel free to contact the Law Office of Bryan Fagan, PLLC to schedule a free of charge consultation with one of our licensed family law attorneys.
Tomorrow’s blog post will center around the flip side of today’s discussion- what NOT to do in regard to your property during a Texas divorce. We will cover behavior you should not engage in if you want to accomplish your goals.