When it comes to getting a divorce, most people are concerned with two major areas of their lives: their children and their property. Would I speak to a potential client of the law office of Brian Fagan I will oftentimes ask that person to imagine that my pen is a magic wand in that I am a wizard who can grant them wishes? At that point, I’ll ask them if I could grant 3 wishes for them what would that be in conjunction with their divorce. Most of the time, these folks will tell me that their goals are something related to having full custody of their children Anne keeping all of their property.
We have written a lot of blog posts here regarding what full custody means to people. The reality is that full custody to you may mean something completely different than what full custody means to me. Regardless, full custody usually tends to mean that you get your kids more often than your spouse does. You want to be able to have your children more often than not and as a result, the idea of full custody is extremely appealing to you. You may even tell your attorney that this is your number one goal for the case.
When it comes to the part of your case given the property it is also understandable to want to retain as much of your property as possible. Most people, understandably, do not know the ins and outs of Texas property law. Property in your marriage is defined by the Community property laws of Texas. As a result, before we can go any further and discuss subjects relating to property division we need to know a little bit about the Community property laws in Texas and how they stand to impact your divorce. From there, we can explore how to get a divorce and keep everything as far as your property is concerned.
Community property laws in Texas
Texas is a Community property state. This means that our state adheres to principles related to Community property when it comes to dividing assets, personal property, and real property at the time of someone’s death or at the time of divorce. There are many nuances to the world of Community property law. Lawyers spend a great deal of time learning and then updating their knowledge about Community property because it is such an important part of a divorce. We will not be able to cover the entirety of Community property law in one blog post. However, I would like to share with you some of the basic tenants of Community property law that may become relevant in your divorce.
The most important thing to keep in mind when it comes to Community property is that all property is presumed to be Community property at the time of your divorce. Community property is any property that was acquired or purchased by you and your spouse during your marriage. There is such a thing as separate property that could belong to either yourself or your spouse separately from the other period this would be any property owned before your marriage or acquired during your marriage by gift or inheritance.
The burden is on either you or your spouse when it comes to trying to prove that property is separately owned. Otherwise, all property is presumed to be owned by you and your spouse together. This means that it is subject to being divided in the divorce either by a family court judge or by you and your spouse in negotiations. It is important to understand that the law will aim to divide the property up in a divorce equitably. This means that fairness and even division based on the circumstances of your case will be the baseline assumption.
However, do not assume that a judge will take all of your property, determine its value and then proceed to divide things perfectly down the middle. That is an unlikely outcome it is also impractical. It will be much more common to imagine putting all of the property that you and your spouse own in the middle of the kitchen table and then dividing the property up based on the many circumstances of your case. Remember, not only do you have the items in your house to divide but you have a family home, vehicles, retirement funds, and simple checking and savings accounts.
These are just the sort of assets and pieces of property that most of us have period some of you will have additional assets and many more of you will have debts that may be part of the community estate. For all these reasons, it is vitally important that you and your attorney organize your property, determine an estimate of the value and then work with each other to figure out how you see the property is divided up in a perfect world. There are no guarantees as to how property will be divided. However, you can begin to determine how you best see the property divided and then go from there based on the circumstances of your case.
What role will the circumstances of your case play in how property is divided?
Everything being equal, you can anticipate marital property is divided up fairly equally between you and your spouse in the divorce. Of course, your divorce will have certain circumstances at play that are unique to you and your spouse’s marriage and your family’s life. As a result, it would be unfair to assume that property will be divided exactly right down the middle. Even if you consider your life to be rather mundane or average the simple truth is that everyone’s lives have factors and circumstances that will play a role in how their Community property is divided if they get a divorce.
First, let’s just consider the circumstances involved in your family. The most crucial distinction you can make when it comes to a divorce is whether or not you have children. Having children means taking additional considerations into mind when dividing up your largest asset in all likelihood: your family home. The simple truth is that many families value consistency and stability for their children over factors like what is in everyone’s best interests financially. This means that rather than selling a family home after divorce you and your family may choose to remain in the home to provide your children with some sense of normalcy after the case.
Whether or not this is a good idea depends almost entirely on you and your family’s circumstances in outlook. The general advice that I will give to clients is that children are fairly resilient and probably more resilient than we realize. Keeping a family home when selling it would be more prudent may be more intimidating for certain families if the children have had a particularly difficult time in managing the divorce. Bear in mind that in my experience the better parents are at managing divorce the better off the children will be as well.
Keep this in mind when it comes to your attempts to determine what to do with the family home. If your goal is to end up with the family house in your divorce then you should examine why it is that you want the house. Is it purely for your children? Is it because you have sentimental attachments to the house? Is the house in a great location that you see yourself living for many years? Is it an ego thing that you want the house and don’t want your spouse to be able to enjoy it? These are all legitimate, very human considerations. As a result, you should consider all these reasons we make determinations that are in your best interest financially.
