Community Property
All assets acquired during the course of the marriage are usually considered community property, which means they are usually split equally upon divorce.
What is considered to be community property may be contested, which will allow you to maintain your assets as personal property. However, you will need to have clear and convincing evidence if you are to be successful.
A Houston property division attorney can guide you through the process and help you gather the documentation you need to ensure that the division of property as either separate or community is fair.
Exceptions
Aside from the assets you already had going into the marriage, there are some other exceptions to community property. Any valuable gifts you received that were specifically for you and not for the family will also be yours to keep. These could include monetary gifts but also items that have retained their value or even appreciated. If you or your spouse have ever received money as compensation for a personal injury, you’ll also have to consider whether it’s joint.
Those funds meant for the injured person’s own use, for example, to pay for medical bills or to make up for mental health problems like post-traumatic stress, won’t be split. On the other hand, compensation for a loss of family income or the main breadwinner’s inability to perform their job should be distributed equally because it’s meant to sustain the entire household, not just the injured person.
How Do I Know Which Assets Are Separate Or Community Property?
The lawyers at Skillern Firm Divorce & Child Custody Lawyers have been asked this question many times in consultation with a potential client. Generally, the Court will make a just and right division of the marital assets and property, and often, that division is based on an agreement between the parties.
Under Texas law, what is considered “just and right” in terms of property division, is that the division of the property must be equitable given the circumstance. That is because in Texas, there are grounds that the Court can consider: 1) fault in the breakup of the marriage; the disparity of earning power between the spouses; 3) each spouse’s health; 4) which spouse has custody of the children; 5) each spouse’s education; and, 6) future employability of the spouses.
Dividing property into separate and community property can be challenging. A good first step is to determine what assets you owned before you were married. An attorney can help you divide your property and will help you to provide evidence of which assets are personal to you.
A property division attorney will help you navigate the community property system so that you divide marital property in a just and fair way that protects your rights and interests as well as those of your children.
Division of Property
In Texas, property acquired during the course of a marriage is presumed to belong to spouses equally. The Judge does, however, have the power to split community property equitably, in a share that they deem to be fair.
If you believe that this is unjust, you can fight for certain property to remain separate with help from a property division lawyer. The court may consider the following factors:
- Whether one spouse becomes the primary caregiver for their children.
- Whether one spouse was at fault for the end of the marriage.
- The ages, education, and health of spouses and their earning capacities.
- The amount of separate property each spouse owns.
Our Houston property division lawyers play a crucial role in distinguishing separate property from community property and advocating for its exclusion from the marital estate during division. Understanding these foundational distinctions is crucial in any divorce proceeding, especially in a community property state like Texas. Having a skilled Houston property division attorney from Skillern Firm Divorce & Child Custody Lawyers can make a significant difference in navigating these complex legal waters.
The Intricacies of Personal Property Division
Personal property, including household items, collectibles, vehicles, and jewelry, may seem less significant than larger assets, but their division can still be contentious. Our Houston property division attorneys help clients navigate the intricacies of personal property division, ensuring a fair outcome.
Locating All Assets Is Necessary For A Fair Outcome
We provide consistent attention to you and your need for information and guidance. We can help you protect, account for and accurately value both the obvious and not-so-obvious assets and debts such as:
- Retirement accounts, pensions and investments, including shares of a business
- Your house, vehicles and any other properties you own
- Mortgage debt, credit card debt, medical debt, student loans, business loans and other debts
- Special items such as pets, furniture, heirlooms, jewelry, artwork and more
- Any business holdings tied to the marriage, including family businesses (read on for more detailed information below)
Sometimes, a spouse might hide or destroy assets. Our team is thorough, and we will work hard to locate hidden property, including pulling in forensic accountants to uncover secret, stashed or offshore accounts. When warranted, we hold the other party accountable for any damage to or wasteful dissipation of marital assets.
Complex Property Division Issues
Navigating complex property division issues during divorce can be an overwhelming and daunting task. This is where the expertise of a Houston property division lawyer can be invaluable, as they work tirelessly to protect your rights and interests.
Some assets are particularly difficult to divide. Tracking separate property claims, valuation methods, or the validity of appraisals can make the process feel particularly daunting.
Some assets that can be particularly challenging include:
Dividing Retirement Accounts
Retirement accounts and pension benefits that were contributed to during the course of a marriage are community property. This can be challenging to divide as you will need to assess how much of it should be considered marital property. An experienced attorney can help you divide challenging assets such as pensions and stock bonds in a way that is fair and reasonable.
Handling Business Assets and Business Holdings
Business assets and holdings can significantly complicate property division, especially if a business grew substantially during the marriage. Accurately valuing these assets and determining whether they are community or separate property can be challenging. Our Houston property division lawyers work with financial experts to ensure a just division, whether it involves a family business, partnership, or substantial shares in a corporation.
