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Can I recover attorney’s fees with Equitable Distribution?

Determining how property will be divided in your Texas divorce is one of the most important parts of a case. To be sure, there are many ways for you and your spouse to divide property that is based on the specific circumstances of your case. For that reason, I always recommend working with an experienced family law attorney when it comes to being able to learn how exactly your divorce may turn out regarding this subject. The reason being is that there are so many different aspects to a divorce case that will impact how property is divided. When you take everything into account, what might be true for you may not end up being true for other people who are similarly positioned regarding your case.

Texas is a community property state. What that means in the context of your case is that once your marital property is determined in the case, Community property principles will be applied against how that property is divided. This could mean that any number of different outcomes could result as a part of your divorce. The options are pretty much limitless in terms of how the property in your case can be divided in the event of a divorce. When talking about property division in a Community property state like Texas the popular belief is that your community property will always be divided evenly between you and your spouse. 

However, this is not the rule in Texas. Furthermore, very rarely is property divided exactly down the middle in a divorce. There are almost always circumstances where you and your spouse end up leaving the divorce with an unequal share of the Community property. We will discuss those issues in today's blog post as well as what equitable distribution of property in a Texas divorce even means. On top of that, we will also discuss how to ask for and be awarded attorney’s fees in your divorce case. Before we go any further, let's talk about what it means to be a text thus subject to equitable distribution principles in dividing property.

What is the equitable distribution of your divorce?

Think back to when you were in college or otherwise had a roommate. When the two of you moved apart how did you determine how the property that you own would be divided? I am going to guess that you did not take all the property inside your apartment and simply divide it down the middle period, or do not think that you sat down together and thought about what a fair or equitable method of dividing the property would be. This wouldn't make sense and it would be strange to even suggest this to a roommate.

On the contrary, the property that you purchased and owned will be taken by you after you moved out and the same would be said of your roommate. Hear everything that he or she came into the home with would also leave with him or her. This was true of property purchased before moving in together as well as property purchased while you were living together.

This is not how property is divided in a Texas divorce. While it is true that property owned by you or your spouse before your marriage would go with you after the divorce as separate property, the big question we need to ask ourselves is how property is treated that is acquired during your marriage. Community property is the presumption in Texas. This means that when it comes to getting a divorce wait for the divorce court would presume that all property in existence between you and your spouse is owned by the community and therefore is divisible.

You and your spouse can rebut this presumption by asserting that various pieces of property are separately owned by either of you. Separate property is any property owned by you or your spouse individually before your marriage period additionally, property acquired during your marriage either by gift or inheritance would also properly be classified as separate property. Separate property cannot be divided up by a family court judge in a divorce. On the other hand, Community property can and will be divided in your divorce. You and your spouse can divide Community property in whatever fashion you wish. On the other hand, if you and your spouse are unable to determine how to divide your property then a family court judge will be brought in to do the job for you.

A family court judge would rely upon the Texas family code in helping to determine how property should be divided that is community-owned. A just and right division of Community property is what the Texas family code says should be followed. A just and right division does not necessarily mean equal. A just and right division means that the division will be equitable or based on principles of fairness and equity. This should lead us to believe that additional factors will be considered when determining how to divide the property. These factors involve several different topics. Let's walk through what those topics are right now. 

What factors would a family court judge use to determine how to divide Community property?

As we just finished discussing, a Texas family court judge can capitalize on several different resources when determining how to divide Community property in your case. For starters, a just and right division of the property would be attempted. This likely means that the judge would need to consider the totality of the circumstances between you and your spouse when making this sort of important decision.

Probably the most important factor to many family court judges when considering how to divide property in a Texas divorce is the income earning potential and history of you and your spouse. If one of you has a consistently displayed track record of earning more money from your work, then this will be a factor that favors your spouse when determining how to divide the property. The reason being is that the spouse who earns more money should be able to more readily rebuild after a divorce that had spells earning less money. As a result, whichever spouse has less income earning potential typically ends up being favored when it comes to unequally divided property.

Next, the health of both you and your spouse will be considered by a family court judge. If one of you is healthy and one of you is not, then the less healthy spouse would likely receive a disproportionate share of community estate due to the disability or impairment. This is an especially important factor for those of you who are going through a divorce in your golden years. If you are nearing retirement age, then no matter how healthy a lifestyle you lead there may be chronic or degenerative conditions that begin to impact your life. In that case, a judge would consider which of you is more physically and mentally capable of working and providing for yourselves in the future. The spouse who is less able to do so may end up receiving more Community property in the divorce.

Another factor that I think is interesting to discuss but may not be considered all that much regarding divorce and property division analysis is related to the role you or your spouse played in helping the other achieve financial and career success. Suppose that, for example, your spouse worked as a waitress during the early years of your marriage to help put you through medical school. While you were studying and attending class to learn how to be a doctor your spouse was working multiple shifts at a local restaurant. While you did not have time to work during medical school your spouse’s income not only paid the bills but also helped you get through school. Without this assistance from your spouse, it is unlikely that you would have been able to become a physician.

