Whether you have a large or small estate, and whether you make a lot of money or just a little- property division is a big part of a Texas divorce. How well you fare in this regard depends upon a couple of different factors. The first is the size of your estate. The second is the type and quality of representation that you receive. If you can tell me about these factors, I can tell you whether you are going to have a good divorce or a miserable divorce.
If you are a younger person reading this blog post you should not assume that just because your retirement account is small and your amount of personal property is not that big either, your divorce will be simple. There are issues to sort out in property division even for the young. Have you thought about how to divide up the equity in your home? Do you even know if your spouse wants to stay in the house? If so, can she afford it? What about switching the title on your vehicle and making sure that your spouse's student loans don't end up as your responsibility when the divorce is all said and done?
On the other hand, if you are an older person then you know just how much you must lose, potentially, in a divorce. Your retirement, as opposed to the younger person we talked about a moment ago, is now fully developed. If you were married for most of the time, you saw your retirement grow then you may have questions about whether your spouse can potentially get their hands on a portion of your savings. The same goes for the house- who gets it and who wants it? Do you know much of anything about how to divide up a pension if you have one? We haven’t even discussed the issue of bank accounts, real property, and things of this nature.
There is a lot for you to consider regarding your divorce. Do not underestimate just how much is about to be thrown at you whether you asked for it or not. You can try to be as amicable as possible with your spouse, but the reality is that you can only do so much before you all encounter disagreement on some subject related to your case. When that happens do you know how to handle it? Are you going to stick up for yourself or go along with your spouse just to avoid a fight? If you are a stay-at-home spouse, then you probably have your basic needs to be worried about before we can even talk about higher-level aspects of divorce like property division.
With all these thoughts percolating in your mind it pays to have representation that is professional, experienced, and diligent. The attorneys with the Law Office of Bryan Fagan are all of those things and then some. Our licensed family law attorneys are here to serve you just as we have served thousands of Texans just like you. We work hard on behalf of our clients and take pride in serving others. If you read today’s blog post and want to find out more about the services that we offer our clients, please give us a call today. We offer completely free of charge consultations six days a week at our two Houston area offices, by phone and via video. We are flexible when it comes to answering your questions and providing you with more information about what to expect in your divorce.
You need to learn about community property
If you want to learn more about divorce and property division then the first place you need to spend your time is on community property. Community property refers to the way that the state of Texas characterizes the property owned between you and your spouse. Marital property is a general term that references the same property. The state of Texas presumes that all property owned between you and your spouse at the time of your divorce is community property and thus divisible in your divorce. It does not matter whose income purchased the property or whose name is on the receipt or title to the property. If it was purchased with income earned during your marriage, from either of your jobs, then the property belongs to your community estate. That means that the two of you need to figure out how to divide it or a judge gets to make that decision.
The default rule is that a court if given the opportunity, must split property equally between the two of you. Debts would work the same way- totaled up, and then divided equally between the two spouses. However, not only is it rare for you and your spouse to go before a judge for property division but it is also rare for a judge to simply "split the baby in two." Circumstances exist where the property in your case may be divided up in a way that is not exactly even. Fault on the part of you or your spouse could play a role. If you wasted community assets on a risky business venture or a significant other then a judge probably wouldn't allow you to keep half of the community estate. A disproportionate division of the estate would probably ensue, with your spouse getting to keep more than half of the community property.
Either you or your spouse may attempt to make an argument that certain property that you own is separate property and not part of the community estate. When it comes to rather small pieces of property or things that are not valuable than your assertions that a particular item is separate property probably will not be a big deal. For example, if you are claiming that a particular household item like an electronic item or piece of furniture is separate property then your spouse isn’t likely to make a big fuss over it.
However, if you are trying to argue that a piece of property like real estate or a significant amount of money is separate property then your spouse may attempt to argue against your assertion. This can be done with the help of a forensic accountant or another financial professional. These folks are trained to dig through documentation, receipts, purchase agreements, earnest money deposits, and other transactional histories to determine the nature of the property that is in question. Often if the property is valuable enough then you can expect to find yourself in court with your expert testifying and your spouse’s expert doing the same.
Another distinction that we need to draw at this point is that separate property must have pre-dated the marriage and must have remained separate property during the marriage. If the property belonged to you before the marriage, it was and possibly is still classified as your property. It must stay that way throughout your marriage for you to be able to argue that it is a separate property of yours and thus not divisible in the divorce. As it sometimes happens, however, it is not always simple to keep a separate property item separately owned.
Sometimes a separate property may be commingled with the community-owned property. An example that we see in divorce cases all the time is a separate property income deposit into a community-owned account. Suppose that you are gifted $10,000 by a relative. If that gift was intended to be a gift only to you and not your spouse, then this gift is your separate property. By depositing the gift into a community account, however, you risk commingling the monies and having the separate property portion become a part of the community estate.
