5. PROPERTY SETTLEMENT

WHAT IS COMMUNITY PROPERTY?

Anything which was not owned prior to the marriage, inherited or received as a gift is presumed to be community property. Personal injury recoveries can also be separate property. If a person has recovered funds representing a loss of earning capacity during the marriage, however, that is considered community property.

WHAT IF I HAVE SEPARATE PROPERTY?

Since the presumption is that all property acquired during the marriage is community property, it is your burden to prove that the property in question is, in fact, separate and you should start now to collect all of the documentation you can to support your claim.

DO I HAVE TO SPLIT MY PROPERTY ON A 50-50 BASIS?

Community assets and debts are divided in a "just and right manner." This may or may not be a 50-50 split. There are many factors which enter into this equation, including but not limited to, fault grounds, the respective ages of the parties and their health, differences in education and the ability to earn a living, special needs of either party and the separate property owned by each spouse.

WHAT IS AN "INVENTORY AND APPRAISEMENT"?

This is a list of all property, both assets and liabilities, community and separate, of both parties. Each party completes his or her own inventory and includes values of the assets and up-to-date balances on the debts. It is sworn to before a notary public, and then provided to the opposing party and is filed with the Court.

Following are just a few of the more important items included:

     1. Fair market value of home minus amount of mortgage payout.

     2. Current values on vehicles minus any remaining debt.

     3. Value of any 401-K accounts, IRA’s and pension funds, etc.

     4. Cash surrender value of life insurance policies.

This document is the basis of the parties’ property settlement.

WHAT IS A "CLAIM FOR REIMBURSEMENT?"

There are several different varieties of these claims, each of which will need to be described in detail. However, an example would be if you used your inheritance money as a down-payment or to make mortgage payments on either a community property home or the separate property home of your spouse.

The idea is that you want to be compensated for having contributed to the increase in value of the separate or community property asset by using funds which belonged only to you.

CAN THE JUDGE GIVE MY SEPARATE PROPERTY TO MY SPOUSE?

No, but the judge can consider your separate property in several ways while making a decision as to how to divide the community property.

CAN THE PARTIES DECIDE HOW TO DIVIDE OUR PROPERTY BY OURSELVES?

Absolutely, and you are encouraged to do so, with the help of your attorneys!

I KNOW SOMEONE WHO GOT DIVORCED WITHOUT AN ATTORNEY – WHY HIRE ONE?

A frequent problem is that although parties may agree to a specific settlement term, you may not know how to express it in a way which will be approved by the Court or which will be enforceable if one party does not fulfill a promise.

Although I am happy to be of service to you, I hope you will consider hiring me to represent you in your divorce. Too often, parties contact me for the first time several years after you are divorced in order to attempt to "fix" problems caused by the fact that you entered into an agreement without the benefit of legal advice.

Doing it right the first time will keep you out of court later saving you money. You can rest assured that your rights have been protected and your agreement is fair and equitable.

This confidence will give you the sense of closure you need to put your divorce behind you and move forward to a new beginning and chance for happiness!

AM I ENTITLED TO A PORTION OF MY SPOUSE’S 401-K OR RETIRMENT?

These benefits are considered community property and are, therefore, divisible on divorce. Commonly, assets of this type require a Qualified Domestic Relations Order for the spouse of the employee who earned the benefit to receive a portion. The spouse of the employee is referred to as the "Alternate Payee."

WHAT IF MY SPOUSE WAS ALREADY WORKING FOR HIS OR HER EMPLOYER BEFORE WE GOT MARRIED?

We have special formulas based on Texas case law to apply in circumstances of this kind in order to determine the amount of the benefit to be considered community property.

WHAT IF MY SPOUSE AND I LIVE IN A HOUSE THAT HE OR SHE OWNED BEFORE WE GOT MARRIED?

If you are paying on a mortgage on that property, you may be entitled to some compensation depending on the specific circumstances of your case.

CAN I GET ALIMONY AFTER MY DIVORCE?

If the parties agree to this, it is called "contractual alimony." These payments are considered "income" for tax purposes. Sometimes post-divorce spousal maintenance is ordered by the Court but it requires specific circumstances and will not be ordered for a period longer than three years.