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Property division in divorce isn’t always easy to work through

In Texas divorces there are basically 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 time period I don't mean that first you will decide issues regarding your children and then you will decide issues regarding your property. Each divorce takes on its own life and issues of these sort will be negotiated through according to the specific circumstances of your case. Of course, if you do not have children than that will not be an issue that is involved in your case, either.

While every parent involved in a divorce would tell you that the most important aspect of their case involves their children the subject of property division in a divorce could go either way. Many people that I have worked with will tell me that they simply do not care much about how their property is divided. These folks either tend to have a great deal of wealth and therefore have the ability to either rebuild wealth or simply have a surplus to be able to divide 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 in order to protect yourself and put yourself in a position for success during in after the divorce. Make no mistake that property division in a divorce situation is more than just about how to divide 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. You need to become intentional about devising a plan and acting upon that plan during the course of 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 require, 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 that it is essentially a requirement that you have an attorney by your side to walk you through these issues. 

A good 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 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 an educated by him or her, thus allowing you to make better decisions in your case. 

Determine the property that is subject to division 

Before we go any further in today's blog posts, we absolutely need to discuss how property is divided in a Texas divorce. Texas adheres to a concept known as community property law when it comes to determining 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 greater 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 it was your spouses who actually earned that income.

Once you have determined what property is actually owned by what spouse then you can actually 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 up 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 when it comes to property division. We can blame all sorts of other factors that are specific to your case, but I don't know what is happening in your specific divorce. What I do know is that people going through a divorce usually do not get along well with one another and oftentimes 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 combustible 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 it comes to 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. It is important for you 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 important question that you need to ask yourself when it comes to how you and your spouse are going to negotiate regarding property issues. If you and your spouse both have similar levels of education, similar employment situations and similar amounts of money in retirement then 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 and 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 much 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 then it doesn't matter if those accounts do not have your name on them. In Texas, what your spouse owns you own just as much as he or she does. As soon as you start to use the word divorce in the context of 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 be able to ensure that you were 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 then you need to be especially cognizant 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 are certainly able to 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 negotiate as well as you can in regard to 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 very unlikely that any issue regarding property division will be opened up again by a family court. That means it is critical for you to be able to 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 in regard to 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 it's like shifting poker chips to the middle of a table and then seeking to divide them up in various 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 in order to get equity out to pay towards your spouse’s share the property division than this maybe 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 with your attorney on shifting 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 his spouses retirement benefits in order 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 in regard to property division. One of the advantages to having a family law attorney representing you in the divorce is that he or she will have seen other people go through similar circumstances as you, most likely. Having an objective person view on 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 being able to serve 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. 


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