How will our property be divided? - Divorce Property Settlement Frequently Asked Questions:
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:
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. For example, if you have a large sum of inheritance money, the judge could increase the percentage of community property awarded to your spouse.
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. Once you get to trial, the matter is totally "out of your hands" even if the two of you would be willing to do something differently from what the Court orders.
I Know Someone Who Got Divorced without An Attorney – Why Hire One?
A frequent problem is that although parties may agree to specific settlement terms, they may not know how to express them in a way which will be approved by the Court or which will be enforceable if one party does not fulfill a promise.
Too often, parties contact me for the first time several years after they were divorced in order to attempt to "fix" problems caused by the fact that they entered into an agreement without the benefit of legal advice. This can sometimes cost more money than they would have paid an attorney to handle their divorce in the first place!
Doing it right the first time helps to keep the parties from having to go back to Court later saving both parties money and aggravation! An attorney will make sure that all issues are addressed and handled in a way that is enforceable. Noone wants to find out two years after their divorce that the tax language was not right; that they can't sell their house because it was not transfered properly; or that the "injunction" language they wrote in to protect their children was not written in a way the Court will support.
The confidence received from using an attorney will give you the sense of closure you need to put your divorce behind you and move forward to a new beginning and second chance for happiness!
Am I Entitled to A Portion Of My Spouse’s 401-K or Retirement?
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."
If the "earning" spouse does keep 100% of these assets, it is presumed that they will have "traded" that by giving their spouse some other asset of equal or greater value. For example, if wife is keeping the marital residence (valued by subtracting remaining mortgage from fair market value) and husband is keeping all of his retirement benefits and these assets are rougly equal in value, then technically each party traded their ownership percentage to the other to accomplish a fair division.
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. This is because you used "community property money" to pay down a debt on your spouse's "separate property."
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 alimony is ordered by the Court but it requires specific circumstances and is not usually ordered for a period longer than three years, although there are exceptions.