At Skillern Firm Divorce & Child Custody Lawyers, we are uniquely prepared to navigate high-asset divorces for clients in the Greater Houston area. Attorney Kathleen LeFevre, a senior associate here at Skillern Firm Divorce & Child Custody Lawyers, has a long history of success in helping clients through high-asset divorce. She has won numerous awards for her dedication to her clients, including Top Rated Family Law Attorney in Sugar Land, TX, by Super Lawyers.
What If My Spouse Tries to Hide Assets?
Often, we deal with cases where one spouse tries to hide some of their assets before the divorce proceedings so that they are not subject to the calculations. By hiding the asset they hope that they get to keep the asset as well as the other assets awarded to them.
To do this, they may gift the asset to another family member or friend, or they may change the name on the title.
In Texas, it is a legal requirement that you are fully honest when it comes to disclosing your assets at the start of the divorce proceedings. If it is found out there are hidden assets, there may be legal consequences and the Judge will not look fondly upon the spouse caught out.
If you have reason to believe that your spouse is hiding assets, the best thing to do is to tell your attorney. They will be able to investigate, or seek a financial expert who can help them locate and value the asset so it can be included in the calculations. They will also ensure that the Judge is made aware of what happened.
How Texas law influences asset division
Texas law plays a significant role in shaping the property division process during divorce. As a community property state, Texas considers most assets acquired during the marriage as belonging to both spouses equally. This principle applies unless there is a prenuptial or postnuptial agreement stating otherwise. Moreover, even assets brought into the marriage can become community property if they were commingled with marital assets. Understanding these nuances can be challenging, but with a skilled Houston property division lawyer’s guidance, you can navigate the process effectively.
What is Equitable Distribution?
Texas is an equitable property division state, and this means that personal property owned and acquired during the marriage that is classed as community property, is subject to equitable division.
Equitable means fair division. It does not mean equal division, and this is important to understand. In equitable property division states, property does not need to be split equally 50/50 like in some states. The Judge has the final say and this means if they believe one party deserves a larger split of the marital property, they have the power to do so.
This makes it incredibly important to seek legal representation from a skilled attorney to present your case. The skill and reputation of your attorney could be the difference between a split that seems fair and reasonable, and one that feels unfair.
In order for any decisions to be made, the property owned by both spouses needs to be valued, and sorted into the two types of marital property.
Equitable Distribution Is Not Equal
When going through a divorce in the state of Texas, it is worth remembering that equitable division is not the same as dividing property equally. While a 50/50 may be equitable, equitable division places much more power in the hands of the Judge. This means that the case you present may affect their judgment when it comes to making a decision.
In order to make this decision, the courts will investigate the financial circumstances of each party. They will take into account each couple’s separate property assets, earning potential, and the nature of the couple’s child custody agreement.
For example, if the marital home falls under separate property and belongs to one party, and the other spouse gave up their career to maintain the family home and look after the children, the Judge may award a larger percentage of the community property bank account. If the couple has $40,000 in savings, the Judge may decide it is equitable to award $30,000 of those funds to the spouse who gave up their career.
This is one of the most important reasons to seek an experienced local attorney. They will likely have experience dealing with the Judges in their local area and will have an in-depth understanding of equitable distribution and community property rules. This experience is invaluable, as it gives them an edge in preparing a compelling case on your behalf, since they know how the Judge may act.
Ask a Houston Property Division Lawyer: What Will Happen To My Business?
For most people, professional life is somewhat separate from personal life. For business owners, however, the distinction can blur. The personal matter of divorce could particularly have implications for the business – and vice versa.
The classification of the business is critical. If the business counts as community property, both spouses may claim a portion of the value. If the business can be proven to be separate property, the court may not consider its value when determining awards, spousal maintenance and other matters.
The division of a business in divorce depends on several factors, including:
- When the business was started
- Whether only one or both spouses started the business
- Whether the spouses share co-ownership
- The existence of a premarital agreement that determines business ownership
- Whether marital assets were used as business capital at any point
Comingling marital funds and business funds is a common reason why a spouse might have a claim in an otherwise separate property business. For example, after using a joint account to buy business-related tools, a spouse may have a reimbursement claim.
Depending on your circumstances, it may be in your best interest to prove whether the business is a community property or not.
Dividing The Value Of The Business
When both spouses are entitled to business assets, we can streamline the asset division process. You can review your options with our attorneys, which may include selling the business, liquidating its assets or keeping it intact through “buying” your share with other community property. We will advise you as to each opportunity and consequence.
Spousal Maintenance in Texas
After the division of assets, spousal maintenance is another highly contested issue that could make a big difference to your future.
Spousal support ensures that both spouses can meet “minimum reasonable needs” after the divorce. It is treated as separate from property division.
In Texas, the court will not always grant alimony. There needs to be a justification such as in cases involving domestic violence, an inability to be self-supporting due to a disability, or a marriage lasting at least 10 years whereupon the requesting spouse does not have the ability to earn a sufficient income.
Even if one of these factors applies to you and your case, the requesting spouse must still provide evidence that they are making an effort to become self-supporting.