Ideally what you want to avoid is a situation where you are making decisions based on what is best for the long-term future of your family. It is understandable to want to make decisions based on the short-term needs of your children. Your children will be with you every single day in spirit even if they are away from you in reality. This may because you too take a longer look at keeping certain assets like a house that may provide the children with some degree of normalcy seeing stability in their lives, theoretically.
If you do not have children then you will likely be able to approach your case from a much more objective perspective. We need to realize that it is OK to make decisions based on emotion and considerations that are not purely objective. Nobody would say not to consider your children in a divorce. However, what I would tell you is that if you do not have children you need to be able to approach is she’s regarding Community property much more objectively.
A court would also look to factors like your educational level, work experience, physical health, and age 1 determining how to divide the property. These factors are all relevant because they play into whether or not do you would be able to land on your feet from a financial standpoint after your divorce. If you can become and remain employed after a divorce then you are unless need to be awarded a disproportionate share of your community estate. On the other hand, if you have issues with yuan financial independence then your property may need to be divided up in a way that allows you to ease into post divorce life from a financial standpoint.
For example, if your spouse has been the main breadwinner in your family for the duration of their marriage then you may not be acclimated to working on a day-to-day basis. As a result, you may need to transition more slowly into your post-divorce life from a financial standpoint. Therefore, receiving a disproportionate share of your community estate may end up serving you better in the sense that you will be able to survive financially on your separate income.
Additionally, a court may look towards the role that you and your spouse played in the breakup of the marriage when determining how to divide Community property. For example, if you committed some sort of marital wrongdoing whether it be infidelity, adultery, abandonment, abuse, or wasting of community assets then you may be in a position where you could receive more property than otherwise. The reason being is that a court will want to assess your role in the breakup of the marriage, if any, before determining how to divide the property.
This is where fault grounds for divorce come into play. There is no requirement for you to specify specific grounds for divorce in your original petition. Most divorces do not find that fault grounds played a role. However, specifying improving fault grounds in a divorce can result in changes made to how property is divided. The tricky part of this discussion is having the evidence to prove the fault grounds a curd and that they had an impact on your marriage.
This is where many people are surprised to learn that adultery, for example, does not always result in need a disproportionate share of the property going to the victim’s spouse. The reason being is that a court will assess the impact of which the infidelity had on your marriage period, for example, if the infidelity did not result in wasting of community assets then it may be that the infidelity does not play much of a role at all in the division of your property. Instead of assuming that infidelity will play a certain role in your case, you should speak with your attorney before your divorce so that you can plan for any outcomes that may occur.
Is it realistic to expect that you can keep everything in your divorce?
While having goals is never a bad thing, I recommend having goals that are based on reality and the circumstances of your case. for the most part comma, it is not realistic to be able to walk away from your divorce keeping all of your Community property. While this is true regarding Community property that does not cover all subjects related to your divorce and property. For instance, you can be able to retain all of your separate property since that is not divisible by a judge in your divorce.
Community property is a different story altogether. Most divorce cases are no-fault divorces where there is no official fault ground stated in the case as to why you and your spouse are getting divorced. As a result, awarding a disproportionate share of your community estate to you would be unlikely. In addition, you would have to consider all the additional factors such as your educational level, experience working, and your age when determining how likely it is that you could end up being awarded most of your Community property.
Even then, it is unrealistic to expect that you could receive all of the property in your divorce. Judges will aim to award property equitably. Even if you feel like the causes of the divorce are the fault of your spouse this will not necessarily lead to a judge agreeing with you. If you and your spouse are about the same age, earn similar incomes, and have similar levels of education then you are even less likely to receive a disproportionate share of your community estate in your divorce.
If you are reading this and want to do everything possible to r receive a disproportionate share of your community in the state then you may be asking yourself what comma if anything, can you do to increase your likelihood of a favorable outcome in this regard. The first thing that I would tell you is that it is important to have an attorney to assist you. When you are asking a court to go over and above the typical allocation of the property then you must be organized and prepared to present evidence showing why a disproportionate share of your community property should be awarded to you in the divorce.
Inventorying your property, determining an estimate of its value, and then understanding the circumstances that are relevant when it comes to dividing up that property is important. It would be difficult to be able to bring all these pieces of information together with experience in handling divorce cases previously. Having an attorney available to rely on for advice and perspective is important. Being able to bring all these competing interests together and to determine what your best course of action is what an attorney does for a living.
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 experienced attorneys offer free of charge consultation six days a week via phone, video, and in-person meetings. These consultations are a great opportunity for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case.