The simplest way to discuss the parts of a divorce is to divide up the case into two parts. The first part would be the aspects of divorce that deal with children and child custody issues. The second would be issues that deal with the community property division. Every divorce deals with some aspects of property division. Whether you are extremely wealthy, have a relatively small amount of wealth, or lie somewhere in between, property matters to every person who goes through a divorce. For that reason, we will discuss how to protect your assets and negotiate well regarding the marital property in a Texas divorce.
Probably the most significant aspect of a Texas divorce that causes it to be different from that of a divorce from another state is regarding Community property. Texas is one of 13 states that contain pretty laws designated as a community in nature. To act intentionally, accomplish goals, and acquit yourself well in a Texas divorce, you need to be familiar with the basic concepts of Community property. Even if you have no experience in the law and little time to learn, you can spend an hour of your time over a week learning about Community property on this website.
However, once you scratch the surface on issues regarding Community property, you will want to make sure that your rights are protected, as well. There is a significant difference between learning the basics of Community property law and adequately protecting yourself in a divorce scenario when your property is at stake. I don't mean that you have to be able to take your spouse for all their worth in the divorce, but I do mean that you should be able to retain a fair amount of property; what do you have a good case to be able to do? So.
For that reason, I highly recommend speaking to an experienced family law attorney before making any decisions regarding whether or not to proceed in a divorce without a lawyer. Even if you consider your divorce to be simple and for the circumstances to be relatively minor, that does not mean that you can afford to go without representation. Rather, whoops, learning about what an attorney can do for you and how a lawyer can help you accomplish goals in your divorce case is essential to perform due diligence before your case beginning.
This is not something I would tell you as an attorney who is just looking to score another client. Rather, I think you must be able to evaluate your circumstances fairly and objectively before deciding how to proceed in your divorce. I will tell you that I do not believe that every divorce requires you to be represented by an attorney. But, it never hurts to have an attorney, and hiring an attorney can be seen as a short-term investment into their long-term future.
What is the significance of Texas as a Community property state?
There is a great deal of significance in Texas being a Community property state about your divorce. The bottom line is that in Texas, all property owned by you and your spouse at the time of your divorce is presumed to be owned by each of you in tandem. This means that the property is not yours or theirs but is owned by each of you equally. That does not mean that the property would be 50% yards, and 50% there is, either. Rather, it refers to how you would own the property in full we're no person has the advantage over the other.
In an age where spouses, more frequently than not, would seem to have separate checking accounts, separate incomes, and less dependence upon one another for financial well-being. What I'm about to tell you may cause your head to spin a bit. With that said, there is no distinction made in Texas between property owned by you and your spouse based on whose income was utilized to pay for the property. Meaning, in your divorce, a family court judge would not look to whose income it was that paid for your house, the mortgage payments, or your vehicles.
Rather, income that was earned during the marriage is designated as communally owned. Rather than imagining 2 cookie jars at the center of the table that both you and your spouse put your money in from work, you should imagine one big cookie jar where all of your money is stored in one. So long as it was earned during your marriage, it is going to count as Community property. It loses any distinction of being part of your state or their state. The community owns that money, and it does not matter whose job the money was earned out.
To some of you reading this blog post, I imagine this may seem unfair. After all: if you were the spouse that went out into the world to make money for your family, then you may feel like you're more entitled to that income than your spouse would be. After all, you were the one who went to school, paid your dues, and eventually started earning a good income. You may think that you're all for fairness and equity, but ultimately, shouldn't yours be treated as yours, and what is treated as your spouses be there is?
To better illustrate why the state of Texas holds the position that it does regarding Community property, I will provide you with an example that may be relevant to you and your family. At the very least, the example should help better illustrate why thank you and your family share your money and the benefits that go along with it.
An example to better illustrate how community income is treated in Texas
let's suppose that you and your spouse have been married for an extended period. You may be in your late 40s or early 50s and are now headed towards a divorce. Together, you have raised a family, purchased the property, and made important life decisions together. However, at a certain point, it became clear to both of you that marriage was coming to a close quickly and that a divorce would be on the horizon period; Now, you are preparing for a divorce and the life changes that will come with it.
You are the stay-at-home mom and homemaker who has made sacrifices to benefit your family. You never went to college and married your husband immediately after he graduated from a local University. This suited you well as you always wanted to be a homemaker and mother. In that time, you raised your children, who are now grown and out of the house, and you prepared every meal and cared for the home meticulously. You never thought twice about that until a divorce appeared on your horizon.
