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Handling property issues during a divorce

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 constructively. The 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 make 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 are being overturned- sometimes through no fault of your own. You are left with a question of where you go from here and how you can best achieve the goals you have set out for yourself.

Family law attorneys are in the business of helping people just like you achieve their goals despite difficult circumstances. One of the jobs of a family law attorney is to help clients understand the circumstances of their case and advise them based on what is going to help them 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 the property during your divorce. So much focus is (correctly) on issues related to your children during a divorce, but a relatively small amount of comparatively placed on property issues. We would like to remedy that in some small way today by looking 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 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 owned mutually by you and your spouse. This property was acquired or purchased during your marriage, with a few exceptions. Income that was earned by either of you during 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 is 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. For a piece of property to be considered separate property, it must be proven separate property. Separate property is any property you or your spouse owned before your marriage or property acquired via gift or inheritance during 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 life. 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. You can establish something as either your or your spouse’s separate property in the separate property column.

Suppose you anticipate that an item will be contested in belonging to the community estate or either of your separate estates. In that case, 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 essential- 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, and prepare for trial.

It is common to either receive discovery requests at the outset of a divorce (when the divorce petition 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 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 primarily) 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 entirely fall off your regular 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 you have 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 regarding your property during a Texas divorce. We will cover behavior you should not engage in if you want to accomplish your goals.

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