Divorce can be a painful and emotional experience for everyone involved in the process. During this trying time, you may have to make very big decisions that can affect your life later on. This is why it is so important to hire an attorney that you feel comfortable with that can be the voice of reason when you may be unable to think clearly. We sometimes encounter situations where a spouse feels wronged, so they ask to be awarded property that would not benefit them, out of spite.
For example, a spouse may ask for a sports car that has $40,000 owed on it and is worth $35,000, instead of the reliable sedan that is already paid off (worth $15,000) because their partner loves the sports car. Why would anyone want the car with no equity, when clearly, the reliable sedan is the better value? The answer is simple. Divorce is often an emotional event and may affect a person's judgment. A good lawyer will keep your best interests in mind when dividing property.
Texas is a community property state. What this means is, while two people are married, property acquired is owned 50/50 by each spouse. This property is called community property. There are exceptions to this rule, but generally speaking, everything acquired during the marriage is owned equally by both spouses as community property. This means that if a wife goes out and purchases a designer purse, it is owned by both her and her spouse. It does not matter that her husband does not use the purse. If it was acquired during the marriage, it belongs to both parties as community property. If a husband purchases a car with his income while he is married and only lists his name on the title, his spouse still has half ownership of that vehicle; it does not matter whose name appears on the title.
Property that is not community property is classified as a spouse's separate property. Some examples include any property owned by a spouse before marriage, gifts or inheritance, and certain personal injury damages. At the time of divorce, this becomes important when it comes time to divide the property. Generally, the property is divided half and half, but any separate property is not included in the totaling of the marital estate.
How is Property Divided?
The simple rule is that community property is divided in half, with one half to each spouse. This, however, can be problematic when it comes to property such as real estate. One solution would be for one spouse to buy out the other's interest to keep the house. For example, if there is a married couple and their community property includes:
A house worth $100,000 - with $50,000 being owed
A piece of land worth $50,000 - paid off
The total assets are $100,000 (The house has $50,000 in equity). What can be done here is that spouse A can keep the house by compromising with the other spouse and giving them the piece of land. Real life is usually more complicated, but the concept is the same.
Fault Based Divorce
What if you believe that you are owed more than half of the marital estate in your divorce? The previous examples all assume a "no-fault" based divorce, or what is sometimes referred to as irreconcilable differences. There are some instances where you may be awarded more than half of the estate in a divorce. The fault-based grounds include adultery, abandonment, cruelty, and felony conviction. In these cases, you may be entitled to a disproportionate share of the estate, however, keep in mind that these circumstances will need to be proven. Whether it would be possible would best be discussed with a lawyer for your specific circumstances.
Separation in Texas
There is no legal separation in Texas. What is possible is an informal separation. Sometimes a couple needs time to work things out. Perhaps counseling and time apart are what's needed to reconcile. As stated previously, Texas is a community property state. Because of this, it is important to speak with an attorney to make sure financials stay separate in the event a divorce later becomes necessary. Think about it like this: Imagine that a couple decides to get separated where one spouse does not agree to the separation. The other leaves in frustration to stay with their friend. A week later, the other spouse wins the lottery. Well, of course, the previously frustrated spouse now wants to reconcile. After all, half of those lottery winnings belong to them!
Now, this is a far-fetched example, but it stresses the importance of speaking with an attorney if you are thinking about divorce or separation. If separation is desired, your attorney can draft what is called a "partition and exchange agreement." This can ensure a fair property agreement until a couple decides to reconcile or proceed with divorce proceedings.
Some Things to Keep in Mind
If there are children of the marriage, a "suit affecting the parent-child relationship," or SAPCR, will need to be filed along with the divorce. In the case of informal separation, a SAPCR will also be necessary in addition to the partition and exchange agreement. I will be covering child custody and common family law issues in a future post, so be sure to check back soon.
Divorce can be stressful, but a lawyer can help lower your stress by letting you know what to expect, and by helping you devise a plan to demand assets according to your needs and situation.