When it comes to a divorce in Texas, there are two parts to a case that may be applicable in your situation. The first deals with children's issues. These are topics like custody, possession, visitation, and child support. When it comes to a divorce, children's issues tend to be the most important to the husband and wife who were getting divorced. This is the case in just about every divorce I've ever worked with where children were involved. Parents will pay extremely close attention to every small aspect of a child custody portion of their divorce. There is something about the potential of losing time with your children that makes even a lackadaisical or absentee parent all of a sudden extremely concerned about the well-being of their children.
The second part of a divorce impacts just about every person who decides to end their marriage. That would be issues of the divorce related to dividing property and debts. Every state in the country has its method of dividing property and debts. Most states utilize a common law system for dividing up property and debts that are roughly speaking traces its origins back to the British system of common law. The vast majority of states in our country utilize a somewhat similar method but may have small differences here and there.
On the other hand, Texas and a handful of other states utilized a Community property system of dividing property and debts at the time of divorce. Community property is such an important aspect of your divorce that we will need to discuss it in detail before arriving at how the property and debts of your divorce will be divided up between you and your spouse. Without a basic understanding of Community property law in Texas, you would not know where to begin when it comes to a seemingly mundane and simple subject like dividing up the silverware in your house in determining who gets those extra Xbox controllers.
While I'm at it, this is a great opportunity for me to mention how important it is for you to have an experienced family law attorney representing you in your divorce or child custody case. Even if you're approaching your divorce with the mindset of having no children and having very little property, it is still important to have an attorney. Simply having the wherewithal to file paperwork on time, meet deadlines, not make mistakes in drafting documents, and generally speaking, moving your case along the timeline inefficiently or all advantages to having an attorney.
Before you write off having an attorney is too cumbersome or too expensive, I recommend you contact the Law Office of Bryan Fagan today. 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 your specific questions about property and debt division in a Texas divorce.
Community property in Texas: an overview
As I mentioned a moment ago, you must have at least a basic understanding of Community property as it's handled in Texas before beginning your divorce. Bear in mind that ultimately your divorce is your case. As I am fond of telling clients, I will do everything I can to advocate for you, inform you educate you, and guide you in a divorce. Still, ultimately, I get to go home to my own family and deal with everything associated with that at the end of the day. On the other hand, you don't get to leave your case behind like your attorney will get to leave your case behind at a certain point during the day.
This means that you need to take ownership of your case and not just allow your attorney to guide you whichever way they would like. Think of your attorney as a person who sits in the race card in the seat next to you. They will be able to guide you, help you avoid the potholes of divorce, and, generally speaking, keep you on track. However, your hands need to be on the wheel, in control the entire time. Anything less than that, you would be doing yourself a great disservice not only now but in the future.
With that said, let's begin our discussion of Community property law by establishing that you owned the property before your marriage and came into ownership of property during your marriage. Generally speaking, this is the most important distinction you will need to draw when it comes to the property involved in your divorce case. Without getting too into the weeds at this point, property that you acquired or owned before your marriage is thought of them as separate property. In your divorce, both you and your spouse will have separate property.
The vehicle you owned before your marriage, the set of golf clubs you owned before tier marriage, or even a house that you owned before your marriage is properly classified as separate property. The same goes for money and a bank account, retirement income, or stock ownership. Any money, as far as cash is concerned, or property that was acquired in your name before the date of your marriage will be classified as separate property. That's not to say that your spouse won't have the ability to request reimbursement for various types of community income that went to benefit your separate property, but that's a discussion we will have in a moment.
On the other hand, Community property is presumed to be any property you owned during your marriage and was also acquired during your marriage. There is a presumption under the law in Texas that all property owned at the time of your divorce is Community property. Therefore, the burden is on you or your spouse to be able to prove that various pieces of property are rightfully part of your separate property estates. You would prove the separate property nature of various assets or debts by tracing the title back to a date before your marriage. For simple household items, you could provide a receipt or proof of purchase.
For some of you, your separate estates may be quite large. This may be because you had a relatively short marriage, married later in life, or simply earned a significant income and therefore accumulated a great deal of property before your marriage. By the same token, the same may be true of your spouse and their separate estate. The best time to start to consider the implications of what property belongs in your separate estate is not a month or two months after you file for divorce. Rather, the best time to start thinking about subjects like this is weeks and months before filing for divorce.
What property is eligible to be divided in a Texas divorce?
