Whether you are the person wanting a divorce or are being served with divorce papers, the process can be an emotionally draining one. It is important to prepare yourself for the time, frustration and expense that comes with the divorce process. Filing for Divorce: Managing Your Expectations was last modified: June 13th, 2018 by alberto.garcia
That may be an exaggeration. But divorce in a community property state can be complex. The emotional turmoil that couples face is only one part of the equation. Dividing the tangible assets acquired while married is a factor as well. It is easy to feel that one side is receiving an unfair portion of property but doubly so when one is surprised to learn that in Texas family court, property division has strong guidelines. By understanding the rules that courts in Texas use for property division, each side can minimize unpleasant surprises.
In Texas, a divorce follows a fairly straightforward process trajectory beginning with separation and ending in a final decree which outlines what the court deems to be the correct division of assets and post-divorce responsibilities by both parties. One of the points where complexity arises is from the facts surrounding what is community property and what is not. The definition of community property is very broad and even counterintuitive if you look strictly at external appearance of the documents that describe different types of property.
Community property in Texas is defined as:
Sec. 3.002. COMMUNITY PROPERTY. Community property consists of the property, other than separate property, acquired by either spouse during marriage.
Sec. 3.003. PRESUMPTION OF COMMUNITY PROPERTY. (a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.
(b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.
So, unless certain specific criteria are met, any property acquired by either spouse during a marriage is community property. Also, most debts acquired by either spouse are community debts. This can seem counter intuitive at times. For example, a home whose title is in the name of only one spouse, if purchased while married, is still considered community property and, in the event of a divorce, will be factored into the list of assets that will be divided in the decree. This brings us to an important point about community property. Many people assume that community property will be divided evenly between the two parties. This isn’t necessarily the case.
The judge in a divorce proceeding has latitude in assigning how much each spouse can receive in the judgement. First, if one spouse is the primary cause for the divorce because of infidelity, cruelty, conviction of a felony, legal abandonment, living apart for more than three years or if one of the spouses has been confined to a mental institution, the innocent spouse could receive a larger monetary portion of the community property. In addition, a judge could favor a spouse with considerably less potential earning power, poor health or other factors by giving that spouse a larger share of the community property to assist that spouse in supporting him or herself, post-divorce.
It is very important to understand how all of the elements of a particular situation can affect the outcome of a divorce. However, the unfortunate reality is that most people that find themselves negotiating the twists and turns of the legal system are ill-prepared to know what the best strategy is. The section of the Texas Family Code that just defines the basic rules of Community Property is 23 pages and almost 4500 words long.
Your only realistic choice is to retain competent legal counsel. Rogers Garcia Patton PLLC understands how overwhelming these life events can be and has even prepared a list of questions that can help you begin the process of collecting the information you will need to receive a fair outcome in your divorce. Even if you haven’t started the process and are just weighing options, it pays to go through our Divorce Information Questionnaire to give yourself an idea of some of the things you will need to know. Submit the questionnaire and we can contact you to learn more about your particular situation. We understand how difficult your situation and welcome you to reach out and let us get you the help you deserve.
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