If your divorce case went all the way to a trial then you know just how much of a commitment it is to see a case from beginning to end. All of the time, money and emotional output that is required in a case like this can be overwhelming to think about. When you were unsuccessful at settling your case in mediation then it became apparent that whatever a judge decided would be the final word in your case. However- once you got to trial it may have become apparent to you that the limitations your judge had before him or her- limited knowledge of you and your spouse, limited time to learn about you both and your circumstances- led to a decision that wasn’t exactly “fair”.
Now that you have allowed yourself some time for the ink to dry on the Final Decree of Divorce you may be asking yourself whether or not it is possible for you to go back and appeal the manner in which the judge divided up your marital estate. Today’s blog post from the Law Office of Bryan Fagan, PLLC will address this topic for you all.
How an appellate court will review your attempt to appeal the division of property in your divorce
Yes, you can appeal how the judge divided up your marital property in a trial. An appellate court will review your appeal and decide how to proceed. The standard by which an appellate court will make a determination on your appeal is based upon an abuse of discretion standard. In essence, if there was sufficient evidence contained within the record for your judge to render the decision(s) that he or she did then your appeal will not be successful. Appeals in regard to the division of property are typically unsuccessful, for what it’s worth.
Is a 50/50 split of the community/martial estate the norm in Texas divorce trials?
Many people come into our office for a free of charge consultation and tell me that their understanding of martial property law (otherwise known as community property law) in Texas is that any property owned by their spouse and themselves will be divided up in a 50/50 manner- straight down the middle. My response is that their understanding may not be far off, but it is nonetheless incorrect. Let’s examine why that is.
Community property is property that is owned by you or your spouse at the time that your divorce was filed. There is a presumption in Texas that all property owned by you and your spouse at this time is community property. If you believe that a piece of property or specific amount of money is yours separate from your community estate then it is up to you to provide evidence as to why this is. If you owned property before you were married or acquired the property during the course of your marriage either by gift or inheritance then this counts as part of your separate estate.
At the beginning of most divorce cases, your attorney will ask you to provide a rough draft of your estate, your spouse’s estate and your community estate. This will give him or her an idea of what is at stake in terms of property. You all may need to get together evidence early on in your case to determine what a judge needs to see in order to overcome an assertion, for example, that a item in your home is in fact your separate property rather than part of your community estate.
With this all said, a fair and equitable division of your community estate is what the Texas Family code mandates a Texas divorce court to enact if the issue needs to be decided in your divorce case. What this should tell you that it is not an automatic 50/50 split that occurs. It is possible that a 50/50 division could happen but it would matter more that the circumstances and facts of your case led to that sort of decision rather than a quick and easy 50/50 division of assets and debts.
What information will a family law court consider when dividing up your community estate?
A judge in your divorce looked at circumstances and facts related to your and your spouse’s ability to earn an income now and in the future, your educational levels, health, amount of separate property owned and your individual needs for support in the future before making a decision in regard to how your community estate was to be divided between the two of you. All of these issues will be applied to your specific circumstances, of course.
For instance, if you suffer from a disability that will keep you from earning an income for yourself you will not be in a strong position as far as your future income earning possibilities. On the other hand, if your spouse is well educated and is able bodied his future income levels will likely surpass yours by a great deal. On top of being a good candidate to receive spousal maintenance (if you have been married for at least ten years) you may be able to be awarded a disproportionate (greater than 50%) share of your community estate.
In this scenario if a judge issued a 50/50 split of community property in divorce it is likely that you would be successful in an appeal of that decision. The reason being is that a 50/50 split may not be fair or equitable based on the circumstances of your case. Unless there is evidence sufficient to produce a 50/50 split the case will likely be sent back to the trial court judge to issue a new determination.
An important consideration for you to make is whether or not one of these above factors was not utilized fully or correctly by your trial court judge. If not, then your appellate attorney will need to point this out in your appellate brief.
How long does it take to appeal a decision and what happens to the divorce decree during the wait?
Most family law case appeals take somewhere between 8-12 months to get a decision from the appellate court in your area of the State. What happens in a lot of situations is that during the 8-12 month waiting period you and your ex-spouse are able to informally negotiate between yourselves for a change to the decree. This change is not formal or enforceable but it can offer you a degree of relief from the divorce decree that went against you in some regard.
You should speak to your appellate attorney on whether or not the order from the judge is still in place while your case is in appeals. He or she can explain the issue to you better based on your specific circumstances. Some property division elements require ongoing payments- such as when a large amount of money is to be paid from you to your ex-spouse over a specific period of time. In the event that your decree has requirements like this it is best to check and see whether or not you are expected to make good on orders contained in the decree. The last thing you want is to face an enforcement suit from your ex-spouse for violating the order while it is being appealed.
Questions about appealing a divorce order? Contact the Law Office of Bryan Fagan, PLLC
If you are in need of some answers when it comes to requesting relief from a family law order please contact the Law Office of Bryan Fagan, PLLC today. We offer free of charge consultations with a licensed family law attorney six days a week. We can review your divorce decree with you and discuss what options you may have in regard to it. There are a few different time based limitations to your ability to overturn or appeal a divorce decree so it is very important that you speak to an attorney quickly so you do not lose an opportunity to benefit yourself and your family. We work tirelessly to help our clients across southeast Texas and would be honored to do the same for you.