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Divorce in Texas: Probably not what you think it is

Have you ever held a preconceived notion of another person? Never met the person before, but you just don't like him or her. A friend of yours may have told you a story about that person years ago and since that point in time, you scowl every time that person crosses your path. The problem is, you’ve never taken the time to talk to him or her. What if what you heard about that person is incorrect?

That's sort of how divorce is. No, I'm not going to jump into a defense of divorce or a platform about how divorce is actually a fun thing. It's not. Not even close. Some people who go through a divorce will tell you it was the worst experience of their lives. It could be for you too. That doesn't mean, however, that a divorce is not something you should pursue if you believe it to be in the best interests of yourself and your family. Sometimes the unpleasant things in life end up being positive for you in the future.

It would be just as disingenuous for me to come to you today singing the praises of divorce as it would be for another person to tell you that your divorce will be the worst experience you've ever had. Nobody knows your family as you do. Nobody knows your spouse as you do. And nobody can predict the future. What you're left with are a bunch of folks you like to tell tall tales about their divorce experience- either for entertainment purposes or to just see you squirm a little in your chair. Some people are like that.

Today's blog post from the Law Office of Bryan Fagan will seek to do one thing: dispel a handful of myths that I have seen real-life people (just like you and me) walk into the Law Office of Bryan Fagan and tell me with a straight face. Myths are what cultures did and still do to explain phenomena and other happenings that they do not understand or have no explanation for. Fortunately, you don't have to resort to myths to explain a divorce in Texas.

Will your property be split 50/50 in your divorce?

When it comes to “money issues” this is the most commonly spouted myth I have heard when it comes to divorce in Texas. Your cousin comes over for dinner and asks where your wife is. You tell him that you and she have been having some marital difficulties and all signs are pointing towards a divorce. Your cousin, a divorced person himself, begins to tell you that you need to prepare to hand over half of the items in your house and half the money in your retirement. It’s basically a done deal, he will tell you, that your property is going to be split up 50/50.

Is that true? First and foremost, a court is required to follow the Texas Family Code when it comes to your divorce. The Code tells us that at the time of a divorce, it must divide up community property in a manner that the court deems just and right. I don’t see anything about 50/50 in there. If not a straight 50/50 split, how will your property be divided, then?

Keep in mind that one of the most important aspects of your divorce is the division of community property. Community property, as anyone who reads our blog on even an occasional basis, can tell you, is property that is acquired during the course of your marriage. Income, real estate, and personal property are examples of this kind of property. Since this is such a significant chunk of your net worth it's important for you to understand how it could potentially be divided in your divorce.

A court certainly could divide community property in a 50/50 manner. This would not be out of the ordinary, in fact. However, there is nothing in the Family Code that mandates that a judge should do so. What your court will do is look at a number of different factors in decided how to divide property between your spouse and yourself. That is the “just and right” part of the division process. It is not based on some formula or percentage that the Code lays out. The judge will apply the law to your facts and circumstances in order to come up with a division of the community property.

What factors are important to a judge when dividing up community property?

The most commonly encountered factors for a judge to consider in regard to dividing up your community estate are at fault in the breakup of the marriage, fraud, wasting community resources (on a failed business venture or on a girl/boyfriend), or family violence. If your spouse committed any of these wrongs against you during the course of your marriage then you may be able to earn a disproportionate (greater than fifty percent) share of your community estate when it is divided up.

Other factors include what the type of property is that needs to be divided, taxation issues regarding the division of the property as well as which parent is going to be named as the primary conservator of the child. If you are going to take all four of your kids with you after the marriage then the odds are good that you may need a leg up when it comes to finances. Allowing you to receive a greater than 50/50 share in the community property means that you can receive a direct economic benefit that does not involve your spouse having to pay your spousal maintenance.

While we’re at it- let’s discuss the difference between community and separate property

A side note to the whole discussion that we just had on the division of property is that of what constitutes community property and what constitutes non-community property (i.e.- separate property).