Additionally, while you practice medicine your spouse stayed home to care for your home and take care of your children. This freed you up to take on lucrative professional opportunities that allowed you to earn substantially more money than you otherwise would have had you needed to be home to provide childcare. In this way, even though your spouse was not working outside the home at this stage their efforts still provided you with a tangible economic benefit.

This is on top of the services provided by your spouse having an independent economic value of their own. For example, consider for a moment what it would have cost you to pay for a housekeeper, cook, nanny, transporter of your children, or tutor for the kids. Each of these roles could have gotten quite expensive for you to pay for throughout your family's life. Your spouse willingly took on these roles to allow your family to flourish both relationally and financially. For this reason, it is equitable for your spouse to receive some degree of benefit for having filled these roles so readily. 

Finally, a family court judge would consider the fault that you or your spouse played in bringing the divorce to court. In Texas, you can get a divorce for no reason at all. This is otherwise known as a no-fault divorce. You would simply assert to the court that you are getting a divorce because of a discord or conflict in personalities. Not being able to get along well and having no chance at reconciliation is all the Reason you need to get a divorce. most divorces in Texas are no-fault divorces. 

On the other hand, there are specific fault grounds that can be asserted in a petition. These fault grounds attach to your divorce and require you to provide evidence showing that there is a basis for your having asserted them. You cannot simply assert a specific fault ground and then have no evidence to back up your assertion. Examples of fault grounds for divorce in Texas are abandonment, impetus cruel treatment, and adultery. These fault grounds can result in a disproportionate share of your community estate being awarded to the spouse who is the spouse who is not at fault for having caused the divorce.

This is a lot to take in and can be a lot to consider. A judge can consider several different factors when determining how to divide the property. Rather than wondering or guessing at what factors will be relevant in your case, I think you are better off working with an experienced family law attorney with the law office of Brian Fagan. When you work with one of our lawyers you can learn more about the divorce process, the laws that will influence your case, and hear from our attorneys how your circumstances may relate to both factors.

The role of a prenuptial or marital property agreement in a divorce

All the above factors are relevant regarding Community property division in a Texas divorce. I am confident that if you go through with your divorce and are not able to settle on property division questions with your spouse outside of court that these are concepts and factors that will be utilized by a judge when dividing property. However, you and your spouse can sidestep many of these subject factors by working together to create a premarital or marital property agreement. By choosing to divide property on your own before your divorce even begins, you allowed two main vantages to come into place in your case. The first advantage is that you would not have to negotiate uncomplicated subject matter like this during a divorce with your spouse. 

The second main advantage that you would have regarding the division of property is that you could create your outcomes rather than just rely upon a family court judge potentially. Set along as the method of dividing property that you all implemented does not violate public policy norms of Texas a judge would choose to honor your agreement and would attach it to your divorce paperwork. This would give you one last subject to have to go back and forth on because of your divorce. Prenuptial or marital property agreements are not made for only rich celebrities. Everyday citizens like you and I could stand to benefit from drafting gay marital property or prenuptial property agreements.

How are attorney’s fees handled in a Texas divorce case?

Attorney’s fees are subject to being divided in a Texas divorce case. The most important factor that a judge would look at when determining whether your spouse should pay your attorney’s fees is the financial circumstances that both of you are in. As we saw with the division of your community estate, if your spouse earns a substantial, I might have money then it may be appropriate for that spouse to pay for all or a portion of your attorney’s fees. This would allow you to beyond more solid ground after your divorce is over. You would not need to be overly concerned with bills or paying for items that you are unable to afford.

Another circumstance that may impact how attorney’s fees are divided is your behavior during the divorce itself. For example, if you or your spouse repeatedly violate court orders, are difficult to deal with in connection with the case, or act inappropriately or unethically then a judge may order the bad acting spouse to pay for the other’s attorney’s fees as punishment.

Most of the time attorney’s fees are taken into consideration at the end of your divorce. The attorney’s fees are technically considered to be Community property since you and your spouse will be married up until the point where a judge signs the final decree of divorce. You can present the totality of your attorney’s fees to a judge at this time and allow him or her to consider the circumstances we have discussed when determining whether the property should be divided in a certain way or whether attorney’s fees should be ordered for one spouse to pay or the other. 

Finally, interim attorney’s fees may be ordered for payment during the divorce. This means that your spouse would be responsible for any costs while the case is ongoing. This is as opposed to paying out attorney’s fees at the end of your case. You may even see a judge order you to take out a loan to pay for these attorney’s fees if they are ordered during the divorce. Having children involved in your divorce also creates another circumstance where the payment of attorney’s fees may be ordered.

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 as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.

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