We spent as long as we did in the section before going over the basic parameters of Community property law in Texas. It is an essential discussion to have when it comes to learning how property and debts are divided. Only Community property is eligible to be divided in a Texas divorce. That means the property in your separate estate and your spouse's separate estates are not eligible to be divided in a Texas divorce case. The two of you may decide to divide up separate property on your terms in a settlement negotiation. Still, a Texas judge cannot order that either of your separate estates is divided.
So, determining what property is part of the community estate and then thinking about how that property should be divided is ultimately one of the most important tasks that will be handed out to you in this divorce case. At the beginning of a divorce, your attorney and their staff will work with you to inventory and appraise all of your property. And inventory is simply creating a list of all the property that you and your spouse owned. And appraisement is doing your best back of the envelope math at thinking of an approximate value for each piece of property.
Before we go any further, I will acknowledge that this is a pretty tedious task. When I mentioned earlier in today's blog post that counting your silver Ware and Xbox controllers as part of a divorce, I was trying to be a little silly. Still, in reality, you may find yourself in a position where your silver Ware and your video game controllers are about the only property you own. There is nothing wrong with that, but it highlights that being able to have an eye for detail and pay attention to the small things in a divorce is critical to your success. The less you own and the fewer pieces of property you have, the more important it is for you to get even the smallest details correct the first time. It is complicated to try and modify a divorce decree or file a motion for a new trial based on property issues.
It would help if you took some time to complete your inventory and appraisement early in the case. From my experience, people tend to become busier as the case goes on. Not only does the pace of your case pick up with possible court dates, mediation, meetings with your attorney, and things of that nature, but the rest of your life also will come calling. Remember that your job does not go away, and your children's obligations and extracurricular activities do not go on pause during a divorce. All of these subjects will maintain relevance during your divorce. As a result, you need to handle some aspects of your divorce as soon as you can. That means completing your inventory and appraisement as quickly and efficiently as possible.
There are basically two ways for Community property to be divided in your divorce, generally speaking. The first is the most widely utilized option. This would be you and your spouse negotiating through, um, a division of your Community property together as a team. Most of the time, this involves going through mediation and having an experienced mediator walking through your options and brainstorm with you and your attorneys to help you divide up the property as you and your spouse see fit.
In most cases, this is the most advantageous way to divide the property. Not only do you and your spouse know your circumstances better than anyone, you certainly will know them better than a judge. This is true even if you have a one or two-day trial with that judge. There is no time a judge can spend in your case that will convince me that the judge knows better than you and your spouse when it comes to the best way to divide your property. You never want to give ownership of that subject to any other person besides you and your spouse. Ultimately, it is the two of you that must live with the consequences of your own decisions. Better to have to live with the consequences of your own decision rather than the decisions of a family court judge.
On the other hand, you and your spouse may not be able to negotiate through all of the issues associated with property division. As such, in that case, a family court judge could step in and work with the two of you to divide your property. You would have a trial on this subject where both sides can submit evidence for the judge's consideration and allow the judge to decide on how to divide the property most equitably. The judge would render their decision, and then the attorneys would handle the process of drafting orders that would bind you and your spouse to the decisions made by the judge.
How are negotiations for community property division handled?
There are many ways for you and your spouse to handle the division of property matters. Your circumstances are so unique that I could not possibly guide you on how to do so without knowing more about your circumstances. However, I believe that several general principles can be applied to almost every divorce when it comes to negotiating your way through issues related to Community property division. The key to this discussion is arriving at methods and strategies that work best for your circumstances.
I would tell you that it is important to engage your spouse, and they are turning in dialogue as early in the case as you can. Even though you and your spouse may not be on the same page on many issues, you need to do your best to put that aside and focus on the matters at hand. It is a sad truth that ultimately, a divorce becomes a business transaction at a certain point. This is especially true when it comes to subjects related to property division. I think it is pretty clear the parallels between business transactions and property division. The more willingly you all engage in dialogue, the better off you will be from sharing information and dividing property equitably.
The other important factor that I would consider when dividing Community property is to think about the separate property estates of both you and your spouse. For example, if you own a considerable amount of separate property and have a higher pain job, it may be more reasonable for you 2 allow your spouse to retain more of the Community property estate. Your spouse may need the extra money and property to get back on their feet after the divorce. At the same time, you may have a sizable amount of retirement and disposable cash to use for the same purposes.
Finally, you should consider additional factors like each of your ages, educational levels, health, and job prospects when dividing your community estate. These are factors that a judge would utilize, and it will be wise for the two of you to consider these factors as well in your negotiations. It would not be a great idea for you 2 not to think about these subjects when determining how to make settlement offers encounter offers. Assuming that you cannot agree on the different subjects with your spouse, a judge surely will consider these subjects if you do not do so first period.
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 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 the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.