Now you are starting to have some concerns over what your divorce settlement could look like in the context of the property division components. For instance, you may understand the basics of Community property, but you have concerns over how that Community property is divided up. Since your husband earned every dollar that was ever available in your marriage, you are operating under the impression that all the money in your bank accounts, retirement accounts, and the house itself will rightfully go to your husband. After all, isn't he the one who earned money to purchase all of those things?
With concern over this mounting, you schedule a consultation with one of our family law attorneys. When you sit down to talk to one of our lawyers, what would UB likely hear? Would your worst fears be realized and the concern over ending up penniless after you have a divorce be a reality? Or would the Community property laws of Texas stand in and step in to help you guide yourself through difficult times?
Thankfully for someone in your position, the Community property laws in Texas are to your advantage. Namely, money that you earned and money that your spouse earned during your marriage are treated the same. This means that even though your husband is the one who had the career and earned the money which purchased all of the essentials of your life, there will be no distinction drawn between his money and your money. The law treats that income no matter where it is kept or how it is spent as being owned by the two of you equally and just the same.
Think back on your life. After your husband and you got married, he wanted to go to Graduate School and earn a Masters's degree in business. You stuck by him through that process and stayed home to care for your children, prepare meals, keep the house tidy, and you even worked a part-time job to help pay for his tuition so no debt would need to be taken out. Now that your life is headed towards a divorce, the law in Texas is such that you will not be punished for not having work. You provided a lot of economic benefits to your family through all of your domestic duties, as well as the support you provided to your husband while he went to school and earned a living for your family. In this way, you would be protected under the Community property laws of Texas.
How to ensure a fair deal in your divorce
When it comes to the division of Community property, one of the most important factors that a judge will consider is your separate state's state. Both you and your spouse have separate Estates. This will be any property owned by either of you before your divorce or property you came to own during the divorce through a gift to one of you singularly or through inheritance. All other property is classified as a community in nature.
If it came down to it in a family court judge had to decide about your property and how it should be divided, they would look to your separate property to determine what is just and right. For instance, if your husband owned a great deal of separate property and you earned very little, then the family court judge may be more willing to award you a disproportionate share of your community estate. A disproportionate share means that a greater than 50% share of the Community property would be awarded to you. This reflects the fact that you have less in the way of separate property to fall back on to support yourself after the divorce comes to a close.
Next, a family court judge would likely look to the role that either of you played in the breakup of your marriage. For example, in most marriages, no specific cause for divorce is listed. Essentially, the cause for the marriage breakup is an incompatibility between you and your spouse in discord or conflict in personalities that renders further reconciliation impossible. This is known as a no-fault divorce.
On the other hand, you can cite a specific cause for your divorce in your original petition for divorce. This would be known as a fault ground. You are likely familiar with many fault grounds for divorce, even if you've never heard of him referred to in that way. Adultery, financial wrongdoing, abuse, and abandonment are but a few of the fault grounds or divorce that you may choose from. Not only do you have to specify a certain fault ground, but you have to be able to provide evidence by a clear and convincing factor that your spouse caused the breakup of your marriage due to one of these factors.
If you can prove one of those grounds for divorce, you are also entitled to a disproportionate share of your community estate. This is especially true in circumstances where, for example, your spouse spent Community property income on gifts, vacations, or another spending on a significant other. This sort of wasting of the community assets is significantly frowned upon by family court judges. You might be in line for a substantial share of your community estate if you were able to successfully prove that the actions of your spouse directly led to the end of your marriage.
However, before we even get to this point, we need to know what is in your community's state in the 1st place. This means having an idea as to not only what is in your community estate but what these items are valued at. For example, you should perform a basic inventory of your home before your divorce starting. This is where you could get the camera out on your cell phone and begin to take basic photographs of every room in your house in the contents of any safes. From there, you can not only know what is subject to division in your divorce but also understand what those assets are worth. You will need to turn an inventory and appraisement into the family court judge of just this type of information.
Next, you should begin to organize any financial documents that are a part of your life. For example, do you have retirement accounts or other investments that are part of the community estate? If so, you should begin to collect statements and information on those accounts. Most important for the investments in retirement accounts would be a balance of what each account was at the time of your marriage and a balance at your settlement negotiations. This will tell you what the Community property share of each account is so that you can come to the table prepared to negotiate well in mediation.
Overall, however, you need to have a plan in place to negotiate well. This means that you should be intentional when it comes to negotiating and should have goals in mind and maximize your position within the divorce, whatever it may be. This likely means communicating and goal setting with your attorney to learn what achievable goals are in your case and why you should be thinking a certain way about divorce. Without goals and intentionality, even the best case from a strategic standpoint can go to waste.
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 in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family may be impacted by the filing of a divorce or child custody case.