For this reason, if you have money that is separate property then your best bet is to have that property go into a bank account that is not full of community property income. If you have a bank account with only your pre-marital dollars divided into it then this is a good place for you to deposit your gift money. There would be no risk for that money to become community property if you keep it in an account that is separate through and through. Check with the account and determine the dates of all deposits. If they came before your marriage, then this would be a great place to deposit and hold your money.
What about dividing up retirement accounts?
Of all the sorts of property that will be divided up in your divorce case, probably the least exciting are retirement accounts. Depending on your age, retirement may be the farthest thing from your mind. On the other hand, if you are of a certain age then you may be especially interested in the results of property division on retirement. You need to zero in on this subject using your circumstances as a guide. However, I am in no way trying to say that investing while young is a bad idea. Check out a graph showing compound interest if you don’t believe me.
The retirement savings that you accumulated during the marriage are community property. IT does not matter if the retirement vehicle is a 401K, IRA, or pension. A judge would investigate the contents of each account, receive any information he can, and then issue n order. The totality of the circumstances will be considered including your premarital contributions to the separate property as far as whether you may be due for a reimbursement made towards benefiting the property. Spending every weekend fixing up the separate property home of your spouse would allow for you to potentially make a claim for reimbursement to the community estate for labor expended on the home.
The judge in your case can divide up community property however it wants so long it is done in a just and right manner. Reasonable and fair does not always mean equal, mind you. This means that expecting a 50/50 split could leave you a bit disappointed especially if you played a role in the divorce more than just in being unable to get along with your spouse. Let's walk through some of the factors that a court will look to when diving up the property.
If you or your spouse is the primary caretaker for your minor children, then this will be a factor n that parent’s favor. Being at home a great deal of the time with small children prevents you from working traditional hours. This reflects in your income and would be a point in your favor that a court could utilize to award you a disproportionate share of the community estate. In some cases, a judge would not award spousal maintenance. And when those kids have doctor's visits, school extracurriculars, and the like any increase in the sort of take-home pay you receive would be appreciated.
Next, a judge would look at the amount of separate property that you and your spouse own to determine if a disproportionate share of the community estate would be warranted. For example, if you owned a great deal of separate property while your spouse owned very little then it is likely that a judge would think hard about awarding your spouse a disproportionate share of the community estate to level the playing field. The same would go for you if you were the spouse who had less separate property.
Your age and that of your spouse would be scrutinized. Older people have less aptitude to shift their work ethic and skills toward new work endeavors. As a result, if you are much younger than your spouse then that would likely be seen as a point in favor of your spouse. This is especially true when it comes to retirement savings. If you both are approaching retirement age the division of retirement benefits is a key part of your case.
What level of education do you have? The more educated you are, theoretically, the better equipped you are to find employment after a divorce. The less education you have you may be less able to take on new responsibilities in the employment field after your divorce. At the very least your lack of education may limit you to work that is less well-paying. As a result, the community estate that you do have may not be able to be split equally. Instead, the property may need to be divided up in a way to favor the spouse with a small amount of separate property that does not feel the brunt of the transition after a divorce.
How is your health? How is the health of your spouse? This is a question that courts ask themselves all the time when it comes to trying to figure out how to divide community property. The healthier you are the better equipped you may be to enter the economy and work for an extended period. If you or your spouse are ill or have a chronic health issue, then you may see that spouse receive a disproportionate share of the community estate presented to them by a family court judge.
Work history is the last issue that I would like to bring to your attention. If your spouse has worked for a long time in a highly lucrative field, while you stayed at home to raise kids and tend to the home then you may think that you are in trouble if your spouse files for divorce from you. However, because of your spouse's ability to enter the workforce and immediately find employment, you may be at an advantage when it comes to the division of community property. That does not mean, however, that you will never have to work again. However, what it does mean is that you may get a break at least initially in being able to retain more than half of your community estate.
The importance of having experienced representation in a divorce
Having an experienced attorney to guide you in a divorce is crucial. There is so much to keep track of in a divorce that it can feel like you are a plate spinner who is having trouble keeping all those plates in the air. Rather than attempting to balance those plates yourself, why not seek the assistance of an attorney who has been there and done that for people just like you across southeast Texas.
Assuming that you can handle your divorce, the case is a dangerous assumption. Not only are risking a lot on representing yourself, but you are putting the futures of your children and family at risk, as well. Rather than assuming your way through a divorce, you should contact an experienced family law attorney to help determine what the areas of focus should be for your case and to learn how an attorney may be able to assist you and your family accomplish goals.
Questions about the material 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. One of these consultations can be a great way to have your questions answered as well as to learn more bout how your family's circumstances may be impacted by filing a divorce or child custody case.