One of the best pieces of advice that you can be given in regard to a divorce would be to act as intentionally as possible. This means that you should consider all of your options in create plans and strategies for yourself to help accomplish the goals that you have created. Every person who is reading his blog post in considering a divorce likely has their own circumstances that are unique to them and therefore have their own goals process result. Having goals is one thing but having a plan in place to accomplish those goals is something different altogether.
One of the first things that our staff and our attorneys will do with a new divorce client is to help them create homes and then create a process within their case to accomplish those goals. Many people who go through divorce do so a general concern for their future specific plan or how to create a future that is the best for themselves and their children. A general concern about the divorce process is not enough to help you accomplish your goals. You need to enter into your divorce with a specific plan in mind.
At this point, you may be thinking, how can you create a specific plan when you only have a general understanding of divorce and the divorce process? That is where today's blog post comes in. I would like to walk you through how to develop a checklist for dividing up marital property in your divorce. By doing this, we can identify what the important issues of property division are in a Texas divorce and help you to develop a plan for preparing for those important issues. It is possible to wander into a divorce, but it is next to impossible to wander out of the divorce with a result that you approve of. Let's stop wandering and let's start being intentional.
Understand the basics of Community property law in Texas
Texas is a community property state. The state laws regarding the division of property upon a divorce add here to these community property principles. The first thing you need to understand is that the law assumes and presumes that all property owned by you and your spouse at the time of your divorce is Community property. community property is subject to division in a divorce absent evidence showing that it is part of one of your separate estates. Separate property cannot be divided by a family court judge in a divorce.
What does this mean for you in your divorce? On a practical level, it means that the property that you own may be subject to division even if you are the breadwinner in the family. Think about that for a moment. You may have been the spouse who has entered the workforce and earned a living for you and your family while your spouse has stated home to raise children and take care of the family home. You may have been operating under the assumption that because it was your income that was utilized to purchase your home, your personal property, your vehicles and invest for retirement that you would be given preference when and if this property were to be divided.
This is not the case in Texas. When it comes to property in Texas if it was purchased during the course of your marriage with income earned from your job then everything: your income in the property that was purchased with that income is considered to be community owned. This does not mean that the property is half yours and half your spouses. This means that it is all yours and all your spouses. Each of you have complete ownership rights in the property no matter whose name appears on the title to the house or whose income was used to purchase the property.
The same goes for investments and retirement savings. For example, if you have a 401K through your employer it would obviously bear your name as an employee of that company and as the account Holder. However, just because their retirement account does not have your spouse’s name on it does not mean that you would not allow him or her to take advantage of the money once you all reach retirement age. You would have shared that money as a couple in the future when you stop working. We can look at it from the same perspective now even though you are not yet at retirement age. That retirement savings, as well as most investments entered into during the course of her marriage, will be considered to be community owned.
On the other hand, property that was owned by you or your spouse prior to your marriage will be counted as separate property belonging to you each individually. From my experiences, most of the time spouses can agree on what property is separate in what property is part of the community estate. However, if you are challenged on your assertion that certain property belongs in the separatist state of yours rather than in the community estate you should be prepared to present receipts, proof of purchase agreements, title documents or any other type of paper trail that may be helpful in proving the separate property nature of that asset.
From my experience, it is the realization that essentially all property acquired during the course of your marriage is considered to be community owned that is the most surprising to people going through a divorce. No matter it if you are the spouse who has earned most of the money in your marriage or if you are the spouse who has earned relatively little in terms of income during the marriage you are able to negotiate from the same position of strength when it comes to how this property will ultimately be divided in the divorce.
What this means for you in the context of a divorce is that you should not assume that because you were either the spouse who earned all the money or were the spouse setter and none of the money that you will either receive all or nothing of your property. Rather, you should look at the property as being in play for both spouses and then think of ways how to creatively have it divided in a fair and equitable fashion.
What are your realities going to be after the divorce?
The next question that I think you need to ask yourself in regard to the divorce case is what position are you going to be in from a financial standpoint after your divorce has finalized? By answering this question, you will be able to develop a checklist and goals for the financial aspects of your divorce. It helps to be as realistic as possible in this regard so that you are being honest with yourself and can create goals that are reasonable based on your specific circumstances.
For starters, you need to be able to have a place to live, pay your basic bills and have transportation available for traveling to and from work and other necessary places. If you have been the spouse who has stayed at home throughout the course of your marriage and has not worked even these basic necessities maybe out of reach for you at the moment. While it has been nice for you to be able to rely upon your spouse for income and the necessities of life you are now facing a scenario where your spouse’s income is not going to be a given for you in your post-divorce life. Therefore, you need to be able to begin to plan how to manage these issues after your divorce.
Consider how you are going to negotiate through the issues of community property and whether or not a disproportionate share of your community property a state will need to be awarded to you so that you can survive in the years after your divorce. You may be in a strong position to be able to return to the workforce if you have prior job experience in a certain field or have a college degree. However, if you do not have an advanced education or do not have a great deal of work experience then you may find yourself struggling in the years after your divorce if you do not properly plan ahead.
Your checklist for a successful divorce from a financial perspective
I am going to approach the creation of this checklist as a person would need to if they were in the position of a spouse as I described it a moment ago. The reality is that a spouse who does not have access to immediate funds as far as income or assets is concerned is that a disadvantaged position after the divorce. Therefore, I am going to write this final section of today's blog post as someone who is planning to get a divorce but does not have independent means to earn an income.
For starters, you need to think about the essentials as far as where you will be living in how you will maintain communication and transportation after the divorce. At home, food, cell phone and a vehicle. These are the essentials that I have in mind that you need to realistically think about when you are preparing for dividing up marital property. In order to pay for these items, you may need to request either a disproportionate share of your community estate for spousal maintenance or contractual alimony after the divorce.
A disproportionate share of your community estate means that greater than 50% of the community estate property will go to you in the divorce. Having money liquid in order to turn that into a place to live and food to eat is essential. Once you have these essential items locked down and have a plan in place on how to negotiate for them you will be better off. Begin by thinking about how much rent will cost food and other items will be for you as a single adult. The more specific you are the better off he will be when it comes to negotiating back and forth with your spouse.
When it comes to your community is state if there is not sufficient assets or property to distribute to you or your post-divorce survival then you would need to think about how your spouse may pay you some degree of spousal support. Even if the spousal support is minimal it can help you pay for a basic apartment and car insurance so that you have a place to live in a means to get around. Being specific with what your needs are would help a judge to understand that you're being reasonable in that he requests are in line with what your actual needs are.
Once you get past these issues you can start to think big picture. Begin by listing out all of your retirement and investment assets and how much money is in each account. Once you have made this determination then you can work with your family law attorney to determine how to divide these accounts up in a reasonable fashion. If you have no retirement assets of your own, then you may be able to request and negotiate for a greater than 50% share to be given to you in the divorce. Again, understand what is at stake be specific about your goals and then develop a plan with your attorney on how to negotiate for that with your spouse
Questions about the material presented in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone and via video. These consultations are a great way for you to learn more about Texas family law and the services that our law office provides to our clients.