We’ve already discussed community property in some detail so I would like to go over with you what separate property is. Any property that you or your spouse own before you get married is separate property. Property that is inherited or gifted solely to you during your marriage is also considered separate property. Separate property is not divisible in a Texas divorce case.

All property that is not considered to be separate property is considered to be community property. Possession may be “9/10 of the law” in old television shows and movies but it is not anywhere close to 9/10 of the law in Texas. It does not matter who is holding the property currently as far as if the property is considered to be community or separate.

If you and your spouse shared a vehicle that both of your incomes used to pay for it is considered to be community property even if you've never driven the car a day in your life. Furthermore, if a bank account bears the name of your spouse only but contains income from both of your jobs that bank account is still considered to be community property. You cannot title, deed or name property in one person's name in order to avoid it being divided in your divorce.

The last word on community property for the purposes of today’s blog is that property is presumed to be community if you are married. It is up to you to produce evidence (clear and convincing evidence, to be exact) showing that property is yours separately if your spouse does not agree with you. For example, if you are contending that a piece of real estate is your separate property it will likely be necessary for you to be able to trace this property’s ownership from the date it was acquired through the current date.

How to get reimbursed by your spouse in a Texas divorce

If the piece of real estate that we were just discussing happened to go up in value during the course of your marriage, that increase would still be your separate property. We get into murkier waters, however, if community income was utilized to pay the mortgage on the property then you may have a valid reimbursement claim against your spouse for the money that was spent.

How will your property be valued in the divorce?

It is not always easy to value property in a divorce. We know much an avocado is worth because we can walk into any grocery store in town and see how much they sell for. Even your typical, suburban home is fairly easy to value if you hire an experienced home appraiser. Odds are decent that there a couple houses just like yours in the area, as well.

Where it gets more difficult to determine the value of property is when it comes to family businesses, antiques, and even some retirement plans. For these types of property there are no easily found and comparable items with which to make a comparison. You and your spouse may have to split the cost of hiring a professional appraiser or another source to value the property that needs to be divided in your divorce.

These experts in their field may first go out and attempt to ascertain the value of your property and will then have to come to court to testify on how that valuation was completed.

Divorce means dividing property- and debt

From my experience, people have all sorts of ideas on how debt is divided in a divorce. Some think that debts are ignored in a divorce and the court allows either side to pick what should and should not be paid, Others think the spouse who makes more money will be responsible for shouldering the entire debt burden after the conclusion of the divorce.

We have already seen that a divorce means coming to terms with the realities of your financial life. At the very beginning of your divorce, your attorney will ask you to collect documents like tax returns, pay stubs and retirement plan statements so that he or she may get a better grasp of where you are financially at the outset of your divorce.

While we have spent a great deal of time in this blog discussing property, the subject of debt is also important to determine the ultimate outcome of your divorce from a financial perspective. While it is likely that you and your spouse will reach a settlement, rather than need to speak to a judge in a trial, the ability to collect these documents and produce them for your opposing party to see is an integral step to achieving a fair settlement.

Keep your heads above water and your credit rating intact

Like it or not, your credit rating is the main means by which lenders will judge your creditworthiness. If you do not pay back loans or bills on time it can mean that your credit rating could take a significant hit. This can affect your ability to be offered loans for important items like cars or houses and can impact the interest rate that is offered as well.

As such, it is important to use your credit report to determine what bills you and your spouse have. Temporary orders in a divorce will take into account those bills and give instructions to you and your spouse as to which one of you will be responsible for paying those bills during the divorce.

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Other Articles you may be interested in:

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  3. 6 things You Need to Know Before You File for Divorce in Texas
  4. I Want a Texas Divorce but My Husband Doesn't: What can I do?
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  7. 6 Tips - On How to prepare for a Texas Divorce
  8. Roadmap of Basic Divorce Procedure in Texas
  9. 6 Mistakes that can Destroy Your Texas Divorce Case
  10. Does it Matter who Files First in a Texas Divorce?

Law Office of Bryan Fagan, PLLC | Spring Divorce Attorneys

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Attorneys right away to protect your rights.

Our divorce attorneys in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, TexasCypressSpringKleinHumble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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