The court determines alimony based on factors such as the length of the marriage, each spouse’s education, how each spouse contributed to the marriage, the ability of each party to pay support, and the health of all involved.
Whether you think you should be owed alimony, or you don’t think you should have to pay it, the property division lawyers at Skillern Fim can help.
How Is The House Split In A Divorce?
When it comes to the property agreements regarding the marital home, there is often a lot of conflict and arguments over what happens. It is rare for couples to agree on how to allocate the home. If they cannot come to a decision, it will be down to the Judge to make the decision on their behalf.
There are two common routes that this can take:
The House is Sold, and Proceeds are Divided Between You and Your Spouse
The first way that it may go is that the parties agree that the house be sold and the proceeds split between the spouses in an amount agreeable. Again, this does not have to be a 50/50 split.
If the proceeds amount cannot be agreed upon, the Judge may decide the split and may award more of the funds to the spouse who spent the most on mortgage payments and renovations.
Alternatively, if there are children, the Judge may award more of the funds to the parent who is going to be the primary carer of any children from the marriage. This will give them an easier time when it comes to finding new accommodation for the child and the parent to live.
Legally Transferred to One Spouse
The second common option is that the couple agrees that the marital home should be awarded and legally transferred to one spouse. This often happens when a divorcing couple has one spouse who is going to be the custodial parent going forward. This prevents as much displacement as possible, which is usually in the best interests of the children.
To combat this, the Judge may award the house to one spouse and a larger proportion of the assets in bank accounts and savings plans to the other spouse to balance the scales.
How Is Debt Divided?
Shared Debt
As a community property state, debt that is accrued during a marriage is usually shared and classed as community property. Shared debt can include credit card debt and loans, even if the loan is only in one person’s name. If the money was used by both spouses or spent on renovations on the house, it is usually seen as shared by the courts.
The Judge may decide that debts should be split down the middle, and both parties are responsible for their half. They may also decide one spouse deserves to pay more of the debt.
Ultimately, it is down to the Judge, but they may take into account the amount of the debt, the financial ability to pay the debt off for each spouse, and the reason the debt was incurred.
Separate Debt
Any debt acquired by an individual before they got married will remain separate property, and they will be responsible for paying that debt off. College debt, student loans, credit card bills, and anything from before the marriage is separate from the marriage.
Debt that is acquired prior to the marriage typically remains separate from the equitable distribution process. For example, if one spouse went to college prior to getting married and owes student loans, they would continue to maintain sole ownership over those loans after the divorce.
Using Ethical Strategies To Protect Your Interests
Your divorce case does not have to become a full-blown courtroom conflict. We will work to ensure that whenever possible a reasonable agreement can be met. When this is not possible, we are prepared to pursue litigation. No matter which route your case requires, we provide professionalism and integrity while prioritizing your best interests.
What To Look For in a Divorce Lawyer
When it comes to filing for divorce, it is important that you obtain representation from an attorney who will fight for your rights aggressively. You should always look for an attorney who is experienced and has numerous wins under their belt. This will allow them to help you through your divorce as smoothly as possible.
For many of our clients, there has never been the need for an attorney before and this may make the research and decision on who to choose, a difficult one.
Here is what you should look for:
Focused on Mediation
When it comes to divorce proceedings and family law, the main goal should be to come to agreements with the other party amicably, without sacrificing what you deserve. This will allow you to avoid the additional court costs. It will also mean that the Judge does not have to make decisions on your behalf. There is no guarantee of which way they will lean when making a decision, and you may find their decisions are not favorable to either party.
Avoiding conflict and working amicably also avoids conflict. This protects any relationship that may still survive. Being amicable with your ex-spouse becomes even more important if you have children together. Remember, the child’s best interests are the most important. If you and your spouse can be amicable, it will be in their best interests. Studies have shown that children of divorced parents develop better if they have access to both parents and conflict is minimized.
Here at Skillern Firm Divorce & Child Custody Lawyers, we prioritize mediation above all else. This saves you time, money and protects your mental health as much as possible.
Litigation
While mediation is crucial if you want to come to an agreement amicably with your spouse to avoid court costs and the lengthy process, sometimes it simply does not work out. Sometimes spouses are so emotional that they cannot come to amicable agreements. When this happens, you need to ensure your attorney is prepared and capable of fighting your case for you in the courtroom.
Compassionate
You may be dealing with your attorney for several years and this means it is important they are compassionate to your needs and you feel comfortable in their presence. You may have to talk to them about personal matters and if you cannot, you may hamper their ability to fight on your behalf.
Qualified
Here at Skillern Firm Divorce & Child Custody Lawyers, our family law attorneys are trained to the highest standards, coming from reputable law schools. Our Senior Associate Caitlin B. Thorpe, senior counsel, Robin Klein, Partner H. John Schmude, and our managing partner, Matthew Skillern, are all Board Certified in Family Law by the Texas Board of Legal Specialization, which is a recognition given to only 1% of family lawyers.
