In Texas, divorces there are two parts to any case. The first part deals with children, in the second part deals with property. These subjects are usually negotiated together, and at the same period, I don't mean that first, you will decide issues regarding your children. Then you will decide on matters regarding your property. Each divorce takes on its own life, and issues of this sort will be negotiated according to the specific circumstances of your case. Of course, if you do not have children, that will not be an issue involved in your case, either.
While every parent involved in a divorce would tell you that the most critical aspect of their case involves their children, the subject of property division in a divorce could go either way. Many people I have worked with will tell me that they do not care much about how their property is divided. These folks either tend to have a great deal of wealth and therefore can either rebuild wealth or have a surplus to be able to separate with their spouse or have relatively little in the way of property or assets and therefore are not concerned with how to divide the little property they have up.
Your job within the context of a divorce is to figure out how your property needs to be divided to protect yourself and put yourself in a position for success after the divorce. Make no mistake that property division in a divorce situation is more than just about dividing the personal objects within your home. Issues regarding retirement savings, investments, your family home, your vehicles, and your personal property are all at stake within the context of a property division. It would help if you became intentional about devising a plan and acting upon that plan during your divorce.
At this point, I will make a recommendation that you consider hiring an experienced family law attorney for your case. While not every divorce requires a family law attorney, many of them do. When I say need, I do not mean that the law requires you to have a divorce attorney for your divorce. In Texas, there is no such law. However, because the divorce is so important and has so many moving pieces, I believe it is essentially a requirement that you have an attorney by your side to walk you through these issues.
A reasonable family law attorney is a short-term investment in your long-term success as a single person and parent. As the title to today's blog post would indicate, it is not easy to proceed with the divorce. That's not to say that it is impossible where it is not something that you should consider doing if your circumstances call for it. However, it is always nice to have someone in the back seat of your car giving you directions if you do not know where you are going. That is a perfect analogy for a divorce in a lawyer to be by your side. The lawyer does not call the shots in your case. You are guided by the attorney and educated by them, thus making better decisions in your case.
Determine the property that is subject to division
Before we go further in today's blog posts, we need to discuss how property is divided in a Texas divorce. Texas adheres to a concept known as community property law to determine how property will be divided in a divorce. Essentially, it is presumed that all property owned by you and your spouse at the time of your divorce is community-owned. This means that it is subject to division in your divorce depending on the circumstances of your case.
It is important to note that ownership of a piece of property in Texas does not depend upon whose name appears on the title or ownership documents, nor does it matter whose income was used to purchase the property. In Texas, the law holds that all property is presumed to be owned in full and equally by both spouses at the time of death or divorce. In theory, this provides more significant equity for both spouses. It does not matter if you were a stay-at-home parent and contributed nothing monetarily. It is presumed that all income used to purchase property is yours just as much as your spouses earned that income.
Once you have determined what spouse owns property, you can work to devise a plan on how the property should be divided in your divorce. The devil, as they say, is in the details. This is where the difficulties associated with property division in a divorce begin to come up. The job of dividing this property will fall to either you and your spouse in negotiations or a judge will be tasked with doing so in a trial.
Working with your spouse on dividing the property in your community estate is the source of most people's difficulties regarding property division. We can blame all sorts of other factors specific to your case, but I don't know what is happening in your particular divorce. I know that people going through a divorce usually do not get along well with one another and frequently have problems working out, even simple problems as a team. If you add in the degree to which people hold on to their property, you have a potentially explosive scenario where you and your spouse, we'll have to work hard to put aside your differences to arrive at a fair settlement.
Let's walk through some of the more common problems that divorcing spouses face when dividing up property in a divorce. You can use this information to determine whether or not you and your spouse have anything similar going on in your relationship. You need to know where your hurdles lie so that you can prepare for them and do your best to get over them or around them without delaying your case. Remember that, in the context of a divorce, time is money.
What positions are you and your spouse negotiating from during the property division in your divorce?
This is the crucial question that you need to ask yourself when it comes to how you and your spouse will negotiate regarding property issues. Suppose you and your spouse both have similar levels of education, identical employment situations, and equal amounts of money in retirement. In that case, property division will probably not be much of an issue. You can agree that your employment prospects and ability to retire comfortably are probably even with one another. Therefore neither of you should have to dig in both heels when negotiating on subjects like division of retirement benefits and what to do with the family home.
On the other hand, some of you who are divorcing may find yourselves in many different positions when it comes to well as compared to your spouse. When you are married to someone who earns a great deal of money or has a great deal of wealth stored in retirement accounts, it doesn't matter if those accounts do not have your name. In Texas, what your spouse owns, you own just as much as they do. As soon as you start to use the word divorce in the context of the property, then it becomes more important what is in your name and what is in your spouse's name. Once the divorce is finalized, you need to ensure that you are able to negotiate as well as possible so that your share of the retirement benefits another bye until resources are made available to you.
If you are a stay-at-home parent for someone who is not engaged in the workforce in some time, you need to be especially aware of the property at stake in your case. It is unlikely that you would be able to attain the level of income earning as your spouse due to your lack of experience and probable lack of education, at least compared to your spouse. While you can certainly go out into the workforce and earn a living for yourself as a single adult, that doesn't mean that you can very quickly make up for the fact that you've not been in the workforce for years.
Other than negotiating for spousal maintenance or contractual alimony, your best bet is to deal as well as you can regarding subjects like the family home, retirement benefits, and other financial assets available to you. This divorce will be your only time to get a bite at the financial apple of your marriage. Once your divorce is over, it is doubtful that any issue regarding property division will be opened up again by a family court. That means you must be aware of what is at stake and then implement a plan to negotiate as forcefully as possible.
Be willing to be flexible when negotiating your property division.
The last thing that I will mention to you regarding the difficulties of property division in Texas divorce is that you need to be willing to shift your goals around when circumstances dictate. For example, I will use an analogy with clients that property division is like turning poker chips to the middle of a table and then dividing them up in different ways.
You may have your heart set on retaining all of your retirement so that you do not have to go through the trouble of splitting it up at the end of your divorce and as a single person. However, if it becomes clear that it is to your advantage to split up your retirement rather than be forced to sell your house to get equity out to pay towards your spouse's share of the property division, then this may be a compromise you have to make.
My point is that as long as the dollars and cents art fair in your comfortable with what you end up with as far as property is concerned, then you do not have to be as determined to stick to your plan her property division that you came up with at the initial phase of your divorce. Be willing to work with your spouse and your attorney to shift your goals when necessary to the extent that you are not hurt or made worse off.
For example, you would not want to give up a portion of your spouse's retirement benefits to keep a family home in your name that you cannot afford after the divorce has been finalized. You can work with your attorney on considering the long-term implications of any decisions you make regarding property division. One of the advantages to having a family law attorney representing you in the divorce is that they will have seen other people go through similar circumstances as you, most likely. Having an objective person view of your situation can be very beneficial to both short-term and long-term planning.
Questions about the material contained 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 consultation six days a week via video, over the phone, and in person. We take a great deal of pride in serving our community by providing the best family law representation in Southeast Texas. Thank you for your time, and we hope you will join us again on our blog tomorrow.